SZOCV v Minister for Immigration

[2010] FMCA 883

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCV v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 883

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425

Minister for Immigrationv Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant: SZOCV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1872 of 2010

Judgment of: Driver FM

Hearing date: 12 November 2010

Delivered at: Sydney

Delivered on: 12 November 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Whittemore
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1872 of 2010

SZOCV

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 3 August 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from India and had made claims of religious persecution.  The following statement of background facts is derived from the Minister’s written submissions. 

3. The applicant claimed to fear harm in India from Muslim extremists on account of his conversion to Christianity (court book “CB” 32-34).  He claimed that he was raised in a “highly fundamental and conservative” Islamic family and attended strict Islamic schools. The applicant did not respect Islamic rules and felt pressure from his peers to respect the Muslim community. When the applicant began college he became friends with Christians. He began to embrace Christianity, learnt Christian history, read Christian books and became a member of the Christian Charitable Association (CCA). He was subsequently attacked by members of the Student Islamic Movement of India (SIMI) on a number of occasions because of his conversion to Christianity and membership of the CCA.

4. The applicant attended an interview with a delegate of the Minister on 8 September 2009: CB 60.9. In a decision dated 16 September 2009, the delegate refused to grant the applicant a protection visa: CB 51-67. The delegate considered the applicant’s claims but found that given a number of inconsistencies between his written account and account at the interview and the lack of documentary evidence that it did not accept his claims of harm: CB 61-66. Further, the delegate concluded that relocation would be a safe option for the applicant: CB 67.1.  Accordingly, the delegate was not satisfied that the applicant had a genuine fear of harm and found that his fear of persecution was not well founded: CB 67.2.

Proceedings before the Tribunal and the Tribunal decision

1. On 7 October 2009, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 68-71. The matter was remitted by consent on 19 April 2010 because the previously constituted Tribunal (the first Tribunal) failed to comply with s.425 of the Migration Act 1958 (Cth) (“the Migration Act”): CB 103.

2. By a letter dated 12 May 2010, the applicant was invited by the Tribunal to attend a hearing on 24 June 2010: CB 106-107. The applicant accepted the hearing invitation (CB 108) and attended the hearing: CB 110-111. The applicant provided a copy of his passport to the Tribunal at the hearing: CB 114-119.

3. The Tribunal made its decision on 3 August 2010 and sent it to the applicant by letter dated 4 August 2010: CB 120-149. The Tribunal rejected the applicant’s claims on the basis of strong adverse credibility findings. The Tribunal found that the applicant was an “unimpressive witness” and that there were “significant inconsistencies and improbabilities” in his claims: CB 145, [64]. The Tribunal found that the applicant displayed only a basic knowledge of the Islamic religion which was inconsistent with his claims to be from a conservative Sunni Muslim family and to have received an Islamic education: CB 145, [65]-[66]. The Tribunal also had regard to his parent’s willingness to send him to Australia to study (a country largely populated by Christians) and concluded that his claim to belong to a conservative Sunni Muslim family, which formed the basis of all his claims regarding his conversion to Christianity, could not be relied upon: CB 145-146, [67]-[69].

4. The Tribunal found the applicant’s evidence about embracing and converting to Christianity was similarly vague and generalised: CB 146, [71]. It found that he displayed only the most superficial knowledge of Christian belief and gave inconsistent evidence about his Church attendance in Australia: CB 146, [71]. The Tribunal also found that the applicant’s knowledge of the CCA was “vague and uninformative”, he had difficulty recalling the organisation’s name and the Tribunal had been unable to locate any information about the CCA on the internet: CB 146, [72]. The Tribunal ultimately rejected all of the applicant’s claims about his Islamic upbringing and conversion to Christianity and his claim to fear harm on that basis: CB 147, [73]-[74].

5. The Tribunal did not accept the applicant’s claims about his family’s religious background, in light of its findings that the applicant was not credible and had not been involved in Christian activity in India or Australia: CB 146.  Accordingly, the Tribunal did not accept the applicant’s claims and was not satisfied that he faced a real chance of serious harm in the reasonably foreseeable future for a Convention reason: CB 149.

The present application

1. These proceedings began with a show cause application filed on 25 August 2010.  The grounds in that application are:

   1.My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s.424A as decided by the majority of High Court in SAAP.

   2.The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the documents.

2. The applicant asserts, first, that the Tribunal failed to comply with its obligation of disclosure under section 424A of the Migration Act. I asked the applicant to identify what information the Tribunal failed to disclose to him that he asserts should have been disclosed. He identified difficulties that the Tribunal had with documents he had submitted to it. However, the Tribunal did not need to disclose to the applicant documents which he himself had submitted. Neither did the Tribunal have to disclose its own reasoning process pursuant to s.424A.

3. As is noted in the Minister’s submissions, the Tribunal rejected the applicant’s claims on the basis of doubts that arose from inconsistencies in his account. The Tribunal’s doubts about the applicant’s claims and inconsistencies in his claims is not information for the purposes of s.424A. I also agree with the Minister’s submissions concerning the rational basis for the Tribunal’s decision.

4. The High Court has recognised that in determining whether an applicant has a “well-founded” fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.[1]  The Tribunal’s findings had a rational basis and were open to it for the reasons it gave.  There is nothing in the Tribunal’s reasoning to suggest that it involved any illogicality or irrationality of the type contemplated by the High Court in Ex parte S20/2002 to establish jurisdictional error.[2]  In substance, the applicant’s complaint appears to amount to no more than an expression of dissatisfaction with the conclusions drawn by the Tribunal but this amounts to an invitation to the Court to seek to review the merits of his case which the Court cannot do. 

   [1] Minister for Immigrationv Wu Shan Liang (1996) 185 CLR 259 at 281-282.

   [2] Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30 per Gleeson CJ at 9.

5. The second ground identified by the applicant is a failure to engage in an active intellectual process concerning its examination of the applicant’s documents. It needs to be borne in mind, in this connection, that the first Tribunal decision concerning the applicant was set aside by consent in this Court on 19 April 2010. The order of Emmett FM is reproduced at CB 103. The order notes that the Minister accepted in that proceeding that the application must be allowed on the basis that the Tribunal failed to comply with s.425(1) of the Migration Act.

6. In finding that the applicant did not have a well-founded fear of persecution, the delegate was critical of the lack of documentary evidence to support the applicant’s claims.  In seeking to review the delegate’s decision, the applicant provided a number of documents to the Tribunal in support of his claims which were not before the delegate.  The first Tribunal took the view that the documents presented had been concocted in an attempt to give a degree of credibility to the applicant’s claims.  The first Tribunal made that finding in circumstances where it did not raise with the applicant in the course of a hearing that it might find that the documents he had provided were concocted or that there was an issue generally regarding the authenticity of documents from India.  Nor did the first Tribunal question the applicant about the claims to which the documents related in a manner that would have put the applicant on notice that the authenticity of the documents was, by implication, in issue. 

7. The error committed by the first Tribunal was corrected by the second Tribunal.  The record of the second Tribunal hearing shows that the Tribunal discussed with the applicant at the second Tribunal hearing both the general issue of document fraud in India and the particular concerns the Tribunal had with the documents submitted by the applicant (see [52]-[58] of the Tribunal decision, CB 143-144).  The Tribunal’s conclusions concerning the documents are set out at [75] of the Tribunal’s reasons at CB 147-148.  While the applicant made submissions to the contrary, there is no real doubt that the Tribunal engaged in an active intellectual process in considering the applicant’s documents. 

8. The applicant takes issue with the Tribunal’s reasoning process in dealing with certain of his documents.  In particular, the applicant disagrees with the Tribunal’s reasoning concerning the first information report.  The English language translation of that document is reproduced at CB 100-101.  The Malayalam original is reproduced at CB 90.  Reasonable minds can differ about whether an adverse conclusion should have been drawn from a comparison of those two documents.  In my view, the adverse conclusion drawn by the Tribunal was open to it on the material.

9. Likewise, in relation to the letters said to have been written by the Kottapuram Jama-ath Committee and the Muslim Students Federation, the applicant explained why those letters bore English language letterheads.  The explanation is that English language letterheads are used in order to support fundraising or other activities overseas.  It was not unreasonable for the Tribunal to reject that explanation.  The Tribunal was also concerned that the applicant’s friend may have assisted him in order to provide documents of dubious provenance.  The applicant’s attempt to allay that concern, dealt with in the third dot point at [75] of the Tribunal’s reasons, was not particularly persuasive. 

10. The applicant also asserted that the Tribunal erred in making a relocation finding.  However, the Tribunal made no such finding.  The delegate had dealt with the issue of relocation, but the delegate’s decision is not before this Court for review. 

11. The applicant also expressed concern that the Tribunal did not make inquiries in India about either his claims or his documents.  There is no evidence of any such inquiries having been made by the Tribunal.  However, the Tribunal was under no legal obligation to make such inquiries.  The Tribunal was entitled to rely upon the information provided by the applicant in reaching its decision. 

12. The applicant has failed to persuade me that he has an arguable case of jurisdictional error. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

13. Costs should follow the event in this case. The Minister seeks scale costs of $2,935. The applicant did not wish to be heard on costs. I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 November 2010