SZOCN v Minister for Immigration

[2010] FMCA 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 311

MIGRATION – Review of RRT decision – applicants husband and wife from India – whether Tribunal failed to put adverse information to the applicant – meaning of “information” – where applicant essentially seeking merits review.

Migration Act 1958 (Cth), s.424A

SZDFZ v Minister for Immigration [2008] FCA 390
SZBYR v Ministerfor Immigration (2007) 235 ALR 609
SZBEL v Ministerfor Immigration (2006) 228 CLR 152
NOAO v Ministerfor Immigration [2004] FCAFC 241
VAF v Minister for Immigration [2004] FCAFC 123

First Applicant: SZOCN

Second Applicant: SZOCO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 100 of 2010

Judgment of: Raphael FM

Hearing date: 3 May 2010

Date of Last Submission: 3 May 2010

Delivered at: Sydney

Delivered on: 3 May 2010

REPRESENTATION

For the Applicants: In person

Counsel for the Respondents: Mr P Reynolds

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 100 of 2010

SZOCN

First Applicant

SZOCO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who, together with his wife, an applicant who had no claims of her own, arrived in Australia on 30 May 2009.  On 9 July 2009 they applied to the Department of Immigration and Citizenship for protection (Class XA) visas.  On 27 August 2009 a delegate of the Minister refused to grant protection visas and on 21 September 2009, the applicants applied for review of that decision from the Refugee Review Tribunal.  Both applicants appeared before the Tribunal at a hearing.  On 23 December 2009 the Tribunal affirmed the decision not to grant them protection visas.

2. The applicant’s claims to be a person to whom Australia owed protection obligations arose under the Convention ground of political opinion.  At [82] [CB 133] in the Tribunal’s findings and reasons, the Tribunal commences a short history of the applicant’s claims to have suffered persecution whilst in India.  The Tribunal noted that the applicant was a young man born on 20 September 1984, who worked in his father’s automobile company in New Delhi and had completed a motor mechanic’s apprenticeship in July 2004.  He worked in his father’s business from June 2004 until shortly before the time he left for Australia in April 2009.  He told how, working in his father’s business, he had the opportunity to meet a number of political leaders of different parties and that he had joined the Congress Party for whom he claimed to be an active member.  He says that he did work for his local candidate and this involved distributing party information, “door knocking”, and working on various political activities for the party.

3. The applicant claimed that as a result of this political activity he was targeted by an influential member of the BJP party.  He was asked and then threatened because he refused to leave Congress and join the BJP.  The applicant had told the Tribunal that in his father’s business a number of cars were for hire and these were used by political parties at election times.  It seems that the cars were used for the benefit of the Congress Party but the BJP wished to utilise them themselves.

   “[86] The applicant claims that on 14 April 2009, he organised a meeting in Kerala [a suburb of New Delhi] and that a number of people attended the meeting.  As a consequence of the meeting, the applicant claims that he was threatened by the BJP leader, Mr MS, and that he was severely beaten, suffering head injuries, wrist and leg injuries, losing consciousness and being admitted to hospital for three days. The applicant claims that on 22 April 2009, BJP activists attacked his home and assaulted family members.  The applicant claims that on 7 May 2009, the election was held in Indian and the BJP candidate was defeated in the applicant’s local area.  The applicant claims that on 13 May 2009, he and a congress party applicant were set upon and assaulted.  The applicant claims that his business and car were also targeted.” [CB 134]

4. At the hearing the Tribunal questioned the applicant upon his claims and sought to obtain from him sufficient information to enable it to be satisfied that the applicant was, indeed, an active member of the Congress Party.  The Tribunal asked the applicant some simple questions relating to the party’s policies and those of the BJP, who he claimed he was actively talking to constituents about:

   “The Tribunal would expect that a person who had been an active member of a political party, in this case, the Congress Party, would be able to articulate the aims and objectives of the party and its respective political platform, indeed, that someone who had claimed to have been all involved in garnering support for the party by doorknocking to promote the party in organising rallies would have a sound knowledge of the party.  However, the answers to this line of questioning by the Tribunal at hearing was repetitive, vague and generalised …” [92] [CB 134-135]

5. The Tribunal was concerned that the applicant was unable to provide any corroborative evidence that he had been injured in the manner which he had suggested and that he had spent time in hospital, and was also of the view that, in the particular time period in which he claimed to have been persecuted in the manner in which he was, he was involved very heavily in his father’s business, he had just got married, and he had made arrangements to obtain a visitor’s visa for himself and his wife to visit Australia.  The Tribunal concluded that it would have been difficult for the applicant to also include the very considerable amount of political activity he had told the Tribunal he was involved in. 

6. The Tribunal also questioned the applicant’s wife.  He did not ask the applicant’s wife about her knowledge of Indian politics, but did question her about her knowledge of her husband’s activity.  The applicant’s wife had very limited knowledge and was unable to tell the Tribunal of the name of the party to which her husband was affiliated.  The Tribunal concluded, in the light of all the evidence that it had heard, that it could not accept the applicant’s claims as reflective of a truthful account of his circumstances in India prior to his departure for Australia.  Based upon his lack of knowledge of the political platform of the Congress Party and lack of knowledge pertaining to the opposition BJP Party, the Tribunal found that the applicant was not a witness of truth and that his claims for protection were not credible.

7. On 20 January 2010 the applicant filed an application for review of the decision of the Tribunal by this Court.  There were three grounds of application.  The first was:

   “The Tribunal erred in law, amounting to jurisdictional error, to find that I shall not be persecuted for a Convention-based reason if returned back to India for my political belief as a member of congress.  The Tribunal found failed (sic) to consider that I was a political activist.  The considered (sic) that I established relationship with congress on business purpose and ignored the harassment suffered in India for my political belief and made errors of jurisdiction.” 

   This ground seems to me to be no more than a statement that the Tribunal made a jurisdictional error by coming to a conclusion adverse to that of the applicant.  It is not a jurisdictional error not to be satisfied that an applicant’s story is true: SZDFZ v Minister for Immigration [2008] FCA 390. An argument based upon a claim that the Tribunal “got it wrong” is a request for merits review, and such a review impermissible under the Migration Act, which strictly limits the jurisdiction of this Court.

8. The second ground of complaint is that:

   “The Tribunal exceeded its jurisdiction, or constructively failed to exercise its jurisdiction, for its failure to consider me and my wife as a credible witness and refused our application.  It is fact that my wife may have lack of knowledge of politics, as she was never directly involved in any political activity.”

   As I have already noted, the Tribunal’s questioning of the wife was not a questioning about her political knowledge, but a questioning of her knowledge of her husband’s political activity.  This ground is, therefore, misconceived. 

9. The third ground is:

   “The Tribunal failed to put the adverse information to me to enable me to have an opportunity to submit my explanations and materials in reply to the alleged adverse materials, and it could have led to a different decision by the Tribunal.  Therefore, there is a jurisdictional error.”

   I would hazard a guess that this ground was placed in the application as a result of the applicant speaking to “a friend”.  A perusal of the Tribunal’s decision record indicates no adverse information being used by the Tribunal at all.  Questions were asked of the applicant and unsatisfactory answers were given, but the Tribunal did not even make reference to independent country information and certainly none that could be considered to be adverse.

10. Mr Reynolds, who appears on behalf of the Minister, sets out in his written submissions at [26-33] a number of paragraphs dealing with this complaint.  In his helpful way he makes reference to a number of cases such as SZBYR v Ministerfor Immigration (2007) 235 ALR 609, SZBEL v Ministerfor Immigration (2006) 228 CLR 152 and NOAO v Ministerfor Immigration [2004] FCAFC 241 and then includes a reference to seven cases in which the passage in NAOA at [21] has been “repeatedly applied in the Federal Court and Federal Magistrates Court and an attempt to argue that it was plainly wrong has been rejected”. 

11. I am indebted to Mr Reynolds, but my own view is that this ground of application is really a request that the Tribunal should have put to the applicant a draft form of its findings so that he could comment upon them.  The High Court made it clear that this was not an available option in SZBYR when it said at [18]:

    “If the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein it is difficult to see how such disbelief can be characterised as constituting “information” within the meaning of paragraph 9a) of section 424A(1)…Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 that the word “information”:

    ‘Does not encompass the Tribunal’s subjective appraisals, thought processes or determinations nor does it extend to identify gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etcetera.’

    If the contrary were true s.424A would, in effect, oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.”

12. The applicant appeared before me today.  He told me at first that he had told the truth to the Tribunal and that he had had his problems and he could not go back to India.  He told me that the matter was in my hands and that he had nothing to say.  After Mr Reynolds had spoken he told me that he had a police report that he had wanted to submit, but he didn’t have time to do that and that if I adjourned the matter or sent it back to the Tribunal he could get the police report and would provide it.

13. This Court is unable to assist the applicant in this way as he is required to provide all the information he can to the Tribunal prior to the decision being made.  He also made certain remarks relating to his wife that appeared to be intended to persuade me that she would be unable to answer any questions the Tribunal put to her.  I do not accept this.  I am sure that the wife answered the questions put to her by the Tribunal as honestly and as comprehensively as she was able.  Finally, the applicant told me that he had a lot of problems and that if he went back to India he would be tortured and die.  It is not for me or this Court to make an analysis of that remark, because a decision on the factual basis of the applicant’s claims is one for the Tribunal par excellence. The Court would, of course, trust that this is not the case when it decides, as it now does, that the applicant’s claim must be dismissed and the applicant shall pay the first respondent’s costs which it assesses in the sum of $4,100.00

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  11 May 2010