SZNKP v Minister for Immigration
[2009] FMCA 812
•4 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 812 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZNKP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG811 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2009 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG811 of 2009
| SZNKP |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal signed on 12 March 2009 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in July 2008 and applied for a protection visa in August 2008. In a statement accompanying his protection visa application he claimed to fear harm from Muslims in Kerala as a Christian, specifically on the basis that he had suffered harm because a Muslim girl he had befriended at College had fallen in love with him, tried to force him to elope with her and had threatened suicide. He claimed that in January 2007 he had been manhandled by Muslim men and kept inside a house, but that he was released following negotiations with the authorities. He claimed he fled to Dubai and later stayed in Tamil Nadu. He later returned home and married a Christian woman. He claimed that in December 2007 police arrested him and accused him of raping the Muslim girl. This was said to have led her to commit suicide. He claimed that Muslim men were searching to take revenge on him and he would have been killed if he had not left India and would be killed if he returned.
The applicant attended a Departmental interview. The application was refused by a delegate of the first respondent who did not find the applicant to be a credible witness and doubted the veracity of his claims.
The applicant sought review by the Tribunal. He attended a Tribunal hearing. In its reasons for decision the Tribunal recorded that during the hearing it put various matters to the applicant for comment, in particular concerns about the credibility of his claims in various respects. It granted the applicant’s request for a further hearing and gave him the opportunity to submit further information. He submitted further documents about his high school and University results.
At the further hearing the Tribunal explained to the applicant that the documents he had provided did not allay its concerns. It put to him that it appeared to be the case on his evidence, that he had broken up with a Muslim girl with whom he had never had a sexual or romantic attachment in 2004, that she had committed suicide at the end of 2007 and that he claimed he had been arrested because of this, but had not been charged with anything. The Tribunal put to him that it was difficult to believe that he had any present problems in relation to this matter, if there had ever been a problem. It also put to him that if the girl’s brothers were after him as he had claimed at the second hearing, this would not be for a Convention reason.
In its findings and reasons the Tribunal accepted that the applicant was an Indian national and a Catholic who came to Australia to participate in World Youth Day. It also accepted that he lived in Kerala where there was ongoing friction between Muslims and Christians and that he had been actively involved in his religion while at school. The Tribunal noted that the applicant did not claim to have suffered any harm because of his religion, either when he was at school or later, and that his claims centred on an alleged relationship that developed in 2003 or 2004 with a fellow college student who was a Muslim.
The Tribunal was prepared to give the applicant the benefit of the doubt and accept that he was friendly with a Muslim girl at college, but did not accept that the relationship developed in the way that he claimed, because when his claims were tested at the Tribunal hearing he was evasive and equivocal about almost every aspect of his account. Specifically, the Tribunal found that the applicant was evasive about the dates of critical events, that he had fabricated events to account for time gaps, that certain aspects of his evidence were vague and unconvincing and other aspects vague and confused and that he was unable to explain, in particular, why he would have been arrested or have been the subject of harm many years later. It also found that the applicant had provided confused explanations and changed the dates of critical events in the course of the hearing when challenged about their plausibility.
The Tribunal also found that the applicant had not repeated a claim he made in his protection visa application in relation to his brother leaving India because of the applicant’s problems. It found no other evidence to support such a claim, noting that the applicant had not claimed that since his departure from India his family had been threatened or that there had been other incidents. The Tribunal rejected the applicant’s claims that his family were harmed or threatened with harm by his adversaries, by the family or supporters of his Muslim fellow student or by the authorities.
The Tribunal also rejected the applicant’s claims that he had been harmed by connections of the Muslim girl he had refused to marry or by the police who he claimed arrested him after the girl committed suicide.
Nevertheless, the Tribunal considered whether there was a real chance the applicant would be persecuted for a Convention reason based on his religion and activities as a Christian. The Tribunal found that the applicant had not been harmed in the past because of his religion. It noted that it had rejected his claims concerning an alleged friendship with a Muslim student and any consequences therefrom, in part because of his religion. Having regard to country information in relation to the situation in India and in particular in the applicant’s home state, the Tribunal was not satisfied that the applicant would face Convention-related persecution for reason of his religion or for any other reason if he returned to India in the foreseeable future. Hence it was not satisfied that the applicant had a well-founded fear of Convention-related persecution in India.
The applicant sought review by application filed in this Court on 7 April 2009. He did not file any amended application, further affidavit evidence or written submissions. He was given the opportunity to make oral submissions today.
The application contains three general and unparticularised grounds of review, being jurisdictional error, breach of procedural fairness and breach of natural justice.
The applicant’s supporting affidavit merely outlined some of the procedural history of the application and attached a copy of the Tribunal decision reiterating the general grounds of review. In oral submissions today, the applicant explained that his concern was that what he said was true and that the Tribunal had not accepted it, and that he had more evidence to prove his case. The Court cannot, however, review the Tribunal’s findings of fact as to whether claimed incidents of harm occurred. That is a matter for the Tribunal and, as I endeavoured to explain to the applicant, merits review is not available in this Court. More generally, credibility findings are a matter for the Tribunal par excellence and it has not been established that the Tribunal findings in this respect were not open to it on the material before it for the reasons that it gave.
The applicant submitted that the Tribunal mainly looked at public media or internet items to decide his case and did not have regard to his specific problems. However, as the first respondent submitted, that is not the case. The Tribunal specifically considered the applicant’s claims said to arise out of a former friendship with the Muslim girl. The Tribunal also considered whether the applicant’s religion and activities as a Christian might put him at risk of serious harm, even though this was not a claim put forward directly by him.
In that respect, the Tribunal had regard to country information in relation to the situation in India, as extracted in its reasons for decision. The selection and weight to be given to items of independent country information is a matter for the Tribunal and no jurisdictional error is established in that regard.
Insofar as the applicant contended that he had country information about the more recent situation in India that was not available to the Tribunal, that is not material that assists the Court to determine whether the Tribunal fell into jurisdictional error on the material before it at the time of its decision.
The applicant also seemed to contend generally that he could not collect evidence at that time to support his case. However it is for an applicant to put before the Tribunal whatever material he seeks to rely on in support of his claims and for the Tribunal to determine whether those claims are made out on the material before it (see Abebe v The Commonwealthof Australia (1999) 197 CLR 510). I note in that respect that the delegate’s decision brought to the applicant’s attention the absence of any documentation in relation to his claims about arrest and detention and that at the first Tribunal hearing the Tribunal gave the applicant the opportunity to comment and also the opportunity to submit further information in support of his claims. He did so and was also afforded the opportunity to comment at a further hearing. No jurisdictional error is established in relation to the Tribunal’s failure to believe the applicant’s claim.
In relation to the general claims in the application for review, in particular, the claims of a breach of procedural fairness and of a lack of natural justice, there is nothing in the material before the Court to support any claim of actual or apprehended bias. Nor has the applicant established any error in the procedural approach adopted by the Tribunal. As submitted by the first respondent, the Tribunal was not required to put to the applicant under s.424A of the Migration Act 1958 (Cth) particulars of its concerns about the credibility of the applicant’s evidence, as this does not constitute information for the purposes of s.424A. Information is related to the existence of evidentiary material or documentation, not the Tribunal’s subjective appraisals, thought processes, determinations or conclusions arrived at by weighing up the evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). The Tribunal’s appraisal of inconsistencies in evidence that the applicant provided in his protection visa application or in the Departmental interview and the evidence that he gave at the Tribunal hearing did not have to be put to him under s.424A. There is nothing in the Departmental interview evidence, as summarised in the Tribunal reasons for hearing, that on its face constitutes a rejection, denial or undermining of the applicant’s claims in the sense considered in SZBYR. Insofar as the applicant took issue with the Tribunal’s reliance on independent country information, such material is within the s.424A(3)(a) exception of the Act.
Moreover the Tribunal considered the applicant’s claims. It was not required in the circumstances of this case to make further inquiries or to investigate the applicant’s claims. It is apparent also that the Tribunal considered the supporting documents provided by the applicant and discussed those with him at the second hearing. It did not simply reject these documents on the basis of the adverse view it formed regarding his credibility. Rather, it had regard to and accepted those documents but rejected, on the basis of what they contained, his claim that he progressed well at college, finding instead that the documents indicated that he did poorly in the exams which he took. Such findings were open to the Tribunal as the arbiter of facts.
The applicant was given the opportunity in submissions today to raise any other issue he wished to raise in relation to the Tribunal decision or procedures. None of the issues that he raised identified any potential jurisdictional error in the findings or procedures of the Tribunal.
As no jurisdictional error has been established on the bases contended for by the applicant, the application must be dismissed. The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The applicant indicated that his employment possibilities were very limited and that he required time to pay any costs. These are not circumstances that warrant a departure from the normal principle, although they may be matters to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 26 August 2009
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