SZOKK v Minister for Immigration
[2010] FMCA 582
•3 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOKK v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 582 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth) |
| Lafu v Minister for Immigration [2009] FCAFC 140 Tickner v Chapman (1995) 57 FCR 451 |
| Applicant: | SZOKK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1059 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 3 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Dinihan Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,050.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1059 of 2010
| SZOKK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 15 April 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts relating to the applicant’s protection visa claims and the decisions of the Minister’s delegate and the Tribunal on them is derived from the Minister’s written submissions.
On 19 August 2009, the applicant, a citizen of India, arrived in Australia (Court Book (CB) 14, question 29). On 25 September 2009, the applicant applied to the Minister’s Department for a Protection (Class XA) visa (CB 1‑26). The applicant attached a written statement to his protection visa application (CB 27‑30).
On 27 November 2009, a delegate of the Minister (delegate) invited the applicant to an interview scheduled on 15 December 2009 (CB 38‑39) which the applicant attended. On 17 December 2009, the delegate refused to grant the applicant the protection visa sought (CB 49‑66). In summary, the delegate found the applicant not to be a credible witness and also found that the applicant would have had access to state protection and been able to relocate within India (CB 61‑66).
On 13 January 2010, the applicant applied to the Tribunal for review of the delegate's decision (CB 67‑70). On 1 February 2010, the Tribunal wrote to the applicant inviting him to attend a hearing before it (CB 73‑74), which the applicant attended (CB 77‑78). At the applicant's request, this hearing was adjourned and the Tribunal invited the applicant to a further hearing before it (CB 79‑80) which the applicant attended (CB 89‑90).
On 16 April 2010, the Tribunal notified the applicant of its decision to affirm the delegate's decision (CB 91‑106).
The applicant’s claims
In summary, the applicant claimed to fear serious harm in India from a well known Muslim criminal by the name of "Babu Khan" because the applicant:
a)engaged in a romantic relationship with Mr Khan’s daughter and Mr Khan disapproved of this relationship because the applicant was a Hindu[1]; and
b)refused to sell Mr Khan certain property owned by his family.
[1] This claim was raised for the first time at the Departmental interview.
In particular, the applicant claimed the following:
a)when Mr Khan discovered the affair between his daughter and the applicant, he killed his daughter and threatened to kill the applicant;
b)the applicant left his home town of Sunjangarh for Mathurapur, Assam in an attempt to escape from Mr Khan. He stayed in Assam from July 2008 until July 2009 with family however he still received death threats from Mr Khan by telephone despite the fact that Mr Khan was imprisoned at the time;
c)in March 2009, Mr Khan attacked his family, including his mother, brother and sister; and
d)his father arranged for him to travel to Australia with a cricket team in order to escape.
The Tribunal’s decision
The Tribunal's reasons appear at paragraphs [49]‑[62] of its decision (CB 103‑105).
In summary, the Tribunal found that the applicant was not a witness of truth ([52] CB 103 and [61] CB 105). In particular, the Tribunal found that:
a)the applicant's responses to questions were generally vague and uninformative. He was prepared to vary his claims when they were challenged and his evidence did not suggest that he had direct knowledge of incidents which he claimed to have witnessed or that his account was based on authentic experience ([54] CB 104);
b)the applicant's non‑responsive answers were attributed to evasiveness. There was no evidence before the Tribunal that the applicant suffered from any psychological or cognitive difficulties as claimed ([55]-[56] CB 104);
c)the applicant failed to provide a plausible explanation for any significant discrepancies between his written claims in his protection visa statement and his oral claims at the Departmental interview and the Tribunal hearing ([57]-[59] CB 104-105);
d)the applicant was unable to detail the alleged affair, such as how it began and developed, the death of his girlfriend and the penalties allegedly imposed on Mr Khan after murdering his own daughter ([60] CB 105); and
e)it was implausible that Mr Khan would:
i)invest his energy in killing the applicant after having been jailed for killing his own daughter; and
ii)simultaneously attempt to purchase property from the applicant or his family ([60] CB 105).
Accordingly, the Tribunal was not satisfied that the applicant was involved in an affair with the daughter of a Muslim criminal by the name of Babu Khan who attempted to kill him for any reason, nor was the Tribunal satisfied that Mr Khan tried to force the applicant or his family to sell property to him. The Tribunal was not satisfied that the applicant feared persecution for a Convention reason should he return to India now or in the reasonably foreseeable future.
These proceedings began with a show cause application filed on 13 May 2010. The grounds in that application are:
1. The Tribunal constructively failed to exercise its jurisdiction.
Particulars
i It was an error for the Tribunal to place no weight on the applicant’s claim without engaging in an intellectual process as to contents of the statement.
ii The Tribunal did not consider the applicant who had been under immense pressure from Babu Khan.
iii The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
2. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal ahs not considered this aspect and therefore committed factual and legal error.
The application is supported by a short affidavit filed on the same day. I receive paragraph 1 of the affidavit as evidence and paragraph 2 as a submission.
I also received as evidence the court book filed on 24 June 2010.
The application before the Court uses the language of judicial review but there is no substance to the assertions raised. It is plain from the Tribunal’s reasons that the Tribunal did engage in an active intellectual process in considering the applicant’s claims. The Tribunal did not overlook any element or integer of the applicant’s claims. The Tribunal did not fall into error in considering those claims as required under the Migration Act 1958 (Cth) (“the Migration Act”). In other respects, the applicant challenges the merits of the Tribunal decision. The merits of the decision are beyond the scope of these proceedings.
I agree with and adopt the Minister’s submissions in relation to the grounds advanced in the application.
Ground 1
The first ground of review is that "the Tribunal constructively failed to exercise its jurisdiction [because] it failed to place weight on the Applicant's claim without engaging in an intellectual process as to the contents of the statement". Although this ground is unparticularised, it seems to allege that the Tribunal failed to properly consider the applicant's statement attached to his protection visa application. By its language, the ground refers to the principle endorsed in Tickner v Chapman (1995) 57 FCR 451 that a decision maker must engaged in an "active intellectual process" when considering a document such as a representation or submission.[2] This principle was recently endorsed by the Full Federal Court in Lafu v Minister for Immigration [2009] FCAFC 140. At the hearing, the Tribunal asked the applicant various questions regarding his claims and provided him with an opportunity to present arguments and evidence accordingly (CB 24‑48, CB 99-103). The Tribunal considered and actively engaged with the applicant's claims, including the written statement attached to his application.
[2] per Black CJ at 462C-D.
Ground 2
The second ground of review is that "the Tribunal constructively failed to exercise its jurisdiction [because] the Tribunal did not consider the applicant who had been under immense pressure from Babu Khan". This ground effectively seeks impermissible merits review. The Tribunal explored the applicant's claims with him at the hearing, namely, that he was threatened and attacked by Babu Khan for various reasons. However it rejected those claims as outlined above. Any such allegation that the Tribunal did not consider these claims therefore has no substance.
Ground 3
The third ground of review is that "the Tribunal constructively failed to exercise its jurisdiction because the Tribunal had no jurisdiction to make the said decision [as] its 'reasonable satisfaction' was not arrived (sic) in accordance with the requirements of the Migration Act".
This ground appears to allege that in reaching its decision, the Tribunal did so without complying with the Migration Act. However, no particulars are provided as to what aspects of the Migration Act were not complied with. Without particulars, this ground is meaningless and in any event there is nothing to indicate that the Tribunal breached the code of procedure to which it was subject.
Ground 4
This ground of review asserts that "the applicant satisfy (sic) 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". Again, this ground is not particularised, however no amount of particularisation would assist because the assertion seeks to challenge the merits of the Tribunal decision. The Tribunal was well aware of the four key elements in the Convention definition ([12]-[18] CB 96-97). The Tribunal reached its decision on the basis that it was not satisfied that the applicant had a "well founded fear of persecution for a Convention reason should he return to India now or in the reasonably foreseeable future ..." ([62] CB 105).
Other matters
The applicant made oral submissions in support of his application today. He asserted that he was sick at the time of the Tribunal hearings and that the Tribunal presiding member did not pay sufficient attention to his illness. The Tribunal conducted two hearings. The Tribunal notes at [20] of its reasons (CB 97) that the hearings were conducted on 23 March and 7 April 2010. The Tribunal discusses what occurred at the first hearing at CB 99 and 100. There is no indication that the applicant was experiencing any health problem until (at [34] of its reasons, CB 101) the applicant encountered difficulty in recalling his girlfriend’s birth date and what they talked about. He referred to anxiety and inability to remember properly. He said he had not consulted a doctor for the problem but would do so. The applicant recalls that the hearing was adjourned for one week. In fact, it was adjourned for two.
It does not appear from the Tribunal’s decision that the applicant complained of any continuing health problems at the time the hearing was resumed. At [42] of its reasons (CB 102) the Tribunal records that the presiding member asked the applicant if he was feeling unwell and the applicant replied this was not the case. This appears to have come up in the context of the applicant being non-responsive to some questions. The Tribunal considered the applicant’s anxiety claim and his non-responsiveness in its reasons at [55] and [56] (CB 104):
I have considered whether these aspects of the Applicant’s oral evidence might be explained by the traumatic nature of the harm he claims to have suffered on a small number of occasions in India. He claims in his protection visa application statement that he is having difficulty in sleeping because of worry and panic about risks to his family. At the Tribunal hearing on 23 March 2010 he complained that he was feeling anxious and was unable to remember things, and the hearing was adjourned to 7 April 2010 on this basis. He suggested at times during the resumed hearing that he had trouble remembering dates. I note, however, that there is no substantiation for these claims and nothing to indicate that the Applicant has ever sought professional help for any emotional or psychological condition in Australia or in India. At the end of the hearing on 23 March 2010 he confirmed that he had not sought such professional assistance but suggested that he would do so; at the resumed session two weeks later, however, he said he had not taken these steps.
It was notable that the Applicant’s answers to questions during both hearings were at time non-responsive. Having had that opportunity to observe his conduct at the hearings I formed the view that these characteristics mainly appeared when inconsistencies and implausibilities in his evidence were raised with him, and that they owed more to evasiveness than to any psychological or cognitive difficulties. I am not satisfied that he was prevented by any such problems from articulating his claims or participating effectively in the hearing.
I am satisfied that the Tribunal gave adequate consideration to the applicant’s asserted difficulties. The hearing opportunity afforded the applicant was a real one. The applicant was fit to participate in the hearings to which he was invited. There is no indication that the review process was subverted or disabled by reason of any medical condition suffered by the applicant.
The applicant also complained in his oral submissions that he was not asked to provide corroborative evidence by the Tribunal. There are two answers to that submission. The first is that it is factually incorrect. In its letter acknowledging receipt of his review application (CB 71), the Tribunal invited the applicant to provide any written material as soon as possible. In his submissions before me, the applicant doubted that he received that letter. However, I note that it was sent by registered post and there is no evidence that the letter was returned to the Tribunal. Secondly, in the Tribunal’s hearing invitation, reproduced at CB 73, the Tribunal clearly put the applicant on notice that it could not make a favourable decision simply on the basis of the material he had provided to that point. The applicant, in his oral submissions, was unsure whether he received that letter and said that he cannot read English. He relied on others to explain correspondence to him. I note, however, that he was able to complete and return the Response to Hearing Invitation form, reproduced at CB page 75 and 76.
Secondly, there is no legal obligation on the Tribunal to ask applicants to provide particular corroborative material. The Tribunal is entitled to rely on the material that applicants choose to put before it. That is what occurred here. There was no jurisdictional error in the Tribunal making its decision on the basis of the information provided by the applicant.
I am satisfied that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I will so order.
The application, having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,050. The applicant claimed impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,050.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 August 2010
0
2
1