SZNLT v Minister for Immigration - [2009] FMCA 857

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 857

MIGRATION – RRT decision – Indian claiming political persecution – disbelieved by Tribunal – no irrationality in its reasoning – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a)

Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
SZCOS v Minister for Immigration & Citizenship [2008] FCA 570
SZMDS v Minister for Immigration & Citizenship [2009] FCA 210

Applicant:

SZNLT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 878 of 2009

Judgment of:

Smith FM

Hearing date:

25 August 2009

Delivered at:

Sydney

Delivered on:

25 August 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Dunn

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 878 of 2009

SZNLT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in July 2008 on a short stay business visa, which was granted to him for the purpose of accompanying a dance master visiting an Australian dance school. On 8 September 2008, he lodged an application for a protection visa. The application did not indicate any assistance being given, but included a typed statutory declaration recounting a history upon which the applicant claimed to fear persecution if he returned to India.
The applicant referred to encountering problems in his home town while he was at school, as a result of serving in a welfare fund. He moved to Bangalore in July 2000, and was employed at a garment factory, where he was elected union leader. The owner was a BJP leader, and the applicant was sacked “in the middle of 2004” as a result of his fights with the management for the benefit of co‑workers. In August 2005, he and his friend KA started their own garments factory, and their business was getting “profitable and big”, when:
… I was approached by the BJP leader and asked for donation. They knew I was union leader and executive member of CPI(M). I was told that if I want to continue my business I have to donate BJP, regardless of my political background.
The applicant said that he did not make a donation to the BJP, and was attacked while travelling with another friend. BJP thugs “ransacked my production unit”. They attacked his workers, and:
… some were hospitalized with major injuries and one of the female employee named VA died in June 2006. The local police did nothings because of the political pressure on them not to act against BJP members.
The applicant said that he moved to Dubai in September 2006 and stayed there for three months. When he returned to Bangalore, he found that his friend KA had been killed. This made the applicant “mentally ill and I was hospitalized”, but he was “threatened by the BJP thugs to keep quiet”. His statement did not refer to what he did in the ensuing period, but said: “I am seeking protection in Australia so I do not have to go back to India”.
The applicant attended an interview by the delegate on 20 November 2008, and was questioned about his claims. He produced a coroner’s report about the death of a female who had died from stab injuries in either September or November 2006. The delegate noted that this was inconsistent with the applicant’s claim that the events had occurred in June 2006. The delegate thought that there were other inconsistencies between the applicant’s written and oral claims, and was not satisfied that the applicant or the garment factory had been attacked. The delegate was also not satisfied as to the applicant’s claims of events in late 2006, and thought that the applicant’s return to India and his home in Bangalore demonstrated that he had “no objective fears about returning to India”. The delegate identified other unsatisfactory aspects of the applicant’s case, and was not satisfied that the applicant had a genuine fear of persecutory harm on returning to India.
Although the applicant had suggested to the delegate that he would present more corroborative documents in relation to his history, he never did this. The delegate refused the visa application on 1 December 2008.
The applicant appealed to the Tribunal, and attended a hearing which was adjourned twice before continuing for nearly three hours on 12 March 2009. He showed the Tribunal a number of photographs of a garment factory, a receipt for an x‑ray taken in December 2006, and documents concerning his hospitalisation for the investigation of type‑II diabetes in 2007. He did not present any other corroboration, although given opportunities to do so.
The Tribunal sets out in its statement of reasons a very lengthy description of the evidence taken at the hearing. I have no reason not to accept this description. The Tribunal very thoroughly explored the applicant’s claimed history, noting inconsistencies and vagueness in his evidence. It explored his claimed involvement in the CPI(M), which the applicant tended to minimise, and to suggest that he was more fearful because of his friend KA’s involvement in that party.
The Tribunal tried to explore the applicant’s knowledge of his friend’s death, but the applicant said that he had not inquired with the police, and did not know whether there was an investigation. The applicant claimed that in December 2006 he was himself injured in a traffic incident when he was riding his bike, and he blamed this and his friend’s death on BJP supporters.
The Tribunal questioned the applicant extensively about his return to Bangalore after his stay in Dubai, inviting him to explain “why it took him a further two years to leave”, and why he returned to Bangalore and to his own address if he feared persecution in that city. The applicant gave various explanations, including that it was a question of “getting help and resources”, that he did not know why his agent took so long to get the visa, that he initially hoped that “they had softened but when he returned and saw that his friend had been killed, he knew that it was serious”, that he needed to stay with his mother in Bangalore, and that there were “some financial commitments” that kept him there.
The Tribunal asked the applicant why he thought he would have any problems if he returned to Kerala where he had lived at one time, if the CPI(M) was in power there. The applicant said that this party would not “give protection to every worker”, and that “even though the CPI(M) is strong, a few workers had been killed and he is also fearful”.
The Tribunal made a decision on 18 March 2009, affirming the delegate’s decision. In its statement of reasons, the Tribunal set out its ‘Findings and Reasons’, after reciting the evidence before it, and referring to general information about the CPI(M) and its role in Kerala’s state government.
The Tribunal explained a number of reasons for finding that the applicant was not “a witness of credibility”. It said that his claims had changed significantly from the claims contained in his earlier statement, particularly about his own political involvement and the significance of his friendship with KA and of his friend’s political activity.
The Tribunal referred to the various educational and employment documents which had been presented to the Department of Immigration in support of the business visa application. These included documents signed by the applicant, including a letter signed by the applicant confirming his involvement with the dance project. The applicant had admitted to the Tribunal signing the documents, and the Tribunal thought that he had admitted that false documents and information had been provided with his visa application. The Tribunal said:
The Tribunal finds that the applicant had knowingly and intentionally provided false documents, or caused such documents to be provided on his behalf, in order to achieve a migration outcome. The Tribunal finds that the applicant’s actions reflect poorly on his overall credibility.
In my opinion, that finding was open to the Tribunal, and no unfairness attended its making, since the contents of the business visa application had been put to the applicant both in a written invitation for written comment and in the course of the hearing.
The Tribunal discussed the applicant’s evidence about his involvement in the CPI(M). It said that his evidence was vague, and that he showed limited knowledge of the party. It said: “while the Tribunal is prepared to accept that the applicant did have some involvement with the CPI(M), the Tribunal finds that such involvement would have been minimal”. On this basis, the Tribunal did not accept that the applicant would be targeted by opposition parties, and found that there was no real chance that the applicant would be persecuted as a result of his actual political opinion if he returned to India.
The Tribunal then addressed the applicant’s claim that he was at risk due to his close connection with his friend KA “who was very active in the CPI(M)”. The Tribunal examined the applicant’s evidence about the attacks on the garment factory operated with his friend, and noted inconsistencies in relation to dates and events. It also noted the vagueness of the applicant’s evidence about the murder of his friend, and that the applicant had asserted that his friend was killed due to political connections because he “simply knew that it was the case”, without having any knowledge of the investigation into his friend’s death.
The Tribunal appears to have been ready to accept that there may have been a motor vehicle accident in December 2006, but was not persuaded that it was politically motivated. The Tribunal concluded:
85.These inconsistencies, the vagueness of the applicant’s answers about matters concerning the death of KA, his inability to explain the long delay between KA’s political involvement and his death or the connection between his death and his political activities, cause the Tribunal to conclude that the applicant has not been truthful in his evidence to the Tribunal and that the events of harm he described did not occur.
The Tribunal also drew support for its adverse conclusions from the applicant’s return to Bangalore, and the delay in his leaving to come to Australia. It said:
86.The Tribunal is supported in this view by the fact that the applicant remained working in his factory, and residing in Bangalore, after the June 2006 events when his business was attacked and his colleague killed. The applicant explained that it was difficult to relocate the factory and that he did not have an export license. The Tribunal does not accept that these explanations justify the applicant remaining at a place of work and residence where he could be easily located and harmed, if the applicant was genuinely fearful of this occurring.
87.The applicant also stated that after returning from the UAE, he returned to live at the same address in Bangalore. The applicant explained that he hoped the attitude toward him would ‘soften’ but he could not provide a meaningful explanation as to why he thought it would be the case, given the relatively brief period of his absence. Further, the applicant claims to have remained at his home for almost a month after learning about his friend’s death because of his mother’s financial commitments, despite his fear of being killed due to his own connection with the friend and his own political activities.
88.The applicant claims that he did not consider leaving the country at the time and until late 2006 after his return from the UAE. The Tribunal is of the view that if the applicant had been asked to make a donation which he could not afford to make and if his business and co‑workers had in fact been attacked, and if his friend had been killed for his political and other activities in which the applicant himself could be implicated, the applicant would have taken more active steps to avoid harm rather than remaining in his business and place of residence and than returning to his own place of residence after three months’ absence in the UAE and after his friend’s death. The Tribunal notes that the applicant claims not to have travelled to Dubai until August, several weeks after the alleged attacks, and that at least part of the reason for his trip to Dubai was for business purposes. He also claims to have remained in Bangalore for almost a month after his friend’s death. The applicant’s willingness to continue to manage the factory after the mid‑2006 events, his willingness to return to his home in Bangalore after the UAE trip and his residence at his home for weeks after his friend’s death all indicate to the Tribunal that the applicant did not have a genuine fear of persecution and that the events he described did not occur.
Based upon its findings, the Tribunal rejected each of the elements in the applicant’s refugee claims. It found that there was no real chance that the applicant would be harmed “as a result of any of his past activities, affiliations, political opinion (real or imputed)” if he returned to India now or in the reasonably foreseeable future.
The Tribunal said that if the applicant wished to engage in political activities of the CPI(M) upon return to India, he would be able to do so, at least in those states where the CPI(M) was in power such as Kerala. It was of the view that there was no real chance that he would experience problems in the future.
The applicant now asks 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 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 any permission to stay in Australia.
The applicant has been given ample opportunity to present his arguments to the Court and any additional evidence about the procedures of the Tribunal. This included the adjourning of the hearing while a supplementary court book containing missing documents was prepared.
The applicant’s original application contained the following grounds, which unfortunately appear to be taken from precedents with little explanation as to how they apply to the present Tribunal’s decision:
1.The Tribunal applied the Wrong test:
1.The Tribunal did not give to the applicant before the hearing the information that it had about the political history and it did not give to the applicant the information it had about Kerala politics from other sources. The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.
2.The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were vague and inconsistent, 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 applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
4.The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
a.it failed to properly apply the consideration that applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant claims are plausible, which was the case here.
The complaint in Ground 1 that the Tribunal did not give a written invitation to the applicant to comment on the general country information about Kerala politics is misconceived. The Tribunal is under no obligation under s.424A(1) of the Migration Act 1958 (Cth) to do this, since such information is excluded by s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572). I also note that the relevant information was fairly put to the applicant in the course of the hearing.
There is no basis for the contention in Ground 2 shown in the evidence before me. On the Tribunal’s description of its hearing, the applicant was very fairly taken to the various concerns which ultimately caused the Tribunal to disbelieve the applicant. The Tribunal’s adverse conclusions were in my opinion, rational and reasonably open on the material before it.
The third ground remains obscure to me, although it has appeared in numerous cases listed before me in recent times. It appears to invite the Court itself to apply the Convention definition, but that is not the function of the Court. I can detect in the Tribunal’s decision no error of law in its application of the Convention definition. Essentially, the Tribunal’s conclusion turned upon its failure to be satisfied by the applicant’s claimed history of persecution, not upon the application of any particular element in the definition.
Ground 4 appears to present a contention that the Tribunal was bound to have been left in doubt about the truth of the applicant’s claims, and then to have given him the benefit of the doubt pursuant to the ‘real chance test’. However, it is now well established that the Tribunal is not obliged to consider the applicant’s claims upon the hypothesis that they were based on truth, if it has arrived at firm conclusions to the contrary (see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239–241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]–[14], and SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [42]‑[53]). In the present case, I can detect no doubt attaching to the Tribunal’s rejection of the applicant’s claims, and I can therefore find no error in its application of the real chance test.
The applicant has filed an amended application which in Grounds 2 and 3 repeat grounds which I have already dealt with above.
Ground 1 of the amended application makes a specific complaint about an element in the Tribunal’s reasoning. It contends:
1.My first concern is the great weight that the Tribunal place upon my return from UAE to India as evidence that my fears were not genuinely held. In the matter of SZMDS v MIAC [2009] FCA the Court held that the Tribunal must have a rational basis for finding that an applicant’s basis for returning to his country of nationality demonstrates that the applicant did not have a genuine fear of persecution in that Country. I have provided rational reasons as to why I returned to India and Tribunal did not consider that therefore, committed judicial error.
I have above explained how the Tribunal discussed with the applicant the implications of his returning from Dubai and remaining in Bangalore after 2006, and I have also extracted the relevant paragraphs of the Tribunal’s reasons where it drew support for its conclusions from that conduct.
In my opinion, its reasoning is manifestly distinguishable from the situation addressed by Moore J in SZMDS v Minister for Immigration & Citizenship [2009] FCA 210. I note that the High Court has given special leave to appeal from that judgment, but at present I am bound to apply it.

In SZMDS, Moore J found that the Tribunal’s conclusion that the applicant was not a homosexual was based “squarely on an illogical process of reasoning”, mainly because of reasoning by the Tribunal which “placed enormous weight on the evidence that the [applicant] returned to Pakistan briefly in 2007”. He said at [25]:
However, it is difficult to see how the Tribunal could reach the conclusion that the fact that he returned to Pakistan undermined his account of having engaged in homosexual conduct in the UAE. His return to Pakistan would have undermined his account only if there was a basis for believing that his family and others might have come to learn that he was a homosexual.
There is no parallel between the refugee claims addressed by the Tribunal in that case with the refugee claims of the present applicant. The applicant claims that he is vulnerable to persecution which arose during 2006, and will arise in the future, when his presence in Bangalore was known to the persons who are seeking to harm him. The Tribunal’s suggestion that it was inconsistent with this fear for him to return to Bangalore was therefore clearly rational. It was open to the Tribunal to reject the sufficiency of his explanations. In combination with the other matters identified by the Tribunal reflecting upon the applicant’s credibility, it provided a rational and logical basis for the Tribunal’s conclusions. I therefore do not accept that the authorities applied by Moore J in SZMDS can have application to the present case.
The applicant today had no submissions to make to me to explain possible jurisdictional error.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 8 September 2009