SZNWL v Minister for Immigration
[2010] FMCA 290
•28 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNWL v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 290 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNWL”. |
| Migration Act 1958 (Cth), ss.91X, 422B, 424A, 424AA, 425 |
| Abram v Bank of New Zealand & Anor [1996] 18 ATPR 41 Neil v Nott (1994) 121 ALR 148 Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 |
| Applicant: | SZNWL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2114 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2010 |
REPRESENTATION
| Applicant: | The Applicant appeared in person with the assistance of a Malayalam interpreter. |
| Counsel for the Respondents: | Mr White (solicitor) |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 31 August 2009 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2114 of 2009
| SZNWL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant was born in Thopputhurai, Tamlnadu in India in December 1976. Included in the Applicant’s Protection (Class XA) visa application, the Applicant states that he is an ethnic Muslim who speaks, reads and writes Malayalam and English and speaks and reads Tamil. The Applicant claims to have a degree in Computer Science and has been employed in the Information Technology (IT) as a Business Processing Outsourcing freelancer.
Attached to the Applicant’s Protection visa application is a four page statement which includes the following claims:
a)He is an active worker of the All India Muslim League in Ramanad District and provides his member number;
b)Other groups are hostile towards him , significantly the Hindu fundamentalists lead by ‘Sanua Parivar’;
c)He was regularly threatened by political opponents when he became the joint secretary of the party in the Ramanad District;
d)He was assaulted at about 6pm on or about 14 April 2008 when he was in his native place of Ramanad District Tamil Nadu;
e)His leg was injured and he was admitted to Ramachanora Medical College in Chennai for 30 days; and
f)When he returned from hospital on or about 13 May 2008, his house was the subject of attack again where the window glass and some other household articles were broken in the attack.
The Applicant arrived in Australia on 31 January 2009 and applied for a Protection (Class XA) visa on 10 March 2009. A delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the Applicant was notified of this decision by way of letter on 6 May 2009. The Applicant applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 2 June 2009 and the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa on 6 August 2009. It is this decision, RRT case number 0904127, a decision of Lilly Mojsin that is the subject of these proceedings.
A Court Book (“CB”) prepared by the first Respondent’s solicitors and marked Exhibit “A” is the only evidence before the Court.
At the first court date directions hearing, the Applicant was granted leave to file an amended application. The Applicant did not comply with this order and therefore relies on the grounds contained in his original application which state
i)The decision made by the RRT is Jurisdictional error
ii)Breach of procedural fairness;
iii)Breach of natural justice
Tribunal decision
The Applicant appeared before the Tribunal on 21 July 2009 and gave evidence in support of his claims (CB 89 at [27]-[59]). I rely on the written submissions prepared by the Respondent’s solicitor, Mr White, in respect of a summary of the Tribunal’s findings. I have no made further direct attribution to the material as this could make the summary unwieldy. The information is provided to assist in the understanding of the nature of the application, not to establish any evidentiary point.
The Tribunal found that the Applicant was “not a witness of truth” and had created his claims in order to obtain a Protection visa (CB 95 at [70]) and cited the following to support that conclusion:
a)The Applicant gave inconsistent evidence in his visa application and at his Tribunal hearing about the purpose of his travel to Singapore and whether his claims of difficulty in 2003 were attributable to his work in the All Indian Muslim League (CB 95 at [71]);
b)The Applicant’s evidence in his visa application, at the departmental interview and to the Tribunal at the hearing was that he was attacked on 14 April 2008 at 6pm but his supporting documents stated he was attacked on 17 April 2008 (CB 95 at [72]);
c)The Applicant’s account at the departmental interview and at the Tribunal hearing about how he escaped his attackers was inconsistent with the submission he provided in support of his claims (CB 96 at [73]);
d)The Applicant gave inconsistent evidence about the number and identity of his attackers (CB 96 at [74]);
e)The Applicant gave inconsistent evidence in his visa application, at the department interview and at the Tribunal hearing about which hospital he was hospitalised for 30 days (CB 96 at [76]); and
f)The Applicant gave inconsistent evidence about being in hiding and where he went after he was released from hospital and has claimed to have attended a Registry Office to get married whilst he was in hiding, was implausible (CB 96 at [78]).
Based on this conclusion that the Applicant was “not a witness of truth” the Tribunal rejected his claim to be a member of the All Indian Muslim League and his other key claims (CB 96 at [80]).
The Tribunal then assessed the future risk of harm faced by the Applicant as a Muslim from Tamil Nadu. It found on the basis of independent country information that the Indian state had implemented reasonable measures to protect the lives and safety of its citizens and that it had a reasonably effective and impartial police force and judicial system in Tamil Nadu (CB 97 at [86] – [87]). It found no support in independent country information that Muslims were harmed in Tamil Nadu for reasons of their religion or any sporadic clashes between Muslims and Hindu nationalist groups had any official quality or was capable of being controlled by the Indian authorities (CB 98 at [88] – [89]). The Tribunal was satisfied that the Applicant could avail himself of effective state protection (CB 98 at [90]) and noted that even if it had accepted his claims of harm (which it did not), the Applicant’s own evidence supported the view that he was able to obtain the protection of the authorities (CB 97 at [81]).
The essential basis of the Tribunal’s decision was its finding of fact concerning the credibility of the Applicant’s claims and his credit as a witness. Having identified a number of significant inconsistencies in the Applicant’s evidence and assessed aspects of his account as inherently implausible, the Tribunal was not satisfied that the Applicant was telling the truth.
The Tribunal’s finding about the availability of protective state protection was supported by either independent country information (CB 97 at [84]; 93 at [60] – [66]) or the Applicant’s own evidence (CB 97 at [81]). The findings reveal that the Tribunal was satisfied on the available evidence that the authorities in Tamil Nadu provided a level of protection to its citizens that was effective and non-discriminatory.
At the Tribunal hearing, the Applicant requested additional time to provide further supporting documents from India (CB 98 at [91]). These documents were identified as a first information report and a medical report (CB 93 at [58]). In refusing the Applicant’s request, the Tribunal specifically noted that the Applicant had been on notice since the Delegate’s decision, that his claim had not been accepted and the Tribunal’s invitation of the 18 June 2009. To attend a Tribunal hearing, also requested him to submit any new information that he relied upon to be forwarded with his response. Two months had passed since the delegate’s decision and one month had elapsed since the Tribunal’s correspondence of the 18 June 2009, the Tribunal was satisfied that the Applicant had already had sufficient time to obtain documents from India if he wished to do so. It also noted that the Applicant’s mother had cancer but found his wife would still have been able to assist him (CB 93 at [54] and 98 at [91]).
The Tribunal was concerned about the Applicant’s inconsistent account of his claimed stay in hospital and the availability of fraudulent documents in India as indicated by independent information (CB 93 at [61]). Consequently, it refused his request for more time to obtain a medical report from India (CB 96 at [77]).
Consideration
The Applicant relies on three very broad, unparticularised grounds of review. At the first court date directions hearing, the Applicant indicated that he wished to participate in the Court sponsored legal advice scheme and a panel advisor was allocated to him. However, the panel advisor was unable to contact the Applicant on the contact details provided. Consequently, no advice was provided. The Applicant did not provide any written submissions prior to the hearing and declined to make oral submissions when invited to do so at the hearing.
The affidavit filed by the Applicant in support of his application for judicial review simply recounts some of the procedural history of the Applicant’s protection visa application and then restates the three grounds of alleged error contained in the application. These grounds are, in effect, bare assertions of jurisdictional error. The Applicant’s supporting affidavit and in the absence of particularised grounds or oral submissions, provides no assistance in identifying the basis on which he seeks judicial review of the Tribunal’s decision.
The Applicant is a self-represented litigant and in these circumstances I note that in Abram v Bank of New Zealand & Anor [1996] 18 ATPR 41 – 507 the Full Federal Court applied the decision of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at 150, to the effect that where a party is not represented, the Court must assume a burden endeavouring to ascertain the rights of the party which are obfuscated by their own advocacy. What a Judge must do to assist a litigant in person depends on the litigant, the nature of the case, the litigant’s intelligence and understanding of the case. In this matter the Applicant does not speak English and is forced to rely upon a Malayalam – English interpreter. Further, he does not appear to have any understanding or appreciation of the legal process in which he is embarking, or the onus which is upon him to establish his grounds of review. Despite having explained to him, via the interpreter’s service, the role and function of the Court, the Applicant appears to be under the impression that these proceedings are yet another step in the process to obtain a Protection visa and of a similar nature to the procedure before both the delegate of the Minister and the Tribunal.
The Applicant is entitled to the rights afforded to him under Division 4 of Part 7 of the Act and in particular the operation of s.422B of the Act. In order to extend this entitlement to the Applicant, I intend to review the Tribunal’s obligations in this division, in the absence of any appropriately pleaded grounds of review supported by particulars and oral submissions.
Application of s.424AA or s.424A
The Tribunal put to the Applicant its concerns about identified inconsistencies in his evidence and explained that this might lead the Tribunal to conclude that he was not a witness of truth. This is not “information” for the purposes of engaging either s.424A or s.424AA as established in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477per Finn and Stone JJ, cited with approval of the majority of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] where the word “information” was considered, it was found that:
does not encompass the tribunal’s subjective appraisal, thought processes or determination… nor does it extend to identifying gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.
It is not enough that information, when considered against other information, may cast doubt on review Applicants’ credibility, for example because of the perception of inconsistencies: SZBYR v Minister for Immigration and Citizenship (supra) at [17]. Nor was the Tribunal required to put to the Applicant under s.424A or s.424AA the independent information to which it had regard in finding that there was no reports of communal or religious violence in Tamil Nadu (CB 93 at [55]) and that State protection was available to him (CB 97 at [84] – [90]). Such information fell within the exception in s.424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [66]. No error is revealed in the Tribunal’s approach. Sections 424A and 424AA have no application when this particular line of reasoning is put to the applicant: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30].
The Tribunal member explained to the Applicant how the information was relevant to the review and the consequences of information being relied upon by the Tribunal as required by s.424AA(b)(i) (CB 92 at [48] – [53]), inviting the Applicant to orally respond to the information pursuant to s.424AA(b)(ii), advising him that he may seek further time to respond in accordance with s.424AA(b)(iii) (CB 91 at [47]). Putting to one side the issue of the first information report and a medical report (referred to above), the Applicant confirmed that he had no further information in which to place before the Tribunal (CB 93 at [57]) and there is nothing to indicate that he sought further time to comment or to respond to the information and the Tribunal was not required to adjourn the review as required by s.424AA(b)(iv).
Application of s.425
The Applicant was validly invited to and attended a hearing before the Tribunal on 21 July 2009. At that hearing, the Tribunal put its concerns to the Applicant about the inconsistencies in his evidence. In adopting this approach, the Tribunal satisfies s.425(1) in the manner outlined in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [42] – [44] by ensuring that the Applicant, at the hearing, was sufficiently alert to the determinative issues arising on review and that he had an opportunity to respond to them (CB 91 at [47] – [57]).
Documents submitted by the Applicant
The Tribunal considered two of the Applicant’s supporting documents (CB 87 at [25]). In respect to the contents of the petition, the Tribunal identified inconsistencies between that document and other evidence given by the Applicant (CB 92 at [48] and [50]; CB 95 at [72] and [74]). The Tribunal was not required to refute, line by line, the corroborative material given by the Applicant; SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [28], citing Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67]. Nor was the Tribunal required to expressly refer to each individual piece of evidence provided by the Applicant, or make findings regarding each of those pieces of evidence: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67] – [68], [73] – [74], [77], [89] and [91]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].
In circumstances where the Applicant’s credibility had been so weakened or comprehensively undermined, it was open to the Tribunal not to accord the corroborative evidence any weight because “the well had been poisoned beyond redemption”: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30 per McHugh and Gummow JJ at [49]. The Applicant’s claims were discredited by comprehensive findings of dishonesty and untruthfulness and the Tribunal’s finding regarding the inconsistencies and implausibility in his evidence provided “cogent material” to support the conclusion that the Applicant had lied: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [27].
Grounds of review
The Applicant has relied on three unparticularised grounds or review. The first is a bland statement that the Tribunal decision is an error, presumably on the basis that it contains one or more jurisdictional errors. In the absence of any indication as to what this error involves, it is to be assumed that the Applicant is expressing his disappointment in the Tribunal rejecting his claims. In respect of the second ground claiming a breach of procedural fairness, the significant provisions of Division 4 of Part 7 of the Act have been reviewed and no error is apparent. In respect of the third ground, claiming a breach of natural justice, since the introduction of s.424B of the Act, the Tribunal was not required to afford the Applicant common law natural justice: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
Conclusion
In the absence of any clearly pleaded ground of review identifying any alleged jurisdictional error on the part of the Tribunal which is particularised or supported by submissions, the review of this application must be limited to a fair reading of the Tribunal decision taking into account its obligations set out in Division 4 of Part 7 of the Act. The only evidence before the Court is the contents of the Court Book and the Tribunal decision and on a fair reading of this material, it is not apparent that any alleged jurisdictional error has been made by the Tribunal. In these circumstances the Application should be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 28 April 2010
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