SZNPM v Minister for Immigration
[2009] FMCA 1014
•9 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1014 |
| MIGRATION – RRT decision – Indian applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424A(3)(a) |
| Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Citizenship v SZKTI [2009] HCA 30, (2009) 258 ALR 434 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| First Applicant: | SZNPM |
| Second Applicant: | SZNPN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1192 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 9 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2009 |
REPRESENTATION
| Counsel for the Applicants: | First Applicant in person |
| Counsel for the First Respondent: | Ms A Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs in the sum of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1192 of 2009
| SZNPM |
First Applicant
| SZNPN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a husband and wife who came to Australia in September 2008. They applied for protection visas on 16 October 2008. The wife did not make a separate claim to be a refugee, and I shall refer to the husband as ‘the applicant’.
In the applicant’s application, he claimed that he was a Hindu farmer from Gujarat in India, and that between 1992 and 2005 he had been “active in political work” for the BJP party. After that time, he “tried to distance” himself from the party, but “in a recent state legislative election I was told to campaign for BJP leader, but I refused to attend their meeting and did not involved in campaign”. He claimed to have been assaulted and threatened at that time, and to have been arrested on a false accusation of being involved in a bomb blast ‘in recent times’. He said:
From that stage I realised that I had been targeted by the BJP leaders.
They threatened me with violence, and while BJP is in power my life would be threatened if I return to my state and would not be able to relocate anywhere else in India because BJP members are everywhere.
The applicant attended an interview with the delegate on 18 December 2008, and was questioned about his claims. He made a new claim that his father had recently been bitten by a snake, which the applicant suspected had been put on his farm by BJP workers. He identified the incidents in relation to the legislative council elections as having occurred in 2006. He could not explain why he delayed his departure from India. He was given an opportunity to submit supporting documents showing that he had been a member of the BJP party and otherwise, but did not do so, nor did he present any corroborate evidence to the Tribunal when he appealed.
The delegate made a decision refusing the visa applications on 13 January 2009. He found that the applicant did not have a genuine fear of harm, and there was not a real chance of persecution occurring if he returned to India. He said:
I found the applicant to be evasive and tried to divert proceedings when he could not answer questions put to him. The lack of detail in his claims and his inability to provide specific details of these claims leads me to doubt the veracity of his claims. This in turn casts doubt on the credibility of the applicant.
On appeal, the applicant attended a hearing of the Tribunal on 23 March 2009. A description of the hearing is contained in the Tribunal’s statement of reasons, and I accept that description. The applicant was warned at a first court date before me that he would need to submit a transcript if he wished me to know exactly what happened at the hearing, but he has not done so.
The applicant was again questioned about his claims, and the Tribunal made a decision on 21 April 2009. It affirmed the delegate’s decision. In its statement of reasons under the heading “Findings and Reasons”, the Tribunal explained why it did not accept the applicant “is a witness of truth”, and found that he “created his claims in order to obtain the visa sought”.
The Tribunal referred to the inability of the applicant to give any details whatsoever about the claimed bomb blast, nor where or when he had been detained after that incident. The Tribunal noted there was no independent evidence to support a claim that any bomb blast had occurred in the region suggested by the applicant.
The Tribunal referred to the applicant’s lack of any knowledge about what was involved in political canvassing, and said that his claims of involvement with the BJP “does not ring true”.
The Tribunal also referred to inconsistent evidence given by the applicant to the Tribunal at its hearing, as to when assaults and threats had been made by BJP activists to him. Initially he said that these all happened to him in 2006, but later he claimed that he had received continual threats until he came to Australia. The Tribunal concluded that the latter claim was “a late invention made at the hearing in order to enhance his claims. It does not ring true”.
The Tribunal considered the applicant’s claim that his father had died from a snake bite, and assumed that this had happened, but it did not accept that snakes had been put on his farm by somebody who wanted to kill him or his family.
The Tribunal considered the applicant’s position generally as a Hindu farmer from Gujarat if he returned to India, and was satisfied that he would receive protection from law enforcement authorities if he needed it, and was satisfied that any real chance of harm was remote if the applicant returned to India.
The applicant’s application to this Court seeks to set aside the Tribunal’s decision and to remit the matter for further consideration. I have the 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’s refugee claim should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant attended a first court date before me on 9 June 2009, when I made directions giving him an opportunity to file an amended application, further evidence and written submissions, after receiving a bundle of relevant documents and a referral for free legal advice. The referral lawyer reports to the Court that she was unable to make telephone contact with the applicant, but provided written advice. The applicant has not filed any amended application or explanation of the grounds in his original application.
At the first court date, I fixed the matter for hearing today and told the applicant that he needed to attend or I would dismiss his application. On 6 October 2009 the Court received a facsimile request to “conduct the hearing by telephone or any other options available”. A mobile telephone number was provided only. I do not consider it appropriate for the present matter to be conducted by telephone connection to a mobile telephone, and therefore declined the application. The applicant was informed about this by the Registry on 7 October 2009, being two days ago.
The applicant was not in attendance today when the matter was called, and he had not attended Court when I commenced giving this judgment, proceeding in his absence. However, at this point in my judgment, at 10.45am, I was handed a message from the Court’s Registry, stating that the applicant “phoned Registry. He is in a bus and will be at Court at about 11 am”. I therefore suspended further delivery of my judgment, and adjourned to allow the applicant to attend and to present his arguments in support of his application.
He did attend at 11.23am, and fortunately the first respondent’s solicitor and the interpreter remained available. However, the applicant had nothing to say in response to the first respondent’s written and oral submissions. I therefore resumed the delivery of my judgment, adopting the passages set out above.
The applicant, as I have noted, did not file an amended application nor other submissions or documents, but relies on the four grounds in his application. These are:
1.The Tribunal did not give to the applicant before the hearing the independent information that it had about India. The Tribunal used this information (RRT decision record pages 8 to 10). 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 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 applicants satisfy 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 RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 22 April 2009 was effected by actual bias constituting judicial error.
These grounds follow a precedent which has frequently been adopted in recent times by the helper of applicants in the Riverina. Unfortunately, they are unhelpful, in that they do not explain how they relate to the particular decision, or are based on an obviously incorrect understanding of law.
The first ground suffers from the latter problem. It overlooks the exclusion in s.424A(3)(a) of the Migration Act 1958 (Cth) of any requirement to give an applicant written notice of general information relied upon by the Tribunal.
The second ground appears to make a contention based on principles applied by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, and which have been further explained by the High Court recently in Minister for Immigration & Citizenship v SZKTI [2009] HCA 30, (2009) 258 ALR 434 at [51] and Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [56]. In my opinion, the ground is misconceived in its contended application of these principles to the present case.
The applicant was plainly put on notice that the Tribunal would be considering the credibility of all of his claims to fear persecution in India, because the delegate had declined to accept the credibility of those claims in their entirety. Moreover, the particular concerns of the Tribunal upon which it based its own view of the applicant’s lack of credibility were matters which were canvassed by the Tribunal at the hearing. It should have been apparent to the applicant that the Tribunal was assessing his credibility again, and by reference to these matters. I therefore do not accept in the present case that the applicant was denied any opportunity to be heard in relation to the issues upon which the Tribunal decided the case.
If this ground is understood as a challenge to the rationality of the Tribunal’s reasoning, then there is no substance to such a challenge in relation to the present decision. The Tribunal presents clearly rational reasons for disbelieving the applicant, which were open to it on the evidence before it.
I have had difficulty analysing the third ground of the application in many previous cases. The first sentence appears to invite the Court to make a decision for itself about the applicant’s refugee status, but this is not its function.
If the ground makes a contention that the Tribunal failed to address a relevant consideration required to be addressed in the exercise of its review function, then I can see no substance for that contention in the present case. It is well established that the Tribunal may determine an applicant’s refugee status by a disbelief of his claimed history of past persecution in his home country. In the present case, not only did the Tribunal form that opinion, but it also addressed the applicant’s situation if he returned to India based on such parts of his circumstances as it accepted. There was no element in the definition of ‘refugee’ which the Tribunal was obliged to address further, and did not do so.
The fourth ground has no relevance to the present case. Manifestly, the Tribunal did investigate the applicant’s claimed grounds of persecution in India, by considering the applicant’s evidence and disbelieving it. It was not invited by the applicant to conduct any additional investigations, and was not obliged to do so (see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [1]).
The premised ground for establishing actual bias is therefore not shown, and the contention of bias is entirely lacking in any substance in the evidence before me.
The applicant was not able to elucidate the grounds of his application, and he did not make any submissions pointing to any other basis upon which I could find jurisdictional error.
I have therefore concluded that the Tribunal’s decision is a privative clause decision, and I do not have power to make the orders sought by the applicant. I must therefore dismiss the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 October 2009
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