SZQPT v Minister for Immigration

[2012] FMCA 227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQPT v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 227

MIGRATION – RRT decision – Indian claiming political persecution – disbelieved by Tribunal – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), s.425

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: SZQPT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2017 of 2011

Judgment of: Smith FM

Hearing date: 15 March 2012

Delivered at: Sydney

Delivered on: 15 March 2012

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,750. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2017 of 2011

SZQPT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant is a national of India with qualifications as a cook.  He worked in that occupation in Dubai between 2005 and 2008, and on a cruise ship between 2008 and 2010.  In the course of the latter employment, he visited Australia several times, and he last arrived in December 2010. 

2. On 23 December 2010, he submitted an application for a protection visa.  His statement attached to the application narrated a history upon which he claimed to fear persecution if he returned to India.  He claimed that in 2004, when his father was in business in Kerala, his father had been raising money for the Congress Party and was an active member of that party.  As a result of his activities “local businessmen stopped paying any donation to the CPIM members”, and the rival CPIM Communist Party “attacked my father and he nearly got killed by them”.  His father reported the matter to the police, and one person was arrested.  He said: “after the arrest, the CPIM members came to our house and tried to set a light and ransacked our house.  With the help of other neighbours we escaped with minor injury”.  His father left the country, leaving his mother and sister in Kerala, and the applicant took his job in Dubai “with my father to save our lives”. 

3. The applicant said that he later returned to India on a number of occasions, “but it was very risky”.  On his most recent return to India in October 2010, “the local CPIM members got the information and came to look for me.  I was at home at that time, when they approached my home and my mother realised that those were CPIM thugs and I went out through back door and took shelter in neighbour house.  This gave me the fear of death and my mother asked me to leave the country as soon as possible”. 

4. The applicant was interviewed about his claims by an officer in the Department of Immigration on 3 February 2011.  The delegate then made a decision to refuse the visa on 18 February 2011.  The delegate identified contradictions between his visa statement and what the applicant had said at interview, and did not accept that the CPIM members in his town “ever had a motive to persecute the applicant”.  He concluded that “the applicant’s account of events is not truthful”. 

5. The applicant applied for review by the Tribunal, and he was invited to attend a hearing which was rescheduled and held on 12 July 2011.  At the hearing, he presented a number of internet reports about violence in Kerala, and copies of X‑rays in relation to the spine of his sister and the hand of his father, dated respectively in May and June 2011.  The transcript of the hearing held by the Tribunal is not in evidence, and I accept the detailed description given by the Tribunal in its statement of reasons. 

6. The Tribunal questioned the applicant about his claimed history, and pointed out a number of concerns in relation to consistency and plausibility.  According to the Tribunal, at the end of the hearing:  

   67.The applicant was reminded that he was entitled to seek additional time to provide further information.  He stated that he needed a month to provide medical evidence.  He was asked about the nature of this medical evidence.  He said the medical reports will show that his father was injured and hospitalised in 2004.  He was asked if the medical reports are likely to reveal anything other than that his father was injured and hospitalised in 2004.  He said he was not sure.  The Tribunal noted that he has had ample opportunity to provide evidence in support of his case.  The Tribunal also noted that it had difficulty accepting his claim that he had no one to support him in obtaining medical evidence as his mother, sister and uncles continue to live in India.  He said his mother is not well and he was not sure if his uncles would be able to get the evidence as he had not asked them to do so yet.  The Tribunal allowed the applicant until 19 July 2011 to provide additional comments.  He agreed. 

7. The Tribunal, in fact, allowed more than that time before it made a decision. 

8. It made its decision on 11 August 2011, confirming the delegate’s decision.  In its “Findings and Reasons”, the Tribunal said generally that “the applicant did not impress the Tribunal as a reliable, credible and truthful witness”. 

9. The Tribunal identified several examples of inconsistent evidence being presented to the Department of Immigration and to the Tribunal.  These concerned his whereabouts at the time of the claimed attack on his father in 2004, since it appeared that, in fact, he was waiting to join a multinational hotel in Mumbai at the time. 

10. There was also inconsistency about his father’s activities in India, which were claimed to have incurred the hostility of the CPIM, and about his father’s activities after he departed India, in particular, since the applicant made a new claim at the hearing that his father had continued to provide support to the Congress Party.  The Tribunal did not accept that there had been any continuing involvement by the father in politics in India. 

11. The Tribunal said that the applicant had given inconsistent evidence in relation to the immediate aftermath of the claimed attack on his father, concerning the alleged attack on the family house and himself.  The Tribunal also thought that inconsistent accounts had been given of events during his visit to India in October 2010. 

12. The Tribunal said: “the Tribunal’s concerns are exacerbated by the applicant’s inability to provide a persuasive explanation for why his father’s enemies had waited some six years after his father’s departure from India to target the applicant”.  The Tribunal said also that the applicant’s evidence regarding his father’s enemies’ motives appeared to be devoid of rationality. 

13. The Tribunal thought that the applicant had presented inconsistent evidence about how his family were treated in India.  It noted the two X‑rays, but said that there was nothing in the images shown to support the claims that his sister had suffered injuries in a politically motivated attack, nor that the X‑ray of his father’s hand corroborated the claimed events in 2004. 

14. The Tribunal said in conclusion that “the totality of his evidence shows a propensity to fabricate, shift and tailor evidence in a manner which achieves his own purpose.  The Tribunal is of the view that the applicant has manufactured his claims and concocted evidence to achieve an immigration outcome”. 

15. The Tribunal did not accept any of the components in the applicant’s claims upon which he sought protection in Australia.  It was not satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention. 

16. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have authority myself to decide whether the applicant should have been believed, nor whether he should be given permission to stay in Australia. 

17. The applicant’s grounds of review were set out in his original application.  He has not filed any amended application or written submission to explain them.  The grounds are: 

    1.The Tribunal failed to carry out its review function and to exercise its jurisdiction. 

    Particular of Grounds 

    a.The Tribunal did not consider the applicant who had been under immense and intimidating pressure from CPI(M) members and harassed because of the applicant’s father membership with Congress party. 

    b.In relation to above the Tribunal did not consider the applicant claim that if he has to go back to India in near future, CPI(M) will seriously harm him. 

    2.The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim. 

    3.The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error. 

18. I can find no substance for the complaint made in Ground 1, in so far as it contends that the Tribunal did not consider the applicant’s claims and evidence.  I can identify nothing which it was required to consider and which it did not carefully consider. 

19. I consider that the applicant’s complaints in this ground, go to the outcome of the Tribunal’s decision, and do not identify any jurisdictional error. 

20. In my opinion, Ground 2 should be regarded as having the same character. 

21. Ground 3 is a standard paragraph taken from a commonly seen precedent, and I am unable to identify how it relates to the reasoning of the present Tribunal.  The Tribunal’s course of reasoning, which first addressed the truth of the history upon which the refugee claims were based, is well‑established as consistent with the Convention definition as adopted by the Migration Act 1958 (Cth) (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). Having rejected the applicant’s claimed history of persecution, it was open to the Tribunal not to be satisfied that there was a real chance that the applicant would face serious harm for a Convention reason if he were to return to India.

22. The applicant today made some additional points orally. 

23. He first complained that the Tribunal had allowed him only one week after the hearing to present additional evidence, in particular, medical evidence to corroborate his case. However, I am unable to identify any legal obligation on the Tribunal to provide a longer time. The applicant had been given many months to collect and present his evidence while the matter was pending in the Department and Tribunal, and I can identify no basis under the Migration Act, and s.425 in particular, requiring the Tribunal to allow longer time.

24. The applicant’s second point complained that the Tribunal had not given due consideration to his claims.  However, I am not satisfied that this is correct. 

25. Nor am I satisfied by the applicant’s third complaint: that the Tribunal did not allow him better opportunities to reconcile his apparently inconsistent evidence.  It appears to me, from the Tribunal’s description of the hearing, that the applicant was given every reasonable opportunity to address and explain the matters of concern to the Tribunal. 

26. Taking into account all that the applicant has said to me, I am not satisfied that the Tribunal’s decision is affected by any jurisdictional error.  The Tribunal’s decision is therefore a privative clause decision, and I must dismiss the application. 

I certify that the preceding twenty‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  28 March 2012