SZNRZ v Minister for Immigration

[2009] FMCA 1018

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRZ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1018

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant not believed – whether the Tribunal breached ss.424 and 424B of the Migration Act 1958 (Cth) in relation to the Tribunal’s acknowledgement letter considered.

Migration Act 1958 (Cth), ss.424, 424A, 424B, 474

Minister for Immigration; ex parte Durajaisingham [2000] HCA 1
Minister for Immigration v SGLB [2004] HCA 32
Minister for Immigration v SZIAI [2009] HCA 39
Minister for Immigration v SZNAV [2009] FCAFC 109
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Bineshri Prasad v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155
SZGSI & Anor v Minister for Immigration & Anor (2009) 107 ALD 414
SZNAV v Minister for Immigration & Anor [2009] FMCA 693

Applicant: SZNRZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1499 of 2009

Judgment of: Driver FM

Hearing date: 20 October 2009

Delivered at: Sydney

Delivered on: 20 October 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Dunn
Clayton Utz

ORDERS

1. Time for the filing of the amended application is extended to 25 August 2009.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1499 of 2009

SZNRZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 1 June 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of persecution based upon perceived Sri Lankan nationality and political association.

2. Background facts relating to the applicant’s claims and the Tribunal decision on them are conveniently summarised in the Minister’s written submissions filed on 12 October 2009.  I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2, 3, 5 and 6 of those written submissions:

   The applicant has been found to be a citizen of India.  On 7 July 2008, he entered Australia on a visitor visa.  On 11 August 2008, he applied to the Department of Immigration and Citizenship for a protection visa.  On 23 September 2008, he attended an interview with the delegate. On 5 November 2008, the delegate refused the applicant's application for a protection visa. 

   On 1 December 2008, the applicant applied to the Tribunal for review of the delegate's decision.  On 2 February 2009, he attended a hearing before the Tribunal.  On 19 February 2009 the Tribunal wrote to the applicant's sponsor inviting them to provide additional information about the circumstances surrounding the grant of a business visa to the applicant (s.424 letter).  The applicant's sponsor did not reply. On 17 April 2009, the Tribunal wrote to the applicant inviting him to a second Tribunal hearing on 14 May 2009. The applicant attended and presented arguments at the second Tribunal hearing. On 1 June 2009, the Tribunal affirmed the delegate's decision and notified the applicant by letter dated 2 June 2009.

   Applicant's claims

   The

   The applicant claims that:

   a)he fears persecution in India on the basis of his political affiliation and perceived Sri Lankan nationality;

   b)he was an active member of the banned organisations of the Liberation Tigers of Tamil Eelam (LTTE) and Tamil Nadu Liberation Army (TNLA), which he originally claimed he joined for ideological reasons;

   c)he joined the LTTE and TNLA in an attempt to find his parents, who went missing (presumed dead) after they were allegedly arrested by authorities for their perceived involvement with the banned organisations (a claim which he made after his departmental interview);

   d)he was only a low-level driver and courier for these organisations and was not, to his knowledge, involved in their banned criminal activities;

   e)these organisations could offer him intelligence on the whereabouts of his parents through their sophisticated political connections;

   f)over the course of his involvement, or perceived involvement, with the LTTE and TNLA, he was targeted by the authorities, who believed he could offer them information about the groups' leaders;

   g)the authorities laid numerous false charges on him, arrested him numerous times, and on one occasion jailed him for 12 months. He claimed that on several occasions the authorities interrogated him for information about the LTTE and TNLA;

   h)his fear of returning to India was ultimately two-fold - if the police find him, and he does not divulge information about the LTTE and TNLA, they will torture him; but if he does inform, the LTTE and TNLA will kill him.

   i)he does not know if he has any family left in India, and alluded to the fact that his parents may have been killed by the authorities; and

   j)he seeks protection in Australia from Convention-related persecution in his country of origin.

   Tribunal’s findings

   The Tribunal found that:

   a)the applicant is of Indian nationality, not a Sri Lankan national living in India and, accordingly, the applicant was not discriminated against on the basis of his nationality

   b)"the totality of the applicant's oral evidence shows his propensity to tailor his evidence in a manner which achieves his own purpose" [1];

   c)the applicant was not a member of, nor did he ever have any involvement with, the LTTE or TNLA;

   d)the applicant's parents did not go missing (presumed dead) after the authorities arrested them;

   e)none of the applicant's allegations of abuse by the authorities were true;

   f)the LTTE and TNLA would not pursue the applicant on his return to India, because the Tribunal did not believe that the authorities had a reason to force the applicant to become an informant; and

   g)as it considered that the bulk of the applicant's claims had evolved since his protection visa application, and the balance was either implausible or vague, the Tribunal found the applicant was not a "witness of truth"; and

   h)the applicant does not have a well-founded fear of persecution in India.

   [1] Court Book (CB) 110, Tribunal decision (TD) at [96]

3. These proceedings began with a show cause application filed on 24 June 2009.  The applicant now relies upon an amended application filed on 25 August 2009.  That application was apparently prepared with the assistance of the applicant’s panel legal adviser.  I incorporate the ground and particulars of that application in this judgment:

   1. That the decision of the second respondent was affected by jurisdictional error: (a) The second respondent failed to comply with the requirements of s.424(2) and 424B of the Act

   Particulars

   The RRT sought additional information from the applicant by letter dated 2 December 2008.  That letter failed to inform the applicant that he was required to provide the information within 14 days being the time prescribed by Migration Regulation 4.35.

4. I granted an extension of time for the filing of the amended application today, noting that the application had been filed outside the period prescribed by me in procedural orders I made on 15 July 2009.  The Minister had not been served with a copy of the amended application, but the solicitor for the Minister elected to deal with the ground advanced in her oral submissions.

5. The applicant also relies upon an affidavit filed with his original application.  I accepted paragraphs 1 and 2 of that affidavit as evidence, and I treat as a submission the third paragraph of it.  I also have before me as evidence the court book filed on 23 July 2009.  The court book does not contain a copy of the applicant’s Indian passport, upon which he placed some significance in his oral submissions.  I note that that passport was in evidence before the Tribunal, and the Tribunal appears to have proceeded on the basis of what was contained in that passport.  In my procedural orders made on 15 July 2009 I gave the applicant until 19 August 2009 to file and serve additional evidence in support of his application.  He has not taken up that opportunity.  Although he made submissions based upon what he says was contained or not contained in his passport, he had not brought the passport with him today. 

6. However, I proceed on the basis that the description of the passport by the applicant, which is consistent with the description of the passport by the Tribunal, is an accurate one.  In particular, I accept that the passport, although issued in the applicant’s name and containing his photograph, did not contain an Indian departure stamp. 

7. To the extent that the grounds in the original show cause application have any continuing significance, they are adequately dealt with in the Minister’s written submissions.  I agree with and adopt for the purposes of this judgment paragraphs 9 through to paragraph 27 of those written submissions, with amendments:

   The applicant will only succeed if he can demonstrate the Tribunal committed jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76]. If the Tribunal did not commit jurisdictional error then the decision is immune from any order to set the decision aside by reason of the privative clause in s.474 of the Migration Act 1958 (Cth) (“the Migration Act”).

   Ground 1

   By Ground 1, the applicant alleges that the Tribunal failed to comply with its s.424A obligations. Ground 1 is without merit.

   Independent country information is not information that is required to be put to the applicant under s.424A, thus it does not constitute information that would enliven a s.424A(1) obligation: s.424A(3)(a) of the Migration Act.

   Ground 2

   By Ground 2, the applicant alleges that the Tribunal breached its procedural fairness obligations by failing to give the applicant an opportunity to appear before it, before it reached an adverse credibility finding.  The first respondent submits that ground 2 is without merit.

   Section 422B of the Migration Act states that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The requirements of the common law fair hearing rule do not apply.

   The applicant was given the opportunity to be heard before the Tribunal on two separate occasions[2]. The applicant attended and presented arguments to the Tribunal on 2 February 2009[3]. Further, the Tribunal wrote to the applicant's sponsor by way of a s.424 letter seeking additional information about the applicant's claims. The applicant's sponsor did not reply. The Tribunal, which could not make a favourable decision on the information before it, invited the applicant to "appear before [it] to give evidence and present arguments relating to the issues arising in [his] case" on 14 May 2009[4]. The applicant attended that second hearing and gave further evidence.

   [2] CB75-76 (2 February 2009) and CB85-86 (14 May 2009)

   [3] CB93-103, TD at [24] to [80]

   [4] CB81 - Letter from the Tribunal to the applicant dated 17 April 2009 inviting him to a hearing on 14 May 2009.

   For the reasons set out in paragraphs [79], [96] and [103] of the Tribunal’s decision, it was open to the Tribunal to reach the adverse conclusion it did based on the information before it. An adverse credibility finding is a matter for the decision-maker par excellence: Minister for Immigration; Ex Parte Durajaisingham [2000] HCA 1 at [67].

   The Tribunal did not commit a jurisdictional error on the basis of failing to accord the applicant procedural fairness during the decision-making process.

   Ground 3

   By ground 3, the applicant asserts that he satisfies the four criteria of the Convention definition of a refugee but the Tribunal did not consider "this aspect".  The ground is misconceived.

   Paragraphs [9] to [18] of the Tribunal’s decision record disclose that the Tribunal considered the applicant's claims in the context of the Convention definition of a refugee[5]. On the basis of its adverse credibility finding, the Tribunal did not believe that the applicant was a Sri Lankan national living in India.  The Tribunal therefore did not believe the applicant's claims to have been persecuted in India because of his Sri Lankan nationality and consequently found that he could not satisfy the definition of a refugee under the Convention. In support of this finding, the Tribunal sets out detailed reasons for determining that the applicant was not a refugee under the Convention[6].  This conclusion of fact was open to the Tribunal.

   Ground 3 is in essence the applicant asserting that he is a refugee, and disagreeing with the Tribunal’s contrary finding of fact in this regard. The Court cannot engage in merits review.

   Ground 4

   By Ground 4, the applicant attacks the Tribunal for failing to investigate his claim to have been persecuted in India and asserts that the Tribunal was biased. These claims are without merit.

   By the first limb of ground 4, the applicant asserts that the Tribunal failed to investigate his claims, "especially the ground of persecution".  This allegation is misconceived. The Tribunal has no general duty to inquire about the applicant's claims: Minister for Immigration v SGLB [2004] HCA 32; Minister for Immigration v SZIAI [2009] HCA 39. It is not for the Tribunal to make the applicant's claim for him, nor was it necessary in this case for the Tribunal to have made any attempt to obtain further information to verify the Applicant's claims of persecution in India, as the Tribunal reached an adverse credibility finding against the applicant: Re Bineshri Prasad v Minister of Immigration [1985] FCA 47; (1985) 6 FCR 155 at [33]. There was no jurisdictional error.

   By the second limb of ground 4, the applicant asserts that the Tribunal’s decision was affected by actual bias constituting jurisdictional error.  The applicant cannot establish that, on the basis of the Tribunal’s decision record alone, that the Tribunal was "disabled or unwilling to have regard to other relevant circumstances":  SZGSI & Anor v Minister for Immigration & Anor (2009) 107 ALD 414.

   This is not a rare case in which actual bias can be established on the basis of the Tribunal’s reasons alone. The lengthy hearings the Tribunal afforded to the applicant, and its extensive consideration of the applicant's claims, do not support the assertion that the Tribunal was actually biased. The applicant has failed to establish this claim.

   [5] CB89-91, TD at [6] to [18].

   [6] CB110-116, TD [96] to [115]

8. In paragraph 3 of his affidavit the applicant asserts that the Tribunal failed to analyse properly the future harm he might face if he had to go back to India.  The applicant asserts that due to this failure the Tribunal had committed a serious jurisdictional error by failing to assess the real chance test before dismissing his claims.  In his oral submissions the applicant said that the Tribunal was in error in failing to accept that the absence of a departure stamp in his Indian passport supported his claim of having left India illegally in order to avoid detection.

9. The relevant findings by the Tribunal were made in paragraphs 93, 110 and 111 of the Tribunal’s reasons[7]:

   [7] CB 109, 115

   The Tribunal finds that the applicant has Indian nationality.  The applicant stated that he has no identity documents and he is not sure of his nationality, as his father was from Sri Lanka.  He claimed that he might be Sri Lankan.  However, the applicant entered Australia on an Indian passport, which the Tribunal sighted at the hearing, and there is no evidence that he has the nationality of any other country.  The Tribunal has therefore assessed the applicant’s claims on the basis that he is a national of India.

   …

   The Tribunal also finds that the applicant has given inconsistent evidence about how he departed India and that the applicant has manufactured his evidence about the childhood friend in order to explain how he was able to obtain a passport and visa, and depart India when he claims to be of adverse interest to the authorities and to the LTTE and TNLA.  On his protection visa application he claims to have left legally through Chennai but in his horal evidence the applicant claims to have departed illegally from Bangalore.  The Tribunal is of the view that the applicant has changed his evidence about how he departed India in response to concerns raised by the Tribunal about how he was able to leave legally when he was wanted by the authorities.  The applicant gave evidence that his childhood friend obtained the passport for him, as the applicant was unable to do so, because he was in hiding and he was wanted by the police.  However, despite his claims to have been arrested at least 10 or 15 times, the applicant obtained a passport in his own name.  The Tribunal is of the view that if the applicant had to obtain his passport illegally as he was wanted by the police, then it is not credible that he would have obtained the passport in his own name.

   The applicant claimed that the fact that there is no Indian departure stamp on the passport supports his claim that he left illegally.  However, the applicant has given inconsistent evidence about his point of departure from India and whether he departed legally or not.  The Tribunal does not accept that the absence of departure stamps on his passport supports the applicant’s claim that he had to leave illegally, as he was an associate of the TNLA and the LTTE.  The Tribunal is of the view that the applicant’s departure from India on a passport in his own name casts doubt on his claim to be at risk of persecution.  The applicant claims that in the past he changed his appearance and identity to avoid detection by the police.  He claims that he had to obtain a passport by illegal means.  Yet despite his claims to fear the police and to have needed to change his identity in the past and to spend long periods in hiding, and that he had to depart India illegally via the luggage area, he nevertheless obtained a passport in his own name, using his own date of birth and including his parents’ correct names.  The Tribunal accepts as plausible that there may be instances of persons with a criminal record succeeding in obtaining Indian passports in their own names, and would therefore not rely on this circumstance alone to draw any adverse inferences.  However, in the totality of the evidence before it, and given its adverse view of the applicant’s credibility, it considers that the applicant’s decision to use an Indian passport in his own name and his ability to do so indicate that he was not wanted by the police or by anyone.

10. The Tribunal proceeded on the basis that there was evidence of the applicant having Indian nationality and there was no evidence of him having any other nationality.  The Tribunal also proceeded on the basis that the applicant had given inconsistent evidence about how he departed India and that the simple fact of the absence of a departure stamp in his passport did not support his claim that he had to leave India illegally because of his political associations.  In my view, those findings by the Tribunal were open to it on the material before it.

11. At paragraph 115 of its decision[8], the Tribunal directed its attention to the harm that the applicant might suffer in future should he return to India.  Having rejected all of the applicant’s claims of past harm, the Tribunal was not satisfied that there was a real chance that the applicant would face politically motivated or any other harm if he returned to his home state of Tamil Nadu.  I see no error in the Tribunal’s approach.

    [8] CB 116

1. The ground advanced in the amended application relates to the acknowledgement letter sent by the Tribunal on 2 December 2008 which is reproduced on pages 69 and 70 of the court book.  That acknowledgement letter was in the usual form.  Such acknowledgment letters were the subject of a decision of this Court in SZNAV v Minister for Immigration & Anor [2009] FMCA 693, in which Raphael FM found that the Tribunal fell into jurisdictional error by not complying with the code of procedure in ss.424 and 424B of the Migration Act in relation to requests for additional information.

2. The amended application was filed two days before the Federal Court dealt with an appeal against that decision on 27 August 2009.  The Federal Court in its appeal judgment[9] rejected Raphael FM’s reasoning in relation to the application of s.424 to Tribunal acknowledgement letters. I am, of course, bound by the decision of the Federal Court and that decision is a complete answer to the ground in the amended application.

   [9] Minister for Immigration v SZNAV [2009] FCAFC 109

3. Having rejected all of the grounds in the original and amended applications and in the applicant’s affidavit, and having satisfied myself on my own reading of the material that there is no jurisdictional error in the Tribunal decision, I conclude that the Tribunal decision is a privative clause decision and the application must, therefore, be dismissed.  I so order.

4. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $2,000.  That is less than half the scale amount after a final hearing.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  22 October 2009