SZOPV v Minister for Immigration - [2011] FMCA 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPV v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 243

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal failed to consider the applicant’s claims – whether Tribunal erred in failing to provide additional time for the applicant to provide supporting documentation.

Migration Act 1958 (Cth), ss.414A, 424A, 429

Applicant:

SZOPV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2004 of 2010

Judgment of:

Barnes FM

Hearing date:

24 March 2011

Delivered at:

Sydney

Delivered on:

24 March 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2004 of 2010

SZOPV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of decision of the Refugee Review Tribunal dated 17 August 2010. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia on 11 October 2009. He applied for a protection visa on 23 November 2009. His application was accompanied by a statement in which he set out his claims.
In particular he claimed to fear persecution in India from members of the communist party CPI(M). He claimed to have been involved with the ABVP in Kerala during his student years from 1993 and that his fear of harm and experiences of harassment (which he described) and victimisation caused him to flee to Tamil Nadu in 1997. He also claimed that he was wrongly implicated by the CPI(M) in the murder of a Mr Ajay. Relevant to the claim made in these proceedings, he included in his protection visa claims a claim that:
As there was no alternative, I remained in the State of Tamil Nadu and on certain occasions I made secret visit to my home during odd hours. Even though the perpetrators of the death of Mr Ajay was subsequently arrested by the state police, the animosity and hatred towards me from the CPI(M) and its political organisation continued and the threat of death remained (sic).
The applicant made claims about undertaking a housekeeping course in 1999 and engaging in petty jobs for survival, but claimed that CPI(M) activists had identified him and reiterated the threat to kill him. He claimed he discontinued the course and went to another area and obtained employment from 2003 on. He claimed to continue to be under threat of death from the CPI(M) and that he was “hardly allowed to cohabit” with his wife.
The applicant claimed that after a member of the CPI(M) was murdered in 2008, he was targeted by CPI(M) workers and that in 2009, after an incident near a Temple near his house, he was once again politically victimised by the government. He claimed that although there was no official action, he was unofficially manhandled by police and CPI(M) activists and suffered injuries requiring surgery.
He also claimed that after the elections he had been officially arrested, assaulted and jailed and that after his release he again moved away from his home area, during which time he did not see his family. He claimed that he had been subjected to numerous false cases and that there were still five such cases pending against him.
The applicant attended an interview with the delegate on 15 March 2010. It appears from the material before the Court that the applicant raised further claims, including a claim of affiliation with the BJP and involvement in a trade union in the past and that he stopped his political activity in 2003. He also claimed that in 2009 he returned home to visit his pregnant wife but that the CPI(M) found out he was there and sent police to his home.
The delegate of the first respondent refused the visa application on 22 April 2010. The applicant sought review by the Tribunal by application lodged on 18 May 2010.
In its letter of acknowledgement of 19 May 2010, among other things the Tribunal advised the applicant that if he wished to provide material or written argument for the Tribunal to consider, he should do so as soon as possible.
On 27 May 2010 the Tribunal wrote to the applicant advising that it was unable to make a favourable decision on the information before it and inviting him to attend the hearing. The letter advised the applicant when returning the response to hearing invitation form to attach any additional information or new information he wished the Tribunal to consider. The applicant responded by letter dated 10 June 2010 providing a statement in which he reiterated his claim that the CPI(M) would not spare his life. He took issue with aspects of the delegate’s decision, including any suggestion that he left India in 1993 (which he explained he had not done) and elaborated on and explained other aspects of his claims. The applicant submitted a number of documents to the Tribunal, including a First Information Report and supporting documents. During the hearing he also produced newspaper clippings.
The only evidence before the court of what occurred in the Tribunal hearing (and indeed as to what occurred in the Departmental interview) is the Tribunal account of the interview and hearing in its reasons for decision.
After the hearing the Tribunal wrote to the applicant on 13 July 2010 inviting him to comment on a number of matters, in particular, inconsistencies in his evidence and that of another protection visa applicant; inconsistencies in his evidence at the Departmental interview and to the Tribunal, in relation to the 2009 incident leading to his arrest; and also inconsistencies in his evidence and supporting documents as to when he last took part in political activities.
In relation to the grounds in the amended application, one of the matters put to the applicant in that letter repeated his claim about events from 1997 on, including that he did not claim he had been injured in relation to the incident in which Mr Ajay was killed, his family was assaulted and his house was vandalised, but had claimed that he received death threats. This was contrasted with the evidence he had given in the Departmental interview, in particular his claim that in 1996 Mr Ajay had attacked him and he had been hospitalised and that the ABVP had retaliated and murdered Mr Ajay.
The Tribunal also put to the applicant certain other matters seen to be inconsistencies in his statement to the Department, oral evidence to the Department and evidence to the Tribunal. That letter gave until the applicant 5 August 2010 for any comment or response.
In its reasons for decision the Tribunal recorded that it did not receive any response.
The Tribunal set out a detailed summary of the applicant’s claims made in connection with his protection visa application, at the interview conducted by the departmental delegate and in information provided to the Tribunal as well as at the Tribunal hearing.
It set out information it had before it about the applicant arriving on the same flight from India with another named person who made claims for refugee status and who was said to live at the same address as the applicant, that both the applicant and this other person had worked for the same company in India as directors, but that this other person had told the Tribunal that he met the applicant at Lidcombe railway station when he heard him speaking Malayalam and that the applicant had been in Australia for approximately 12 months at that time.
The Tribunal described in detail the documents provided by the applicant immediately prior to the hearing and also the evidence given by the applicant and issues raised by the Tribunal at the Tribunal hearing. I will return to specific aspects of that account in relation to the grounds raised by the applicant.
In its findings and reasons, the Tribunal accepted on the basis of the applicant’s Indian passport, that he was Indian. It summarised the applicant’s claims, including a claim that he was from the Paravan caste, which is a scheduled caste in India, as well as his claim that in 1993 he became involved with the ABVP and the events that he claimed occurred thereafter.
However the Tribunal did not accept that the applicant was a truthful witness or that he had given a truthful account of his experiences in India or his reasons for leaving India. It stated:
The Tribunal considers that the applicant’s evidence as to his membership and involvement in political parties in India was vague and inconsistent; his personal circumstances in India not consistent with his claims of continual harassment; his evidence in relation to numerous false cases against him was vague, inconsistent and not supported by the documents he claimed relate to particular incidents; and that his evidence relating to particular incidents in India in which he claims involvement was vague, highly inconsistent and lacking in credibility.
It also found that his claims relating to his knowledge of the other protection visa applicant were indicative of his overall poor credibility and the fact that he had manufactured his claims in an attempt to provide a basis for the grant of a protection visa.
The Tribunal set out detailed reasons for such findings, including the fact that the applicant had appeared at the Tribunal hearing to have scant knowledge of the ABVP, that his responses in relation to his political involvement were extremely general and indicated that even if he was involved at some level, it was in a very minor and limited manner. The Tribunal was not satisfied on the applicant’s evidence that he was involved in the ABVP as a leader or that he was involved in setting it up in his college as he had claimed.
The Tribunal also had regard to the fact that there were differences and inconsistencies in the applicant’s evidence as to the dates of his political involvement. In particular, he told the delegate that he last took part in political activities in India in 2003, but told the Tribunal he was actively involved until 2009. When asked to explain this inconsistency at the Tribunal hearing, the applicant had claimed that he was always considered to be a member of the BJP; that the interpreting at the Departmental interview was not adequate; and that everything he said was not interpreted.
The Tribunal did not accept this explanation, not being satisfied that the applicant had provided consistent evidence in relation to his political involvement. It found that his oral evidence to the Department indicated he ceased to have any such political involvement after 2003. In contrast his oral evidence to the Tribunal indicated he was actively involved in politics in his home area until 2009. The Tribunal was not satisfied the applicant had adequately explained why his evidence in relation to political involvement after 2003 would alter so significantly. It was not satisfied there were any difficulties with the interpreting during the Departmental interview that adequately explained the significant contradictions in the applicant’s evidence and found that this inconsistent evidence raised serious doubts that the documents he provided purporting to support his claims relating to his involvement in the BJP and the BMS contained truthful information.
The Tribunal outlined in detail concerns about other issues of inconsistency, confusion or lack of credibility in the applicant’s evidence.
The Tribunal also addressed the documents on which the applicant sought to rely in an attempt to establish that he was involved in particular incidents. It recorded that during the hearing he initially attempted to rely on a large number of newspaper articles in Malayalam, claiming that the reports showed that he had been in prison and the reason for his imprisonment, but that when asked to be more specific and show the Tribunal where and in which newspaper reports he was specifically mentioned, the applicant initially did not respond to the Tribunal’s questions and only did so after the Tribunal twice asked him to show where he was mentioned in the articles. At that point he conceded that the articles did not specifically refer to him.
The Tribunal was not satisfied that the articles established that the applicant was personally involved in the incidents. It considered that he attempted to rely on general reports of political conflicts in Kerala in an attempt to place himself within those conflicts. It was of the view that the applicant’s evidence in relation to this issue was an attempt to mislead the Tribunal regarding the applicant’s involvement in political incidents.
It also found that while the applicant attempted to rely on documentation he claimed was in relation to a court case relating to the murder of Mr Ajay, this did not name the applicant and showed that he was not involved in that case. The Tribunal observed that the applicant was unable to explain in what way the document showed his involvement given he was not named in it, but asserted that he could provide further documentation in relation to an interview he had with the police in relation to the incident.
After addressing other concerns about aspects of the applicant’s evidence, about his circumstances in India as well as his evidence about his travel to Australia with another protection visa applicant, the Tribunal (having considered the documents and the applicant’s evidence and the contradictions therein) did not accept that he was an active member of the BJP for the last 10 years or an election convenor for parliamentary elections in 2009. It was not satisfied that the documents contained truthful information in that respect.
In relation to the documents provided by the applicant allegedly relating to false cases, the Tribunal referred to the fact that a document dated 28 November 2006 relating to a court case in which several accused persons were named did not include his name. It did not accept that it had any relationship to the applicant or that it supported his claims relating to any suspected involvement with the murder of Mr Ajay. As to documents in Malayalam which the applicant claimed were First Information Reports, the Tribunal found that even if the applicant was mentioned in those reports (which it doubted), it was not satisfied that they were genuine documents, having regard to country information about fraudulent documentation in India.
While the Tribunal accepted that a document dated 4 April 2006 referred to the applicant, it was not satisfied that it was in relation to a false case pending against him as a result of Communist Party activists as claimed. It noted that the document indicated that no crime was registered. It found that the applicant’s evidence in this respect was vague and not satisfactory.
The Tribunal found that “the applicant’s role in political parties was, at best, minimal”. It did not accept that the applicant was involved in any of the incidents he claimed and therefore did not accept that any of the documents he provided supported his claims to have been involved to the extent that he had been continually sought by communist parties and the police for several years.
The Tribunal addressed the applicant’s claim at the hearing that he could provide further documentation to support his claims. It considered that he had ample opportunity to provide relevant documentation and was not satisfied that any further time to enable the applicant to provide further documentation was warranted.
Despite doubts, the Tribunal was prepared to accept that the applicant may have at some point been involved in student politics at a low level. However it did not accept he had suffered harm in relation to such low level involvement while a student several years earlier, that he was forced to discontinue his studies due to political involvement or that he has or ever had any significant political profile in Kerala. Nor did it accept that he was ever involved in any of the incidents he claimed or that he ever had false cases pending against him or currently had false cases pending against him. It did not accept he was “witch hunted” by the government of Kerala or that he was ever sought by that government or assaulted or injured for the reasons claimed or jailed in 2009 as claimed. Nor did it accept that his brother was injured because he was mistaken for the applicant or that that applicant was in hiding in India at any time due to his fear of the police or political parties or that he was required to report to the police and was on bail when he left India.
The Tribunal did not accept that the applicant had any difficulty obtaining a passport or leaving India. It found that his evidence indicated that he was in stable and ongoing employment and left India in an orderly manner and not for the reasons that he claimed. It was strongly of the view that he had manufactured the entirety of his claims relating to problems due to his claimed political involvement in Kerala. Given its findings that it did not accept that the applicant had been involved in politics other than in a limited manner, or that he had suffered harm in the past due to his low level political involvement as a student, the Tribunal was not satisfied that he would alter his political involvement in the future or that there was a real chance he would suffer harm in the future due to his past political involvement.
The Tribunal was prepared to accept that the applicant was a member of the Paravan caste and from a poor family, but was not satisfied that he had been harmed on this basis in the past or that there was a real chance that he would face serious harm amounting to persecution as a result of his membership of the Paravan caste in the future.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution should he return to India now or in the reasonably foreseeable future. It affirmed the decision of the delegate.
The applicant filed an application for judicial review of the Tribunal’s decision in this Court on 13 September 2010 with an accompanying affidavit. He filed an amended application on 16 December 2010. At the start of the hearing he confirmed he wished to rely on the amended application, but then in fact addressed other unrelated matters. I have considered the ground in the amended application and also the issues raised by the applicant today in oral submissions. He did not file written submissions.
The ground in the amended application is that the Tribunal failed to address the applicant’s claims in the way they were made. The first particulars is that:
The applicant stated in his protection visa application that he was an active member of BJP for last ten years and provided documents to the Second Respondent to corroborate his claims.
Insofar as it is intended to be asserted that this claim was not considered by the Tribunal, such a contention is not made out. The Tribunal had regard to the fact that before the delegate the applicant raised further claims but also that he claimed that he stopped his political activity in 2003, whereas at the Tribunal hearing he said he was still involved and provided a purported statement from the BJP stating that he was the 2009 election convener for his ward. The Tribunal noted inconsistencies in these claims in its findings and reasons which it discussed in some detail. It rejected his claimed political involvement as “lacking credibility”.
The allegation that the Tribunal failed to address the applicant’s claimed involvement as an active member of the BJP for the last 10 years is not made out.

Furthermore, as set out above, the Tribunal specifically considered the documents provided in support of this claim. In the course of such consideration after referring to its finding that the applicant’s claim to have been involved in political parties indicated that he was at best involved in an extremely low level, the Tribunal continued that it did not therefore accept that the applicant was an “active member” of the BJP for the last 10 years and election convener for Parliamentary elections held in 2009. The Tribunal also noted that it was not satisfied that the documents that purported to support this claim contained truthful information. This aspect of the ground in the amended application is not made out.
The second particular refers to the applicant’s claim that he was “physically and mentally harassed by the SFI and CPI(M) members”. Again this claim was considered by the Tribunal. The Tribunal referred to this aspect of the applicant’s claims in its description of the claims he made in connection with his protection visa application and thereafter. It addressed this claim in its finding and reasons and more generally rejected all the applicant’s claims as to past harm as a result of political activity for the reasons set out above. It has not been shown that the Tribunal failed to consider any aspect of the applicant’s claims in relation to harm from SFI and CPI(M) members.
The third particular refers to the applicant’s claim in connection with his protection visa application that after moving to Tamil Nadu he remained there but made secret visits to his home country, (I think that must mean home state), during the altercations and that even though the perpetrator of the death of Mr Ajay was subsequently arrested by the state police the animosity and hatred towards him from the CPI(M) and the death threats continued.
Again, contrary to the applicant’s assertion, the Tribunal did deal with this claim, but rejected it. It summarised this claim in setting out claims made in connection with the protection visa application. It referred to a discussion of this claim in the Tribunal hearing, including issues that the Tribunal raised about aspects of the claims in this respect, such as why people would believe the applicant was still involved and the fact that he had worked in Kerala since 2003 and had returned to that State from Tamil Nadu which was said to make it difficult to believe his claims. The Tribunal also put to the applicant that it appeared that the CPI(M) had had an opportunity to retaliate and when he stated that he lived a secret life and his family lived in secret places the Tribunal put to him that he had married and worked at the same place and it did not appear that he was leading a secret life.
Importantly, the Tribunal also raised with the applicant its wider concern that during the hearing he tied everything to the incident with Mr Ajay, yet during the Department interview he had scarcely mentioned that incident and had tied everything to his involvement with the party.
In its findings and reasons the Tribunal specifically considered this aspect of the applicant’s claims. It set out the claim, referred to ways in which the applicant’s evidence in this respect was extremely confused, inconsistent and lacking incredibility and concluded for reasons which it gave (including rejecting the applicant’s explanation about living in secret places), that the evidence as to his circumstances in India did not accord with his claims to have been continually sought by CPI(M) activists due to his political involvement.
I note in that respect that when I asked the applicant to clarify the basis on which he made this claim, he simply repeated some of his claims about events in India that had been rejected by the Tribunal. Insofar as this indicates that he seeks merits review, merits review is not available in this court. The ground in the amended application is not made out.
It emerged in the applicant’s oral submissions that his main concern was that he was of the view that he had not been given sufficient time by the Tribunal to provide it with additional documents after the Tribunal hearing. He claimed that he had now collected some additional evidence that was not before the Tribunal. He claimed that he had not been able to obtain that evidence in time for the Tribunal.
He attempted to provide an explanation for the delay based on his wife’s circumstances as a new mother. It is not apparent, and the applicant did not suggest, that such an issue was raised with the Tribunal by way of explanation for the applicant’s claimed need for additional time. The applicant did claim in the statement attached to his protection visa application that his wife had a baby on 3 November 2009 and that he had not been able to see the child, but the issue that he now raises relates to providing additional documentation to the Tribunal.
When responding to the invitation to the hearing by letter of 10 June 2010 the applicant also indicated that, as he was here and his family members who were in India did not have much influence, he could not get his case-related documents in time. He claimed he needed some more time to submit documents for evidence. It is apparent from the Tribunal’s account of the Tribunal hearing that during the hearing the applicant asked for additional time to provide documentation. The hearing was conducted on 1 July 2010. The Tribunal recorded that it advised the applicant that it would write to him after the hearing to enable him to comment on some of the issues raised during the hearing and that this would provide him with additional time to provide documentation. The Tribunal wrote to the applicant on 13 July 2010 under s.424A of the Migration Act seeking comment or response by 5 August 2010. The Tribunal recorded that the applicant did not respond to the s.424A letter.
In its findings and reasons, after considering the documents provided by the applicant, the Tribunal addressed the applicant’s claim at the hearing that he could provide further documentation to support his claims if given further time. However the Tribunal considered that the applicant had had ample opportunity to provide any relevant documentation and was not satisfied that any further time to enable him to do so was warranted.
It has not been established that the Tribunal fell into jurisdictional error in the manner in which it addressed the applicant’s request for further time to provide documentation.
It is clear that the Tribunal understood that the applicant sought additional time. It considered that claim. It told him at the hearing that he would have additional time, insofar as there was to be time after the hearing for a s.424A letter and response. There was no response to that letter, or indeed any response seeking additional time to reply to that letter. In that context that the Tribunal found that the applicant had ample opportunity to provide relevant documentation. The Tribunal’s finding in that respect must also be seen in light of the time that had passed since the applicant’s application for a protection visa in November 2009. The delegate’s adverse decision was in April 2010, the Tribunal hearing was held in July 2010 and the decision was not made until 17 August 2010.
As the solicitor for the first respondent pointed out, it is relevant to bear in mind the statutory constraints on the Tribunal, including the provisions of s.414A of the Migration Act in relation to the period within which the Tribunal must review decisions on protection visas, albeit the failure to make a decision within 90 days is not such as to effect the validity of a decision.
In all the circumstances it has not been established that it was unreasonable for the Tribunal not to allow further time to await further documentation from the applicant, particularly having regard to the Tribunal findings in relation to the documents that had been submitted by the applicant.
Another issue raised by the applicant in oral submissions was his complaint that there were difficulties with the interpreter at the interview with the delegate. Today he claimed that issues with the interpretation had created difficulties in his communication to the authorities, as he had told the Tribunal. It is the case that in the Tribunal hearing the applicant raised an issue about the interpretation at the interview with the delegate, although in his letter of 10 June 2010, while he took issue about the accuracy of findings of the delegate and whether he said particular things, he did not attribute his concerns to interpreter inadequacy or difficulties.
According to the Tribunal, at the hearing the applicant said that the Malayalam interpreter at the Departmental interview interpreted very generally and did not say everything that he had said. The Tribunal commented that it had listened to the Department CD-Rom recording of the interview and that it did not discern any difficulties with the interpreting and that the applicant did not raise any issues during the interview. In those circumstances the Tribunal advised the applicant that the Tribunal hearing was his opportunity to explain his claims and that he could provide further details of any claims he did not consider were adequately explained during the interview.
As set out above, at one point in the hearing the applicant gave an explanation that suggested there had been an inadequate translation at the Departmental interview of whether his involvement with political parties ceased in 2003 or not. The Tribunal considered the claim but was not satisfied that any difficulties in interpretation at the interview adequately explained the significant contradictions in that respect.
There is nothing in the material before the court to suggest that any significant interpreting difficulties of substance were bought to the Tribunal’s attention that were not considered. I note further that the Tribunal wrote to the applicant under s.424A of the Act, putting to the applicant (among other things) inconsistencies in aspects of his evidence given at the Departmental interview and at other times. The applicant did not respond to this letter.
In all the circumstances, not only is there no evidentiary basis for the claims that the applicant makes about the interpreting at the delegate’s interview, but there is also nothing to show that the Tribunal fell into jurisdictional error in the way that it dealt with this claim. In particular, it gave the applicant the opportunity to raise at the hearing any matters on which he wished to give additional evidence or which he considered had not been adequately explained. His claim does not establish jurisdictional error on the part of the Tribunal.
The applicant also took issue with the propriety of the Tribunal raising with him inconsistent evidence or information that it had before it from another protection visa applicant. If the Tribunal had not raised such matters with the applicant there might well have been an issue about whether it had failed to comply with s.424A of the Act in that respect, insofar as such matters may be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review.
While it is the case that the Act provides that a Tribunal hearing is to be in private (see s.429 of the Act), the concern that the applicant raised about the fact that inconsistent evidence from another protection visa applicant was put to him for comment at the hearing and in the s.424A letter is not such as to establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.

RECORDED: NOT TRANSCRIBED

The applicant has been unsuccessful and the first respondent seeks costs in the sum of $5,000. The applicant told the court that presently he was not able to pay as he did not have a regular income. However the applicant’s lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 15 April 2011