SZOQE v Minister for Immigration

[2010] FMCA 917

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 917

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant not believed – no reviewable error found – application dismissed.

Minister for Immigration v SZNPG [2010] FCAFC 51
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Re Minister for Immigration; Ex parte Durairajasingham(2000) 168 ALR 407

First Applicant: SZOQE

Second Applicant: SZOQF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2075 of 2010

Judgment of: Driver FM

Hearing date: 23 November 2010

Delivered at: Sydney

Delivered on: 23 November 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Whittemore
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG2075 of 2010

SZOQE

First Applicant

SZOQF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 26 August 2010.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant and his wife protection visas.  The relevant claims were made by the first applicant, the applicant husband.  The second applicant, the applicant wife, made a claim as a member of his family. 

2. The following statement of background facts is derived from the Minister's written submissions. 

3. The applicants, husband and wife, are citizens of India. They arrived in Australia on 10 December 2009 and applied for a protection visa on 25 January 2010 (court book, “CB” 1; CB 71). The second applicant relied on the claims of her husband and did not make any claims herself.

4. In support of his protection visa application, the first applicant (the applicant) provided a statement containing his written claims to fear persecution: CB 27-28. He claimed that his parents were members of the BJP, however, his father walked out of the party in protest and joined the Congress Party in 2003. He claimed that he followed his father, and became involved in various activities to increase its popularity in the community. He campaigned during the state elections, which increased his profile in the party. He also became known to members of the BJP, who approached him to support the BJP candidate. He refused, and his house was attacked and family members threatened. On election day, he was dragged before the local BJP leader and threatened that he would be killed if he continued to support the Congress Party member. He believes that if he returns to India, BJP party thugs will kill him.

The delegate

1. On 15 March 2010 the applicant was invited to attend an interview before a delegate of the Minister scheduled for 31 March 2010: CB 43.  He attended that interview.  In a decision dated 28 April 2010 the delegate refused to grant the applicant a protection visa: CB 46.

2. The delegate was prepared to accept that the applicant was involved with the BJP on the basis that he was able to demonstrate at the interview that he was familiar with the names of the local candidates and policies of both parties. However, the delegate found that his account at the interview of the claimed attacks was inconsistent and contradictory with that given in his written claims, and therefore lacked credibility. The delegate also placed reliance on the applicant’s return to his farm after the alleged attack, which it found undermined his claim to have a genuine fear that he would be killed by political opponents. Finally, the delegate found that it would be reasonable for the applicant to relocate within India, away from the local area where his claims were related. The delegate thus was not satisfied that the applicant had a well founded fear of persecution for a Convention reason: CB 53-54.

The Tribunal proceedings and decision

1. On 25 May 2010, the applicants lodged an application with the Tribunal for review of the delegate’s decision: CB 55. 

2. By a letter dated 9 June 2010, the Tribunal invited the applicants to attend a hearing on 13 July 2010, to give oral evidence and present arguments in support of their case: CB 60. The Tribunal noted in its decision-record that the second applicant did not attend the hearing, and in the absence of any medical evidence to support the applicant’s claim that she was unwell, decided not to invite her to a further hearing: CB 112, [138]-[139].

3. The Tribunal found that the applicant was not a witness of truth: CB 113, [143]. The Tribunal found that there were significant inconsistencies in his evidence (CB 113, [143]), and that his claims were further undermined by his delay in leaving India after the alleged events occurred: CB 116, [160]. The Tribunal therefore did not accept that he was attacked, pursued or threatened for supporting the Congress Party, or that he was persecuted for reasons of his political opinion of membership of a particular social group: CB 117-118, [164]-[165].

4. Given the amount of time that the applicant had resided in Australia, the Tribunal declined to give him a further period of time to provide documents in support of his claims: CB 118, [166]. The Tribunal did consider an undated letter purporting to be a letter from the “Indian National Congress Party” which the applicant had sent to the Tribunal on 27 July 2010, but was not satisfied that the document overcame the significant concerns that it had about his credibility: CB 118, [167].

5. The Tribunal’s adverse credibility findings were findings of fact exclusively within its jurisdiction to make.[1]  The Court cannot review the merits of the Tribunal’s decision and it is well established that in determining whether an applicant has a “well-founded” fear of persecution the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.[2]

   [1] Re Minister for Immigration; Ex parte Durairajasingham(2000) 168 ALR 407 at [67].

   [2] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 281-282.

The present application

1. These proceedings began with a show cause application filed on 22 September 2010.  The application originally contained five grounds:

   [1]The applicant provided document to the Tribunal to corroborate his claims.  In particular the applicant provided a letter from Indian National Congress committee.  The Tribunal failed to engage in an active intellectual process in respect of the document.  The Tribunal ultimately gave the document no weight o 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 to the contents of the documents.

   2. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India.  The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

   3. 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.

   4. 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.

   5. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 26 August 2010 was effected by actual bias constituting judicial error.

2. At the first court date hearing in this matter I struck out ground 5 as unparticularised, embarrassing and unsupported by evidence.  The hearing today dealt with the remaining four grounds. 

3. The application is supported by a short affidavit filed with it, which I received.  I also received a court book filed on 19 October 2010. 

4. The applicant confirmed in oral argument that his principal argument concerns the document identified in ground 1.  The Tribunal deals with that document and the circumstances leading up to its submission at [166] and [167] of its reasons, CB 118:

   On 25 August 2010 the applicant requested a two months extension so that he could provide documents from India.  The Tribunal carefully considered the request for an extension of time of two months but did not agree to the extension.  The applicant has been in Australia since December 2009 and the Tribunal considers that he has had sufficient time to arrange for documents to be sent from India if they existed.  As well, at the hearing the Tribunal allowed the applicant until 27 July 2010 to provide further documents.  The applicant provided a letter from the Indian National Congress Committee on that day.  The Tribunal then wrote to the applicant on 2 August 2010 and he had until 25 August 2010 to provide a response.  His response was that his statements are true and correct and he requested an extension of time.  The applicant has had from the time he arrived in Australia on 10 December 2009 until 25 August 2010 to provide further evidence to support his claim.  The Tribunal did not allow the applicant further time to obtain evidence from India.

   On 27 July 2010 the Tribunal received from the applicant an undated letter with a letterhead “Indian National Congress Committee” and the name … and 84 Mansa Constituency.  The letter stated that the applicant is a member of Congress Party India and he and his father worked for the promotion of the party from January 2003 to October 2009 and the applicant served the party with financial support and hard work.  The Tribunal has considered this document but is not satisfied that this letter overcomes the significant concerns the Tribunal has about the applicant’s credibility.  The Tribunal has found that the applicant is not a witness of truth and is not a member of the Congress Party.  The Tribunal informed the applicant that the information the Tribunal has is that fraudulent documents are prevalent from India.  The applicant did not provide this letter until after the hearing and the letter id undated.  The document does not overcome the significant concerns that the Tribunal had about the applicant’s credibility.

5. The applicant asserted from the bar table that his request for an extension of time had been oral and was for only 20 days.  However, the accuracy of what the Tribunal says at [166] is confirmed by the handwritten letter reproduced CB 84.  Notwithstanding the Tribunal's refusal of an extension of time for the applicant to produce further documents, the applicant did provide the purported letter from the Indian National Congress committee on 27 July 2010.  The Tribunal had approximately one month to consider that document.  It is apparent from [167] of the Tribunal's reasons that the Tribunal rejected the document for three reasons.  The first was the Tribunal's comprehensive findings of untruthfulness against the applicant, detailed at [143]-[164] of the Tribunal's reasons, CB 113 to 117.  Secondly, the Tribunal noted country information about the prevalence of document fraud in India.  Perhaps fortuitously, that information had been discussed with the applicant at the Tribunal hearing on 13 July 2010.  Thirdly, the Tribunal took into account the lateness of the provision of the letter and the fact that it was undated. 

6. It follows that the Tribunal rejected the document, both because of the quality of the document itself and the comprehensive findings of untruthfulness the Tribunal had already made.  In my view the Tribunal's reasons disclose an active intellectual process in the rejection of the document.  I reject the first ground in the application.

7. The Tribunal’s findings about the applicant’s credit comprehensively undermined his credibility to such an extent that it was open to the Tribunal to attribute his documents no weight.[3]  As the High Court has observed, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the Tribunal of fact may well treat what is proffered as corroborative evidence as of no weight “because the well has been poisoned beyond redemption”.[4]  The Tribunal’s approach to the applicant’s document reveals no error.

   [3] Minister for Immigration v SZNPG [2010] FCAFC 51 at [23]-[24]; Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] McHugh and Gummow JJ.

   [4] Re Minister for Immigration; Ex parte ApplicantS20/2002, ibid.

8. The remaining grounds are in template form and are not particularised.  They do not point to any jurisdictional error by the Tribunal by reference to the available material.  In his oral submissions, the applicant referred to alleged illness of his wife and himself.  The applicant had referred to his wife's illness at the Tribunal hearing when the Tribunal noted her absence.  The Tribunal reasonably elected to proceed in the absence of the applicant's wife, given that she had made no protection claims of her own.

9. Before me, the applicant claimed that both he and his wife suffer from mental problems.  He was not able to provide any medical evidence relating to any condition and said that he and his wife had been inhibited from seeking medical assistance because they did not have a Medicare card.  The applicant also told me that a doctor had confirmed the applicant's opinion that his wife was suffering from depression.  He did not have any opinion with him, but he indicated that given time, he could produce one.  I did not consider it necessary to provide that opportunity, essentially for the same reason as the Tribunal.

10. The applicant's wife has not taken an active part in either the proceedings before this Court, or the proceeding before the Tribunal.  That is consistent with the fact that the applicant's wife made no protection claims of her own.  It was not apparent to me in the conduct of today's hearing, or indeed the first court date hearing, that the applicant was suffering from any medical condition. 

11. The applicant also sought further time to produce further documents from India.  I saw no point in giving that opportunity.  Further documents which might provide some support to the applicant's protection visa claims could not bear on the validity of the Tribunal's decision, as the Tribunal did not have them. 

12. In my view, the Tribunal decision is free from jurisdictional error.  It is therefore a privative clause decision, and the application must be dismissed.  I will so order.

13. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $3,700.  The applicant claimed impecuniosity, but that is not a reason for the Court to refrain from making a costs order.  The applicant also referred to his wife's health condition as a reason for the Court not to make a costs order.  I disagree.  Costs order, when fixed in a specific amount, creates a debt.  It is always open to an applicant to seek to have such a debt written off or waived.  I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,700.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 November 2010