SZOIM v Minister for Immigration
[2010] FMCA 810
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIM v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 810 |
| MIGRATION – RRT decision – Indian fearing persecution for imputed political activities – disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| SZNVW v Minister for Immigration & Citizenship (2010) 183 FCR 575 |
| Applicant: | SZOIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 800 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 21 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr Y Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA\ AT SYDNEY |
SYG 800 of 2010
| SZOIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in December 2008. He previously visited Australia between June and August of the same year, and returned to his country of nationality, India, before his second trip to Australia. On 20 March 2009 he applied for a protection visa. His application did not identify assistance being given to him, and attached a typed statement setting out a claimed history in India.
The applicant said that he “joined politics” in 1999 by being elected as “youth president” in the BJP party. He claimed to have been “discriminated by some of the party members on racial, religious grounds. I suffered a lot for this and then I changed the party”. In 2001 he joined a party known as ‘MIM’ or ‘AIMIM’ as “youth president”. His then “quit politics” in December 2003 after “there was an incident in Hyderabad in which a youth … was encountered by the police in fake encounter and situations were very critical”. His statement said: “I started concentrating on my business and had visited different cities of the country”.
His concerns about being personally persecuted commenced with an incident which he said occurred in February 2004, when police officers kidnapped, questioned and tortured him, on allegations that he was a member of a terrorist group plotting to murder the state president of the BJP and carry out explosions during the Ganesh Festival. He said he was released after 17 days of torture on the condition that he would act as a witness against Pakistani agents. He claimed that the police had subsequently been harassing him whenever any incident or bomb blast occurred. He referred to some such events, but claimed to have been able to evade the police. He said that he came to Australia on his first visit, and “I found at that is a very good place to live with the family. I went back to bring my family” However, after the police knocked at his door, his family told him to escape and save himself by coming back to Australia alone. He claimed:
If I go back to India, police could arrest me to kill me in encounter … whenever any such ISI suspects are arrested, I am picked up to falsely witness their involvement in anti-national plots.
A delegate interviewed the applicant on 26 May 2009, and the applicant subsequently sent to the Department three documents in purported corroboration of his claims. These included a rental receipt relating to the period between his two trips to Australia, a card showing him as a youth leader of the MIM, and a letter purporting to be on the letterhead of that party, which certified that the applicant
…has joined as a Party Worker from 03-07-2000 continued till to 05-09-2001 and he was designated as Youth Leader till 2005.
He worked generously towards community welfare for the above period.
He was also a active member in different local social activities like Free Medical camps and Blood Donation and Education for poor children programmes held during 2000 to 2005.
The delegate made a decision on 9 June 2009, refusing the protection visa application. The delegate considered country information and the details of the applicant's claims, both in writing and at the interview. The delegate was not satisfied as to the truth of the applicant's claims to have been involved with any political party, nor that he had ever been arrested or detained by police, nor that the police were looking for him. The delegate was not satisfied that the applicant had a genuine fear of persecutory harm on return to India, and also thought that the applicant could relocate in India from his city of Hyderabad.
The applicant appealed to the Tribunal. He did not present any additional corroborative evidence. However, he attended a hearing on 27 August 2009 and was questioned by the Tribunal. A transcript of the hearing is not in evidence, and the Tribunal's description of the hearing in its statement of reasons is somewhat summary and is interposed with the discussion of country information. The Tribunal, however, appears to have discussed with the applicant all the matters which subsequently informed its decision.
The Tribunal made a decision on 10 March 2010, affirming the delegate's decision.
In its findings and reasons, the Tribunal accepted that the applicant had been a life-long resident of Hyderabad, and that he is a Muslim. It expressed some doubts whether he had ever been involved with the BJP youth wing, but accepted that he had been so for the brief period claimed. It said, however, that it “finds that his past involvement in the social activities of that youth wing is not a significant factor overall”.
In relation to the applicant's involvement in the AIMIM party, the Tribunal noted a discrepancy between the applicant's written claim that he ceased political activity in 2003, and the reference in the AIMIM letter to his continuing involvement until 2005. It appears not to have given any material weight to the discrepancy. It found “on the evidence before it, that the applicant ceased giving his time to the AIMIM in 2005”.
The Tribunal identified a number of difficulties in relation to the applicant's claims that he had become a suspect in relation to terrorist incidents in Hyderabad, and that he had encountered harassment from the police in relation to this. The Tribunal identified inconsistent evidence given by the applicant about a number of matters, including the terrorist events about which he was pursued, their dates, and whether he had avoided persecution by leaving his home.
The Tribunal referred to the applicant's claims at the hearing that his health and stress had resulted in him providing inconsistent evidence. It said:
The Applicant claims that his health and stress have been factors behind some of the inconsistencies in his evidence. The Tribunal has considered this. However, the Applicant said that this was why he might have made some incorrect or misleading claims at the delegate’s interview, or claims on that occasion that were inconsistent with the claims he had originally made in writing to the Department. The problem here is that the Applicant distanced himself at the RRT hearing from a number of his original written claims, citing another factor: unsatisfactory translation. On the evidence before it, the Tribunal is not satisfied that the Applicant’s written claims to the Department were mistakenly translated, particularly since the Applicant’s proposed correction for the first “error” made no sense in the context of his overall claims. Although the Tribunal accepts that the Applicant has had some health and stress issues, it does not accept that these are a reason for significant inconsistencies in his evidence. To take as one example, he told the Department in writing he was managing his situation well enough in Hyderabad until an episode arose in March 2008 that finally pushed him into deciding to flee India in June of that year; however, he told the Tribunal that his detention and torture after the Mekka Masjid bombing in May 2008 was the last significant event that caused him eventually to decide to leave, the delay attributed to attempts to obtain a USA visa. When the Tribunal pointed out the discrepancy, the Applicant introduced a completely separate event: a bombing in Mumbai in 2007.
The Tribunal is of the view that the Applicant has been inconsistent about his problems with the authorities because these problems never occurred.
The Tribunal referred to other factors concerning “the overall behaviour of the applicant over the years” which, it said, made it “all the more confident in these findings”.
The Tribunal concluded, from the evidence, that the applicant had lived a “stable life in India” and had lived “at the same residential address in Hyderabad until coming to Australia in December 2008”. It identified good reasons for not relying upon the rental slip as proving the contrary. The Tribunal also gave weight to the facts that the applicant did not attempt to seek protection in Australia during his first visit, that he had departed India without difficulty, and that he “took a long time to apply for protection, even though he was now in Australia seeking refuge from Convention-related harassment for the second time”.
The Tribunal concluded: “looking at the evidence in its entirety, the Tribunal is not satisfied that the applicant's substantive claims are reliable”. It was not satisfied that he faced a real chance of Convention related persecution in India, and found that he was not a refugee.
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 make those orders only if the Tribunal's decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed, nor whether he qualifies for a protection visa, or any other permission to stay in Australia.
The applicant's arguments have been set out in his original application, and embellished in an amended application. It argues:
1.The Tribunal has made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the wrong findings that the applicant did not have a significant political role with the AIMIM, applicant’s returned to India and he took long time to apply for protection.
Particulars
i)The Tribunal wrongly found that the applicant did not provide evidence about his membership of the BJP but the applicant told the Tribunal that he is a member of BJP (CB-126-paragraph-107). Role in the party is decided by the party but this can not be a ground to conclude that the applicant did not have a significant role into the party (CB-126-paragraph-108). None of the Applicant’s supporting material about his involvement in the AIMIM is dated prior to the lodgement of his protection visa application. In any event, the evidence is of his involvement purely in the party’s youth wing and purely in social and charitable activities (CB-127-paragraph-109.)
ii)The Tribunal has some problems with the information in the letter submitted by the Applicant to the Department: it says he stop being active with the AIMIM in 2005, but in his own written account to the Department, he said he quit “politics” in 2003 out of fear of persecution and concentrated on his business, which involve interstate travel (CB-127-paragraph-110).
iii)The Applicant’s evidence does not satisfy the Tribunal that the Applicant was being harmed for reasons of his discretion of the BJP a decade ago. The Tribunal without any supporting information wrongly concluded that it finds that the applicant’s past involvements in the social activities of that youth wing is not a significant factor overall (CB-127-paragraph-113). The Tribunal did not refer any information in rejecting the Applicant’s claim that he was made suspect in relation to a number of terrorist activities in Hyderabad (CB-127-paragraph-114).
iv)The Applicant claims that his health and stress have been factors behind some of the inconsistencies in his evidence. The Applicant said that this was why he might have made some incorrect or misleading claims at the delegate’s interview, or claims on that occasion that were inconsistent with the claims he had originally made in writing to the Department (CB-128-paragraph-117).
2.The Tribunal made a jurisdictional error that the Tribunal did not give an opportunity to the applicant to make comment on adverse opinion which the reason or part of the reason to reject his claim. The information was given to the Department was not given to the Applicant for comment and explanation.
Particulars
i)The Tribunal has some problems with the information in the letter submitted by the Applicant to the Department: it says he stop being active with the AIMIM in 2005, but in his own written account to the Department, he said he quit “politics” in 2003 out of fear of persecution and concentrated on his business, which involve interstate travel (CB-127-paragraph-110).
ii)Overall, the Applicant’s evidence about his domicile, travel and his work, including the handing over of business matters in December 2008 to his uncle, indicates to the Tribunal that he has had a stable life in India. This does not sit with the Applicant’s claims about repeated harassment over the years from the Hyderabad Police and Hindu extremists ((CB-128-paragraph-120).
iii)The information provided by the Applicant to the protection visa application form (CB-129-paragraph-121).
iv)The applicant was not apprehended when he tried to leave India first time (CB-129-paragraph-122).
v)The applicant took long time to apply for protection even though he was now in Australia seeking refuge from Convention-related harassment for the second time (CB-129-paragraph-125).
The arguments in the Ground 1 are not clear. On one view of the ground, it is only inviting the Court to assess the factual correctness of the Tribunal's findings in relation to the applicant's evidence. However, it is not the task of the Court to reconsider the merits of the matter. Moreover, some of the arguments challenge reasoning about the applicant’s involvement in political parties which, ultimately, the Tribunal accepted.
Any adverse findings of the Tribunal which might be challenged under the particulars, were, in my opinion, clearly findings which were available, as a matter of law, to the Tribunal on the evidence before it. I am unable to detect any arguable jurisdictional error raised by the first two particulars.
The assertion in the third particular to Ground 1, that the Tribunal made findings “without any supporting information” is without substance. The Tribunal's findings were clearly based upon the documents and oral evidence presented by the applicant to the Department, and then to the Tribunal. The findings involved assessments of that evidence which were open to the Tribunal. To the extent that the Tribunal noted that the applicant had given incorrect or inconsistent evidence about terrorist incidents in India, the Tribunal's conclusions were based on country information which was identified in the delegate's decision and in its decision. The Tribunal gave sufficient, even ample, reasons for rejecting the applicant's claim that he had been “made suspect in relation to a number of terrorist activities”.
In relation to the fourth particular to Ground 1, the Tribunal undoubtedly considered the applicant's explanation for inconsistencies which he appears to have conceded, being his health and stress. In my opinion, its conclusions in relation to that matter, which I have extracted above, were open to it as a matter of law. No issue arises in this case whether the applicant lacked mental capacities to participate meaningfully at the hearing within principles recently addressed in the Full Court in SZNVW v Minister for Immigration & Citizenship (2010) 183 FCR 575. There was no medical evidence before the Tribunal, and there is now no medical evidence before the Court, concerning the applicant's physical or mental health at the hearing.
In relation to Ground 2, counsel for the Minister interpreted the ground as making assertions of breach of s.424A of the Migration Act, and I am inclined to take the same view, even though that section is not expressly invoked. Beyond the requirements of that section, I am not persuaded that there was any issue which was not sufficiently canvassed by the Tribunal with the applicant at the hearing.
Counsel for the Minister has presented detailed submissions, addressing each of the matters particularised under ground 2, to show that no breach of s.424A(1) arose. I accept his submissions and make the following additional observations.
In relation to the first particular, it was open to the Tribunal to make findings which concluded that the applicant had ceased his involvement with the AIMIM in 2005, as a matter of interpretation of the document presented by the applicant to the Tribunal. It is unclear to me whether that finding was used by the Tribunal in any adverse manner, when assessing the applicant's credibility. However, if the information in the letter was applied as part of the Tribunal’s reasons for affirming the delegate’s decision, it was entitled to rely on that information without following procedures under s.424A or s.424AA, by reason of the exclusion in s.424A(3)(ba) – the letter having been presented by the applicant himself to the Department.
Similarly, the Tribunal's conclusions about the applicant's domicile, travel, and work, were, in my opinion, all based on evidence apparently given by the applicant to the Tribunal in the course of the review proceeding, if not also contained in the documents presented by the applicant to the Department including his written refugee claims and his visa application. All the information upon which the Tribunal's adverse assessments were based was, therefore, excluded from obligations under s.424A(1) by s.424A(3)(b) and (ba).
The same reasoning also applies to particulars 3, 4 and 5.
In his oral submissions today, the applicant's complaint was that he thought that the Tribunal had been “looking for mistakes and not for the truth”. Such may be his perception of the Tribunal's statement of reasons. However, in my opinion, a reasonable reading of the Tribunal's reasons show no more than it performing its duty to assess the applicant's evidence, and to provide a statement of reasons explaining why it concluded that the applicant is not a refugee. There is no evidence before the Court in relation to the Tribunal’s conduct of its hearing, nor of other conduct of the Tribunal, which suggests that it performed its review function prior to decision with a mind closed against a proper assessment of the evidence.
For the above reasons, I am not persuaded that the Tribunal's decision is affected by any jurisdictional error. I must therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 27 October 2010
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