SZNLB v Minister for Immigration
[2009] FMCA 861
•26 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLB v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 861 |
| MIGRATION – RRT decision – Indian claiming persecution for association with banned political party – inconsistent evidence presented to Tribunal – applicant disbelieved – no jurisdictional error shown – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424A |
| Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 609 SZKTIv Minister for Immigration or Citizenship [2009] HCA 30 SZNJT v Minister for Immigration [2009] FMCA 730 SZNJT v Minister for Immigration & Citizenship [2009] FCAFC 108 |
| Applicant: | SZNLB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 843 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 26 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr J Pinder |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 843 of 2009
| SZNLB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in July 2008, and on 28 August 2008 he applied for a protection visa without disclosing any assistance. A short unsigned statutory declaration explained why he claimed to fear persecution if he returned to his country of nationality, India.
The applicant claimed to belong to the Tamil ethnic group and to “the backward community”, and he said:
My parents were strongly supporting the communist ideology although they had strong religious faith. My father was an active CPM (Communist Party of India Maoist Party) which was banned by the Indian National as well as state governments.
I was a member of RYL (Radical Youth League) which was the young wing division of the CPIM political party to which my father had allegiance.
The applicant claimed that in March 2006 his father was arrested by the Tamil Nadu Q branch state police and taken into custody, and “since that time he had not returned back home and nobody knows what happened to him”. The applicant sent letters to government authorities about his disappearance without response. In 2007 the applicant went to the Bangalore area and started to look for a new job. But he was arrested in Karnataka, and taken back to Trichey, where he was kept under remand without bail for three months. He said:
The police told me I have to stop looking for my father; otherwise I would be either killed in an encounter due to my political allegiance or put behind bars indefinitely.
The applicant said his family “split in different directions” and the police warned him never to come back to Trichey again. His further history was not explained, but the applicant made general claims that torture was widespread in India, including in Tamil Nadu, and there was “legalised state terrorism”. The applicant said “if I returned back, I will definitely be killed by the Indian and Tamil Nadu police”.
The applicant attended an interview by the delegate on 24 October 2008. According to the delegate, he gave inconsistent evidence of being employed in the period that he claimed also to have been detained. The delegate said that she was not convinced that the applicant was ever detained by Indian police. She noted that the applicant had been able to exit India without difficulty, and had provided no supporting evidence to corroborate his claims of being a member of a political party. The delegate also thought that if he feared harm in Tamil Nadu he could relocate to another part of the country. The delegate refused the application for a protection visa on 30 October 2008.
The applicant then lodged an application for review with the Tribunal, with a written submission. This contained the statement:
I was a member of CPI (ML)’s youth wing RYL (Radical Youth League). As this party was banned by the Government of Tamil Nadu state as well as the Government of India, the party did not have any identification like membership cards or any thing which hold my name or photos like the other political parties.
His submission also referred to the CPI (Maoist) Party which “fights against” public elections, and appeared to suggest that the applicant had an association with that party. The submission claimed that the applicant had, in fact, not been working after he was arrested by police in 2007, and claimed that he could not live in any other part of India because he would be suspected as LTTE. The submission enclosed a body of general information concerning the activities of Naxalites in Tamil Nadu, and the activities of the Communist Party of India (Maoist). However, the applicant presented no corroboration of his own claimed history.
The applicant attended a hearing of the Tribunal which was rescheduled and held on 9 March 2009. A transcript of the hearing is not in evidence, although the applicant has been given an opportunity to present one. The Tribunal gives only an abbreviated summary of the hearing in its statement of reasons, but there is no evidence before me allowing me to doubt its description of what happened.
According to the Tribunal, the confusion shown in the applicant’s written claims between the Communist Party of India (Marxist Leninist) and the Communist Party of India (Maoist) was also demonstrated in the applicant’s oral evidence. As the Tribunal pointed out, the distinction was of obvious significance since the former party was a legitimate participant in democratic processes, whereas the latter was not. It was the latter party only which was banned in the rest of India, and whose members were of interest to the Indian authorities.
The Tribunal made a decision on 13 March 2009, affirming the delegate’s decision. In brief findings and reasons, it explained why it found that the applicant was not a reliable witness. The Tribunal said that the applicant was “deeply confused as to which party he ever joined”. The Tribunal thought that “at times he effectively negated ever having been a member of the CPI-Maoist and this goes against him”. It said “generally, the applicant displayed great ignorance of politics in India, such that he leaves the Tribunal with the impression that his claims are all poorly concocted.” The Tribunal therefore did not accept that either the applicant or his father had suffered the persecution claimed.
The Tribunal also did not accept that the applicant had a fear of persecution if he lived in a different part of India, noting that he had travelled to Bangalore to look for work. It said it gave no weight to the applicant’s claim about the danger of being taken for a member of the LTTE, simply for reasons of being an ethnic Tamil. It was not satisfied that the applicant faced a real chance of Convention related persecution in India.
The applicant now applies to the court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee nor whether he should be given permission to stay in Australia.
The applicant has filed an application and an amended application, whose style suggests that it was prepared by an unknown helper who is currently very active in helping Indian applicants in this court. As with most of the documents prepared by this person, it contains a number of grounds which are obviously unmeritorious or lacking in any reference to the particular decision of the Tribunal.
The application presents the following grounds:
1.The Tribunal member failed a key component of my claim that my life will be under threat on my return back to India because of my membership with CPI-Maoist. The Tribunal member got confused with CPI(ML) and COI-Maoist. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, or a lack of procedural fairness.
2.It is clear that the Tribunal member failed to honour undertaking. The requirement to put information to an applicant is contained is S424A which relevantly states:
1.Subject to subsection (3), the Tribunal must:
a) Give to the applicant, in a way that the Tribunal consider appropriate in the circumstances, particular of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
b) Ensure, as for as is reasonably practicable, that the applicant understand why it is relevant to the review and
c) Invite the applicant to comment on it.
The Tribunal failed to invite the applicant to comment on conflict matters: therefore the Tribunal had erred by denying applicant procedural fairness in those matters
3.The applicant satisfies the four key elements of the Convention definition as detailed in page 2 & 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
The contention in ground 1 that it was the tribunal member and not the applicant who “got confused with CPI(ML) and CPI-Maoist” is entirely unsupported by any evidence. On the evidence before me, it was the applicant who showed this confusion, both in his written documents and in his oral evidence to the Tribunal. I can find no evidence that the Tribunal’s procedures were affected by any procedural unfairness when the confusion was explored by the Tribunal at the hearing.
The contention in ground 2 that there was a failure by the Tribunal to follow procedures required by s.424A(1) has no substance. That section does not give any rights to an applicant to expect a written invitation to comment on the thought processes of the Tribunal nor to “comment on conflict matters” (see, for example, SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]). In terms of general fairness, on the Tribunal’s description of the hearing, the applicant’s attention was clearly directed to his confusion about Indian politics which was of concern to the Tribunal.
Ground 3 has no substance shown in the present case. It is not the function of the Court to decide whether the applicant “satisfies the four key elements of the Convention definition”. No arguable error of law in the Tribunal’s application of the Convention definition has been pointed to by the application or submissions of the applicant, and I am unable to discern any.
The applicant’s amended application contains the following grounds:
1.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant was not a witness of truth, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
3.The Tribunal failed to comply with s424 of the Migration Act 1958.
Particulars
i.The Tribunal asked question invited the applicant to give information additional to that which the Tribunal had obtained.
a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act.
ii. The invitation did not specify the way in which the additional information may be given.
iii. The invitation did not specify the period within which the information was to be given.
4.The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states
1.Subject to subsection (3), the Tribunal must:
a) Give to the applicant, in a way that the Tribunal consider appropriate in the circumstances, particular of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
b) Ensure, as for as is reasonably practicable, that the applicant understand why it is relevant to the review and
c) Invite the applicant to comment on it.
It is my case that the Tribunal ignore its undertaking to give me an opportunity make written submission about the inconsistencies in my evidence and lacked credibility; therefore the Tribunal had erred by denying me procedural fairness in respect of this issues. If I would provide a submission prior to RRT decision, I believe that I would have a different decision.
Therefore the I submit that the Tribunal failed to analyse properly the “future harm” that I may face if I have to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claim.
Ground 1 is nonsense. The Tribunal’s conclusions were obviously open to it, and the applicant was given an opportunity to be heard in respect of the matters of concern to the Tribunal.
There is no ground 2.
Ground 3 suggests that the procedures attaching to, presumably, s.424(2) of the Migration Act need to be followed in relation to every question put by a Tribunal to an applicant inviting evidence at a hearing. Manifestly, in my opinion, that subsection does not have that effect.
Counsel for the Minister drew my attention to a current controversy in this Court concerning whether the Tribunal’s acknowledgement letter in the form which was sent to this applicant revealed a failure of procedure required under s.424(3) and s.424B. This controversy may well be determined one way or another by the High Court’s judgment in SZKTIv Minister for Immigration or Citizenship which is being delivered this morning, or by the judgments of the Full Court in appeals which are listed for tomorrow. However, it is enough for me at present to rely on my reasoning in SZNJT v Minister for Immigration [2009] FMCA 730, for my opinion that the acknowledgement letter contains no invitation to an applicant to “give additional information” within the ambit of s.424(2).
[I note that the High Court and Full Court judgments which are now available, are clearly contrary to the proposition made in Ground 3 (see: Minister for Immigration & Citizenship v SZKTI [2009] HCA 30, Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109, and SZNJT v Minister for Immigration & Citizenship [2009] FCAFC 108)]
Ground 4 of the amended application repeats the misconception of s.424A(1) which I have addressed above. As I have noted, in fact the applicant did provide a written submission to the Tribunal, and this provided good reasons for the Tribunal to find that the applicant’s evidence contained inconsistent claims about his association with a political party which was of interest to Indian law enforcement authorities.
I can find no substance in the Tribunal’s reasons for the contention that the Tribunal failed to analyse properly “future harm” nor that it failed to properly apply the real chance test.
The applicant did not seek to explain any of the grounds in his applications to the court, either in written or oral submissions. He asked the court for another opportunity for his case to be heard, and claimed to have felt intimidated and confused in the course of the Tribunal’s hearing. However, he has provided the Court with no evidence suggesting any failure by the Tribunal to comply with its obligation to provide the applicant with a real opportunity to participate in a hearing and to present his case to the Tribunal. If he is obliquely suggesting that something happened at the hearing to give rise to an apprehension that the Tribunal had a closed mind, he has not presented any evidence to give substance to that.
On the evidence before me, I am not satisfied that the tribunal’s decision was affected by any jurisdictional error, and I must therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 3 September 2009
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