SZODP v Minister for Immigration - [2010] FMCA 356

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODP & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 356

MIGRATION – RRT decision – Indian applicant claiming political or religious persecution – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.424A

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZIAI v Minister for Immigration & Citizenship (2009) 259 ALR 429

First Applicant:

SZODP

Second Applicant:

SZODQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 242 of 2010

Judgment of:

Smith FM

Hearing date:

17 May 2010

Delivered at:

Sydney

Delivered on:

17 May 2010

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the Respondents:

Mr R Baird

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 242 of 2010

SZODP

First Applicant

SZODQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife who arrived in Australia on tourist visas in May 2009. On 10 July 2009 they applied for protection visas. Only the husband made claims to fear persecution if they returned to India. I shall therefore refer to him as the applicant.
The applicant’s visa application did not disclose any assistance being given. It promised “I will provide required document later on”, and did not attach any evidence supporting the history presented to the Department of Immigration. Nor, subsequently, did the applicant present any corroborative documents to the Tribunal. This was notwithstanding that the delegate in his decision on 7 September 2009, said that he did not believe the applicant’s claims, after interviewing him. In addition, on at least three occasions the applicant was reminded to forward to the Tribunal “any information, documents or submissions that you want the Tribunal to consider in support of your application; or send them to us as soon as possible” (e.g. the form of application at page 60 of the Court book, and the Tribunal’s acknowledgement letter at page 62, and its invitation to a hearing at page 64). As I shall describe below, the applicant now complains that he was not given further invitations to present corroborative documents.
The applicant’s refugee claims were set out in a two-page typed statement attached to the protection visa application. He claimed that he had a garments business in Mumbai which was established in 2002. Elsewhere in his application, he indicated that he had conducted his business until April 2009. His visa statement claimed that he was a Hindu from Gujarati, a Gujarat, and a supporter of the nationalist BJP party. He claimed that “the Muslim mafia group” in Mumbai targeted him for his support for the BJP party, and that they obtained this information from a “Muslim guy from Gujarat” who had unsuccessfully courted his wife.
The applicant claimed that on an unstated occasion “they came to my business address and asked about me to my manager”. The manager was threatened into disclosing the applicant’s home address, and three people went to his house. Only the caretaker was at home, but “they ransacked my house and took the valuable items, and informed the other group about the situation”. The manager was mistreated, and was so frightened that he refused to make statements to the police. The applicant said that the police took no action for that reason. He said: “we were terrified about the ordeal we’d been through. My parents made the decision to stop running business and move us to another country”. The applicant claimed that he feared that if he returned to India “we have a risk of being killed by the Muslim thugs who have got link with Congress parties”.
In an interview with the delegate, and before the Tribunal, the applicant departed significantly from this history in relation to several aspects. He claimed that the incident in Mumbai had occurred in June 2008, and that he had then shifted his business to Ahmedabad for two years. He claimed there had been a second incident in that city in October or November 2008, when one of his trucks was burnt down, and he blamed these incidents on ‘Iqbal’, who he identified as the person responsible for pursuing him and for harassing his wife. However, he was unable to give many details about that person. He also seemed to suggest that Iqbal was pursuing him and his wife for personal reasons and not political reasons.
The applicant’s hearing was held by the Tribunal on 16 December 2009, by video link to Griffith. The Tribunal summarised the course of the hearing in its statement of reasons, and I accept its description in the absence of better evidence tendered by any party.
According to the Tribunal, it questioned the applicant about his new claims. It noted a number of inconsistent responses to its questioning, and uncertainties in the applicant’s evidence about the person who he claimed was responsible for the persecution. It appears to me that the Tribunal put to the applicant, expressly, all of the matters which subsequently caused it to make its adverse findings. In particular, it did so at the end of the hearing.
According to the Tribunal, the applicant said that he reported the June 2008 incident in Mumbai to the police, and said:
The police will not investigate anything without a bribe and would always prefer the person who has political influence. He can submit a First Information Report if necessary.
The Tribunal’s description of the hearing does not show how the Tribunal responded to this suggestion. It said it put to the applicant that he had given inconsistent evidence about the reasons for the police taking no action on that occasion.
The applicant made a similar statement that he “can submit a First Information Report if necessary” in relation to the November or December 2008 incident in Ahmedabad. He also, when questioned about his delay in leaving India, claimed that his wife had been injured in a scooter accident, and “he can submit medical evidence if necessary”. The Tribunal does not indicate how it responded at the hearing to these suggestions.
The Tribunal gave its decision on 12 January 2010. In its findings and reasons it identified various reasons for concluding that the applicant had been an unimpressive witness, and had given evidence inconsistent with his claims in his visa application and other evidence given in the course of the hearing. After identifying five areas of concern, the Tribunal concluded:
For the reasons given in the preceding 9 paragraphs, the Tribunal finds that the applicant has not given a credible account of key aspects of his claims. The Tribunal finds that the applicant’s evidence about important aspects of his claims are vague and lacking in detail. The Tribunal finds that there was significant delay between when the claimed events occurred and when the applicant left India. The Tribunal finds that the applicant’s evidence at the hearing on key events is inconsistent with his protection visa application and written statements. One inconsistency or omission on its own may not lead the Tribunal to doubt the applicant’s evidence. However, in this case, the applicant has given inconsistent evidence on several key aspects of his claims. When considered cumulatively, these inconsistencies and omissions lead the Tribunal to find that the applicant’s evidence is not credible. The Tribunal finds that the applicant has not provided a credible account of his claims and does not accept that he is telling the truth about what happened to him in India. The Tribunal finds that the applicant is not a credible witness.
The Tribunal therefore did not accept any of the elements in the applicant’s claimed history of persecution. It accepted only that he “may have given an occasional donation to the BJP during festivals to assist with running his business”.
It also noted the applicant’s evidence that he had not been targeted by the Muslim mafia or Iqbal because he gave money to the BJP, but because of “the personal matter to do with his wife”. The Tribunal said:
On the basis of this evidence, the Tribunal does not accept that the applicant experienced harm in India because of his political opinion or imputed political opinion.
The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would face persecution in India because of his political opinion, or imputed political opinion, race, religion, nationality or because he was a member of a particular social group. It was not satisfied that he was a person to whom Australia has protection obligations and because of its reasons.
In the course of its reasoning, the Tribunal made references to the applicant’s three suggestions that he was able to submit documents “if necessary”, as follows:
57. The Tribunal finds it is not credible that if Iqbal had a personal vendetta against the applicant and his wife, knew their home address and had the money and the connections to find the applicant, that he would not have tried to visit the applicant at his home. The applicant’s evidence casts doubt on his claim that he was actually threatened by a person called Iqbal and that Iqbal hired the ‘Muslim mafia’ to harm the applicant. The Tribunal has had regard to the applicant’s evidence that he has a police report for the June 2008 incident. This evidence is not before the Tribunal. Even if it were, it is inconsistent with the information in the applicant’s written statement that the police would not investigate the matter unless his manager gave a statement or the applicant bribed them.
...
59. Thirdly, the applicant has omitted a key part of his protection visa claims from his written statement. At the hearing he claimed that he was threatened by Iqbal while in Ahmedabad, a truck containing his goods was stolen and burnt in November/December 2008 and he reported the matter to the police. The applicant did not mention this at all in his protection visa application or written statement. His failure to do so casts doubt on his claim that these events actually occurred. The Tribunal has had regard to the applicant’s evidence that he could submit a police report about the incident if necessary. This evidence is not before the Tribunal. Even if it were, it does not explain why the applicant failed to mention this important claim in his protection visa application or written statement.
…
62. The Tribunal has had regard to the applicant’s explanation that he tried to shift his business to Ahmedabad, that it took time to close the business, get a visa and that his wife had an accident in January 2009. The Tribunal has had regard to his evidence that he could submit medical evidence about his wife’s accident. The Tribunal does not accept that these factors adequately explain the reasons for the applicant’s delay. If the applicant had a well founded fear for his safety, the Tribunal considers that he would have taken steps to leave India more quickly after either the incident in Mumbai in June 2008 or after the claimed truck bombing in November 2008. The Tribunal does not accept that it would have taken the applicant a signficant amount of time to apply for a visa. He could have left his parents or other family to wind up the business for him. Even if his wife was injured in January 2009, this does not explain why he did not leave until May 2009. In summary, the Tribunal finds that the applicant’s delay in leaving India after the claimed attacks occurred casts doubt on the credibility of his claims that he feared harm.
(emphasis added)
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to do this only if the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia.
The applicant has filed an application and an amended application, which are taken from precedents commonly seen in this Court at present. Unfortunately, they are both garbled and lack reference to the particular case. The grounds in his application are as follows:
1.The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in s.424A which relevantly states:
424A applicant must be given certain information.
1. Subject to subsection (3), the Tribunal must:
a)     Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review;
b)     Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review; and
c)     Invite the applicant to comment on it.
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.
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 the Migration Act 1958.
3.The Tribunal member emphasised on some irrelevant question at the hearing and ignored my political background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
The grounds of his amended application are:
1.My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of s.424A as decided by the majority judge of the High Court in SAAP.
2.The Tribunal failed to investigate applicants claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated 12 January 2010 was effected by actual bias constituting judicial error.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
When invited to relate these grounds to his own case, the applicant raised only one aspect of what had happened before the Tribunal. This was his suggestion to the Tribunal at the hearing that “if necessary” he could produce two First Information Reports and medical evidence. The applicant suggested that the Tribunal had erred by not allowing him more time to produce these documents, or for not asking him to do that.
However, I am unable to identify any jurisdictional error in relation to these complaints. On the evidence before me as to what happened at the hearing, there was absent any statement by the Tribunal such as occurred in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1, in which the Tribunal appeared to promise further time for the obtaining of further evidence, and then failed to consider its promise before making a decision.
On the evidence before me, the applicant was on clear notice prior to the hearing that the credibility of his history was generally in question, and had been told that he had a right to present evidence in corroboration of his claims. In my opinion, the Tribunal was under no obligation to invite the applicant to present more evidence after the hearing, and it did not do so. The applicant could have forwarded more material before the Tribunal made its decision, but he elected not to do that. In my opinion, there was no procedural unfairness attending the Tribunal’s making of its decision without pursuing the applicant’s suggestions further.
As I have indicated above, the Tribunal considered the applicant’s statements about documents he had not submitted, and it addressed the significance of those statements when considering the relevant matters. There was no relevant matter which it failed to consider.
In my opinion, the Tribunal was under no obligation itself to make further inquiries in relation to the existence of corroborative evidence, under principles which appear to have been endorsed in the High Court in SZIAI v Minister for Immigration & Citizenship (2009) 259 ALR 429. The present case did not have any of the ‘exceptional’ circumstances where a duty to inquire might arise, and there is no evidence showing that the documents which might have been produced by the applicant would have provided evidence of any probative weight. This indeed, seems to be the implicit point made by the Tribunal in its references to the applicant’s suggestions.
In all the circumstances, I can locate no ground of jurisdictional error arising from the applicant’s statements that he could submit three pieces of evidence “if necessary”.
Turning to the pleaded grounds in the application and amended application, I can see no obligations under section 424A which arose, whether referable to the arguments presented by the applicant or otherwise. The Tribunal’s decision was not based on any information giving rise to obligations under s.424A(1), but was based upon its assessment of the evidence given by the applicant himself to the Department, to the delegate, and to the Tribunal (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609).
As I have found above, the Tribunal made no “undertaking to give me an opportunity to make written submissions about the inconsistencies in my evidence”.
I can identify no unfairness in the procedures followed by the Tribunal, whether found in the statutory provisions of the Migration Act, in the findings of the Tribunal, or otherwise.
I have dealt with ground 2 of the application as well as I can above.
Ground 3 in the original application is extremely obscure. I can identify no “irrelevant question at the hearing” asked by the Tribunal, nor any evidence that the Tribunal ignored the claims of the applicant. In my opinion it considered all of them, but was not satisfied that they were true or gave rise to a Convention ground.
Grounds 1 and 2 of the amended application have been dealt with in what I have said above.
There is no basis whatsoever for the additional contention that the Tribunal’s decision was “effected by actual bias”.
The contention of legal error in ground 3 of the amended application is unexplained, and I am unable to give it meaningful application to the present case.
For the above reasons I am not satisfied that any jurisdictional error affects the Tribunal’s decision. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 26 May 2010