SZOLH v Minister for Immigration
[2010] FMCA 901
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 901 |
| MIGRATION – RRT decision – Indian fearing persecution for political activities – disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Applicants A233 of 2003 v Refugee Review Tribunal[2004] FCAFC 296 Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123 Re RRT & Anor; Ex Parte H (2001) 179 ALR 425 SZIAI v Minister for Immigration & Citizenship [2009] HCA 39 |
| Applicant: | SZOLH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1194 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 12 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | DLA Phillips Fox |
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 1194 of 2010
| SZOLH |
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 July 2008. On 29 August 2008 he applied for a protection visa. A statement attached to the application recounted a history upon which he claimed to fear persecution if he returned to India.
The applicant referred to living in Trichy. He said that from 2004 he “made myself identified as a supporter of his MDMK Party”. In 2006, he was “engaged in the propaganda in support of the MDMK Party during the town council elections held in Tamil Nadu” in a particular area. His party “was successful in a big way”, and the ruling DMK Party “found that I was responsible for their defeat” in that particular area. He was attacked by DMK supporters in January 2007, and was also assaulted by a relative of a government minister. His complaints were not accepted by the police, even after he was assaulted for a third time. He then “started distributing pamphlets against the DMK,” for which he was warned that he would be “burnt alive to death”.
The applicant then claimed that he was harassed by security officers on four occasions, who detained him, assaulted him, and attempted to force him to admit being a supporter of the Liberation Tigers to implicate the MDMK Party in terrorist activities. He gave dates for these events in 2007 and 2008, and claimed that the MDMK Party members also started attacking him because “they also may be arrested having me as a witness”. However, he was assisted to come to Australia.
The applicant was interviewed about his claims by a delegate of the Minister on 22 October 2008. The delegate made a decision on 20 November 2008 refusing the protection visa application. In his reasons, the delegate did not accept that any of the incidents which had been claimed by the applicant had occurred. The delegate thought that it was not “feasible” that he should have been constantly targeted on the basis of being only a supporter but not a member of the MDMK Party. The delegate also appears to have thought that the applicant could avoid harm by relocating to another part of India.
The applicant appealed to the Tribunal, and attended a hearing by the Tribunal on 25 February 2009. A transcript of the hearing is not in evidence, but the Tribunal gave a very full description in its statement of reasons, and I accept that description. The Tribunal also included in its statement of reasons a full description of the interview with the Departmental delegate.
At its hearing, the Tribunal tested the applicant’s claims of political involvement in elections contested by the MDMK Party, by testing the applicant’s knowledge of a series of elections held in his area. Based upon its questioning, a series of concerns were identified by the Tribunal as to whether he had ever been a supporter of that party, and whether he had participated in its electoral activities even at the local council level. The Tribunal’s concerns were very fully put to the applicant at the hearing.
The only independent corroborative evidence presented by the applicant to the Department or Tribunal was a copy of a document which, as translated, appeared to be a “patient ticket” from a government hospital showing treatment for an “assault” after being admitted on a date in March 2007. There was no reference in the document as to the circumstances leading to this treatment.
The Tribunal made a decision on 30 April 2010 which affirmed the delegate’s decision. Notwithstanding the thirteen months between the hearing of the Tribunal and the making of its decision, I am satisfied by its statement of reasons that the Tribunal was probably fully aware of the evidence presented by the applicant, both to the Department and the Tribunal, including the “patient ticket”, whether by consulting the recordings or otherwise.
In its ‘Findings and Reasons’, the Tribunal relied upon the points which had been thoroughly canvassed with the applicant at the hearing. These led the Tribunal to conclude that he had fabricated his whole story of being a supporter of the MDMK Party who was actively involved in the 2006 local council election and, as a result of that involvement, had been persecuted by the opponents of the MDMK Party who attempted to implicate that party with LTTE terrorists. The Tribunal said that “the issue of whether he is telling the truth about his involvement in the MDMK Party is therefore central to his application”.
The Tribunal noted that the applicant had been unaware that his local member in the national parliament of India was from the MDMK Party, and had held his seat from 2004 until 2009. The Tribunal said that “if he had genuinely been a supporter of the MDMK Party, then I believe he would have been aware that his local MP belonged to the MDMK”.
The Tribunal also thought that the applicant:
...knew nothing about elections for the Legislative Assembly in Tamil Nadu which took place in 2006 and his account of the municipal council election in which he claims to have taken part was hopelessly confused.
In relation to the local election, the Tribunal identified significant confusion and contradiction by the applicant as to the candidates in the wards in which he claimed to have been active as a canvasser and political campaigner.
The Tribunal referred to statements by the applicant made at the hearing, in which he suggested that there was further documentary evidence which he could obtain to corroborate his claims. At the hearing, the Tribunal had declined to take any further investigatory steps of its own, and had suggested that the applicant had already had ample time to present supporting evidence. However, the long delay before the Tribunal gave its decision, in fact gave the applicant abundant further time after the hearing to present corroborative evidence. Notwithstanding all his opportunities to corroborate his involvement in political activities and the consequent persecution, the applicant did not present more evidence to the Tribunal before it made its decision.
The Tribunal concluded:
78. As referred to above, the applicant said that he could produce letters from Vijayalakshmi and the other people he had campaigned for as well as from the district coordinator and the youth coordinator of the party. He even said that he could get a letter from Vaiko himself although he then said that he was not sure if Vaiko would give a letter. He also claimed that one of the police officers who had assaulted him would be prepared to give evidence to that effect confidentially, by which he explained he meant that the police officer wished to evade the consequences of testifying that he had assaulted him. As I indicated to the applicant I do not think that it would be appropriate to take evidence on this basis even if the police officer were prepared to give such evidence. So far as the letters from the people for whom he claims to have campaigned are concerned, as I put to him I would have to weight such documents against the evidence he gave at the hearing before me. As I put to the applicant, he comes from one of the few electorates in the whole of India that actually had a member of the MDMK as its local member yet he did not know this.
79. For the reasons given above I do not accept that the applicant was involved with the MDMK as he has claimed. As I put to him I consider that this means that his claims that he was persecuted by rival political parties and the police and the security forces in Tamil Nadu because of his involvement in the MDMK are a fabrication. I do not accept that the applicant is a witness of truth. I do not accept that he let houses to Sri Lankan refugees in the course of his business or that he was accused of supporting the LTTE and forced to sign a paper admitting that he had helped members of the LTTE as he has claimed. The applicant claimed that all these things had happened because the DMK wanted to use him as a ‘trump card’ to destroy the MDMK but for the reasons given above I do not accept that the applicant was involved with the MDMK as he has claimed.
80. As I put to the applicant, even if he was assaulted by police officers as he claims I do not accept in light of my findings above that this had anything to do with his involvement in the MDMK. The applicant produced a ‘Patient Ticket’ to the Department indicating that he had been admitted to the Government Hospital in Srirangam on 10 March 2007 as a result of an assault and discharged on 16 March 2007. When he underwent the medical examination in connection with his application for a protection visa he drew attention to the fact that he had a cigarette butt injury to his thigh (see folios 42 and 44 (reverse) of the Department’s file CLF2008/125620). Since I have rejected the applicant’s evidence with regard to his involvement in the MDMK I do not accept that he sustained these injuries for reasons of his involvement in the MDMK.
The Tribunal said that it did not accept:
...on the evidence before me that there is a real chance that the applicant will be persecuted for reasons of his real or imputed political opinion if he returns to India now or in the reasonably foreseeable future.
It therefore concluded that he was not a person to whom Australia had protection obligations under the Refugee Convention.
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 these orders only if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether he is a refugee or should be given any permission to reside in Australia.
The grounds of the applicant’s application are set out 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 the applicant provided evidence that he was admitted in hospital as a result of an assault. 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 the Tribunal to place no weight on the documents without engaging in an active intellectual process as the contents of the documents of the documents. 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.
4.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.
Different contentions of jurisdictional error are also made in a “written submission” filed shortly before today’s hearing. It states:
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 High Court in SAAP.
2.The Tribunal exceeds its 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.
3.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my claims in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look
Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to return back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claims.
The applicant today did not address these contentions, nor identify any arguable ground of jurisdictional error. Essentially, he repeated to me his concern that he did not wish to go back to India, and said that he would face “problems there”. He also suggested that recent events in India gave rise to further fears at the prospect of returning. However, I endeavoured to explain to him that it was not my task to decide whether he is a genuine refugee. I also declined an application by him to give him more time to obtain additional evidence concerning his refugee claims. This could not have assisted his case in this Court.
Addressing the contentions made in the documents filed by the applicant, in my opinion, there is no evidence supporting the contention that the Tribunal “failed to engage in an active intellectual process” in respect of the one corroborative document presented by the applicant, being the “patient ticket”. Manifestly, the Tribunal identified that piece of evidence. In paragraph [80], which I have extracted above, it assessed its probative weight in relation to the applicant’s refugee claims. The limited contents of the document certainly allowed the Tribunal to find that it did not itself corroborate the circumstances of the assault claimed by the applicant, that is, that they occurred as a result of his involvement in political activities. In my opinion, it was open to the Tribunal to conclude that he had fabricated his involvement in political activities for the MDMK, and for that reason not to give the “patient ticket” probative weight to the contrary. This is not a case, in my opinion, where the Tribunal did not assess corroborative evidence and weigh it “in the balance with all the other evidence” see Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 at [38].
The second and fourth grounds in the original application appear to be taken from a precedent, and provide no explanation or particulars indicating how they relate to the present decision of the Tribunal. In my opinion, the Tribunal did fully take into account all the claims and evidence presented by the applicant in support of his refugee claims. It addressed that evidence and those claims in accordance with law. It was entitled to conclude that the applicant was not owed protection obligations under the Refugee Convention on the ground that his refugee claims were not believed (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575–576, Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 544–545, Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239–241; Applicants A233 of 2003 v Refugee Review Tribunal[2004] FCAFC 296 at [11]–[14]; and MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123 at [95].)
In relation to the first additional argument made in the applicant’s written submission, there was no “information” providing the reason or part of the reason for the Tribunal affirming the delegate’s decision which it was required to put to the applicant for written comment under s.424A(1). The general information about electoral matters which informed the Tribunal’s questioning of the applicant did not constitute such information (see s.424A(3)(a) and Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 at [27]).
In relation to the second argument, the Tribunal, in my opinion, performed its review function in accordance with the requirements of the Migration Act. That legislation did not require the Tribunal to engage in further investigations on its own part, before forming an opinion about the genuineness of the applicant’s claims (see SZIAI v Minister for Immigration & Citizenship [2009] HCA 39 at [1]).
The third argument in the written submission is obscure to me. If it is suggesting that the Tribunal made a decision without considering all the evidence with an open mind, I can find no substance for any concern in relation to actual or apprehended bias within the principles cited in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 and Re RRT & Anor; Ex Parte H (2001) 179 ALR 425.
The concluding paragraphs to the written submission are unclear in relation to any particular error which is contended to affect the present Tribunal’s reasoning. As I have noted above, the Tribunal did sufficiently address the elements of the Refugee Convention upon which entitlement to a protection visa arises under s.36(2) of the Migration Act, by rejecting the truth of the applicant’s refugee claims.
Taking into account all that the applicant has put to me today, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 25 November 2010
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