SZRXQ v Minister for Immigration and Anor

[2013] FCCA 1499

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRXQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1499

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal’s refusal of an adjournment represented a miscarriage of discretion.

Legislation:

Migration Act 1958, ss.36, 424AA, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZRXQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2232 of 2012

Judgment of: Judge Cameron

Hearing date: 23 September 2013

Date of Last Submission: 23 September 2013

Delivered at: Sydney

Delivered on: 2 October 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2232 of 2012

SZRXQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 29 September 2011 on a business visa that was valid until December 2011.  On 11 November 2011 he lodged an application for a protection visa alleging that he feared persecution in India because he was a Maoist activist.  On 30 April 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-24 of the Tribunal’s decision. Relevant factual allegations are summarised below.

Protection visa application

1. The applicant made the following claims in his protection visa application form:

   a)he was a Maoist activist and had been involved with that “organisation” for a long time;

   b)he was responsible for obtaining information from various sources and passing that information to the leaders.  During his time as an informer he was also involved in business;

   c)for several years he was not identified as a Maoist but once he was, his life became more difficult.  He was regularly asked about his involvement with the Maoists but denied any.  He was also watched by local politicians;

   d)he had travelled to Thailand, Bangladesh and Japan between 2008 and 2010 to collect donations for the party;

   e)two days after a Maoist attack on a train, he was dragged from his business by opposition party leaders and, despite denying involvement in the attack, was “beaten mercilessly” in front of others.  He was hospitalised for several weeks after the incident.  When he was released from hospital, he continued his activities with the Maoists and also commenced his business.  He continued to be watched by local politicians;

   f)one day he was caught by members of the local opposition party, who again beat him mercilessly and destroyed his business and home.  The opposition party members threatened his family and told them that they had to leave the area unless they restrained him from continuing his activities.  His family acted as guarantors and he was released from custody.  When he continued to take part in activities his family asked him to leave the family home.  After he left, his family were harassed and local people attacked his home;

   g)the police were notified of his activities and attempted to look for him before he “absconded”.  He started to look for options overseas.  Party leaders arranged a visa for him and he provided some money.  He came to Australia to avoid further attacks from opposition political parties and to avoid arrest by the police;

   h)he feared that if he went back to India opposition political party members would attack him again.  The police were cruel and visited everyone looking for him.  He feared that the authorities would arrest him and put him in gaol as the government had declared the Maoists to be a terrorist organisation; and

   i)he feared harm from members of his own party as he did not listen to them and did not leave the Maoist movement.

2. The applicant was interviewed by a delegate of the Minister on 29 March 2012 and gave the following additional information:

   a)he became involved with the Maoist party in 2005 because he liked their activities and philosophy;

   b)his role in the party was to pass on information about where the meetings of opposition parties were being held, who was participating in them and what was being discussed.  He also explained Maoism to people and recruited five to seven people to the party.  He had to work in a very discreet way as there were no Maoists in his area;

   c)he was also involved in collecting funds on behalf of the party and had travelled to Japan, Thailand and Bangladesh for that purpose.  He was instructed by the party about where and who he should approach to collect the money.  He would then give it to people sent by the party at a place instructed by the party.  The party had to collect the funds in cash in person and not through a bank;

   d)he had attended three or four Maoist party meetings which were held in secret locations.  He was afraid of meeting openly;

   e)he had been attacked on two occasions because of his political activities.  The attacks took place on 21 July 2010 and in either February or March 2011;

   f)he was physically assaulted on the first occasion because people in his area found out that he had harboured Maoists seeking refuge after they caused a train crash in West Bengal in response to the imprisonment of other Maoists.  Twenty-five to thirty people from his locality and nearby areas, some with political affiliations, attacked him at the factory where he worked.  His attackers told him to quit the party or he would be killed.  He was beaten for ten minutes and suffered injuries to his back, a leg and a toe.  His co-workers intervened when he was near unconscious and took him to hospital.  He first claimed that he stayed in hospital for a few days but later stated that he was there for three weeks;

   g)he informed the police of the attack and claimed that he was attacked because he was suspected of giving refuge to Maoists.  He did not provide the names of his attackers because he was scared.  The police learned later that he was a Maoist but by that time he had left his house;

   h)after people in his area discovered that he had given food to some Maoists he was attacked, for a second time, near a market.  His attackers attended his house and threatened “the guardian”.  They also threatened to burn his house down and told him that he would have to quit the party or leave the area.  He later claimed that he was not assaulted on this occasion, just threatened.  He refused to quit the party but was told by upper level leaders of the party that he had to keep a low profile.  He felt that wherever he stayed the police would find him.  With the assistance of a broker and his party, he secured a visa and came to Australia;

   i)he had not been present at big events or incidents involving the party.  The terrorist incidents committed by the Maoists were as a result of the rest of the community failing to meet the Maoists’ demands.  He liked the philosophy and principles of the Maoists but did not support those involved in terrorist activities;

   j)he feared that even if he lived in hiding upon a return to India, he would be arrested as people in his locality knew he was a Maoist.  He feared that even if he was not killed, he would be arrested and tortured and would not feel safe in any part of India;

   k)he was unable to provide supporting documentation for his claims because when he came to Australia he was more concerned with being protected;

   l)he had not been involved with another political party before joining the Maoist party but had attended “CPIM” meetings prior to 1993;

   m)his business had been destroyed and it would be difficult to set everything up again; and

   n)his wife and daughter were moving from place to place in India because of his political activities.  They could not stay because people in their locality knew he was involved with the organisation. Since his departure, “they” confirmed that he was a Maoist and told his wife that she could not stay in the area. 

Application for review

1. On 16 August 2012, the applicant appeared before the Tribunal to give evidence and present arguments.  Immediately before the hearing, the applicant submitted a number of articles, reports and photographs, which were mostly undated and unreferenced, relating to what he claimed was the torture and arrest of Maoists in India. 

2. At the hearing, the applicant gave the following additional evidence:

   a)he did not know when the Maoist party was banned in West Bengal but believed that it was banned at the time he became involved in 2005.  When the Tribunal put it to him that the party was not banned in West Bengal until June 2009, he responded that he did not get everything in detail as he conducted his party work secretly so the local community would not discover his involvement;

   b)on four or five occasions he had gone to opposition party meetings to discuss the Maoists’ objectives and to convince their members that the Maoist party was not a terrorist group.  He later stated that he never went to the meetings but informed his party leaders about what was said at them about the Maoist party;

   c)on each of his visits to Japan and Thailand he collected one packet of what he believed was cash.  He was also supposed to go to China and Malaysia but could not as he had business problems;

   d)he found out about the attack on the train from other party members and from the newspapers.  He did not know about it beforehand.  He could not remember the exact date of the attack but said that it had happened on about 21 July 2010.  He stated that two or three people had been killed but provided a newspaper article which stated that sixty-eight had died.  When this inconsistency was put to him by the Tribunal, he claimed that he could not remember the exact details of the matter as he had become mentally disturbed worrying about what might happen (to party members);

   e)he was attacked at the factory on 21 July 2010, which he claimed was two days after the train incident and also when he started to shelter Maoists who had been involved in the incident.  However, when put to him by the Tribunal that the newspaper articles he had presented indicated that the train attack had occurred in May 2010, he said that although he could not be sure of the date and might have made a mistake, he was sure that he had been attacked two days after the incident;

   f)he was unable to remember the exact date of the second attack but claimed that it occurred fifteen to twenty days after the first one.  He then claimed the attack occurred twenty, twenty-five or thirty days later, but later claimed that it occurred five to six months later.  He claimed that during the second incident he was pushed and threatened and that the different account of this event in his visa application form arose from a misunderstanding by the person who typed the form;

   g)his family was aware and accepting of his involvement with the party but after the attack near the market, disturbances started in the family and he was asked to leave;

   h)he could not move to another part of India because people would wonder what he was doing and why he had come and he would have problems when they discovered his past;

   i)one month after he left his home, the local community threw his wife and child out of their house and told them that they could not live there anymore as they were involved with Maoists; and

   j)it was not safe for him to return to India as some leaders had been killed and others imprisoned.

3. At the hearing the applicant was also invited to make written post-hearing submissions.  On 20 August 2012, the day on which the submissions were due, the Tribunal was contacted by someone on behalf of the applicant stating that the applicant was ill and requesting a further week to lodge the submissions. Later that day, the Tribunal received a written request to that effect from the applicant.  On 21 August 2012, the Tribunal left a voicemail message on the applicant’s phone asking him to call it back.

4. On 27 August 2012, the Tribunal received a submission from the applicant.  In that submission, the applicant claimed that he had been very depressed on the day of the hearing and that the depression had affected his overall performance at the hearing.  He submitted that he was seeking the assistance of the “Asylum Seekers Centre” (“Centre”) to see a doctor and a psychologist.  He requested that the Tribunal consider his mental situation at the hearing and not make a decision until he could provide a psychologist’s report.  On 28 August 2012, the Tribunal attempted to contact the applicant by telephone to inform him that it would be making its decision on 10 September 2012 and would take into account all information provided.  A letter to that effect was also sent to the applicant.

5. On 9 September 2012 the Tribunal received a facsimile from the applicant stating that he had an appointment with a psychologist at the Centre on 12 September 2012.  On 11 September 2012, the Tribunal contacted the applicant and asked him to provide information after his appointment so it could consider his request that the decision be delayed.  On 12 September 2012 the Tribunal received an authority signed by the applicant authorising the Centre to discuss his personal circumstances with a range of government and other bodies, including the Tribunal.  Later that day, the Tribunal received a call from a case officer at the Centre stating that the applicant had attended there under the mistaken belief that he would be seeing a psychologist.  The officer advised that no arrangements had been made at that appointment for him to see a psychologist.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal concluded that the applicant was not a reliable, credible or truthful witness and had sought to concoct a series of claims related to reported events in an effort to secure an Australian visa.  It found that the applicant was unable to provide credible explanations for the events claimed, the inconsistencies and changes in his own evidence or the inconsistencies between his claims and independent country information.  In this connection, the Tribunal made the following findings:

   a)it found that the applicant had provided inconsistent evidence about the harm he claimed to have suffered at the hands of others.  It did not accept his explanation that this inconsistency resulted from a misunderstanding by the person who helped him to fill out his protection visa application;

   b)it found that the evidence the applicant had provided in relation to the train incident, which led to his assault, was inconsistent with independent reports and revealed a level of knowledge that was inconsistent with his claims.  The Tribunal found that his understanding of the incident was so inconsistent with the actual facts that it did not accept that he had had any contemporaneous association with the incident at all.  On that basis, it also rejected the applicant’s claim that he had harboured people associated with the claimed train attack;

   c)it considered that the applicant provided confused, changing and inconsistent information about the timing of the incidents alleged to have occurred in India.  The Tribunal noted the applicant’s explanations for the inconsistencies, that he was unsure of the date of the train incident and confused about the timing of the incidents, but found that they did not satisfactorily explain the significant changes in his evidence concerning when those incidents had occurred;

   d)it considered that the applicant’s knowledge of some aspects of the Maoist party appeared inconsistent with his claims of involvement and undermined his claim to have been actively involved in the party during the period claimed; and

   e)it found that the applicant’s evidence regarding his alleged recruitment activities on behalf of the party was confused and changing and undermined his claims to have been involved in the party and his credibility generally.

3. Based on the evidence before it, the Tribunal rejected the applicant’s claims for protection in their entirety.  It did not accept that the applicant had ever been a member of the Maoist party in India or that he had been actively involved with, sympathetic to or perceived to be associated with the party.  It found that the applicant had contrived his involvement with the Maoist party and that he had consciously sought to inform himself about the activities of Maoists in his area for the purposes of founding a claim for protection.

4. In making those findings on the applicant’s credibility, the Tribunal had regard to the applicant’s request that it defer its decision in order that he could obtain documentation concerning his claimed hospitalisation in India in approximately 2010.  It considered that it would be very unlikely that documentation confirming the applicant’s hospitalisation in 2010, even if obtained, would be given any weight when deciding how or why the applicant might have been injured.

5. The Tribunal also referred to the applicant’s request that it delay its decision and to his claims made after the hearing that he had been feeling depressed on the day of the hearing, which had affected his performance, that he had had difficulty with his memory and that he had been suffering from trauma.  The Tribunal found the applicant to have been alert at the hearing and responsive to questions and was satisfied that he had understood the nature of the proceedings.  The Tribunal considered that other than a general claim that his performance at the hearing was affected and that he had difficulty with his memory and was suffering from trauma, the applicant had provided no specific information about what evidence was affected and had made no further response to the issues raised with him at the hearing or provided clarification of his evidence, despite having had time to do so and having made several written submissions.  The Tribunal noted that at the time of its decision, the applicant had not provided it with any medical or psychological evidence or supplied a timeframe within which any such evidence was to be submitted, despite its decision being made four weeks after the hearing and three weeks after the applicant asked it to delay its decision.  On the basis of the evidence and its assessment of the applicant’s demeanour, the Tribunal found that the applicant had had a reasonable opportunity to provide additional information.  It also found that the applicant’s credibility had not been significantly affected by depression, trauma or any other medical condition.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Refugee Review Tribunal failed to assess my credibility on a cumulative basis about my claims of persecution.

   Particulars

   A.The Tribunal failed to assess my credibility on a cumulative basis about my claims of persecution that:

   (i)     The Tribunal ignored the reason of my visit to Thailand and Japan.  As a consequence the Tribunal failed to assess my involvement with the Maoist.

   (ii)    The Tribunal stated that I was a member of CPI (Maoist).  However I never claimed that I was a member of CPI (Maoist).  I claimed that I was involved with the Maoist.  As a consequence, the Tribunal failed to assess my persecution on the basis of my genuine persecution for political reason.

   2.The Refugee Review Tribunal continuously ignored my request my request [sic] to provide further documents in support of my claims:

   Particulars:

   A.The Tribunal continuously ignored my request my request [sic] to provide further documents in support of my claims that:

   (i)     The Tribunal did not take into account my request to extend time to provide medical certificate in relation to my injury.

   (ii)    The Tribunal did not take into account my request to extend time to provide psychological reports about my inability to memories [sic].

   3.The Refugee Review Tribunal hold negative attitude about my involvement with Maoist and subsequent persecution:

   B.The Tribunal hold negative view about my involvement with Maoist and subsequent persecution that:

   (iii)   The Tribunal made a comment that I did significant research to establish my refugee claims in Australia.  The Tribunal failed to assess my genuine involvement with Maoist.

   (iv)   The Tribunal made a comment that my evidences were inconsistence [sic] and I was not a truthful witness.  However the Tribunal ignored my request to provide me time why I was confused and my evidences were inconsistence [sic].

Ground 1

1. The first particular of the allegation stated that the Tribunal ignored the reasons for the applicant’s visits to Thailand and Japan.  As the foregoing summary of the Tribunal’s own summary of its hearing discloses, the Tribunal did consider those matters.

2. As to the second particular of the allegation, in his written submissions the applicant argued that although the Tribunal had stated that he was a member of CPI (Maoist) he had never made that claim but had said that he had been involved “with the Maoist”.  The applicant submitted that as a result of this purported confusion the Tribunal failed to assess his claim to fear persecution by reference to the claim he had actually made.  That submission is contradicted by para.79 of the Tribunal’s reasons where it said:

   The Tribunal also developed particular concerns about the applicant’s evidence of his participation in and involvement with the Maoist party (which he agreed at hearing was the Communist Party of India (Maoist), or CPI (Maoist))…

3. The applicant did not suggest that any aspect of the Tribunal’s decision record incorrectly summarised what happened at the Tribunal hearing.  Nor did he put a transcript of that hearing into evidence.  As the only evidence on the question was the Tribunal’s decision record, which has not been impugned, I find that this aspect of the first allegation is not made out.

4. The remaining aspect of the first ground of the application is the allegation that the Tribunal failed to assess the applicant’s credibility on a cumulative basis.  There is no factual foundation for that allegation as at para.83 of its reasons the Tribunal expressly stated that, “on a cumulative basis”, the concerns that it had detailed earlier in its reasons relating to central aspects of the applicant’s claims led it to conclude that he had not been truthful.

5. For these reasons, the first ground of the amended application is not made out.

Ground 2

1. The factual background relevant to the applicant’s second allegation was accurately set out in the Minister’s written submissions in the following terms:

   The applicant responded that he sought time to respond in writing and the Tribunal allowed until 20 August 2012 (at [59]).  By facsimile dated 20 August 2012, the applicant requested until 27 August 2012 to provide documents.  By letter dated 28 August 2012, the Tribunal advised the applicant that it would make a decision on 10 September 2012 and that it would take into account any information provided until that date (at [65]).

   The applicant wrote the Tribunal on 9 September 2012 and advised that he had an appointment with the Asylum Seekers Centre on 12 September 2012 and requested an extension of time to provide his psychologist report.

   On 12 September 2012, the Tribunal received a call from the Asylum Seekers Centre.  The Tribunal was advised that the applicant attended their centre and had thought that he would be seeing a psychologist however this would not yet occur as it was only his first visit.

2. The evidence therefore demonstrates that the Tribunal did not ignore the applicant’s request for further time to provide additional documents. 

3. The second allegation also implied that the Tribunal’s decision to proceed to conclude the review amounted to a miscarriage of its discretion whether to adjourn the review pending receipt of further documents from the applicant. In deciding not to delay its decision on the review further, the Tribunal expressly took the following matters into account:

   a)at the hearing the applicant was alert and responsive to questioning, presenting his claims and evidence in a lucid and articulate manner, and it was satisfied that he understood the nature of the proceeding;

   b)the applicant did not claim at the hearing to be depressed or to have any other medical condition which affected the giving of his evidence;

   c)there was no evidence or information before it which indicated that the applicant had been diagnosed with any such medical condition or had sought professional assessment until after the hearing when issues regarding the credibility of his evidence and claims were raised and after it had allowed his request for additional time to respond in writing  to adverse information;

   d)the applicant’s several claims at the hearing to be confused or to not remember the train incident were apparently made in response to it identifying inconsistencies and changes in his evidence or clear gaps in his knowledge of claimed events;

   e)at the hearing the applicant claimed that his poor mental state after the train crash incident had been caused by his worry about the consequences which might follow for party members.  The applicant gave the same explanation for problems with his evidence and for his failure to read the reports of the incident closely;

   f)the applicant had provided no specific information about what evidence was affected by his alleged depressive condition and had made no further response to the issues raised with him at the hearing pursuant to s.424AA of the Act despite having had time to do so and having made several written submissions;

   g)by the time of its decision, over four weeks had elapsed since the hearing and three weeks since the applicant’s request that it await a psychological report and yet there was still no medical or psychological evidence before it in relation to the applicant’s claims or any time frame by which such material might be provided; and

   h)given its assessment of the applicant’s evidence and demeanour at the hearing and his general lack of credibility, it considered that the applicant had had a reasonable opportunity to provide additional evidence.

4. The applicant did not urge upon the Court any particular basis upon which he submitted it should find that the exercise of the Tribunal’s discretion had miscarried.  Given the Tribunal’s express consideration of the above matters, I am not persuaded that there is a basis to conclude that the Tribunal’s discretion did miscarry.

5. For these reasons, the second ground of the amended application is not made out.

Ground 3

1. The third ground of the application appeared to be an allegation that the Tribunal was biased against the applicant.  The allegation was particularised by reference to two matters but each of them identified conclusions reached by the Tribunal which were open to it on the evidence.  Those conclusions were unfavourable to the applicant but more than that is needed to make out an allegation of bias. 

2. The particulars also raised two subsidiary issues, the first was that the Tribunal failed to assess the applicant’s “genuine involvement with Maoists”.  For the reasons already given in connection with the first ground of the application, this aspect to the allegation must fail on the facts.  The second additional element asserted that the Tribunal ignored the applicant’s request to demonstrate why he was confused and his evidence inconsistent.  For the reasons given in relation to the second ground of the application, this aspect of the third allegation is also not made out.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  2 October 2013