SZOIO v Minister for Immigration

[2010] FMCA 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOIO v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 484

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal had regard to documents provided by the applicant in support of his review application.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZOIO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 811 of 2010

Judgment of: Emmett FM

Hearing date: 7 July 2010

Date of Last Submission: 7 July 2010

Delivered at: Sydney

Delivered on: 7 July 2010

REPRESENTATION

Applicant appeared in person assisted by a Tamil interpreter

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: Ms J. Dinihan, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 811 of 2010

SZOIO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 March 2010 and handed down on 17 March 2010.

2. The applicant claims to be a citizen of India (“the Applicant”).

3. The Applicant arrived in Australia on 30 July 2008 having departed legally from Chennai on a passport issued in his own name and a subclass 456 visa issued on 30 June 2008.

4. On 11 September 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 25 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 19 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 16 March 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 14 April 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant claimed that he was a member and noted person of the All India Anna Dravida Munnetra Khazagan (“AIADMK”) party which opposed the ruling party, the Dravida Munnetra Kazaghan (“DMK”).

2. The Applicant claimed that, following the tsunami on Boxing Day 2004, he was allocated a home, however, members of the DMK wanted to take this home back. As a result, the Applicant claimed that a fight ensued between the DMK members and his uncle, during which his uncle was stabbed. The Applicant claimed that he moved residence several times following this incident and was chased in each place. He claimed that his parents were being tortured by DMK members and he was threatened with death.

3. The Applicant stated that he complained to police, however, no action was taken because the assailants were members of the ruling party.

4. The Applicant claimed that he feared being attacked by the “politicians” of the DMK if he were to return to India.

The Delegate’s decision

1. On 14 November 2008, the Applicant attended an interview with the Delegate.

2. On 25 November 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate was not satisfied about the veracity of the Applicant’s claims to be a “noted person” in the AIADMK party or that he was attacked for that reason. The Delegate noted that the Applicant’s claims were “vague” and unsupported by any documentary evidence.

The Tribunal’s review and decision

1. On 19 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided further documents in support of his review application.

3. On 23 January 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 26 February 2009 to give oral evidence and present arguments.

4. On 26 February 2009, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “8. On 16 March 2010 the Tribunal affirmed the delegate’s decision not to grant a protection visa to the applicant.

   9. The Tribunal accepted that the applicant was a citizen of India, that he was single, and that he was employed as a fisherman and that he arrived in Australia on 5 August 2008[1]. The Tribunal also accepted that the applicant was affected by the 2004 Boxing Day Tsunami in Tamil Nadu, in which he lost his family home and that his brother and sister drowned[2]. 

   10. However, in relation to key aspects of the applicant's claims regarding his persecution for political reasons, the Tribunal considered that the applicant lacked credibility[3]. The Tribunal noted the applicant’s changing evidence, his inadequate explanations and lack of response also contributed to the Tribunal's view that he was not a witness of truth[4]. The Tribunal was satisfied that the applicant had changed his evidence about his involvement within the AIADMK party as a ‘city coordinator’ in order to reinforce his claim based on his profile in a political party[5]. 

   11. The Tribunal found that the applicant was sometimes evasive when asked to answer questions or provide explanations and was satisfied that his inability to answer the questions was because the matters he stated were not the truth.  In particular, the applicant was unable to answer questions in respect of: (1) the housing situation immediately after the tsunami; (2) the period of time which elapsed between the tsunami and the house being offered to him; (3) details of the dispute which broke out in relation to the house that was being provided to him after the tsunami and, (4) the subsequent stabbing incident involving his uncle[6].

   12. The Tribunal found that the reason provided by the applicant at the hearing as to why he was unable to respond satisfactorily to the Tribunal's questions, namely that he was illiterate, was unsatisfactory[7].

   13. The Tribunal found, because of concerns about his credibility, that the applicant had fabricated his claims that he was persecuted in India by the DMK[8].  Consequently, based on the finding that the applicant was not a truthful witness, the Tribunal found that there was no real chance the applicant would face serious harm for any Convention-related reason should he return to his country, now, or in the reasonably foreseeable future.

   14. The Tribunal found the applicant was not a person to whom Australia owed protection under the Act[9].”

   [1] GB 137.

   [2] GB 137-138.

   [3] GB 139.

   [4] GB 139 at [84].

   [5] GB 139 at [84].

   [6] GB 141 at [95].

   [7] GB 138 at [81].

   [8] GB 141 at [98].

   [9] GB 142.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Tamil interpreter. 

2. On 1 June 2010 the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. The Applicant confirmed that he wished to continue with his application.

3. At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents, headed in his own language.

4. At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an application filed on 14 April 2010 as follows:

   “1. The Tribunal constructively failed to exercise its jurisdiction.

   Particular:

   The applicant provided documents to the Tribunal to corroborate his claims. In particulars (sic) the applicant provided death certificate of his brother and sister, membership card of the AIADMK party, evidence of allotted house in his name. The Tribunal failed to engage in an active intellectual process in respect of those documents. The Tribunal ultimately gave no weight on the basis of its credit findings. It was an error for Tribunal to place no weight on the documents without engaging in an active intellectual process as the contents of the documents of the documents (sic). It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substance of the document corroborated his claims.

   2. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.

   3. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.”

5. No amended application, evidence or submissions were filed by or on behalf of the Applicant. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. The complaint in Ground 1 appears to be that the Tribunal gave no weight to documents provided by the Applicant as corroborative of his claims. The documents identified in Ground 1 are death certificates in respect of his brother and sister; a membership card of the AIADMK in the name of the Applicant indicating that he had been a member since 31 July 1998; and, a document confirming the Applicant’s allocation of a house by the government following the 2004 Boxing Day tsunami in Tamil Nadu.

2. In support of Ground 1, the Applicant stated that the Tribunal had not favourably considered the documents he submitted in support of his claims but that his documents and claims were all true. He said that he explained his situation to the Tribunal but that the Tribunal did not accept the truth of what he said.

3. The Tribunal accepted the authenticity of each of those documents. In the circumstances, the Tribunal accepted that the Applicant’s brother and sister died on 26 December 2004, that the Applicant has been a member of the AIADMK party since 1998 and that he was allocated a house by the government, following the 2004 Boxing Day tsunami.

4. The Applicant’s complaint to this Court appears to be that the Tribunal did not give those documents weight as corroborative of his claims of past persecution by members of the DMK in India, or corroborative of his claim to have a well-founded fear of persecution for a Convention-related reason if he were to return to India now or in the foreseeable future.

5. The Tribunal’s decision record makes clear that the Tribunal explored in great detail the Applicant’s claims at a hearing on 26 February 2009. The Tribunal put to the Applicant concerns it had about his evidence and noted the Applicant’s responses. In particular, the Tribunal put to the Applicant inconsistencies in his evidence about his role with the AIADMK and his claim to be a “noted person” in that party. The Tribunal also noted that the Applicant changed his answers and did not answer questions directly, particularly about the Applicant’s alleged threats by the DMK and the stabbing of his uncle where independent country information before the Tribunal indicated that the AIADMK was in power at the time of the Boxing Day 2004 tsunami. The Tribunal also noted that the Applicant’s claims in respect of the incident involving his uncle evolved inconsistently at the hearing.

6. The Tribunal noted that it put to the Applicant that it had concerns that his evidence was changing and shifting throughout the hearing and that some of his answers were inconsistent with what he had said at the interview and in his written statement in support of his protection visa application. The Tribunal noted that it told the Applicant that the inconsistencies in his evidence may lead the Tribunal to find that no attacks had occurred as claimed, which may lead the Tribunal to find that the Applicant was not a witness of truth and which might lead the Tribunal to affirm the decision under review. The Tribunal noted that it asked the Applicant if he would like to comment or respond to the information given to him by the Tribunal and advised him that he could ask for more time to respond if he wished. The Tribunal noted that the Applicant said that there was nothing else he wanted to say.

7. The Tribunal noted the Applicant’s explanation for some of its concerns about his evidence that he is illiterate and has problems being able to remember details. However, the Tribunal was not satisfied by that explanation and found that the Applicant was able to participate meaningfully in the Tribunal hearing. The Tribunal noted that it took into account the Applicant’s illiteracy but that the Applicant did not appear to suffer from any psychiatric or medical impairment which interfered with his ability to give evidence and present arguments in the Tribunal hearing. The Tribunal also noted that the Applicant did not provide any medical evidence of any current medical or psychological condition.

8. The Tribunal found the Applicant to be coherent and responsive on a number of questions but found that he had difficulty answering questions about inconsistencies in his evidence. The Tribunal noted that it put to the Applicant its concerns that he had been changing his evidence during the hearing. The Tribunal found that the Applicant changed his evidence about his political profile in order to reinforce his claim that he would be persecuted if he returned to India. The Tribunal found that his inability to answer some questions was not because he could not remember the details, but rather because he was untruthful.

9. Ultimately, the Tribunal found that the Applicant’s “changing evidence, his explanations and lack of response also added to the view that he is not a witness of truth”. The Tribunal found that the Applicant had fabricated his claims of persecution in India by members of the DMK and comprehensively rejected his claims.

10. The Tribunal found that there was not a real chance that the Applicant would face serious harm if he were to return to India now or in the foreseeable future by reason of having been a member of the AIADMK, for having received a house after the 2004 Boxing Day tsunami, because of his association with his uncle or for any other Convention-related reason.

11. In the circumstances, it is clear that the Tribunal had regard to the documents provided by the Applicant, namely, his membership of the AIADMK and his allocation of a house after the tsunami. However, the Tribunal did not accept that the Applicant would face harm in India by reason of either of those matters.

12. The death certificates of the Applicant’s brother and sister by themselves do not corroborate the Applicant’s claims. The date of death of each was the date of the tsunami.

13. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 1 June 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

14. Following the Delegate’s decision, the Applicant was aware, or should have been, that his credibility was an issue. Indeed, the Applicant sought to address the lack of documentary evidence before the Delegate in providing documents to the Tribunal in support of his review application. In any event, the Tribunal clearly put to the Applicant its concerns about his credibility and independent country information that was inconsistent with his claims. Both the Delegate’s decision and the Tribunal’s exchanges with the Applicant during the hearing were sufficient to indicate to the Applicant that everything he said in support of his application is in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at 35 and 47).

15. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

16. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 makes the bare assertion that the Tribunal’s decision was “unjust” and made without taking into account the full gravity of the Applicant’s circumstances and the consequences of the claim. The ground is unsupported by particulars, evidence or submissions.

2. In support of Ground 2, the Applicant did no more than repeat his submissions in support of Ground 1. The analysis of the Tribunal’s decision in Ground 1 makes clear that Ground 2 cannot be made out.

1. A fair reading of the Tribunal’s decision makes clear that it considered carefully and in detail the Applicant’s claims and had regard to the Applicant’s circumstances if he were to return to India. The Tribunal’s decision record makes clear that its findings, including its adverse findings were not attenuated by doubt. The Tribunal’s rejection of the Applicant’s claims was comprehensive and, as stated above, open to it on the evidence and material before it and for the reasons it gave.

2. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 is not supported by particulars, evidence or submissions. It makes bare assertions that do not disclose any error capable of review by this Court. The Tribunal’s decision record makes clear that it was aware of the four key elements of the Convention definition and it set out each in its decision record. Ultimately, it is for the Applicant to satisfy the Tribunal that he meets the criteria for being a refugee. In circumstances where the Tribunal is not so satisfied, s.65(1)(b) of the Act mandates that a protection visa must be refused.

2. To the extent that Ground 3 asserts that the Tribunal committed “factual and legal error”, as stated above, none is particularised and none is apparent on the face of the Tribunal’s decision record.

3. Accordingly, Ground 3 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: 

Date:  7 July 2010