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MIGRATION - RRT decision - Indian claiming persecution as member of People's War Group - disbelieved by Tribunal - no error shown.

SZDOD v Minister for Immigration [2004] FMCA 962 (26 November 2004)

SZDOD v Minister for Immigration [2004] FMCA 962 (26 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOD v MINISTER FOR IMMIGRATION
[2004] FMCA 962




MIGRATION - RRT decision - Indian claiming persecution as member of People's War Group - disbelieved by Tribunal - no error shown.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s. 483A, Part 8

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:
SZDOD




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1408 of 2004




Delivered on:


26 November 2004




Delivered at:


Sydney




Hearing date:


26 November 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


Applicant in person




Counsel for the Respondent:


Mr S Lloyd




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1408 of 2004

SZDOD



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) ("the Migration Act") which challenges a decision of the Refugee Review Tribunal ("the Tribunal") dated 22 March 2004 and handed down on 13 April 2004. The Tribunal affirmed a decision refusing the applicant a protection visa.

2. The jurisdiction of the Court under s.483A is "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". In relation to the present matter, that jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations require an applicant to establish that the Tribunal's decision was vitiated by jurisdictional error. Only if such a significant legal error has been found can the Court order the setting aside of the Tribunal decision and a further hearing to be held. The Court cannot give an applicant relief merely because it disagrees with the factual assessments of the Tribunal.

3. In the present case the Tribunal faced a curious situation. The applicant made an application for a protection visa and presented in support evidence by way of an Indian passport establishing an identity which I shall describe as "KG". A life history for that person was given in a statutory declaration sworn before a Justice of the Peace on 10 July 2003. The applicant, claiming to be KG, said that he and his family "faced a more severe situation" by members of a political party, the BJP, or by people associated with it, because of "my influential socio-economic, political and business position in the community" and as supporters of the politics of the Congress Party. He claimed that he had a fear of "being hunted by the BJPs terrorists, because they are continuously searching for me to kidnap and kill", and that the police would not protect him against this.

4. The delegate rejected these claims in the course of refusing the visa application. The applicant appealed to the Refugee Review Tribunal in the name of KG and attached an unsworn statutory declaration purporting to give more information concerning the claims previously made.

5. However, when invited to a hearing before the Tribunal, the applicant submitted a further statutory declaration in which he said his real name and personal details were completely different, and presented another Indian passport in relation to a name which I will refer to as "JS". In that statutory declaration, the applicant claimed that, far from belonging to Congress Party supporters, his family had been active members of a group called the People's War Group who were pursuing left wing or communist ideologies through radical methods. He claimed that his father had been shot by police, and that he had suffered periods in custody before escaping and coming to Australia on what he now claimed was a false passport in the name of KG.

6. The Tribunal's reasons set out the details of both sets of claims, and summarised the questioning of the applicant on them by the Tribunal member. In my view, the Tribunal has sufficiently identified both sets of claims which had been made by the applicant.

7. The Tribunal did not dwell on the problems of credibility inherently arising when someone has sworn two totally inconsistent statutory declarations in support of a visa application, but focused upon the applicant's credibility in relation to his second set of claims. It had country information giving background in relation to the activities of the People's War Group and the actions of the Indian authorities in relation to it. It said:

I asked him some questions to test his knowledge of the origin and aims of the PWG. His answers displayed a very rudimentary, inadequate knowledge, and he made several errors about elementary facts.

It also said:

I asked him about the PWG's command structure. He said he had no idea. He did not know much about these things. He helped people who asked, for example, in conducting meetings.

8. When questioned about inconsistencies in his accounts, the Tribunal notes that the applicant then claimed that he was suffering from loss of memory. The Tribunal notes:

He stated he had suffered much memory loss and was therefore unable to relate everything fully. Since his father died he suffered from a psychosis, fear. He asked for more time so that he could write out his claims in detail in a submission. I agreed and gave him until 3 March.

9. The Tribunal, after the hearing, received a further statutory declaration in which further aspects of the claims made by the character of JS were given, but these gave rise to further inconsistencies which the Tribunal noted.

10. Under its heading, "FINDINGS AND REASONS", the Tribunal said:

I accept that the applicant is a national of India.

I had considerable difficulty with his credibility. Even if I ignore his original claims and make my findings exclusively on the basis of the second set of claims - revolving around purported membership of the PWG - and even if I accept that his real name is JS and that the passport on which he entered Australia contains false information about his identity, I am unable to accept that he has a well-founded fear of persecution in India because of PWG membership. This is because his written and oral evidence contains implausibilities, discrepancies, inconsistencies and contradictions.

I find totally implausible and am unable to accept that an active member for some 10 years of the PWG - an ideologically driven, banned group, membership of which entails considerable risk and therefore a high level of commitment - would have almost no idea of its basic beliefs or organisational structure and be ignorant of such basic facts as when it was founded and the name of its leader.

11. The Tribunal then made findings on how the claim was presented to it and concluded that the applicant had embellished and adjusted his story as he went along. It concluded:

On the basis of the evidence before me, I am unable to accept that either the applicant or his parents or his wife were ever members of the CPI (ML) and PWJ, or that any of the harm he claims he and his parents experienced as a consequence of their membership of those bodies, actually occurred.

Even if I accept that his real name is JS and that the passport on which he left India and travelled to Australia contains false identity information, I find that he obtained the latter passport purely to buttress his claims of being a wanted PWG member. It follows that I do not accept that he delayed his departure from India for six years after receiving his false passport because, despite fearing persecution, he could not afford to leave and had to shoulder family responsibilities and police harassment was at its height. I find that the delay was due to the fact that he did not fear persecution.

I find that the applicant does not have a well-founded fear of persecution in India for reason of his political views and affiliations or any other Convention ground.

12. The applicant in this Court filed an application for review setting out five grounds:

1. The Tribunal failed to make findings on material questions of fact namely whether the Superintendent of Police at Ongole threatened to kill the applicant and all his family members if he raised the issue of his father's death in any court of law.

2. The Tribunal erred in law by its failure to take into account the cultural and social circumstances of the applicant which propelled him into joining the People's War Group because of his father's past association with that group and giving undue consideration to the fact that the applicant had been able to demonstrate supposedly superficial understanding of the People's War Group's political history.

3. The Tribunal erred in law by applying a wrong standard for determining the well-founded fear of persecution.

4. The Tribunal ignored considerations relevant to the applicant's credibility i.e. his attempts to seek higher education and his peaceful struggle to achieve social equality and took irrelevant considerations into account, for example, the use of a false passport for his escape from India and different places of births appearing in his earlier and later claims.

5. There is no evidence that the applicant has received adequate state protection in the past or will receive such adequate state protection if he returns to India, to remove a real chance of him being persecuted in India by members of the Indian Security Services.

13. The applicant attended a first hearing date before a Registrar on 20 August 2004 and was directed to file and serve an amended application and any evidence upon which he relied by 1 October 2004, and the matter was listed for final hearing today. The applicant did not file any documents as directed. He has appeared today and the Court has been assisted by an interpreter. The applicant sought an adjournment of the hearing on the basis that he needed time to get a lawyer. He also said, "his lawyer had not come today". There is nothing on the file to indicate that he has ever been represented by a lawyer, although there are signs that he has been assisted by someone with a smattering of legal knowledge. In my view, the applicant has been given ample opportunity to fully prepare his arguments for today's hearing and to get such advice as he felt he needed. I declined to adjourn the hearing on the basis requested.

14. The applicant also told me that because of his memory loss he would be unable to answer questions from memory, and he was also unable to make further points in oral submission to me. He presented no medical evidence to suggest an incapacity which would support an adjournment. In view of the history of the matter, I declined to adjourn on that basis also.

15. I have fully considered all the material that is in the Court Book and, in my view, there was no arguable error in the Tribunal's decision which has not been put forward on his behalf in the applications as filed in this Court.

16. In relation to the grounds which I have set out above, I consider that they have been adequately answered by Mr Lloyd in his concise submissions. I adopt them as my reasons for dismissing those grounds. His submissions were:

11. The applicant's first ground of review is that the Tribunal failed to make a finding about whether he was threatened by a Superintendent in 1996 to stop him raising the death of his father in any court proceeding. The Tribunal's rejection of the truth of the applicant's claims related to his and his parents' alleged membership of the PWG incorporates a rejection of this claim.

12. The applicant's second ground is that the Tribunal failed to take into account cultural and social circumstances which propelled him to join the PWG. The Tribunal expressly rejected that this had ever occurred or that his father had ever been involved in that group.

13. The applicant's third ground is that the Tribunal erred in law by applying a wrong standard for determining the well-founded fear of persecution. There is no basis for this ground. The Tribunal rejected all of the applicant's essential claims. On what was left, there could be no doubt that the applicant did not have a well-founded fear of being persecuted.

14. The applicant contends that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations in making its credibility findings. There is no basis to this ground. The Act does not mandate or exclude any matters from consideration in this regard.

15. Finally, it is said that there is no evidence that the applicant has ever received adequate state protection or that he would receive it if he returned. This ground does not seem to relate either to his claims made to the Tribunal or to the Tribunal's findings, which did not turn on this issue.

17. For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

18. I order the applicant to pay the respondent's costs in the sum of $4500.

POSTSCRIPT

19. After I had delivered the above judgment, made my orders and left the court, my associate was given by a friend of the applicant a document headed "Affidavit" stamped by the Registry as having been filed in Queens Square the previous day. The document had not reached the file at John Maddison Tower and had not been served on the respondent. I was not referred to it in the course of the hearing when I took the applicant through the documents on the file which I had considered, and enquired whether there was any other document which he wanted me to consider. I read the "Affidavit" in chambers and formed the opinion that it contained nothing which could have advanced the applicant's case and which had not already been put to me. I therefore did not reconvene the hearing.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 December 2004
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