SZRQV v Minister for Immigration
[2013] FMCA 174
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQV v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 174 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case – application dismissed. |
| Migration Act 1958 (Cth), s.476 Federal Magistrates Court Rules (Cth), r.44.12 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2001] HCA 1; (2001) 58 ALD 609 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 Nayu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZRQV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1593 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 March 2013 |
| Date of Last Submission: | 1 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2013 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr PP Couch |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 23 July 2012 and amended on 26 October 2012 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,239.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1593 of 2012
| SZRQV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
The application before the Court was made on 23 July 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”). The application was amended on 26 October 2012. It seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 2 July 2012, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.
I should note that I have before me a bundle of relevant documents filed by the Minister. I will refer to this bundle as the “Court Book” (“CB”).
Background
The applicant claimed to be a citizen of India, born in Bangladesh. He said that he had operated an engineering business in India. He initially claimed to have become a member of the Communist Party of India (Marxist) (“CPI(M)”), a political party to which he said he donated large sums of money (CB 1 to CB 26).
The applicant also claimed that, following what he described as an internal dispute, he resigned from the party in May 2011. He stated that members of that party then attacked him, and his business, following the defeat of their candidate in certain state elections. The applicant said that that defeat was blamed on him. The police refused to assist him. As a result of this, the applicant decided to leave India for what he said was his “mental peace” (CB 18). He said he feared harm for himself from the CPI(M) members. The applicant’s wife and children remained in India (CB 5).
The applicant attended an interview with the Minister’s delegate (CB 35 to CB 49). At that interview he provided further information that, following his resignation from the CPI(M), he joined their political opponents. This was the Janata Dal (United) Party (“JDU”). At that time, the applicant also made further claims to physical attacks on him. Further, the applicant provided what he said was a letter from the JDU in support of his application (CB 29).
The delegate found that the information provided by the applicant was vague, general and inconsistent. Further, that some of the applicant’s explanations for these inconsistencies were implausible. Specifically, the applicant’s evidence about the CPI(M) was found to be vague, inconsistent and doubtful, and not indicative of a person who had been involved in the Communist Party. The delegate found the applicant’s claims had been fabricated (CB 45 to CB 46).
On 17 April 2012, the applicant applied to the Tribunal for review of the delegate’s decision (CB 50 to CB 55). The applicant was invited to, and attended, a hearing before the Tribunal. The Tribunal’s account of what occurred at the hearing is set out in its decision record ([43] at CB 80 to [68] at CB 83)
Following the hearing, the Tribunal understood the applicant’s claims to be as follows ([71] at CB 84):
“The basis of the applicant’s claim for protection is that if he returns to India he faces persecution from the Communist Party of India (Marxist) (CPI(M)) who he claims to have been a member of before leaving in May 2011 and joining the Janata Dal Party. He claims that he will not get protection from the Indian authorities as the state in which he lives is now ruled by the Trinimool Party and the police will not act for his protection in what they consider is an internal dispute of the CPI(M).”
The Tribunal did not accept the applicant’s claims. This conclusion was based on a number of findings which were adverse to the applicant’s credibility. The Tribunal summarised this at [73] (at CB 84):
“The Tribunal found the applicant a very unreliable witness. His description of events was general, vague and without the detail which would have been expected if the events he was describing had actually happened. On a number of occasions he presented conflicting evidence and admitted he had provided false information in order to obtain an Indian passport.”
The Tribunal’s analysis focused on a number of issues arising from the circumstances presented by the applicant himself. I note the following.
First, the matter of the applicant’s passport ([74] at CB 84 to [75] at CB 85). The Tribunal found that the applicant had misled Indian officials in order to obtain an Indian passport. That is, that even though he was born in Bangladesh, he told Indian authorities he was born in India.
Second, the applicant’s political awareness ([76] CB 85 to [84] at CB 86). The Tribunal found that the applicant had limited knowledge of any of the political parties to which he claimed to have belonged. For example, with reference to the CPI(M), the Tribunal said that: “[t]hat he did not know what the (M) stood for undermines his claim that he was involved in the party at all” ([77] at CB 85). In the circumstances, “M” stands for “Marxist”.
Third, that the applicant displayed “… a lack of any awareness of the political agenda of the Janata Dal Party or even any interest as to what it was” ([79] at CB 85). The Tribunal found that that undermined the applicant’s claims to have been “actively involved in political activities” ([79] at CB 85).
It also found that the letter from the Janata Dal Party (submitted by the applicant) contradicted some of the applicant’s claims, and that his explanation for this was not plausible. The Tribunal found that the letter “…is not a reflection of any interest the applicant has had in the Janata Dal party…” ([80] at CB 85).
The Tribunal also found that the applicant’s claims to have been asked to join yet a third political party, the Trinimool Party, and the claimed threats and attacks faced from the CPI(M) as a result, to be variously implausible, vague and inconsistent ([81] at CB 86 to [89] at CB 87).
The Tribunal’s finding that the applicant was not a witness of truth, and that his evidence was contrived, was comprehensive. The Tribunal rejected all of the applicant’s factual claims underlying his claimed fear of persecution on this basis.
Before the Court
The question before the Court today is whether the application to the Court, as amended, should be dismissed because it raises no arguable case for the relief which the applicant says he seeks. Essentially, relief in the nature of certiorari and mandamus. I have had regard here to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The grounds of the amended application before the Court are in the following terms:
“1. The Refugee Review Tribunal failed to assess my overall credibility about my claims for persecution.
Particulars:
A. The Tribunal failed to assess my overall credibility about my claims for persecution that:
(i) The Tribunal made a comment that I was not a witness of truth. The basis of the Tribunal’s comment was I willingly mislead officials in India in order to get an Indian passport.
(ii) However the Tribunal did not consider my personal circumstances in which circumstances I had mislead the officials. Even the Tribunal did not ask me any material questions how I had been mislead and why I done that.
2. The Refugee Review Tribunal failed to put weight to the references provided by party leaders:
Particulars:
A. The Tribunal failed to put weight to the references provided by party leaders that:
(i) The Tribunal did not take into account the references provided by party leaders and failed to consider that what persecution I might fact if I return to India now or near future.”
Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Bengali language. Mr PP Couch appeared for the Minister.
The applicant confirmed that he had obtained legal advice in this matter. He then said that he had nothing to say. When the Court sought to, yet again, explain the nature of these proceedings to him, at best the applicant’s submission was that he did not tell lies to the Tribunal.
Ground One
Ground one does not raise any arguable case. It merely seeks to cavil with one of the Tribunal’s findings which, in turn, informed its finding as to the applicant’s credibility. That is, the matter of the applicant’s passport. Such findings made by the Tribunal, including the finding on credibility, made for the cogent reasons given by the Tribunal, and which were reasonably open to it on what was before it, were all findings plainly well within the exercise of the Tribunal’s jurisdiction (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2001] HCA 1; (2001) 58 ALD 609).
This alone stands as a complete answer to the applicant’s ground. In the absence of anything further from the applicant beyond the mere assertion of the ground, and in the circumstances presented to the Court, the ground does not raise an arguable case for the relief that the applicant seeks from the court.
In any event, and further, it is not factually correct for the applicant to assert that the adverse credibility finding by the Tribunal was only based on the applicant having volunteered that he misled the Indian officials to explain how he obtained the passport. As I have already referred to in this judgment, the Tribunal’s adverse finding as to the applicant’s credibility, and that his evidence was contrived, applied to every matter of relevance put forward by him to the Tribunal.
The specific complaint in the particulars to the ground appears to be that the Tribunal did not accept the applicant’s explanation as to why he said he needed to mislead the Indian authorities in the way that he did. It is important to note that the Tribunal’s account of the hearing that it conducted with the applicant has not been challenged by the applicant before this Court. Nor, even more importantly, has the applicant brought any other evidence to this court, say, for example, a transcript of the Tribunal hearing, to cast any doubt on, or challenge, the Tribunal’s account of what occurred. This account reveals that the Tribunal gave the applicant the opportunity to comment on why he had misled the Indian officials.
The Tribunal’s finding that the applicant’s admission that he misled officials to achieve the outcome he wanted (that is, to be able to live in India as an Indian citizen and to then obtain an Indian passport), was one factor underpinning his credibility in the application for a protection visa in Australia. The clear implication arising from the Tribunal’s analysis here was that the applicant was prepared to lie to obtain a settlement outcome in India. In context, therefore, it was analogous to the applicant being prepared to lie to also obtain some settlement outcome in Australia. In the circumstances presented, this finding was plainly open to the Tribunal.
The applicant’s complaint that the Tribunal failed to ask him “material questions” is difficult to understand. The applicant’s admission that he misled Indian officials speaks for itself. In any event, I agree with the Minister’s submissions that have been put before the Court in this matter. That is, that it is for the applicant to provide his evidence and arguments to the Tribunal in sufficient detail to enable the Tribunal to establish the particular relevant facts (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62). There is no compulsion in law on the Tribunal to make out the applicant’s case for him. That is, by asking questions that the applicant says the Tribunal should have asked him (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 per Keane CJ at [35], VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 and Nayu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300).
In the circumstances as presented to the Court, the applicant was given the opportunity to give his evidence and to say to the Tribunal whatever he relevantly wanted to say. I cannot see that the Tribunal prevented the applicant, on the evidence that is before the Court, from giving further explanation or elaboration, if indeed any was available.
Ground Two
Ground two of the application asserts a challenge to the weight said to have been given by the Tribunal to references provided by party leaders. Plainly, the applicant refers here to “references” and “leaders” in the plural. However, in the evidence before the Court, there is only one reference, and that is the letter from the JDU (CB 29). I note that this letter is only signed by one person. Therefore it can only be said that one party leader had provided, or purportedly provided, a reference in support of the applicant.
Before the Court, when given the opportunity to make submissions, the applicant made no reference to this letter. Nor indeed to any of the grounds of his application to the Court.
The Tribunal’s account of the hearing, to which I have already referred, reveals that the Tribunal did raise with the applicant its concerns about the apparent contradiction in his own evidence with what was stated in the letter and, in particular, about when and how long the applicant had been a member of the party and the degree of his activity within and on behalf of the party ([67] at CB 83). The Tribunal considered the applicant’s explanation for this contradiction. It simply did not accept it ([67] at CB 83 and [80] at CB 85).
The choice of material relevant to its analysis and its reasoning is for the Tribunal to determine. After all, as is made clear because of s.65 of the Act, it is the Tribunal’s level of satisfaction that is required such that the protection visa must be granted. The question of the weight to be attributed to evidence, such as the letter, is for the Tribunal to determine in the proper exercise of its jurisdiction (Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630).
The applicant’s complaint that the Tribunal failed to put weight to the letter, in any event, misrepresents what the Tribunal has done. As the Minister submits, correctly in my view, this complaint, again, merely seeks to engage the Court in impermissible merits review. In these circumstances, this ground again fails to raise any arguable case for the relief sought.
I should just note that the applicant has appeared before the Court previously on at least two occasions. Some steps were taken by the Court to explain to the applicant the nature of these proceedings. The Court arranged for the applicant to obtain legal advice at no cost to him. The cost of that advice was borne by the Australian taxpayer. The applicant has therefore had the opportunity to understand the nature of these proceedings, the opportunity to obtain legal advice about his application, and, of course, it was always open to the applicant to have sought legal advice from any other source. Since the making of his application in July of last year, he has had ample opportunity to have properly prosecuted his case before the Court.
Even though the applicant filed an amended application, it was in no better state than his original application. Yet, despite all the opportunities provided to him, the applicant, when asked to speak to his case today, said that he had nothing to say. It is of concern to this Court that, despite such opportunity and an opportunity generous as to time, that the applicant did not, or would not, accept the reality at some earlier time that his case, as presented, had no prospects of success in law.
In any event, for today, the application as amended does not raise an arguable case for the relief that is sought. In these circumstances, I is therefore appropriate that the application, as amended, be dismissed pursuant to r.44.12(1)(a) of this Court’s Rules. I will make such an order.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 15 March 2013
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