SZOUL v Minister for Immigration - [2011] FMCA 310

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 310

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

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

Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306; [2010] HCA 48
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361

First Applicant:

SZOUL

Second Applicant:

SZOUN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2523 of 2010

Judgment of:

Barnes FM

Hearing date:

18 April 2011

Delivered at:

Sydney

Delivered on:

18 April 2011

REPRESENTATION

Applicants:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $5,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2523 of 2010

SZOUL

First Applicant

SZOUN

Second 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 a decision of the Refugee Review Tribunal dated 29 October 2010. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicants’ protection visas. The applicants, who are husband and wife and citizens of India, arrived in Australia in October 2009 and applied for protection visas in November 2009. They claimed, in essence, to fear persecution in India for reasons of their Christian religion and the proselytising activities of the applicant husband. For convenience, future references to the applicant are to the applicant husband. His wife also made claims to have experienced past incidents of harm in India for this reason. The applicants’ case was set out in a statement accompanying the protection visa application.
In addition, the applicant provided a number of supporting documents in relation to his claims, including supporting letters from the church in Kerala, India, with which he claimed to be associated.
As the Tribunal recorded in its reasons for decision, the applicants attended an interview with the delegate and the applicant husband gave evidence. The Tribunal summarised the applicant’s oral evidence from the interview with the delegate and also set out in detail the submission from the applicants’ migration agent and the list of accompanying documents provided. The Tribunal also referred to submissions and information received by it after the applicants sought review including supporting documents and a statement from the applicant in relation to his claims.
The applicants attended a Tribunal hearing. The only evidence of the Tribunal hearing before the court is in the bundle of relevant documents and consists of the Tribunal hearing record for 8 October 2010 and the Tribunal’s account in its reasons for decision of what occurred at the hearing. I will return to the detail of that account when considering the grounds raised by the applicant.
In addition, the Tribunal wrote to the applicants on 12 October 2010 seeking their comments on or response to information that the Tribunal considered would, subject to their comments or response, be the reason or a part of the reason for affirming the decisions under review. The applicants responded by a facsimile letter of 26 October 2010. That response was described by the Tribunal in its reasons for decision.
The applicant’s claims in essence were that he and his wife were Catholic. He claimed that he was a committed and active Catholic who had not only attended a Catholic school and been involved in a youth organisation but had also obtained a theology degree. He claimed he had joined the Gospel Church and that he had preached to non-Christians and undertaken missionary work in Orissa in the form of evangelising. In his protection visa application he claimed that he had been attacked by Hindu militants while preaching in October 2003 and that he and his team had been tied to a tree for three days and beaten. He claimed they were subsequently liberated by the police but then arrested and detained for five days. Thereafter he resumed his missionary work in Orissa. He also claimed to have experienced another attack in December 2004 by members of Shiv Sena, during which a member of Shiv Sena had been killed. In the statement accompanying his protection visa application he claimed that he and others had been charged with the murder of this person, and that the outcome of this criminal case was still pending.
The applicant also claimed that on his return to Kerala, Shiv Sena members continued to actively seek him for revenge.
The applicant claimed he left India in 2005 and worked in the United Arab Emirates but that he had been deported in August 2008 because of his proselytising activities. He claimed his visa was cancelled and he was accused of anti-Islamic activities. However, he claimed that in September 2008 he returned to another part of the United Arab Emirates, established a business, persisted with preaching but was again deported in 2009, returning to India in May 2009.
The applicant claimed that in August 2009 he and his wife were attacked in their home by Hindu extremists, including the Shiv Sena, that the house was damaged and set on fire and that they were forced to flee. He claimed that the police could not identify the assailants who were still at large. He also claimed to have experienced an attack by Shiv Sena members in September 2009 and to have been treated in a hospital.
The applicants also claimed that during the applicant husband’s absence from India his wife had been subject to persistent harassment by persons looking for her husband; that on one occasion she had been physically assaulted while pregnant and required hospitalisation; and that the applicant husband’s uncle had been found dead in a well. The applicant believed that this had been caused by the same persons who had sought information about him from his wife.
In its findings and reasons the Tribunal summarised the applicant’s claims as claims that he had been involved in proselytising activities in India and the United Arab Emirates and that he had witnessed the murder of an Hindu extremist in Orissa in 2004 and thereafter had been pursued by the man’s associates and those implicated in the killing. He also claimed that the authorities were implicated and were seeking to prevent him from providing evidence to that effect. The Tribunal described his claims about attacks on himself and the members of his family in Kerala by Hindu extremists and the authorities, in particular the two claimed attacks 2009. It also set out his claims that his uncle was killed by Hindu extremists; that those Hindu Extremists had been seeking to find and harm his child in India; that he feared he would be killed by Hindu extremists with the support or assistance of the authorities and that he could not practise his religion freely and safely in India because Christians were targeted by other religious groups.
The Tribunal also summarised the applicant wife’s claims to be a Christian targeted by Hindu extremists in India looking to harm her husband, her claim that she had been assaulted when unable to comply with their demands, and that she had witnessed her husband’s proselytising in India in a particular hall near their home.
The Tribunal accepted that the applicants were Christians and that they attended religious activities in Australia. However, it made a number of findings rejecting what might be described as their “core claims” as fabricated.
Thus the Tribunal did not accept the applicants’ claim that they, or members of their family, were targeted by Hindu extremists or the authorities in India, finding for reasons which it gave that they fabricated those claims to enhance their application. The Tribunal was not satisfied that the applicants had provided a truthful account of their circumstances in India or the United Arab Emirates. In particular the Tribunal had regard to the fact that the husband claimed that in August 2009 he and his wife were attacked by Hindu extremists in their home and the house set on fire. When it discussed these claims with the applicant wife at the hearing, she did not recall being attacked in their home or the house being set on fire. The Tribunal addressed the applicant husband’s explanation that his wife could not recall or articulate her claims at the hearing because she suffered from stress and that she forgot everything. However, it formed the view that the applicant wife had no apparent difficulty articulating her claims at the hearing and that she did not recall the incident because it did not happen.
The Tribunal went on to find that the husband had essentially contrived all the core claims in support of the application and that he either did not give his wife details of those claims, or she did not recall them. In these circumstances it did not accept as credible the claim that the applicants were attacked in their home by Hindu extremists in August 2009 or that the home was set alight, finding this claim to have been fabricated.
The Tribunal also rejected the applicant’s claims to have been an active evangelist in India. In relation to the applicant’s claim that while he lived in the United Arab Emirates he proselytised during his return visits to India, and that this was an ad hoc process with no fixed venues or strategies, it had regard to the fact that the applicant wife, who had a limited recollection of her husband’s proselytising, had stated that he conducted such activities in a particular hall in Kerala, approximately two kilometres from their house, that such meetings were organised and that Hindus were invited to hear her husband speak.
The Tribunal found that if the applicant husband was involved in proselytising activities, he and his wife would recall those activities and essentially provide a similar description regarding the activity. It found the lack of consistency in their evidence had arisen because the claim was fabricated. It did not accept as credible the claim that the husband was involved in proselytising activities in India or the United Arab Emirates.
Having rejected the applicant’s claim that he was proselytising in the United Arab Emirates, it found the associated claims were also fabricated. In particular it rejected the claims that the applicant was deported twice on this basis and barred from returning to the United Arab Emirates after he was deported the first time, but that he was nonetheless able to return because he altered his immigration status and went to a different place in the United Arab Emirates. The Tribunal was of the view that if the applicant had been deported under the circumstances he described, he would not have been able to return to any of the Emirates in the United Arab Emirates. It found a more plausible explanation for his travel in and out of the United Arab Emirates was that he was not a person of interest or concern to the authorities.
The Tribunal also formed the view that the other claims relating to the applicant’s alleged difficulties with Hindu extremists and the police had been fabricated to enhance their protection visa application, in particular, the claim that unknown persons were seeking to harm them because of the 2004 incident in Orissa when a Shiv Sena activist was killed.
In light of its finding relating to the applicants’ credibility the Tribunal was not satisfied that the applicants were reliable witnesses or that any of their claims were credible. It did not accept as credible that the applicant husband witnessed a killing in Orissa during 2004 or that Hindu extremists and the authorities had been seeking to harm him because of that incident. It did not accept as credible his specific claims in that respect about harm to members of their family, including their uncle or child having been targeted by extremists. The Tribunal, not being satisfied that the applicants were at risk of harm by unknown Hindi extremists or the authorities, also did not accept as credible their claim that they were attacked by members of Shiv Sena or other Hindu extremists while in India. Nor did the Tribunal accept as credible the applicant husband’s claim that the police wanted to silence him or otherwise harm him because he witnessed the claimed killing in 2004.
The Tribunal referred to the fact that the applicants had submitted police reports and other documents in support of their claims (as detailed earlier in its reasons for decision) but found that in view of its findings relating to their credibility, it was not satisfied that the documents submitted by the applicants were genuine or reliable. Having regard to information from external sources indicating that false documents were widely available in India, the Tribunal found that the applicants had obtained false documents in the belief it would enhance their protection visa application.
The Tribunal did accept that the applicants were Christians and that they had attended church services in Australia. It addressed the husband’s claims that Christians were targeted throughout India, including in his home state of Kerala, and that he and his wife would be prevented from practising their religion freely and safely in India. However, after considering information from external sources as listed in the letter sent to the applicants on 12 October 2010 (relating to the circumstances of Christians in Kerala) the Tribunal was satisfied that Catholics in Kerala were commonly able to freely and safely practise their religion without adverse interest from other religious groups or the authorities.
The Tribunal did accept that communal violence between religious groups occurred in India and that Christians had been targeted during such violence, particularly in areas where the Christian community was small and missionaries were suspected of proselytising. However, the Tribunal was satisfied that on the information from external sources the authorities in Kerala commonly provided a reasonable level of protection to Christians, including at times of heightened communal unrest, and that Christians in Kerala were commonly able to practise their religion freely and safely. The Tribunal was not satisfied that the applicants faced a real chance of serious harm in India for reasons of religion or for any other Convention reason.
As neither of the applicants was found to be a person to whom Australia had protection obligations, neither could the other family member satisfy the criterion for a member of the family unit of such a person. The Tribunal affirmed the decisions not to grant the applicants protection visas.
The applicants sought review by application filed in this Court on 22 November 2010. There is one ground in the application that has three particulars. The applicant did not file written submissions, but made oral submissions today. I have considered all the matters raised in the application, the accompanying affidavit and in oral submissions.
The ground in the application is that the Tribunal constructively failed to exercise its jurisdiction. The first particular, in a sense, provides the first ground. It is that:
The applicants provided documents to the Tribunal to corroborate their claims. In particular the applicants provided an accident register cum wound certificate, certificate from Kerala Catholic Movement, Letter from Gospel Church, police report relating his uncle’s death, police report relating to attacked (sic) on applicant house and medical certificate relating to assault on applicant…
It is contended that:
…The Tribunal failed to engage in an active intellectual process in respect those documents. The Tribunal member ultimately gave the documents no weight on the basis of its credit findings. It was an error for the Tribunal to place 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 intellectual process as the contents of the documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
In oral submissions the applicant elaborated on this particular which appears to reflect a concern that the Tribunal did not go through each of the documents in question in its findings and reasons. However, it is apparent from the Tribunal’s reasons for decision that these were circumstances in which the applicant’s credibility had been so weakened in the Tribunal hearing in the manner discussed by McHugh and Gummow JJ in the Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49]:
…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. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.
The Tribunal considered the core aspects of the applicant’s claims (beyond the claims of being Christian) to have been fabricated for the reasons which it gave. It was open to the Tribunal in those circumstances to reach the conclusion that the documents which supported such claims were not genuine on the basis of its adverse credit findings and in light of independent country information as to the prevalence and availability of false documents in India.
Insofar as the applicant in oral submissions took issue with the independent country information it is well-established that the selection and weight to be given to independent country information is a matter for the Tribunal. As discussed in Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306; [2010] HCA 48, insofar as the applicant’s supporting documents purported to support the claims that went beyond his Christianity, as those claims had been expressly rejected by the Tribunal, it was open to the Tribunal to then regard the supporting documents as not genuine or reliable in that respect (see SZJSS at [33] – [35]).
I also note, relevant to the next ground, that insofar as it is contended that the Tribunal failed to consider an integer of the applicant’s claims in relation to particular documents submitted by the applicant, the fact that the Tribunal preferred other evidence and reached adverse credibility findings based on matters other than the supporting documentation is not such as to constitute a failure to have regard to a relevant consideration. (See SZJSS at [35]). The contention in the first particular to the ground in the application is not made out.
The second particular is that “despite attending the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application (sic)”. It is apparent from the applicant’s oral submissions today that this is a contention that the Tribunal decision was affected by actual or apprehended bias. In support of such a contention, the applicant described the hearing as short, consistent with the Tribunal hearing record which stated that the hearing commenced at 1.09 pm and finished at 2.36 pm. He took issue with the amount of time devoted to a discussion of his claims, as distinct from the introduction to the hearing. The applicant also suggested that because it was Friday afternoon the Tribunal wanted to finish the hearing early and he noted that while the Tribunal had referred to a postponement or adjournment to a later date, the Tribunal subsequently decided to complete the hearing on that day. The applicant claimed that these circumstances were indicative of bias on the part of the Tribunal.

As indicated, the only evidence of what occurred in the Tribunal hearing is what is contained in the bundle of relevant documents, including, in particular, the Tribunal decision record. The Tribunal’s account of the hearing indicates that the applicant reiterated his claims and the Tribunal then put to him a number of issues of concern in relation to the claims or aspects thereof, including the fact that he had not been involved in evangelising activities in Australia and yet he claimed to have done so in a hostile place in Orissa in India and to have been deported from the United Arab Emirates twice for preaching activities.
It also raised concerns about the applicant’s claims that he had been deported from the United Arab Emirates for anti-Islamic activities and yet he had been permitted to return. In each case it recorded his explanations. The Tribunal also raised concerns about the applicant’s claims about his uncle’s death and the fact that supporting documents he had submitted indicated there were no suspicious circumstances. The Tribunal asked the applicant for evidence in relation to the hostile Hindu groups he had referred to throughout the hearing. The Tribunal’s summary of the evidence – and it is clear that it is only a summary of the evidence at the Tribunal hearing – also referred to evidence from the applicant wife; the claims about what she feared in India and the claim that on one occasion she had been targeted directly in a manner she explained; that she had suggested to those people that the only person who could influence her husband was his uncle; and what occurred thereafter.
Relevantly, the Tribunal recorded that it asked the applicant wife if she had suffered any other attacks or incidents from her husband’s enemies. She stated it was only that one incident when they came looking for her husband and she told them to go to the uncle. The Tribunal recorded that it asked the wife if she was sure there were no other incidents, in reply she stated she was sure there was only one incident. The Tribunal also recorded putting to the wife aspects of her husband’s claims about proselytising and asking about his activities in India and the United Arab Emirates, if she knew why her husband had left the United Arab Emirates and her evidence in that respect.
The Tribunal then recorded its discussion with both of the applicants at the hearing where it emerged that there were inconsistencies between the evidence of the husband and the wife. In particular, the wife did not recall the incident the husband claimed had occurred when their house was attacked and burned down while the applicants were sleeping inside in August 2009. Also, the wife had provided contradictory information about her husbands proselytising activities. The Tribunal asked the applicants if they wanted to comment. There was some comment from the applicant husband which was responded to by the Tribunal, although neither applicant responded directly to its comments relating to their credibility.
Relevantly, in relation to the length of the hearing, the applicants’ advisor stated that given the developments at the hearing the applicants wanted to respond in writing.
Subsequently the Tribunal commented that it would write to the applicants after the hearing and they could respond in writing. The Tribunal sent a lengthy letter to the applicants under s.424A of the Migration Act 1958 (Cth) raising with them issues such as the lack of consistency in their accounts in a number of specified details. That letter set out six relevant issues in some detail and also independent country information. As indicated, the applicants responded in writing. In that response the applicant husband indicated that he was not happy with the Tribunal hearing and the fact that the Tribunal had said it was “not happy and was confused with my statement because it is vague”.
It is in that context that the applicant now raises an allegation of actual or apprehended bias. It is well-established that it is a rare and exceptional case in which a court will find actual bias simply based on the decision-maker’s reasons. (See SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361). The Full Court of the Federal Court, in particular North and Lander JJ, in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 (at [18]) stated that the same approach is relevant to apprehended bias and that ordinarily a party would need to show some conduct on the part of the decision-maker, apart from the decision-maker’s expression of reasons, which would indicate that the decision-maker had been guilty of pre-judgment or was in any way biased. In this case, the applicant’s concerns with the Tribunal hearing, its length of time and the matters that were discussed at that hearing, and the fact that there was not an adjournment or postponement are not such as to demonstrate actual bias in the sense of a form of pre-judgment or a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. As Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]:
Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
Nor are the circumstances such as to give rise to an apprehension of bias in the sense that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions to be decided. Particularly a fair-minded lay person properly informed as to the nature of Tribunal proceedings, the matters in issue and the conduct said to give rise to the apprehension (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [27] – [28], and Katzmann J in SZNPG at [37]). I note that, as Katzmann J pointed out in SZNPG, bias was alleged in Applicant S20 in relation to corroborative material, but insofar as the applicant in that case intended to base any argument about bias on the way the Tribunal expressed its reasonings, her Honour pointed out:
…[I]f the reasoning process withstands scrutiny as being neither illogical nor irrational, there is no foundation for a conclusion that the decision is tainted by actual or apprehended bias.
Nor is this a case in which the Tribunal’s account of what occurred in the Tribunal hearing such as to demonstrate that the Tribunal approached its consideration of the applicants’ claims with a closed mind giving rise to either actual or apprehended bias. Even if the Tribunal was sceptical of an applicant’s claims and took a fairly vigorous approach in testing them, that of itself does not demonstrate bias. The Tribunal’s account of the hearing is not such as to support any such claim in this instance. Moreover, the length of the hearing must be seen in light of the fact that when specific issues of significance arose in relation to inconsistencies in the applicants’ claims, the applicants’ advisor sought to respond in writing. Hence rather than pursuing such claims and the applicants continuing to respond to such claims, after the hearing the Tribunal wrote to the applicants under s.424A of the Migration Act giving them an opportunity to respond to its concerns. The length of the hearing must be seen in light of the whole review process, including what occurred thereafter in the particular circumstances of this case. The second particular to the ground in the application is not made out.
The third particular is that the Tribunal “failed to consider an integer of the applicants’ claims in failing to consider whether or not a Christian activist in India was at risk of harm from radical Hindus and able to access effective protection”. Insofar as this claim is intended to refer to Christian activism in the sense of the evangelising and proselytising activities the applicant claimed to have been engaged in, the Tribunal considered, but did not accept as credible, the applicant’s claims to have been an active evangelist in India and the United Arab Emirates. Having rejected such claims, it was not necessary for it to go on to consider whether someone who was found to be active in such a manner would be at risk of harm in India or able to access effective state protection.
Insofar as the applicant’s contentions are intended to be based on the involvement of himself and his wife as Christians, the Tribunal also considered such claims but found however that Christians were able to practice their religion without adverse interest from other religious groups or the authorities in Kerala, and that there was effective state protection. It has not been established that the Tribunal failed to consider an integer of the applicants’ claims in this respect. Nor, as set out above, do the applicants’ claims in relation to the consideration of documents by the Tribunal establish such an error.
I note for the sake of completeness, although the applicant did not address it today, that in his accompanying affidavit the applicant claimed that the Tribunal had failed to investigate his claims. He did not elaborate on this contention at the hearing today. This is not a case in which it has been established that there was some critical evidence readily available that the Tribunal either undertook to, or failed to make inquiries about. There is no general duty to inquire. It is for an applicant to put his case before the Tribunal, and for the Tribunal to determine whether it is satisfied that the applicant meets the criteria for the class of visa for which he has applied. This is not one of those limited scenarios where there were circumstances in which the Tribunal had any obligation to make any inquiry. I note in that respect that the applicant did not identify the suggested inquiry which he claimed that the Tribunal failed to carry out. There is nothing apparent on the material before the court to give rise to a concern in that respect.
In oral submissions, apart from elaborating on the concerns above, the applicant also appeared to take issue generally with the Tribunal’s reliance on particular items of independent country information. Notwithstanding that such material is outside the operation of s.424A(1) of the Migration Act by virtue of the exceptions in that section, the Tribunal put to the applicants the independent country information relevant to its consideration of state protection in Kerala. The selection and weight to be given to items of independent country information is a matter for the Tribunal. The applicant’s disagreement with the particular items of evidence relied on by the Tribunal is not such as to establish jurisdictional error.
In the circumstances of this case, the contention that the Tribunal did not carry out a review properly in the way that it went about its task has not been made out on any of the bases contended for by the applicants. As no jurisdictional error has been established, the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicants have been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that unsuccessful applicants should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 4 May 2011