SZNMR v Minister for Immigration

[2009] FMCA 837

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 837

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)(b); 474; pt.8 div.2

WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152

Applicant: SZNMR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 928 of 2009

Judgment of: Emmett FM

Hearing date: 27 August 2009

Date of Last Submission: 27 August 2009

Delivered at: Sydney

Delivered on: 27 August 2009

REPRESENTATION

Applicant appeared in person assisted by a Malayalam interpreter

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 928 of 2009

SZNMR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

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 16 March 2009 and handed down the same day.

2. The applicant claims to be a citizen of India and of Christian faith (“the Applicant”).

3. The Applicant arrived in Australia on 9 July 2008 having departed illegally from Calcutta on a passport issued in a false name and a visitor visa issued on 28 May 2008.

4. On 21 August 2008, 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 18 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 10 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 16 March 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.

8. On 21 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 and the Delegate’s decision

1. The Applicant’s claims in support of his application for a protection visa and the Delegate’s decision are accurately summarised in the First Respondent’s written submissions as follows:

   “2. In a statement attached to his protection visa application, prior to setting out his substantive claims, the applicant set out extracts from the internet regarding persecution of Christians in Kerala. The applicant then claimed that as a Latin Catholic from Kerala, he feared persecution in India from corrupt local police and Muslims. He claimed that after the CPI-M party came to power, Muslim businessmen began bribing the government to secure concessions. The criminal element of this group attacked the poor, forcing them out of premises so that they could populate them with new complexes and shopping centres. Christians had to rely on the Church for protection and the applicant was responsible for the security of his Church at night, protecting it from ‘attack by Muslim thugs’. In mid 2007, whilst guarding the Church, he witnessed a man being beaten by corrupt local police following a theft at the beach. He reported this incident to police who advised him they would make further inquiries. In June 2007, the applicant again witnessed a man being ‘brutally tortured’ by a police officer and when he tried to intervene he was ‘man-handled’. In December 2007, he was arrested and tortured by these same police officers. He paid a bribe to secure his release and the police warned him to leave India or they would have Muslim criminals kill him and his family. The applicant then took the opportunity to flee to Australia as part of World Youth Day. He claimed that since his arrival in Australia police have threatened his family in India and will kill his wife and daughters should he return: Court Book (‘CB’) 27-33.

   3. Annexed to the applicant’s protection visa application was a copy of the passport he used to enter Australia in [a false name], a copy of his passport in [the Applicant’s name], a copy of his marriage and baptism certificate and various internet articles related to the persecution of Christians in Kerala: CB 34-67.

   4. The applicant attended an interview with a delegate of the first respondent on 23 October 2008, at which he gave further details of his claims. In addition to that claimed in his protection visa application, he said that his photograph had been published in a newspaper accompanied by an article stating he was a criminal. He fears arrest as a result of this publication: CB 86.

   5. On 5 November 2008, the applicant provided to the Department copies of two medical certificates in the name of ‘Babu’ dated 13 and 20 December 2007 and a copy of a newspaper article which purportedly named the applicant and indicated he had attacked police: CB72-74.

   6. In a decision dated 18 November 2008, a delegate of the Minister refused to grant the applicant a protection visa: CB 79-87. The delegate noted various implausibilities in the applicant’s claims and concluded that he was not satisfied the applicant faced persecution in India as he claimed. In particular, the delegate noted that the medical certificate which purportedly corroborated his claim to have been assaulted by police was dated four days after the incident took place, with no explanation as to why the applicant delayed seeking treatment. The delegate also found that if police wished to carry out their alleged threats against the applicant, they could have done so in the seven months he remained in India between December 2007 and July 2008.”

2. On 18 November 2008, 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 10 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided no further documents in support of his application.

3. On 13 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 13 February 2009 to give oral evidence and present arguments.

4. On 13 March 2009, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, 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 in the written submissions of the First Respondent as follows:

   “11. …The Tribunal rejected all of the applicant’s claims to fear harm in India on the basis of adverse credibility findings. It noted numerous inconsistencies in his claims relating to both his clash with corrupt police in 2007 and with Muslims in 2002 or 2003 and concluded that he was not a witness of truth. For example, the Tribunal found that the fact he had remained in India after his alleged detention in December 2007 until July 2008, supporting himself by fishing in Tamil Nadu, was inconsistent with his claim that police had threatened to send Muslim criminals to trace and harm him if he remained in India: CB 110 [48]. In relation to his claim to fear harm as a result of a clash with Muslims in 2002 or 2003, the Tribunal found the fact that he remained in India until 2005, during which time he married and started a family, was inconsistent with that claim: CB 110 [47].

   12. The Tribunal went on to reject the newspaper article and medical certificates provided by the applicant and specifically indicated  that it rejected those documents because of the adverse view it had taken of the applicant’s credibility, citing the decision of Justice French in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912: [50]. … In addition, the Tribunal also rejected the newspaper report on an alternative basis, finding that if such a document was circulating after December 2007, the applicant would not have been able to remain in India working as he claimed: CB 111 [50].

   13. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. …”

The proceeding before this Court

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

2. On 11 May 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 and to file any evidence by way of affidavit and submissions in support of his application. No further application, evidence or submissions were filed by or on behalf of the Applicant.

3. At the commencement of the hearing the Applicant confirmed that he relied on the grounds contained in an application filed on 21 April 2009 as follows:

   “1. Jurisdictional error

   2. Breach of procedural fairness;

   3. Breach of natural justice”

4. 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 meaningful submission in support of any of the grounds of his application, save to say that what he had told the Tribunal was true.

5. None of the grounds were supported by particulars, evidence or submissions. Plainly, none of the grounds identify a particular error capable of review by this Court.

6. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims and explored those claims with him at a hearing on 13 March 2009.

7. The Tribunal’s decision record discloses exchanges it had with the Applicant about his evidence and note matters of concern it put to the Applicant arising out of the Applicant’s claims and evidence and noted his responses. For example, the Tribunal asked the Applicant why those whom he alleged detained and mistreated him for three days would negotiate with him about leaving the country if he was of such interest. The Tribunal noted the Applicant’s response that police told him if he left the country there was not a problem. The Tribunal also discussed with the Applicant his knowledge of Christianity.

8. The Tribunal explored with the Applicant the difficulties it had with the newspaper article provided by the Applicant to the Tribunal purporting to show his photograph and which stated that there “are many cases against him in a number of places in India”. The Applicant agreed parts of the article were incorrect. The Tribunal also explored with the Applicant the difficulty it had with purported medical certificates supporting his assertions of hospitalisation following his release from detention. In respect of each of the issues that it raised with the Applicant the Tribunal noted the Applicant’s responses.

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 11 May 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 comprehensively rejected the Applicant’s claims and found him not to be a witness of truth. The Tribunal found the Applicant’s claims to be internally inconsistent and implausible. The Tribunal also had regard to the fact that the Applicant used a false passport to enter Australia in 2005 and to travel to Oman and Dubai to work and then return to India.

11. The Tribunal rejected the copy of the newspaper article and medical certificates produced by the Applicant as reliable evidence of the facts in them, having regard to its comprehensive adverse credibility findings. In making that finding, the Tribunal correctly referred to WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36] where French J stated as follows:

    “Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.”

12. Further, a fair reading of the Tribunal’s decision record suggests that the Tribunal found that, if the newspaper article was genuine, the Applicant would not have been able to remain in India living and working to the extent that he claimed prior to leaving for Australia in July 2008.

13. The Tribunal was not satisfied on the evidence before it that the Applicant has a well-founded fear of persecution for any Convention-related reason. The Tribunal found that there was no plausible evidence before it to support the Applicant’s claims of past persecution or a well-founded fear of persecution for a Convention-related reason. The Tribunal concluded that there is not a real chance that the Applicant would suffer harm from any person in India either now or in the reasonably foreseeable future for any Convention-related reason if he was to return to India.

14. It is for an applicant to satisfy the relevant decision maker that he or she meets the criteria for being a refugee. Section 65(1) of the Act mandates that if the relevant decision maker is not so satisfied it must refuse to grant the visa.

15. 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).

16. The information upon which the Tribunal relied in affirming the decision under review was information given to it by the Applicant for the purposes of his review. Such information does not raise any obligation under s.424A(1) of the Act on the part of the Tribunal by reason of s.424A(3)(b) of the Act.

17. 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 and implausibilities 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 which, again, do not 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).

18. Further, the credibility of the Applicant was an issue raised by the Delegate as well as by the Tribunal. As stated above, a fair reading of the Tribunal’s decision record makes clear that it put to the Applicant the concerns it had with the credibility of the Applicant’s evidence and noted his responses. In the circumstances, the Applicant must be taken to have been aware that his credibility was an issue before the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

19. 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.

20. 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.

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

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  27 August 2009