SZRIO v Minister for Immigration
[2014] FCCA 539
•6 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRIO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 539 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in giving no weight to potentially corroborative evidence – no jurisdictional error. |
| Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 Re Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; (2003) 77 ALJR 1165; [2003] HCA 30 |
| Applicant: | SZRIO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1474 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 6 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2014 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | DLA Piper |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1474 of 2013
| SZRIO |
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 7 June 2013. The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of India, arrived in Australia in May 2011 as the holder of a subclass 420 entertainment visa. He applied for a protection visa on 10 May 2011. He made claims in a written statement accompanying his application. The application was refused by a delegate of the First Respondent and the Applicant sought review by the Tribunal. The Tribunal as originally constituted affirmed the delegate’s decision on 23 March 2013.
The Applicant sought judicial review and the Federal Magistrates Court made orders by consent on 20 December 2012, remitting the matter for reconsideration by the Tribunal. The First Respondent conceded that the Tribunal had erred in failing to consider the complementary protection criterion for the grant of a protection visa.
The Applicant attended a Tribunal hearing before the Tribunal as originally constituted. He provided documents in support of his claim, including a number of untranslated documents, to which I will return. When the matter was remitted for reconsideration he was invited to and attended a further hearing on 3 April 2013.
In its decision of 7 June 2013 the Tribunal summarised the Applicant’s claims to fear harm in India due to his political involvement and activities. The Tribunal recorded the Applicant’s claim that he joined and undertook activities for the Tamilnadu Muslim Munnetra Kazagam (TMMK) and that in 2009 he was attacked by members of an opposition party. He claimed that subsequently he left the TMMK and became a member of the Tamilnadu Towheed Jamaad (TNTJ) which supported the Diravida Munnetra Kazagam (DMK). He claimed that because he did this, opposition parties sought to harm him, that false cases were taken out against him and for these reasons he left India.
The Applicant also claimed that Muslims were not treated well by the government and Hindus in India and were discriminated against. In particular, he claimed that members of the Hindu party Rashtriya Swayamsevak Sangh (RSS) were against Moslems.
The Tribunal considered the Applicant’s claims to fear persecution on the basis of political opinion and religion.
The Tribunal recorded claims made by the Applicant, including in his interview with the delegate and at the first and second Tribunal hearings. It referred to the fact that in support of the review application the Applicant had provided several documents, consisting of an untranslated copy of one side of an identity card, two certificates issued for voluntary work the Applicant performed in 2003 and 2004 for a cancer charity at his school and a letter dated 23 July 2011 from the Pudur Muslim Welfare Society (Ilayangudi), which the had not been translated but which the Applicant told the first Tribunal contained statements that people from opposition parties were asking about him, that political thugs were planning to attack him and that he should stay in Australia. In addition, the Tribunal recorded that the Applicant provided two statements signed by individuals dated July 2011 which had not been translated but which the Applicant told the first Tribunal consisted of a letter from his parents’ landlord stating that people were coming to the house to harass the family and a letter from his father stating that the opposition party was harassing the family and the Applicant was in danger too. He also provided an untranslated letter dated 4 August 2011 from the TNTJ which he told the first Tribunal contained statements that he had been a member of that group, that he had escaped from the opposite party, that there was a huge threat against him and that the government had fabricated false cases against him.
In its findings and reasons the Tribunal accepted that the Applicant was a national of India, but found that he was an “unimpressive witness”. It found that while he had been questioned closely at the hearing about various aspects of his account, he had conveyed an artificial demeanour and had not impressed the Tribunal as someone relaying an account of events that actually occurred. The Tribunal went beyond this general remark and addressed specific concerns in relation to aspects of the Applicant’s evidence.
Thus it found, for reasons which it gave, that he had given vague evidence about when he joined the TMMK. It recorded that he had not been able to recall what year it was and that he was not sure as to when he had joined except that it was after he finished school and while he was working. When the Tribunal put to the Applicant that in his written statement he had said he joined the TMMK in December 2006, he agreed that that was correct. He said that he had not put that date to the Tribunal when asked because he was not sure about when he joined because he did not remember, except that it was after he left school. The Tribunal also asked him about his evidence to the first Tribunal and why at one stage he said he thought he joined in 2009. He again said he joined after he finished school and while he was working. The Tribunal found such responses unsatisfactory. It was of the view that if in his written statement the Applicant had been able to specify the month and year he became a member of a party he supported for a number of years, he could reasonably be expected to put forward the same evidence to the Tribunal when asked.
The Tribunal acknowledged that the event of joining the party may have occurred some years ago, but considered that it was a significant event in this Applicant’s life and one for which he could be expected to give at least the month and year in which it occurred. The Tribunal found that his failure to so do reflected poorly on his credibility. The Tribunal also had regard to inconsistent evidence the Applicant had given about being attacked in 2009, in particular in relation to whether he was injured on his hands and/or his leg. It detailed his inconsistent evidence in that regard. The Tribunal found that this was the only occasion on which the Applicant was actually attacked in India and that his failure to give a consistent account as to the injuries he sustained was not credible.
The Tribunal also had regard to inconsistencies in the Applicant’s evidence about complaining to police, in particular whether, as he told the Tribunal, he complained after an attack in 2009 or as he claimed in his written statement, he did not go to the police until he was harassed in 2011. The Tribunal considered, but did not accept, the Applicant’s explanations for these inconsistencies. It found he could reasonably be expected to give consistent evidence about one (or two) occasions on which he had complained to police. His failure to do so was said to reflect poorly on his credibility.
The Tribunal also had regard to “vague” evidence of the Applicant about false cases. It observed that when asked about difficulties he had as a result of helping the TNTJ, the Applicant had not referred to any false cases and had not done so until reminded by the Tribunal that the letter from the TNTJ suggested that the government had fabricated false cases against him.
The Tribunal had regard to further vagueness in the Applicant’s evidence about how many cases were taken out against him and when that occurred and the inconsistency between his claim that there was one case taken out against him and the TNTJ letter which suggested that more than one case had been taken out against him. It also had regard to the fact that the Applicant had failed to make any inquiries to discover more about this possibility. It found that this failure to inquire and the Applicant’s evidence that it was not of interest to him to know was “extraordinary”. The Tribunal found that the Applicant’s evidence on this issue was unconvincing and demonstrative of untruthfulness. It also had regard to the fact that at one point he had suggested that the government had fabricated false cases against him but had then retreated from that evidence saying there were threats that a case would be taken out and that he did not know whether or not there was actually a case against him.
Finally, the Tribunal had regard to inconsistencies in the Applicant’s evidence about when his father closed his business, which had allegedly occurred because of the Applicant’s problems and people going there looking for him. The Applicant had told the first Tribunal that the business was still operating after he arrived in Australia and was closed in approximately October 2011. He told the second Tribunal it was closed in about April 2011 (while he was still in India). When this inconsistency was raised with him he did not know exactly when his father closed his shop. The Tribunal found that this explanation was not credible. The Tribunal saw this inconsistency as important because the Applicant had claimed that the closure of the business was related to attempts made by his opponents to harm him. It concluded that this inconsistency reflected poorly on the credibility of the Applicant’s claim that others wanted to harm him because of his political activities.
The Tribunal concluded that its cumulative concerns about the Applicant’s credibility led it to find that he was not a witness of truth and that the account of events on which he based his claims for protection was false. It therefore rejected the entirety of the Applicant’s claims regarding his political involvement and the past harm he claimed to have suffered in India as a result of his political involvement, as it set out in some detail.
In reaching these conclusions the Tribunal referred to the fact that the Applicant had produced documents to support his claims. The Tribunal acknowledged that the identity card issued by one of the parties the Applicant claimed to have supported and the letters from a Muslim welfare group, the TNTJ, his father and his father’s landlord asserting that certain people were looking for the Applicant, wanting to harm him, and that false cases have been taken out against him, purported to corroborate the Applicant’s claims about why he was afraid to return to India. The Tribunal stated that it had considered the content of these documents. The Tribunal proceeded on the basis that the documents contained the matters described by the Applicant, but found that the assertions in the untranslated documents did not outweigh the concerns it had discussed which had led it to conclude that the Applicant was not a witness of truth and that the account of events on which his protection claims were based was false. Accordingly, the Tribunal gave no weight to these documents.
The Tribunal also referred to the fact that it had put to the Applicant at the hearing that if it found his evidence not credible, it may not give weight to these documents. It recorded the Applicant’s response that it was not safe for him to return to India and that anything could happen to his family. However, for the reasons given, the Tribunal found that the Applicant’s claims to be at risk of harm in India because of his political activities were false. Further, while the Tribunal was willing to accept that the Applicant gave false information in order to obtain a visa to come to Australia, in the absence of any credible evidence that anyone in India wanted to harm him it did not accept that he did this out of a fear of harm in India.
As to the other documents submitted, the Tribunal accepted that the Applicant did voluntary work when at school, relating to road safety and cleaning and that he had assisted a cancer charity, but found that he did not claim to fear harm on those grounds and that there was no evidence that such activities placed him at risk. The Tribunal found that the Applicant’s claims relating to work he did for political parties was the basis on which he claimed others wished to harm him and that none of these claims were credible.
The Tribunal also considered the Applicant’s claim that Muslims were not treated well in India by society, the government and the RSS and suffered discrimination. However the Tribunal had regard to the fact the Applicant had received an education, had employment and was able to practise his religion. It found that country information indicated that he could practise his religion in India and that the risk of him suffering harm because of his religion was remote. It also observed that at the Tribunal hearing the Applicant had said the difficulties which caused him to flee India were related to his claimed political activities. It found his complaints about the treatment of Muslims did not outweigh the country information cited and that the risk of him suffering harm in India because of his religion was remote.
The Tribunal concluded that there was no credible evidence that there was a real chance the Applicant would suffer persecution if he returned to India.
The Tribunal considered the complementary protection criterion. It reiterated that for the reasons given that the Applicant was not a witness of truth and found that there was no credible evidence as to why he left India, why he did not want to return, or that any group, the government, or anyone else in India wanted to or would harm him. It also found that, for the reasons given, the risk of the Applicant suffering harm because of his religion was remote. On this basis the Tribunal concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s removal from Australia to India there was a real risk that he would suffer significant harm. The Tribunal affirmed the decision of the delegate.
The Applicant sought review by an application filed in this Court on 28 June 2013. There is one ground in the application. It is that the Tribunal constructively failed to exercise its jurisdiction. The particulars to this ground are that:
The Applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these 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.
The Applicant did not file any affidavit evidence and nor did he file any written submissions. At the hearing today he claimed briefly that he had mentioned everything in letters and documents provided to the Tribunal. He had nothing else to say in support of his application. The Minister relied on written submissions, which the Applicant acknowledged he had read and understood. The Applicant had nothing to say in reply.
The ground relied in the application for review is, in essence, that the Tribunal failed to engage in an active intellectual process in its consideration of the Applicant’s documents, being the documents he provided in purported corroboration of his claims. It is also asserted that the Tribunal erred in assessing the Applicant’s credit without first assessing whether the substance of the documents corroborated his claims. It appears that this claim does not relate to the documents relating to the Applicant’s voluntary work, which the Tribunal accepted.
However the argument advanced by the Applicant was addressed by the Full Federal Court in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 and Minister for Immigration and Citizenship v SZNPG (2010) FCAFC 51. In SZNSP North and Lander J found that it was open to the Tribunal to assess the Applicant’s credibility and then, in light of that assessment, consider the weight to be afforded to corroborative documents. As their Honours stated at [36]:
When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand.
This is not a case where the Tribunal failed to consider the documents provided in corroboration of the Applicant’s claims. Rather, having comprehensively rejected the credibility of the Applicant’s claims, the Tribunal had regard to the fact that he had provided a number of documents which purported to corroborate his claims. It referred to the content of those documents as described by the Applicant. The Tribunal did not fail to have regard to these documents on the basis that they have not been translated or otherwise. It accepted the Applicant’s description of the documents at the hearing. Having done so, it found that the assertions made in these documents did not outweigh the concerns the Tribunal had discussed. The Tribunal had concluded that the Applicant was not a witness of truth and that the account of events on which his protection claims were based was false. Contrary to the Applicant’s contention, it was open to the Tribunal to first assess the Applicant’s credit and then give attention to the corroborative evidence (see Re Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; (2003) 77 ALJR 1165; [2003] HCA 30 at [34] and SZNPG at [33]).
This is not a case in which the Tribunal made findings that the documents were not authentic in the sense of not from the sources from which they claimed to come. Rather, the Tribunal considered, as was open to it, the weight to be given to the documents and found in light of its concerns about the credibility of the Applicant’s evidence that no weight should be given to those documents.
On the material before the Court, it has not been established that the Tribunal fell into jurisdictional error in the manner contended for in the application for review. As no jurisdictional error has been established the application should be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 20 March 2014
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