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MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal made a jurisdictional error in finding inconsistency in applicant's evidence - whether denial of procedural fairness.

SZCII v Minister for Immigration [2004] FMCA 793 (3 November 2004)

SZCII v Minister for Immigration [2004] FMCA 793 (3 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCII v MINISTER FOR IMMIGRATION
[2004] FMCA 793




MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal made a jurisdictional error in finding inconsistency in applicant's evidence - whether denial of procedural fairness.




Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Abebe v The Commonwealth 197 CLR 510

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 171

Kioa v West (1985) CLR 585 at 587

Applicant:
SZCII




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2906 of 2003




Delivered on:


3 November 2004




Delivered at:


Sydney




Hearing date:


3 November 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Mr B Zipser




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Nil




Solicitors for the Respondent:


Sparke Helmore Solicitors



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the responden'ts costs set in the amount of $5,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2096 of 2004

SZCII



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 3 December 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant, who is a citizen of India, claimed to fear persecution for reason of his political opinion and religion. He claimed, in essence, that he was targeted, beaten, placed under surveillance and that his shop was burnt down by members of the BJP, RSS and Shiv Sena because he was a member of the Indian Union Muslim League (the IUML).

3. The applicant made a number of specific claims in his protection visa application and the Tribunal reasons for decision also record claims made by him at the Tribunal hearing.

4. The Tribunal accepted that the applicant was a Muslim, that he was a member of the IULM and that he was assaulted in 2000 and 2002 and was questioned by police from the Crime Branch Division. However it did not accept that he became so popular that he was targeted by the BJP, RSS and Shiv Sena. It found that the nature of his involvement in the IUML was to sponsor banners and to organise local conventions and meetings, leading relief programs every year, supporting Muslim candidates during elections, and providing a car for a campaign, as had been claimed by the applicant. The Tribunal was of the view that such involvement was not such as to give the applicant the profile that would have made him popular to the extent alleged.

5. The Tribunal was not satisfied, on the evidence before it, that the applicant had been targeted as claimed, that he was placed on a hit list, that he and his family had received life threats or that members of the BJP, RSS and Shiv Sena had come to his stores and threatened to harm him.

6. The Tribunal accepted that the applicant was assaulted in December 2000 and in March 2002 but on the evidence as a whole (to which it referred) was satisfied that the reasons for the incidents were not essentially and significantly attributable to his religion or membership of the IUML Party. Having regard to cited independent information the Tribunal did not accept that the BJP, RSS and Shiv Sena were responsible for the attacks as claimed.

7. The Tribunal also addressed the applicant's claim of inaction by the police. It accepted that the police had attended the hospital to investigate the December 2000 assault and taken a written report, and rejected the applicant's claim that the police did not take proper action, finding that the authorities had provided him with proper protection. It also accepted that members of the Crime Branch Division had attended the applicant's stores and his home but was not satisfied that this constituted 24-hour surveillance and treatment as an extremist as had been claimed by the applicant, having regard to the applicant's admissions about what the officers were investigating and the Tribunal's view that the officers were investigating crime as was their duty.

8. The Tribunal also relied on inconsistencies in the applicant's evidence, to which I shall return, to reject his claim that his shop was burnt down in February 2002, or that he saved his life by running away from the scene. It did not accept that the applicant was a person to whom Australia has protection obligations.

9. The applicant commenced proceedings in this Court on 30 December 2003. He relies on a further amended application filed in Court. There are two grounds. The first is that the Tribunal had found that there was an inconsistency in the applicant's version of events in relation to whether he saved his life by running away from the scene of the February 2002 fire and that it fell into jurisdictional error in making this finding.

10. The second ground is that in, finding that it was not satisfied that the attackers who assaulted the applicant in March 2002 were members of the BJP, RSS and Shiv Sena the Tribunal denied the applicant procedural fairness giving rise to jurisdictional error.

The "inconsistency issue"

11. The applicant's initial claims in relation to his protection visa application are contained in a letter from his migration agent, which commences:

The applicant instructs us as follows -

The letter then makes a number of claims about the applicant's background and events which he claimed had occurred. The particular claim in relation to the alleged burning of his shop is contained in paragraph 11 of that letter. It describes events in February 2002, and terrorist activities and continues:

In repercussion Hindu-Muslim riots were ignited and inflicted in the entire nation. Applicant's one shop at Calicut was burnt down and he saved his life by running away from the secene [sic].

12. In connection with his protection visa application, the applicant signed two declarations confirming that the information he had supplied was complete, correct and up-to-date in every detail.

13. The only evidence of what occurred at the Tribunal hearing is in the Tribunal reasons for decision which state relevantly:

The Tribunal asked the applicant about his claim that his shop had been burnt down. The applicant said that he had been working in the Calicut store during the day when about ten men came to the store and attacked him. The Tribunal asked the applicant if he knew the attackers and he said he suspected they were members of the BJP, RSS and Shiv Sena because they said, "Don't co-operate with the different parties", and they wanted money. The applicant said the shop was burnt that night whilst he was at home.

14. The Tribunal put to the applicant that in his visa application he had stated that he, "saved his life by running away from the scene", and that this was inconsistent with the oral evidence that he was at home. The Tribunal recorded that the applicant repeated that he was not in the store during the fire. Relevantly the Tribunal also asked the applicant why he did not mention in the visa application that he had been attacked on the day of the fire. He replied that he "must've forgotten".

15. In rejecting the claims that the shop was burnt down, and that the applicant had saved his life, the Tribunal relied, among other things, on an inconsistency in the applicant's version of events. The inconsistency was that in the application for a protection visa the applicant had stated that the store in Calicut was burnt down and that he saved his life by running away from the scene, whereas in the hearing he had stated that he had been working in the Calicut store during the day and was not present when the store was burnt down, and that it was burnt down during the night while he was at home. The Tribunal also had regard to the absence of any supporting evidence.

16. The Tribunal also rejected the fabricated claim that he was attacked on the day of the fire in light of the absence of mention of such claim in the application and the unconvincing explanation for this absence.

17. The applicant contended in written submissions that the claims in the protection visa application had been written by the migration agent, that it was possible that the agent made an error in recording the claims and that the Tribunal had erred in failure to confirm with the applicant at the hearing that the claims in his protection visa application were correct and in failing to have regard to the fact that the claims in the protection visa application were written by the migration agent and that the agent may have made an error in recording the claims. It was submitted that where a decision maker fails to have regard to a relevant matter, there is jurisdictional error on the basis referred to in MIMA v Yusuf (2001) 206 CLR 323.

18. The applicant's counsel also contended that at the time the Tribunal was questioning the applicant about the difference between the information in his protection visa application and his oral evidence it should have given him a copy of the pages of the protection visa application setting out his claims on the basis that the applicant would have then identified the error made by his migration agent. It was submitted that the Tribunal's failure to give to the applicant a copy of the relevant pages in his protection visa application constituted a denial of procedural fairness.

19. In response the respondent asserted first that no evidence had been provided in support of the claims that the Tribunal had failed to confirm with the applicant at the hearing that his claims were correct or that the Tribunal had not given a copy of the pages of the protection visa application to the applicant in the hearing. The applicant argued that the court should infer that the Tribunal did not put such matters to the applicant in the course of the hearing because the Tribunal reasons were detailed and appeared to contain a full record of questions and answers. It was submitted that because the Tribunal did not record that it confirmed that the claims were correct or that it put a copy of the protection visa application to the applicant the court, it should be inferred that such questions were not asked. No authority was provided to support this proposition. It was said to be a question of fact for the court to determine in light of, among other things, the detail given by the Tribunal of the conduct of the hearing and the relative importance of the question.

20. I am not prepared in the circumstances of this case to draw the inference sought by the applicant. It was open to the applicant, who is legally represented, to put the transcript of the hearing before the court had he chosen to do so. Indeed, not only were orders made at the original directions hearing for the filing of any evidence on which the applicant proposed to rely on or before 2 April 2004, but also on 28 September 2004, when the matter was finally listed for hearing after some other proceedings, an order was made for the applicant to file and serve any further evidence upon which he wished to rely by 15 October 2004. This was at a time when he was legally represented.

21. No transcript has been filed and there is no suggestion that the tapes of the Tribunal hearing are not available or are in any way defective.

I refer in that respect to a decision of the Full Court of the Federal Court in MIMIA v NAMW [2004] FCAFC 264 at [121]-[122]. In that case the court was prepared, in what it described as somewhat unusual circumstances, to infer on the balance of probabilities that relevant country information was not raised by the Tribunal with the respondent. There are no such unusual circumstances in this case. It was open to the applicant to put the transcript of the Tribunal hearing before the court. I do not consider that the Tribunal reasons for decision are such that it is appropriate that the court should infer that it is clearly a complete record of what occurred in the hearing such that had the matters referred to by the applicant been raised in the hearing they would necessarily have appeared in the Tribunal reasons for decision. This is particularly so in relation to the suggestion that it should have been confirmed that the claims were correct. There are two written confirmations by the applicant that his claims were correct in the protection visa application. The Tribunal reasons address the substance of the events which occurred to him. This does not make it appropriate to infer from the nature of the Tribunal reasons for decision that the Tribunal did or did not put to the applicant these matters.

22. The factual basis for this ground is not established. Moreover, even if it were correct to draw the inferences that the applicant seeks to be drawn as to what occurred in the Tribunal hearing, that would not dispose of the matter. What is critical, and it is recorded in the Tribunal reasons for decision, is that the Tribunal put to the applicant the inconsistencies that it perceived between the claims made in the protection visa application and the claims made at the hearing (not only in relation to whether he ran away from the store during the fire but also as to why he did not mention in the visa application that he had been attacked on the day of the fire). In other words the perceived inconsistency in the applicant's written and oral evidence was identified and he was given an opportunity to comment on such inconsistencies. Such comments were taken into account by the Tribunal. The findings of fact in relation to the inconsistencies were open to the Tribunal on the material before it and were matters for the Tribunal.

23. I am not satisfied that the Tribunal is obliged to give to an applicant a copy of his own protection visa application where it expresses concern about inconsistencies between the claims at that time and the time of the hearing. There is nothing in the material before me to suggest that the applicant took issue with the Tribunal account of his claims at the stage of the protection visa application such as might have given rise to a need to clarify precisely what was said at that time. On the material before me the Tribunal gave the applicant relevant particulars of the information contained in his protection visa application for comment. No lack of procedural fairness or failure to have regard to a relevant consideration has been established.

24. Further the Tribunal failure to mention specifically in its reasons for decision that the claims made at the protection visa application stage appeared in a letter from a migration agent and hence may have been the result of an error by the migration agent does not amount to a failure to have regard to a relevant consideration. The claims were adopted by the applicant in the protection visa application. They were made on the instruction of the applicant according to the migration agent. The Tribunal accurately summarised the claims and had regard to the elements or integers of the applicant's claims. It has not erred in the manner contended.

The March 2002 incident issue

25. The second claim relates to the Tribunal consideration of an incident in March 2002 when the applicant claimed that he was assaulted while walking home. The Tribunal accepted that he was assaulted while walking home but was not satisfied that the attackers were members of the BJP, RSS and the Shiv Sena.

26. The applicant's evidence in that regard at the Tribunal hearing had been that he was attacked suddenly by four or five men who hit him with a stick that looked like a hockey stick and that he was certain that they were members of BJP and RSS. No other evidence is recorded by the Tribunal and there is nothing before the court to suggest that any other evidence was provided by the applicant in support of his claim as to the identity of his attackers. The Tribunal found that the applicant was speculating that the attackers were members of the BJP, RSS and Shiv Sena. The applicant contended that the Tribunal erred in failing to put to him its concerns that the attackers were not members of the BJP RSS and Shiv Sena and give him an opportunity to comment. This was said to constitute a denial of procedural fairness.

27. As Gummow and Hayne JJ pointed out in Abebe v The Commonwealth 197 CLR 510 at [187]-[188], (in dismissing a similar claim that there was a want of procedural fairness in a Tribunal not putting to an applicant a suggestion that her story (of detention and rape) was untrue) the proceedings before the Tribunal are inquisitorial. The Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument he or she wishes to advance in support of his or her contention that he or she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

28. It was contended by the applicant that the circumstances in Abebe could be distinguished because in that case (as pointed out in [188]) the applicant knew that her claims about her detention and rape might not be accepted because the primary decision maker had found her not to be a reliable witness and had expressed grave doubts about her credibility. However it may similarly be said that in this case the delegate did not accept the applicant's claims. Moreover the delegate referred specifically in the reasons for decision to the vagueness and lack of detail in the applicant's claims, the absence of information as to the dates on which he was allegedly attacked, the circumstances under which such attacks occurred, the action taken by the police after the attack in 2000 and the means by which threats were made against his life. The Tribunal relied, among other things, on the lack of supporting evidence as well as the broadness, vagueness and lack of detail of the claims. In such circumstances it cannot be said that the applicant in this instance was not aware that his claims might not be accepted. It was for the applicant to make out his case and a matter for the Tribunal to consider whether it accepted those claims.

29. Similarly, the applicant's reliance on the decision of the Full Court in WACO v MIMIA [2003] FCA 171 does not assist. The Tribunal rejected the claim because it was merely speculative. There was no evidence other than the applicant's claim. It did not reject the claim for some reason personal to the applicant as was posited in WACO where it was suggested (at [46]) that in such circumstances it may be necessary to give notice to the applicant that the decision maker had formed a view adverse to the applicant so as to afford him or her the opportunity to put to the decision maker arguments or evidence to the contrary as part of the requirements of procedural fairness referred to by Mason J in Kioa v West (1985) CLR 585 at 587. As was said by the Full Court in WACO at [46] after referring to that general principle:

There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker without notice to him has rejected what was put forward.

30. That aspect of what was said by the Full Court is applicable in this instance. The applicant knew what he was required to prove and was given the opportunity to do so. The Tribunal did put to the applicant conflicting or inadequate aspects of his claims. It is not required in such circumstances to advise the applicant of its thought processes or to invite comment on such thought processes. (See Kioa v West per Mason J at 587).

31. No jurisdictional error has been established. Accordingly the application must be dismissed.


RECORDED : NOT TRANSCRIBED

32. The applicant has been unsuccessful. There is nothing in the circumstances of this case to indicate that it is appropriate to depart from the usual rule that the unsuccessful applicant should meet the costs of these proceedings. The respondent seeks that the court fix the costs. There were earlier proceedings in this matter, the application having been dismissed for non-compliance and then reinstated. Costs at that stage were reserved.

33. The respondent did not instruct counsel. It was conceded by counsel for the applicant that the issues in this case were not particularly complex. However bearing in mind the extent of the proceedings the costs clearly are greater than would have been incurred had there simply been a final hearing. In all the circumstances of this case I consider that an amount of $5,000 is appropriate.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 23 November 2004
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