SZNSU v Minister for Immigration

[2010] FMCA 770

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 770

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. 

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1

Applicants: SZNSU, SZNSV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG815 of 2010

Judgment of: Barnes FM

Hearing date: 27 September 2010

Delivered at: Sydney

Delivered on: 27 September 2010

REPRESENTATION

Applicants: First applicant in person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The application be dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG815 of 2010

SZNSU, SZNSV

Applicants

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 18 March 2010 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. 

2. The applicants, who are citizens of India, arrived in Australia in October 2008 and applied for protection visas in December 2008.  The applicant husband claimed to fear persecution from members of the Maharashtra Navnirman Sena (MNS) political party and that they had attacked his factory in Mumbai on four occasions in 2008 because he employed workers of northern Indian descent. 

3. The second named applicant is the wife of the first applicant.  She was included in the application as a member of the family unit but made no independent claims of persecution or to fear persecution.  For convenience the applicant husband is referred to hereafter as the applicant. 

4. The application was refused and the applicants sought review by the Tribunal.  The Tribunal as originally constituted affirmed the delegate’s decision and the applicants sought judicial review in this court.  By consent orders made on 16 December 2009 the matter was remitted to the Tribunal for reconsideration on the basis that the Tribunal as originally constituted had not had regard to six photographs submitted to the Department by the applicant.  The Tribunal as reconstituted held a further hearing conducted over two dates which the applicant attended.  The only evidence before the court of what occurred at the hearing is the account in the Tribunal reasons for decision.  It is the decision of the Tribunal as reconstituted that is before this court. 

5. It is apparent from the Tribunal’s account of what occurred at that hearing that it raised a number of issues of concern with the applicant and gave him the opportunity to comment.  In particular, the six photographs provided to the Department (which were said to depict interactions between various persons in a small factory shed and to show tools and other equipment on the floor of the shed) were discussed in detail.

6. The Tribunal outlined its concerns about these photographs and whether they represented adult males in various moments of seeming confrontation.  At the first hearing it raised with the applicant issues of concern in relation to inconsistencies and incongruities in those photographs and its doubts about the identity of the people depicted and their interaction with each other (in particular, the fact that persons identified as gang members in certain photographs were identified by the applicant as factory workers in other photographs). 

7. When the hearing (which was postponed at the applicant’s request) resumed after some 15 days on 26 February 2010 the Tribunal put to the applicant that “a reasonable viewer … might wonder if the events in the photographs were not staged … by factory personnel” rather than being “genuine photographs of a real event” and whether this would have implications for whether the applicant’s evidence could be relied on as truthful. 

8. The Tribunal also put to the applicant that, even if this were false or staged evidence of a true fact, there were inconsistencies in the oral evidence he had given the previously constituted Tribunal, including in relation to contacting the police on various occasions. 

9. After a discussion of the absence of supporting information, the Tribunal informed the applicant that it would not make a decision before 11 March 2010 and would consider any additional material he might submit up to the time of decision.  It also asked the applicant if there was any more recent evidence which he considered relevant to his case and gave him an opportunity to correct any perceptions of the previously constituted Tribunal and to address any issues raised by the Tribunal as subsequently constituted.  No further submissions were made or information provided by the applicant. 

10. In its findings and reasons the Tribunal referred to the fact that in his original claims to the Department the applicant had claimed that he and his family members had been supporters of the Congress Party.  The Tribunal accepted that the applicant may have attended Congress Party meetings, given it donations and voted for it, but for the purpose of its finding and reasons gave no weight to this, as the applicant did not claim to have faced serious harm for reasons of being a Congress Party supporter. 

11. It summarised the applicant’s claims relating to events in the part of India from which he came since February 2008, particularly in relation to specific employment practices at his factory.  He claimed that a pro-Hindu political party (the MNS) which was opposed to a number of things, including the employment of northern Indians, “took exception to his preference towards northern Indians over local Indians who needed a job”. 

12. The Tribunal stated that it found it hard to identify a Convention-related factor in these claims, but was prepared to accept that the applicant’s claimed refusal to comply with the MNS view in these matters was an “imputed anti-MNS ‘political opinion’”.  However it found that taking those claims at face value what the applicant described was a localised dispute seemingly limited to a particular place and time around two years before the Tribunal decision.  The Tribunal noted that it had asked the applicant if he had any more recent or current evidence in support of his claims but that he did not provide any, apart from suggesting that the MNS wanted to ban Australian cricketers from playing in Mumbai. 

13. The Tribunal had regard to the fact that the applicant’s claims were that the harassment he suffered was focused on his factory and its employment practices, but that he claimed he had sold his factory.  Hence the Tribunal found it “purely speculative” that the applicant would meet with similar or other relevant harassment in the reasonably foreseeable future. 

14. The Tribunal also found that the evidence before it satisfied it that the “authorities in the Applicant’s home city were and are willing and able to provide protection from the kind of violent manifestations of xenophobia and bigotry that the Applicant ha[d] described.”  It had regard to the applicant’s evidence about the police having come to the factory on at least one occasion and having received reports by him about intimidation he and others had suffered in 2008, as well as independent information that the authorities took the 2008 attacks on Northern Indians seriously and pursued the group responsible.  

15. The Tribunal was not satisfied that on his claims the applicant would face a real chance of Convention-related persecution in India in the event of his return there. 

16. In any event, as the Tribunal pointed out, those findings were dependent on it accepting the applicant’s claims.  However it referred to the fact that it had raised with the applicant concerns as to inconsistencies in the evidence he had given to the previously constituted Tribunal and inconsistencies discernible in the photographs he submitted and that this might cause it to disbelieve him.  It had regard to the applicant’s suggestion that documents in the form of “First Information Reports” to the local police might help him overcome such concerns and that although the Tribunal had provided a timeframe (with which he had agreed) allowing him to present further information, he had ultimately submitted no further material.

17. The Tribunal found the applicant’s individual claims were not supported by any independent evidence, apart from general reports about riots in February 2008, to which, in view of matters discussed in its decision, it gave no weight.  It also found that the applicant’s individual claims were “inconsistent and marred” by evidence in the form of photographs (discussed in the hearing) which it found to be false.  The Tribunal did not accept that the applicant, simply in error, had identified one individual in one photograph as his worker and the same individual in another photograph as an outside attacker.  It did not accept the applicant’s story as to how the photographs came into existence or that they depicted any of the claimed attacks on his factory.  The Tribunal considered that the applicant was “a party to the misleading information in the photographs” and was not satisfied on this basis that it could rely on him as a witness of truth.  The Tribunal did not accept as factual the applicant’s substantive claims and hence was not satisfied that he faced a real chance of Convention-related persecution in India. 

18. The applicant wife made no substantive claims of her own.  As the Tribunal was not satisfied that the applicant husband had a well-founded fear of Convention-related persecution, it found that she was not entitled to a protection visa. 

19. The applicants sought review by application filed in this court on 14 April 2010.  They filed an amended application on 1 July 2010.  The applicant husband appeared for himself and for his wife.  He confirmed in oral submissions that the grounds he relied on in these proceedings were the grounds in the amended application. 

20. In oral submissions, the applicant reiterated some of his claims in relation to events in India but, as I endeavoured to explain to him, merits review is not available in this court. 

21. The format of the amended application is not entirely clear and I have considered each paragraph of the grounds, albeit that two of the four numbered paragraphs are described as particulars.  It is first claimed that the Tribunal erred in making a finding of a well-founded fear of persecution (sic), that it adopted an unduly harsh approach to the well-founded fear and that “the stringent application of the test may also result in error in assessment of finding in relation to well-founded fear”.  As a generally expressed contention, this ground does not establish jurisdictional error.  It has not been established that the Tribunal erred in its consideration of the test or the application of the law to the facts, or in considering whether the applicant had a well-founded fear of persecution. 

22. In its reasons for decision, the Tribunal set out the relevant law correctly, including the Refugees Convention and the requirement that the applicant hold a well-founded fear of persecution in order to be a person to whom Australia has protection obligations.  It properly had regard to the meaning of well-founded fear as excluding a fear based on mere speculation.  It considered the claims and evidence of the applicant, before concluding on alternative bases that he did not have such a well-founded fear of persecution.  Of itself, paragraph one of the amended application does not establish jurisdictional error. 

23. It appears that paragraph two may be intended to be particulars to that ground.  It refers to the applicant reminding the Tribunal member about his written submission to the Department that on four specified dates in 2008, MNS workers attacked his factory and harassed and threatened him, that he was forced to leave his premises because of fear for his life and that there were 18 northern Indian workers in his factory.  The Tribunal understood and did not fail to have regard to these aspects of the applicant’s claims.  It set out and addressed the applicant’s claims made in writing to the Department as well as summarising his subsequent oral claims to the first Tribunal and to it.

24. Insofar as the applicant takes issue with the Tribunal findings, he seeks impermissible merits review.  The Tribunal’s failure to accept the applicant’s claims in this respect does not establish jurisdictional review.  Its findings, in particular in relation to credibility, were open to it on the material before it for the reasons that it gave.  I note that, in any event, the Tribunal reached its conclusion on an alternative basis, taking the applicant’s claims on face value and not having regard to any negative impressions in relation to the photographs.  However while it was prepared to proceed on the basis that the applicant was claiming that he had an imputed anti-MNS political opinion, it had regard to the fact that what was described as events in 2008 was a localised dispute limited to a particular place some two years earlier and to the absence of any more recent or current evidence to support such claims.  Further it was open to the Tribunal, having regard to the fact that the applicant did not himself claim to be northern Indian but rather that he was targeted because of employment practices at his factory, to have regard to the fact that the applicant claimed he had sold the factory and hence to conclude that it was purely speculative that he would meet with similar or other relevant harassment in the reasonably foreseeable future. 

25. The Tribunal considered the availability of state protection, finding that the authorities were willing and able to provide protection.  Its findings in this respect were open to it for the reasons that it gave on the material before it and no error has been established in this respect.  Paragraphs one and two of the amended application do not establish jurisdictional error. 

26. Paragraph three states that the Tribunal failed to identify the real issue of growing problems of anti-northern Indian feeling in Mumbai and made the decision “without knowing exact and demographic environment of India.”  Contrary to this contention it is apparent that the Tribunal understood and considered the applicant’s claims, in particular that he did not himself claim to be northern Indian, but that he claimed he was targeted because he employed northern Indians at his factory.  The Tribunal identified and considered this claim, but, having rejected the applicant’s credibility based on inconsistencies and issues in relation to the photographs, ultimately did not accept that the applicant had experienced attacks as claimed.  It was not necessary in that context for the Tribunal to have regard to further demographic evidence in relation to the situation in India. 

27. Insofar as this ground might be seen to take issue with that part of the Tribunal’s findings made on the basis of accepting the applicant’s claims, the Tribunal findings based on independent country information in relation to the response of the authorities to the 2008 attacks on northern Indians were open to it on the material before it for the reason which it gave.  The selection of and weight to be given to items of independent material is a matter for the Tribunal.  There is no suggestion that the Tribunal failed to consider particular items of information before it.  Having regard to the fact that the applicant had sold his factory so that any claim about the future was merely speculative, it was not necessary for the Tribunal to address further the position of northern Indians in Mumbai or elsewhere in India, given that the applicant did not himself claim to be of such descent. 

28. Paragraph four is described as “particulars”.  It states that the Tribunal member misconstrued the facts and raised unnecessary doubts over the credibility of witness.  Whether taken alone or in conjunction with the earlier paragraph, this claim does not establish jurisdictional error.  The application does not identify any particular fact that was said to have been misconstrued, except insofar as it takes issue with the Tribunal’s rejection of the applicant’s claim.  This does not establish jurisdictional error.  Findings of fact, including findings of credibility, are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1). There is nothing in the applicant’s contentions or grounds or in the material before the court, to indicate that there was any error by the Tribunal relating to a jurisdictional fact (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30).

29. The amended application concludes with a general and un-particularised assertion that the Tribunal used the wrong test for persecution and real chance of harm.  As indicated, the Tribunal correctly set out the applicable law and this generally expressed contention does not establish jurisdictional error. 

30. No jurisdictional error is established on any of the bases contended for in the amended application.  As no jurisdictional error has been established the application must be dismissed. 

    RECORDED:  NOT TRANSCRIBED

31. The applicants have been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that unsuccessful applicants should meet the costs of the first respondent.  In light of the nature of this matter and other similar matters, I consider the amount of $4,000 is appropriate. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 October 2010