SZNLV v Minister for Immigration

[2009] FMCA 841

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLV v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 841

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412

Applicant: SZNLV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 881 of 2009

Judgment of: Emmett FM

Hearing date: 28 August 2009

Date of Last Submission: 28 August 2009

Delivered at: Sydney

Delivered on: 28 August 2009

REPRESENTATION

Applicant appeared in person assisted by a Malayalam interpreter

Counsel for the Respondent: Ms T. Wong

Solicitors for the Respondent: Mr J. Pinder, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 881 of 2009

SZNLV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 March 2009 and handed down the same day.

2. The applicant claims to be a citizen of India, previously a member of the Kerala Student Union in India and of Christian faith (“the Applicant”).

3. The Applicant arrived in Australia on 8 July 2008 having departed legally from Calcutta on a passport issued in his own name and a visitor visa issued on28 May 2008.

4. On 21 August 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 19 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 15 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 17 March 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.

8. On 16 April 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. In his protection visa application the Applicant claimed he feared persecution by members of the Student’s Federation of India (“SFI”), being the student arm of the Communist Party of India (Marxist) (“CPI-M”). He claimed he would be killed and had previously been attacked several times resulting in his hospitalisation. The Applicant claimed authorities would not provide him any protection as the CPI-M was the ruling party and “they manage the authority”.

2. In a further statement, received by the Department on 9 October 2008, the Applicant claimed he had been involved in clashes in August 2005 between members of the SFI and members of the Kerala Student Union (“KSU”) at college during which the Applicant was attacked resulting in his hospitalisation. The Applicant claimed that after acting as a witness against the people involved in his attack he and his family were threatened. The Applicant claimed he received no assistance from the police because “they are ruling party and I am a minority Christian”. The Applicant claimed he moved to Madras and Mumbai “when they tried to kill me” but was followed.

The Delegate’s decision

1. On 4 November 2009, the Applicant attended an interview with the Delegate.

2. On 19 November 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 15 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided further documents in support of his application.

3. On 16 January 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 25 February 2009 to give oral evidence and present arguments.

4. On 25 February 2009, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal found the Applicant was not a witness of truth.

7. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:

   “9. The Tribunal held that there were significant inconsistencies in the Applicant’s story, which led the Tribunal to conclude that the Applicant was not a credible witness: CB 120 at [42].  In particular, the Tribunal held that the Applicant’s account of the persecution he had suffered had changed in significant respects and that he had made further claims during the Tribunal hearing that were not made at any previous stage: CB 120-1 at [43]-[51].

   10. The Tribunal concluded that the Applicant had fabricated claims for the purpose of his application for a protection visa and rejected the following claims made by the Applicant (CB 121 at [52]):

   a) that he was involved in an incident which led to a murder;

   b) that he was later assaulted and/or threatened in Madras, Mumbai and then in Kerala on his return.

   11. The Tribunal therefore did not accept that the Applicant departed India because of a fear arising from such assaults and threats: CB 121 at [52].

   12. The Tribunal accepted that when the Applicant was in college he was a KSU member and officer and became involved in an incident at the college between KSU and SFI supporters on 12 August 2005: CB 122 at [53].  The Tribunal also accepted that the Applicant was injured during the incident and that the incident was reported to the police.  However, the Tribunal did not accept that the police did not progress the investigation of the incident for political or religious reasons: CB 122 at [54].

   13. The Tribunal accepted that the Applicant was a Catholic Christian, but noted that the Applicant did not claim to fear harm in Kerala because of his Christianity: CB 122 at [55].

   14. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for one or more of the Convention reasons, if he returned to India: CB 122 at [57].  The Tribunal affirmed the decision of the Minister's delegate not to grant the Applicant a protection visa: CB 123.”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter. 

2. On 29 April 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake going to the jurisdiction of the Tribunal. No further application, evidence or submissions were filed by or on behalf of the Applicant.

3. At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services.

4. At the commencement of the hearing the Applicant confirmed that he relied on the grounds contained in an application filed on 16 April 2009 as follows:

   “1. Jurisdictional error

   2. Breach of procedural fairness;

   3. Breach of natural justice”

5. I note that these grounds are in identical terms, even down to the punctuation, to the grounds in other applications before this Court.

6. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant made no relevant submission in support of his application, other than to say that the Tribunal had not believed him and that he had given all possible information to the Tribunal. Plainly the grounds do not disclose a particularised error capable of review by this Court.

7. The Applicant attended a hearing before the Tribunal on 25 February 2009 at which he gave evidence with the assistance of an interpreter.

8. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims in support of his protection visa application and reproduced his statement provided to the Department on 9 October 2008. The Tribunal also summarised the Applicant’s interview with the Delegate on 4 November 2008.

9. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 29 April 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing, however, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

10. The Tribunal record discloses the Tribunal’s summary of exchanges that it had with the Applicant about his claims and evidence. The Tribunal noted matters of concern that it put to the Applicant about his evidence and noted his responses. In particular, the Tribunal put to the Applicant inconsistencies in his oral evidence to the Tribunal, his written claims and his interview with the Delegate.

11. The Tribunal was particularly concerned that the Applicant had not raised earlier a claim made to the Tribunal that a student was murdered during the clashes in college in August 2005. The Tribunal noted that it put to the Applicant that the claim was significant and its omission may cause the Tribunal to consider that the Applicant had fabricated the claim. The Tribunal noted the Applicant’s response that he had made a mistake in not mentioning the matter before and, if given time, he could obtain documents to prove it. The Tribunal noted that it put to the Applicant that it was six months since he had lodged his protection visa application and that it was reasonable to consider that he would have collected all relevant evidence in that time. The Tribunal noted that the Applicant had responded that he had been unable to get the details of the Court case or newspaper reports. The Tribunal noted that it put to the Applicant that he had been able to provide newspaper reports in support of other claims made in his written statements. The Tribunal noted the Applicant’s response that he relied on his mother and sister to gather information.

12. The Tribunal also put to the Applicant a further new claim made for the first time that he and his father were attacked when he returned to Kerala from Mumbai. Again, the Tribunal noted that it put to the Applicant the fact that the Applicant had only raised that claim at that time may lead the Tribunal to conclude that the Applicant had fabricated such a claim. The Tribunal noted the Applicant’s response that he was nervous before the Delegate but was now more confident to give evidence.

13. The Tribunal explored in detail with the Applicant the evidence the Applicant claimed to have given in court cases on 9 or 11 September 2005 following the college clashes. The Tribunal informed the Applicant that he had listened to his interview with the Delegate on 4 November 2008 in respect of his evidence about these incidents and that the Applicant’s accounts were “quite different”. The Tribunal noted that it put to the Applicant that the differing accounts may cause the Tribunal to have concerns about that claim and the Applicant’s credibility generally.

14. A fair reading of the Tribunal’s decision discloses that the Tribunal had regard to the medical certificate provided by the Applicant in support of his claim to have been hospitalised following the clashes in college. However, the Tribunal noted that the medical certificate did no more than advise the Applicant to have bed rest and made no mention of hospitalisation and that the medical certificate did not support the Applicant’s specific claims.

15. A fair reading of the Tribunal’s decision record makes clear that the Tribunal discussed independent country information with the Applicant about the political situation in Kerala, particularly in regard to the possibility of relocation within India. The Tribunal noted that the Applicant said that police hid cases in which they had no interest, that he did not know what was happening in the court case, and that it would be difficult for him to relocate within India due to high unemployment, different languages and customs.

16. The Tribunal’s decision record discloses that it gave to the Applicant particulars of information that it considered may be reasons for affirming the decision under review. Essentially, the Tribunal put to the Applicant particulars of discrepancies and evolving claims that it found raised concerns as to his credibility as a witness and the veracity of his claims. The Tribunal invited the Applicant to comment or respond to the information it had given and advised the Applicant that he could seek additional time to comment or respond in person or in writing. The Applicant sought additional time to send written comments and was given the further two weeks requested by him.

17. The Tribunal decision record noted the additional information provided by the Applicant and specified the independent information to which it had regard. The Tribunal found that newspaper reports provided by the Applicant in support of his claims did not relate to the Applicant or to the events he claimed occurred in 2005 and, for that reason, the Tribunal gave them no weight. However, the Tribunal was prepared to accept that country information before it disclosed the long history of enmity in Kerala between the student wings of the CPI-M and the Congress Party.

18. The Tribunal accepted that the Applicant was a member of the KSU and that he was involved in a violent incident in college in August 2005 which was reported to the police and in which he was injured. However, because of inconsistencies in the Applicant’s story which the Tribunal found to be significant, the Tribunal found the Applicant not to be a credible witness and found that he had fabricated a story around the college incident for the purposes of his protection visa application. The Tribunal found that the Applicant’s account of the August 2005 incident had changed in significant details which it identified. The Tribunal also found that the Applicant’s accounts of subsequent threats against him “have significantly changed and evolved”.

19. The Tribunal rejected the Applicant’s claims of being involved in an incident which led to murder; that he was assaulted and/or threatened in Madras, Mumbai and then in Kerala on his return. The Tribunal also rejected the Applicant’s claims that his family members have been threatened and that he was sent to Australia by party members.

20. The Tribunal did not accept that the Applicant left India because of a fear of persecution for any Convention-related reason and found that he had suffered any Convention-related persecution. Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention-related reason if he were to return to India now or in the reasonably foreseeable future.

21. A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

22. There was no information relied on by the Tribunal as part of its reason for affirming the decision under review which gave rise to any obligation under s.424A(1) of the Act.

23. Part of the information upon which the Tribunal relied in affirming the decision under review was information that was not specifically about the Applicant or another person and was just about a class of persons of which the Applicant is a member and is to be found in the independent country information to which the Tribunal had regard. It is a matter for the Tribunal the country information to which it has regard and the weight it gives such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]). Such information is specifically excluded from s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.

24. Otherwise, the information which formed part of the reasons for affirming the decision under review was information given to the Tribunal by the Applicant for the purpose of his review application. Such information is also excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) or s.424A(3)(ba) of the Act.

25. The reasons for the Tribunal’s affirming the decision under review were based on the Tribunal’s disbelief of the Applicant’s evidence arising from inconsistencies, omissions and new claims that it found to exist in his evidence. The Tribunal’s evaluation and assessment of the Applicant’s credibility are part of its subjective appraisal and thought processes and are not information that enliven any obligation under s.424A(1) of the Act on the part of the Tribunal (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ in the majority).

1. The Tribunal had no further obligations of procedural fairness other than those stated in pt.7 div.4 of the Act pursuant to s.422B of the Act with which it had complied (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412 at [66]-[70]).

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  28 August 2009