VKAZ v Minister for Immigration - [2004] FMCA 251

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VKAZ v MINISTER FOR IMMIGRATION

[2004] FMCA 251

MIGRATION – Application for review of decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – whether the Tribunal failed to consider material facts – whether the Tribunal applied the wrong test in its findings – whether the Tribunal should have asked the question “What if I am Wrong” – credibility of applicant’s evidence – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B

SZABS v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 852
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1; 168 ALR 407
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559
WAGR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Applicant:

VKAZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 258 of 2003

Delivered on:

23 April 2004

Delivered at:

Melbourne

Hearing Date:

19 April 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms C Beaton-Wells

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $6000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 258 of 2003

VKAZ

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

Introduction

The applicant in this matter is a citizen of India and a Telugu Hindu. She arrived in Australia on 6 April 2001 and on 7 May 2001 she lodged an application for a protection visa. Her application was rejected by a delegate of the Minister on 12 June 2001 and she applied for a review of that decision from the Refugee Review Tribunal (the Tribunal). On 11 October 2002 the Tribunal affirmed the decision not to grant a protection visa. On 28 November 2002 the applicant filed an application under s.39B of the Judiciary Act 1903 (Cth) in the Federal Court of Australia. Proceedings were transferred to the Federal Magistrates Court on 13 March 2003. The present proceedings were adjourned on a previous occasion because of the absence of an appropriate interpreter. The applicant appeared on her own behalf with the benefit of an interpreter.
The applicant claims to have a well-founded fear of persecution from Naxalite terrorists and the fact that she could not rely on the government of India for protection from this group, nor be safe anywhere in India. She claimed that her family in Andhra Pradesh was targeted by the Naxalite group seeking money and land and that upon refusing such demands they were threatened with death. The group burnt down the applicant's family house in 1994 or 1995. She made a complaint to the police, but the perpetrators were not brought to justice.
She further claimed that the group attempted to have her husband join them so that he could assist them in kidnapping foreigners given that he was involved in the tourism business. Her husband who declined to join the group was subsequently killed on the way home from work and the applicant is certain he died at the hands of the Naxalites. She claimed that his body showed signs of assault and that there had been intimidating phone calls over a long period of time and that gangs of Naxalites had arrived at their house in jeeps to make threats. She made a further complaint to the police in respect of her husband's death but they were reluctant to take further action.
After her husband's death the husband moved to Chennai to live with her aunt, but she asserts the group pursued her there. She also spent periods of time in Delhi, Bangalore and Hyderabad. Upon return visits to Andhra Pradesh she was again targeted by the Naxalites.

The decision of the Tribunal

The Tribunal was not satisfied that the applicant or members of her family had been targeted by the Naxalites or that if they had been targeted in the ways claimed, that they would not have had access to protection from the state. It found her claims to be fabricated, implausible and inconsistent with country information referring to the efforts made by the Indian authorities to quell and deter Naxalite activities, included in Andhra Pradesh.
Based on its findings the Tribunal concluded that any chance of the applicant facing persecution in Andhra Pradesh in the foreseeable future was entirely remote. It nevertheless considered the possibility of relocation to another part of India should the applicant have an actual fear of return to her home area. It concluded that based on her education, employment experience and language skills it would be reasonable for her to locate to a part of India where Naxalites are not active. This capacity for relocation was of itself fatal to her case.

The grounds relied upon

The applicant represented herself, but relied upon her application and contentions of law and fact prepared by Counsel. Three grounds can be discerned. Firstly, it was contended the Tribunal failed to consider material facts such as the house being destroyed by a Naxalite-engineered fire, attempts by the Naxalites to have her husband join them and the death of her husband.
Clearly the Tribunal did consider these matters but rejected the evidence of the applicant and in particular rejected her evidence that the fire and the death of her husband were related to the Naxalites. In coming to this conclusion the Tribunal considered country information about the Naxalites at the relevant times and the government's endeavours to quell violence. It noted the applicant's lack of evidence to support a link between the fire, her husband's death and the Naxalites.
As to whether the Tribunal was entitled to come to these conclusions, in SZABS v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 852 at paragraph 17 Branson J said as follows:
In the performance of the crucial task of assessing the credibility of claims advanced by an applicant for a protection visa the Tribunal may take into account many factors.
Further in that paragraph her Honour said:
Additionally, the Tribunal is entitled to consider whether or not the story told by the applicant is one which the Tribunal finds believable or rather one which it finds improbable or even fantastic. Of course in making a judgment of this latter kind it is appropriate for the Tribunal to bear in mind what is improbable in one place or cultural setting might be unremarkable in another place or in a different cultural setting. Further, the standard of conduct that it is reasonable to expect from individuals who fear severe persecution should their story not be believed is not the same standard of conduct that it is reasonable to expect from individuals who entertain no comparable fear.
The Tribunal is under a duty to do all that it can to ensure that its decisions are not affected, whether consciously or unconsciously, by difficulties that it might experience in empathising with the life experience of the applicants that come before it. Nonetheless, assessment of credibility is, as McHugh J pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1; 168 ALR 407 at 67, the function of the primary decision-maker per excellence."
Further, at paragraph 19 Branson J said:
It was not necessary for the Tribunal to support by reference to evidence its belief that it was not credible that the appellant while living in Colombo with his wife and children would have assisted the LTTE, as he claimed. As is mentioned above, it is appropriate for the Tribunal to make an assessment of the inherent probability of the appellant's claims. A finding that a particular claim is inherently improbable does not without more demonstrate actual bias in the Tribunal, nor does it without more give rise to a reasonable apprehension that the Tribunal might be biased.
The findings by the Tribunal in this case, which were findings of credibility, were findings that the Tribunal itself was entitled to make.
The second ground relied upon by the applicant was that the Tribunal applied the wrong test in that it -
failed to ask whether despite the fabrication or far-fetched nature of the applicant's evidence, to use its own terms, it might nevertheless be satisfied that the applicant had a well-founded fear of persecution which arose because of being subject to the behaviour complained of in her evidence to the Tribunal.
In other words, it is contended the Tribunal ought to have asked itself the question, "What if I am wrong?" as referred to in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. However, the Tribunal is not required to ask this question where it appears to have no real doubt about its findings and in such circumstances it is not bound to consider whether those findings might be wrong (see Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 576 and also WAGR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 6, paragraphs 12 to 14).
On a fair reading of the Tribunal's decision as a whole in this case it is clear that the Tribunal entertained no real doubt as to the correctness of its findings regarding the well-foundedness of the applicant's fear of persecution. Thus, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Nor is the Tribunal required to express its findings in such a manner as makes explicit the degree of conviction that the findings are correct and that there is no justification for a court imputing to the Tribunal a lack of conviction such as to warrant a decision that the Tribunal should or could not have relied on its own findings.
The third ground is that the Tribunal had regard to an irrelevant consideration, namely, that it relied on a 1998 country information report and should have relied upon information depicting the current situation. However, the Tribunal in fact considered country information in 1998 and 2000 and did so in order to assess the applicant's claims of persecution and lack of protection from the police in relation to the Naxalite activity in the past, especially in the years following the death of her husband.
In any event, the attachment of weight to such information is a matter for the Tribunal and they are part of the fact-finding process that falls outside the scope of judicial review. There is no basis on which it could be said that the 1998 report on which the Tribunal relied falls into the category of material which a decision-maker is bound by law not to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at paragraphs 39 to 42). Applying the wrong test or having regard to irrelevant material will only amount to jurisdictional error where the exercise of power is thereby affected.
In this case even if, as is not the case, the Tribunal was found to have erred in one or more of the ways alleged, such error would not have affected the exercise of power in affirming the decision under review. The Tribunal was, in any event, entitled to find that the applicant could reasonably relocate to a part of India away from areas in which the Naxalites operate which was a finding of fact which was not challenged. Thus, the Tribunal's decision would have been the same even if it had been in error in other respects.
For those reasons the application cannot succeed and must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 27 April 2004