SZRFX v Minister for Immigration

[2012] FMCA 779

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRFX & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 779

MIGRATION – Review of decision of RRT – where applicant is infant son of unsuccessful applicant parents – where applicant claimed to be stateless – where evidence heard from witnesses in India – “justice” defined.

Migration Act 1958 (Cth), ss.65, 411, 422

Minister for Immigration v Durairajasingham [2000] 168 ALR 407

First Applicant: SZRFX

Second Applicant: SZNSG

Third Applicant: SZNSF

Fourth Applicant: SZNSH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 542 of 2012

Judgment of: Raphael FM

Hearing date: 21 August 2012

Date of Last Submission: 21 August 2012

Delivered at: Sydney

Delivered on: 21 August 2012

REPRESENTATION

For the Applicants: In person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Costs of the First Respondent be paid by the Applicant’s litigation guardian, the Second Applicant, assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 542 of 2012

SZRFX

First Applicant

SZNSG

Second Applicant

SZNSF

Third Applicant

SZNSH

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There are four applicants in the proceedings before me today.  The second, third and fourth applicants have already sought protection of Australia and have had that protection declined.  They have sought review of that decision and the courts have determined that the relevant Tribunal decision was not infected with jurisdictional error.  They were refused special leave to appeal to the High Court of Australia.

2. The first applicant is their youngest son.  He appears to have been the only applicant before the delegate but, notwithstanding this, his parents and brother joined in the application to the Tribunal which concluded that it had no jurisdiction in regard to them.  The only ground upon which they could be heard in this court is to argue against that finding by the Tribunal but no submission of this type is made in their Application nor has it been made to me today.

3. The applicant was born in Australia on 17 February 2010.  His parents claim that he is stateless but the Tribunal has found that he is a person who is capable of obtaining Indian citizenship and has considered his claims against those of India.  The applicant applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 10 March 2011.  The delegate determined not to grant a protection visa on 8 June 2011.  On 6 July 2011 the applicant, through his parents, applied for review of that decision.

4. The Tribunal interviewed the parents on behalf of the applicant and also heard evidence from two witnesses at the telephone. It received two further statutory declarations. On 10 February 2012 the Tribunal determined to affirm the decision not to grant the applicant a protection visa. It also determined that it had no jurisdiction to consider an application on behalf of the parents and brother, because the decision in respect of their applications had been the subject of a valid review, and so their position was no longer an RRT reviewable decision under s.411 of the Migration Act 1958 (Cth).[1]

   [1] “Act”

5. The Tribunal sets out in its findings and reasons [117-118] [CB 260] the claims that are made on behalf of the applicant.  These were that:

   ·    He is stateless;

   ·    His race as a ‘Lubana’ would lead Dera Sacha Sauda to persecute him;

   ·    His father’s involvement with the Babbar Khalsa and Akali Dal groups would be a further reason for Dera Sacha Sauda to persecute him and for him to be targeted by the Indian authorities;

   ·    He and his family have applied for protection, leading the Indian authorities to regard him as a traitor who has brought disgrace on his country.  He and his family will be arrested and beaten on arrival at the airport and then locked up in the police station or jail for many months.

6. The claims made on behalf of this infant are, of course, merely an iteration of the parents’ claims.  These arose out of the fact that applicant’s father told that he had been employed in the head office of Dera Sacha Sauda as a driver for the organisation’s leader, one Ram Rahim Singh.  In his position as driver, he learnt that the organisation and Mr Singh had engaged in criminal activities and was privy to many secrets.  He said that after he resigned from the organisation he received threats and was kidnapped.  He escaped being shot when one of his captors took pity on him and took him away in his car.  He said that the police were bribed by Ram Rahim and would not receive his complaint.  These matters were discussed with the applicant’s father at the hearing.  At that hearing the applicant’s father requested that the Tribunal telephone two witnesses in India, this the Tribunal agreed to do.

7. The Tribunal explained to the applicant’s father at [122] [CB 261] of its decision record why it had difficulty in accepting his story:

   “[122]As put to the applicant’s parents at the Tribunal hearing on 4 October and 11 November 2011, this account has been previously considered in detail by the Tribunal, differently constituted.  In its decision record of 26 May 2009 the Tribunal rejected the Applicant’s father’s claims in their entirety.  On the basis of inconsistency in his evidence about the alleged assassination attempt on Ram Rahim Singh, and his lack of knowledge of Dera Sacha Sauda, the Tribunal concluded that he had not been involved in such an incident, that he had not been the driver for Ram Rahim Singh and that he had not had an intimate association with the organisation or its leader.  The Tribunal rejected all his claimed reasons for leaving India, and concluded that he had fabricated his story and was not a credible witness …

   [124] Having considered the information previously given to the Tribunal by the applicant’s parents, including at the tribunal hearing on 18 February 2009, together with this response, I am not satisfied that they or their first child have ever been targeted by Ram Rahim Singh or members or employees of Dera Sacha Sauda for the reasons they advanced in their original protection visa application, nor am I satisfied there is a real chance they would suffer harm from this source should they return to India.  Given that the harm the applicant is said to face from Ram Rahim Singh and Dera Sacha Sauda is as a consequence of the harm his parents and elder brother are said to face, it follows that I am not satisfied that there is a real chance he would suffer harm from this source if he were to go to India.”

8. The Tribunal then discusses the evidence of the two witnesses and points out some serious inconsistencies in their statements between the story being told by the applicant’s father and the witnesses’ stories.  It also noted that the two statutory declarations were almost identical and concluded that that cast further doubt upon the reliability of the witnesses.

9. After the hearing the two witnesses filed statutory declarations in which they attempted to give explanations for what they described as problems with the evidence that they had given by telephone.  The Tribunal considered these at [127] [CB 263] and concluded that this explanation was not sufficient to alleviate the concern that the Tribunal had over their evidence.  The Tribunal concluded that it could not give any weight to the evidence of these witnesses.

10. At the hearing the applicant’s father raised two additional claims on behalf of his son.  They were that he had been involved not just with Ram Rahim Singh but also with Babbar Khalsa and Akali Dal.

    “The applicant’s father’s evidence at the hearing about his alleged involvement with Babbar Khalsa and Akali Dal was notably inconsistent and implausible at a number of points.  He offered no substantive explanation for the late appearance of a claim which, if true, could reasonably be seen as highly significant and relevant for his claims to fear harm in India.  He said that he had been a member of Babbar Khalsa, and then said he had not.  He said he had been involved with Babbar Khalsa since 2000  but then said he turned to them for protection from Dera Sacha Sauda, a timing which could not be earlier than 2008 on the basis of his earlier claims.  He suggested that he had attended publicly advertised meetings of Babbar Khalsa in the Golden Temple (in Amritsar) a claim which I am not satisfied is plausible given the independent country information which indicates that the Babbar Khalsa is an outlawed terrorist organisation.  He suggested, again implausibly, that the police were aware of his attendance at these meetings but did nothing to stop him, directing him instead to remain in his position as Rahim Ram Singh’s driver.  As to his alleged connection with the Akali Dal he retreated from his claims to the extent of saying that he had been involved with them only a little bit to escape from Dera Sacha Sauda.”  [134] [CB 265].

11. The Tribunal concluded that these claims were a recent invention.  The Tribunal went on to consider the applicant’s claims of harm from the Indian authorities.  It concluded that neither he nor his father would suffer such harm because the grounds upon which it was put that he would have done so were based upon the father’s association with Ram Rahim Singh or Dera Sacha Sauda or Babbar Khalsa or Akali Dal.  As the Tribunal did not believe that the applicant’s father had been involved with any of these organisations it could not see that he would be at any risk should he return to India from the Government.  The Tribunal went on to consider the applicant’s father’s claim that he and all members of his family would suffer persecution in India because of their race as Lubana.  During the course of the hearing the applicant’s father agreed with the Tribunal that Lubana referred not to their race but to their caste and he denied any fear of harm for that reason.  Finally, the Tribunal considered the applicant’s claim that he was stateless and concluded from independent country information that as the child of two Indian parents the applicant would be able to be registered as an Indian citizen.

12. On 9 March 2012 the applicant, again through his father and all the other members of the family, filed an application with this court seeking review of the Tribunal’s decision.  In my view none of the family members have a reviewable claim and as they have not alleged such in their application I do not propose to deal with them further.

13. In regard to the child applicant, there were three grounds of application.  The first was:

    “(i)The RRT made jurisdictional error in denying the applicant’s application for Refugee Class XA in failing to consider all the facts and the law related to the applicant’s application particularly;

    (ii)RRT failed to accept witness statements and telephonic interview.  The Tribunal did not consider the current state of applicant as stateless and fear of death threats to his parents and other family members;

    (iii)RRT failed to acknowledge the fact that Australia has protection obligations.”

14. It would seem that the first ground of application is particularised by the second and that the third is an independent ground.  The Tribunal decision, which I have described briefly, is of some 38 pages and sets out in considerable detail all the claims that were made on behalf of the applicant.  The Tribunal carried out two hearings and listened to evidence from two witnesses and considered further written evidence from them after the hearings closed.  The Tribunal dealt with each of the claims made by the applicant and explained why it was unable to accept them.  It cannot be said that the Tribunal failed to consider all the facts and law related to the applicant’s application.

15. The Tribunal is the body set up by the Government to consider whether or not a person who comes before it can satisfy it that he is entitled to a visa in accordance with s.65 of the Act. In this case the relevant visa was a protection (Class XA) visa. In assessing whether or not it can be satisfied that an applicant is a person to whom Australia owes protection obligations, which is the relevant criteria for the grant of such a visa, the Tribunal is required to assess the claims brought by such an applicant and any evidence tendered in support of it.

16. The Tribunal has the ultimate responsibility for determining whether or not the claims are credible and so when a claimant provides the Tribunal with an opportunity to hear witnesses, it is for the Tribunal to determine whether or not those witness statements are of assistance to it in coming to its ultimate conclusion.  Decisions upon credibility are those for the Tribunal par excellence; Minister for Immigration v Durairajasingham [2000] 168 ALR 407.

17. In this case the Tribunal heard the statements from the witnesses and explained its concerns. The witnesses then put on the statutory declarations attempting to explain away the inconsistencies that the Tribunal had noted. The Tribunal considered those statutory declarations and the evidence as a whole before coming to the conclusion that it did, that it could not put any weight upon that evidence. In the absence of any jurisdictional error or failure to provide the applicant, by way of the witnesses, with procedural fairness, as codified by s.422 of the Act this court cannot interfere with the Tribunal’s determination of the worth of that evidence.

18. It is also incorrect to say that the Tribunal did not consider the applicant’s alleged statelessness or the death threats allegedly made to his parents and other family members.  It dealt with the statelessness issue, as described, and concluded that it could not believe the applicant’s father when he told of death threats.  Again, these are matters entirely within the remit of the Tribunal.  Finally, it cannot be said that the Tribunal failed to acknowledge the fact that Australia has protection obligations.  The sole purpose for the creation of the Refugee Review Tribunal was to assess an applicant’s claims to be a protected person.

19. The applicant’s parents appeared before me today.  They told me that they had two witnesses from India and that the Tribunal did not consider any of their evidence.  As explained, this is not correct.  They told me that their son had not committed any crime and that he was stateless.  The first statement I accept.  The second I do not.  And they asked the court to do justice.  This court is frequently asked to do justice and just as frequently the request is not for justice but for something else entirely, usually the remittal of the matter back to the Tribunal.  To do justice is to decide a matter according to law, whether the law favours an applicant or not.  In this case the law does not.  In my view justice has been done even though the applicant is unsuccessful. 

20. The application is dismissed.  The costs of the First Respondent are to be paid by the Applicant’s litigation guardian, the Second Applicant, assessed in the sum of $4,500.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  31 August 2012