SZQBT v Minister for Immigration
[2011] FMCA 593
•15 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 593 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 |
| Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 SZOHJ v Minister for Immigration and Citizenship [2010] FCA 1268 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 |
| First Applicant: | SZQBT |
| Second Applicant: | SZQBU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 557 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 557 of 2011
| SZQBT |
First Applicant
| SZQBU |
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 28 February 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are husband and wife who are citizens of India. They arrived in Australia in February 2010 and applied for protection visas in April 2010.
The application was refused and they sought review by the Tribunal. The Tribunal invited both of the applicants to a Tribunal hearing. The applicant husband, who I will refer to for convenience as the applicant, attended the Tribunal hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
In its findings and reasons the Tribunal noted that the applicant wife did not have her own claims to be a refugee, but had applied for a protection visa as a member of her husband’s family unit. The Tribunal turned its mind to the possibility that the wife may have impliedly raised her own claims, but was satisfied on the basis of what was claimed by each applicant and the forms that had been completed that there was no implied claim by the wife that she was a refugee.
The applicant had made his claims in a statement lodged in connection with his protection visa application, at an interview with the delegate and at the Tribunal hearing. The Tribunal summarised the applicant’s claims as, in essence, a claim that he had been a member of the Congress Party (the INC) since 2002 and that he was active in canvassing for the party in the 2007 Gujarat state election. He also claimed that in the 2009 national election he was active on behalf of the party, that he worked on an advisory committee and that he had been targeted by the BJP political party in 2007, 2008 and 2009.
He claimed that in 2007 he had been asked to join the BJP party and that after the elections he was asked to make a donation to the BJP. He refused to do so and reported the matter to the police. He claimed that as a result BJP supporters attacked him in his home. He also claimed that at the end of 2008 BJP supporters ransacked his office and threatened his business partners and that in 2009 he was pulled off his scooter and assaulted. He claimed to fear he would be persecuted by the BJP if he returned to India.
However, for detailed reasons which it gave, the Tribunal did not find the applicant to be a credible witness. It did not accept that he was a member of the Congress Party or that he was targeted by the BJP.
First, the Tribunal had regard to the applicant’s inability to name the Congress Party candidate in the 2009 election at a time when he claimed to have been actively working for the party. This led the Tribunal not to be satisfied that the applicant was in fact a member of a Congress Party Advisory Committee as claimed at that time or that he was an active member of the party. The Tribunal also found, based on independent country information, that the applicant had incorrectly identified the BJP party candidate in the 2009 national election. It was of the view that if he had been actively involved in organising canvassing for the party in those elections, he would have known the identity of the primary opponent.
The Tribunal also found that the applicant’s claim that he was targeted by the BJP in 2007, 2008 and 2009 was not credible. It did not find it credible that the applicant was singled out for targeting, in the absence of an explanation for why he would have been of more interest to the BJP than any other Congress Party member. It did not accept his explanation that he was well known because he gave a donation to the party, being of the view that the party would have received many donations as it was one of the most dominant parties in India. It was not satisfied that the applicant alone was targeted by the BJP as claimed.
The Tribunal also took into account conflicting evidence about approaches made to the applicant by the BJP, in particular about whether, when and why he was telephoned by a BJP candidate. The Tribunal had serious doubts that the successful BJP candidate would, in fact, have telephoned an ordinary Congress Party member. It was of the view that if he had done so this would have been a significant event that the applicant would recall. Given the conflicting evidence from the applicant about when he was phoned and why, the Tribunal did not accept that he was called by the BJP candidate. Hence it did not accept his claims about being asked to join the BJP or to make a donation, that he made a complaint to the police about the BJP asking him for money, or that he and his family were assaulted at home because of such complaint.
The Tribunal also had regard to the delay in the applicant applying for a visa to come to Australia after the alleged events. It found that the fact that he took nearly a year after he claimed that he was pulled from his scooter to apply for a visa to leave India cast strong doubt on his claim to fear for his life.
The Tribunal stated that it had considered the applicant’s claims individually and cumulatively but that it did not accept those claims as follows:
In summary, the Tribunal finds that the applicant did not know the identity of his own Party’s candidate in the 2009 election in which he claims to have been active, he has given inconsistent evidence about the approaches made to him by the BJP to join their party and to give them money and he delayed applying to come to Australia. The Tribunal does not find the applicant to be a credible witness. The applicant was frequently unable to answer the Tribunal’s questions and he changed his evidence. There are a number of significant inconsistencies in the applicant’s evidence. They lead the Tribunal to conclude that the applicant is not telling the truth about his involvement in political campaigning or his membership of the Congress Party or being attacked or threatened. The Tribunal acknowledges that the applicant knew the names of the candidates in the 2007 election. However, the applicant’s lack of knowledge of the candidates in the 2009 election, in which he claims he was active, leads the Tribunal to conclude that the applicant was not politically active and he was not involved in election campaigns and he did not work for the Congress Party candidate. The Tribunal does not accept that the applicant was targeted by the BJP because he was an active member of the INC. The Tribunal does not accept that the applicant was assaulted in 2007, 2008 or 2009 for this reason, or that his office was ransacked in 2008. The Tribunal does not accept that the applicant has been persecuted or attacked or threatened or that the applicant reported to the police. The Tribunal does not accept that the applicant’s family members have been threatened or that the applicant’s house or office was attacked. As the Tribunal does not accept that the applicant was persecuted in India, the Tribunal has not made findings about whether the applicant could relocate within India.
The Tribunal found that the applicant was not a witness of truth. It did not accept that he was attacked, pursued or threatened as claimed or persecuted for reasons of his political opinion or membership of a particular social group. The Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason. It concluded there was not a real chance at the time of the Tribunal decision that the applicant would face serious harm for a Convention reason either now or in the reasonably foreseeable future if he returned to India. As it did not accept that he had well-founded fear of persecution for a Convention reason, it concluded that he was not a person to whom Australia had protection obligations and that it followed that a protection visa could not be granted to his wife as a member of his family unit.
The applicant sought review by application filed in this court on 28 March 2011. He filed an amended application on 19 May 2011 and relies on the grounds in that application. He did not file written submissions, but was given the opportunity today to make oral submissions.
The first ground is that the Tribunal “did not give to the applicant before the hearing the independent information it had about politics in Gujarat, India”, that was said to be used in its decision contrary to s.424A of the Migration Act 1958 (Cth) (the Act).
The Tribunal had regard to independent country information concerning politics in India in finding, in particular, that the applicant had incorrectly identified the BJP party candidate in the 2009 national election. It also referred to other independent country information in its reasons for decision. However, information in the nature of independent country information is not subject to the obligation in s.424A(1) of the Act, being within the exception provided for in s.424A(3)(a) of the Act. There is nothing to suggest that the information referred to by the applicant, or indeed any other independent country information of relevance to the Tribunal decision, was not within the exception within s.424A(3)(a) of the Act. It was information that was not specially about the applicant or another person and was just about a class of persons of which the applicant or another person was a member. (See SZOHJ v Minister for Immigration and Citizenship [2010] FCA 1268 at [27]).
Ground 1 is not made out.
Ground 2 is that the Tribunal “denied the applicant procedural fairness by reaching adverse credibility conclusions” which were said to be conclusions that “were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters”. The amended application continues that therefore the Tribunal had failed to “analyse properly the future harm the applicant may face if he had to go back to India”, and hence, due to this failure, the Tribunal fell into jurisdictional error by failing to assess or carry out the real chance test.
In submissions, the solicitor for the first respondent addressed these last two issues both as a possible aspect of ground 2 and also on the basis that they may have been intended to give rise to a separate claim.
Insofar as the applicant intended to assert that a claimed lack of procedural fairness arose under the provisions in Division 4 of Part 7 of the Act, such a claim is not made out. I note the operation of s.422B of the Act. No s.424A(1) issue is apparent. That section does not require the Tribunal to put to the applicant for comment possible adverse credibility findings it might make or, more generally, doubts concerning the credibility of his allegations or claims (see SZOHJ). Relevantly, the majority of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 (Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ at [17] – [18]) referred with approval to the following approach taken by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 in finding that the word “information” in s.424A(1) of the Act:
…does not encompass the tribunal’s subjective appraisals, thought processes, or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc…
The majority in SZBYR then continued at [18]:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies, or the absence of evidence.
In written submissions the first respondent also addressed the possibility that concerns of this nature may have to be put to an applicant by the Tribunal if the conclusions were not obviously open on the known material, based on the principles considered by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (and see the remarks of Cowdroy J in SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 at [16]). However, as the High Court stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47]:
…there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.
In this case, the Tribunal’s findings in relation to the applicant’s credibility were an obvious and natural appraisal of his evidence and were findings that were open to the Tribunal on the material before it for the reasons which it gave. Moreover it is apparent from the Tribunal’s account of what occurred at the hearing (the only evidence before the court in that respect) that the Tribunal made its concerns clear to the applicant during the course of the hearing.
At the hearing the Tribunal put to the applicant several issues of concern, being matters referred to in the findings and reasons part of its decision, including that it was surprised that he could not recall the name of his own party’s candidate, given his claim to have been active in the national election 2009, and that it had serious concerns about whether he had any involvement not only in that campaign but also in the Congress Party at all.
It also put to the applicant that it was difficult to understand why he complained to the police when asked to make a donation to an opposing political party; that it was difficult to believe he would be personally telephoned by the successful candidate from the opposing party to be asked for a donation; evidence that there was a municipal election in 2008 (contrary to the applicant’s claim that that was a quiet year because there was no election) and other inconsistencies in his evidence. The Tribunal also pointed out that it was difficult to understand why the applicant in particular would have been targeted by the BJP and put to him its concerns about his delay in applying for a visa to come to Australia.
It has not been established that there was any denial of procedural fairness, whether arising under s.425 of the Act or otherwise. Hence there is nothing to support the assertion in the amended application that because of such shortcomings the Tribunal failed to consider properly or to apply the elements of the definition of refugee under the Refugees Convention.
Insofar as those issues are intended to give rise to a separate ground of review, there is nothing to support any claim that the Tribunal misunderstood, failed to apply or misapplied the law in relation to the definition of refugee. The Tribunal accurately summarised the criteria for a protection visa, including such requirements. Insofar as it was necessary to do so, in light of the findings that it made, the Tribunal went on to apply the criteria to the circumstances of the applicant based on its factual findings.
In light of the Tribunal’s conclusion that the applicant was not a witness of credibility and the rejection of all his claims in relation to past persecution in India for reasons of political opinion or membership of a particular social group, the Tribunal adequately addressed and did not fail to analyse properly any future harm he may face if returned to India. It did not fail to apply the real chance test (to which it specifically referred) in a manner constituting jurisdictional error. The grounds in the amended application are not made out.
In oral submissions the applicant suggested that he was not able to return to India. He took issue with the Tribunal’s factual conclusions. As I endeavoured to explain to him, these are matters for the Tribunal and merits review is not available in this court. The applicant’s disagreement with the Tribunal conclusions does not establish jurisdictional error.
The applicant also appeared to take issue with the Tribunal reasoning, insofar as it was based on his lack of knowledge of the candidates in the 2009 election. However the Tribunal’s findings in that respect were open to it on the material before it for the reasons which it gave. The Tribunal gave a number of reasons for its adverse credibility finding. There is nothing to suggest that its reasoning in relation to the particular issue of the applicant’s knowledge was unreasonable, irrational or illogical in manner constituting or demonstrating jurisdictional error.
In submissions in reply the applicant raised for the first time a contention that he had asked the Tribunal if he could appear at the Tribunal hearing by way of a video conference link. He claimed that if he had been allowed to do so, he would have given more confident answers as this was the first time he had had to appear before the Tribunal. He claimed he asked the Tribunal some two days before the scheduled hearing for a hearing which did not require him to appear in person, but that he was told that he had to make such a request at an earlier time. There is nothing in the court book in relation to such a claim, perhaps unsurprisingly as it was not a ground relied on by the applicant in the application or amended application. There is nothing in the Tribunal’s account of the Tribunal hearing to suggest that any such concern was expressed by the applicant, except that he stated that his wife did not accompany him to the hearing because they could not afford for her to do so and they were residing in Griffith. However, as the Tribunal recorded and as set out above, the Tribunal gave express consideration to whether the wife could be seen as making any independent claims for protection. It found that her only claim was as a member of the husband’s family unit.
I note also that the Tribunal wrote to the applicant on 7 January 2011 inviting him to a hearing on 9 February 2011, specifying the date, time and location of the hearing, being a location in Sydney. That letter advised the applicants to contact the Tribunal immediately if they were unable to attend the hearing on that date. It also advised of the consequences of non-attendance at the hearing.
Assuming for present purposes that the applicant did – as he said from the bar table – ask the Tribunal by telephone two days before the scheduled hearing date if the hearing could be conducted by video conference link, there is nothing to indicate that the Tribunal’s failure to agree to conduct the hearing by way of video conference link or the manner in which the Tribunal proceeded at the hearing gave rise to any jurisdictional error. The Tribunal was not obliged to accede to any such request. There is nothing in the evidence before the court to indicate that the applicant was in any way disadvantaged or unable to properly afford himself of the opportunity required under s.425 of the Act to give evidence and present arguments at the hearing.
The applicant attended the Tribunal hearing. There is nothing in the material before the court to suggest that there was anything in the manner in which the hearing was conducted that was such as to constitute any jurisdictional error. This late claim raised by the applicant in submissions in reply does not establish jurisdictional error on the part of the Tribunal.
Insofar as the applicant now asserts generally that he would like another opportunity for a Tribunal hearing and that he would prefer this to be by way of video conference, the court has no general discretion to remit a matter to the Tribunal. As no jurisdictional error has been established, the application must be dismissed.
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 first respondent seeks that the court fix the amount of costs. It is appropriate to do so. The amount of $4,500 is appropriate in light of the nature of this and other similar matters. The fact that the applicant says that this is too much for him is not a reason for not awarding costs of an appropriate amount, although his impecuniosity may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 1 August 2011
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