FEDERAL COURT OF AUSTRALIA

SZLVU v Minister for Immigration and Citizenship [2008] FCA 1437

Migration Act 1958 (Cth)

SZLVU and SZLVV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 904 of 2008

REEVES J

19 SEPTEMBER 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against a judgment of Federal Magistrate Emmett delivered on 30 May 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 11 December 2008 and affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellants.

BACKGROUND – SUMMARY OF FACTS

2                     The appellants are a husband and wife, citizens of India, who arrived in Australia on 9 April 2007.  On 10 April 2007, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application on 5 June 2007.  On 2 July 2007, the appellants applied to the Tribunal for a review of that decision.

3                     The appellant wife (SZLVV) made her claims as a member of the family unit of her husband (SZLVU) (‘the appellant’). In his visa application form, the appellant set out several bases for his claims to fear political persecution in India, which may be summarised as follows:

·                    As a student the appellant studied at the same college as a ‘Mr Britto’ and the appellant refused his request to become a member of the Students Federation of India (‘SFI’). Threats by Mr Britto led the appellant to join the Kerala Students Union (‘KSU’) for protection.

·                    In 1983 members of the SFI and KSU attacked each other, leading to a series of further attacks, one of which left Mr Britto paralysed.

·                    The appellant claimed that three of his friends were killed in counter attacks in 1984 and 1989 and the appellant now believes ‘the turn has come’ for him.

·                    The appellant and his family were forced to leave India due to continued threats and torture by the Communist Party of India (Marxist) (‘CPI(M)’) over the last thirty years.

·                    The appellant alleged attacks were made on him, his wife and his home in 1990, 1996 and 2006 and that following the alleged attacks in 1990 and 1996, criminal cases were made against the CPI(M) ‘[g]oondas’ (thugs) but these cases are still pending.

·                    The appellant claimed that he will not be afforded protection from the Indian National Congress party because he was previously a supporter of the Democratic India Congress and that he is unable to relocate within India as he does not speak Hindi and would be unable to do business outside Kerala.

4                     The appellant attended a hearing before the Tribunal on 3 September 2007 and gave oral evidence. The appellant wife did not attend due to illness. Before the Tribunal, the appellant adopted the claims made in his visa application and gave evidence to the effect that he did not witness the stabbing of Mr Britto and only knew of it ‘when the people ran away’.

5                     The Tribunal records that it put to the appellant its concerns about inconsistencies in his evidence in a s 424 letter, dated 6 September 2007. These concerns related to events which the Tribunal considered to be central to the appellant’s case, specifically the details of the alleged murder of his friends and the details of the subsequent series of attacks on the appellant and his house. The Tribunal also sought the appellant’s comment on the fact that a separate claim, made by another appellant, appeared to have similar facts and that appellant appeared to have the same address as this appellant.

6                     The appellant responded in writing on 12 November 2007 stating (apparently by way of explanation for the inconsistencies in his evidence) that he sometimes lost his memory following surgery on his throat and so was unable to furnish ‘the exact details at the time of the hearing as I have given in the protection visa application’. He stated that he had denied knowledge of a friend in Australia – the person with the shared address - at the time of the hearing as he feared it might cause trouble for his friend.

THE TRIBUNAL’S DECISION

7                     The Tribunal did not accept that the appellant was a credible witness, citing inconsistencies in his evidence which it said were ‘so material to the [appellants’] claim that the Tribunal … concluded that the [appellant’s] evidence in this regard is not credible and he did not suffer the harm claimed’. The four main inconsistencies addressed by the Tribunal in its Decision Record are as follows:

1.                  In the statement accompanying the appellant’s visa application he said that Matthew Xavier was killed by Communist ‘goondas’ on 24 November 1984 and that two others, Boney Uarghese and Kennot John were killed on 30 April 1989. He then gave oral evidence at the hearing that Matthew Xavier and Boney Uarghese were both killed on 24 November 1984. The Tribunal did not accept that the appellant would be unable to remember with accuracy which of his two friends had died at the same time.

2.                  In the statement accompanying the appellant’s visa application he said that he was attacked while riding a bicycle through Thoppumpady in 1990 and a police case was still pending in relation to that, but at the hearing he claimed that he and his wife were attacked while riding a scooter to the appellant wife’s house at Cochin in 1990 and that no criminal action had been taken.

3.                  In the statement accompanying the appellant’s application he said that in 1996 he and his wife were attacked while riding a scooter in Kaloor and he was seriously injured by a knife wound to the neck. During the hearing, he said that in 1996 there was an attack on his house by three or four people during which he and his mother were attacked.  He said he was injured ‘by a fist to his throat’.

4.                  The appellant’s statement accompanying his visa application stated that in October 2006 fifteen to twenty CPI(M) ‘goondas’ had attacked his house, yet during the hearing he said that there had been five or six attackers.

8                     The Tribunal did not accept that the appellant could fail to accurately recollect such significant details of these incidents, had the incidents in fact taken place.  As noted, in his letter dated 12 November 2007, the appellant claimed that these inconsistencies occurred because after surgery on his throat to remove his thyroid gland, he sometimes loses his memory.  The Tribunal rejected this explanation in the following terms:

‘The Tribunal accepts that the applicant may have had surgery to his thyroid gland but does not accept that he would not be able to be consistent about such important details as whether his neck injury was caused by a knife or a fist, dates when friends were killed, details of attacks on him, injuries and police involvement.  The applicant was able to recall many details without any memory loss.  Consequently, the Tribunal does not accept that the inconsistencies can be explained by memory loss caused by thyroid gland surgery’.

9                     The Tribunal also concluded that although in the past the appellant had been a member of the KSU, the appellant’s decision to discontinue his political involvement was not by reason of the attack on Mr Britto. Further, the Tribunal did not accept that the appellant had been involved in the attack in 1983 in which Mr Britto was seriously injured or that he had left India due to the alleged reprisal attacks on him.

10                  The Tribunal rejected the appellant’s claim to hold a genuine fear of further harm related to the attack on Mr Britto, or the appellant’s political opinion, or an opinion that may be imputed to him, if he were to return to India.  It determined:

‘The material before the Tribunal does not indicate any factors which give rise to a real chance of prospective persecution for reasons of his political involvement if he was to return to India.   The Tribunal does not accept that CPI(M) Goondas under the direction of Mr Britto continue to threaten the lives of him or his family, or that they would do so if he returned and continued to participate in political activities’.

11                  In these circumstances, the Tribunal was satisfied that it was not necessary to consider the issue of relocation.  Overall, it was satisfied that the appellant did not hold a well-founded fear of persecution now or in the reasonably foreseeable future for reasons of political opinion or imputed political opinion and it affirmed the decision of the delegate.

THE FEDERAL MAGISTRATE’S DECISION

12                  The appellant filed an amended application for review in the Federal Magistrates Court on 3 April 2008. The grounds advanced by the appellant before the Federal Magistrate may be summarised as follows:

1.      The Tribunal in making its determination failed to make its decision in accordance with s 430 of the Migration Act 1958.

Particulars:

a)       The Tribunal made no finding as to the extent or nature of the persecution suffered by the appellant (‘Ground 1a’).

b)       The Tribunal however found that the appellant does not have a well –founded fear of persecution now or in the reasonably foreseeable future for reasons of political opinion but did not give reasons for finding (‘Ground 1b’).

2.      The Tribunal did not give to the appellants before the hearing the information it had about the history of the Kerala politics and it did not give to the appellant the country information it had about Kerala. The Tribunal used this information (RRT decision pages 6-11). This was against section 424A of the Migration Act 1958 (‘Ground 2’).

3.      The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.

Particulars:

a)      Whether the Indian authorities provided a standard of protection comparable with international standards (‘Ground 3’).

4.      The decision of the Refugee Review Tribunal was effected by jurisdictional error in that it did not take into account certain relevant consideration or ‘integers’ central to the appellant’s clams; because he spent a long time being questioned without a break and felt stressed and intimidated (‘Ground 4’).

5.      The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

Particulars:

a)      The Tribunal did not consider the appellant who had been under immense and intimidation pressure from CPI(M) ‘toughs and goons’ (‘Ground 5’).

b)      In relation to above the Tribunal did not consider the appellant’s claim that his political activities resulted in threats by CPI(M) members. The Tribunal also failed to acknowledge that his family members also suffered in political conflict (‘Ground 6’).

6.      The Refugee Review Tribunal failed to find that the appellant satisfied the definition of ‘refugee’ as defined in Article 1A(2) of the Convention (‘Ground 7’).

7.      The Tribunal failed to analyse properly the ‘future harm’ the applicant may face and to assess or carry out the ‘real chance’ test (‘Ground 8’).

13                  Federal Magistrate Emmett, in dismissing the application for judicial review, made the following findings:

a)      In relation to Grounds 1a and 3

The Tribunal was not required to make findings on the degree or severity of persecution suffered by the appellant, in circumstances where the Tribunal had rejected the appellant’s underlying factual claims due to its adverse credibility finding. The appellant should have been aware that his credibility was in issue (SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63) and the Tribunal’s concerns had been put to him in the hearing and within the s.424 letter.

b)      In relation to Ground 1b

In reaching its conclusion that the appellant did not hold a well-founded fear of persecution for reasons of political opinion or imputed political opinion the Tribunal had well understood the claims made by the appellant, had considered all the evidence adduced in support, had put inconsistencies in his account to him in line with s 424A(1) of the Act, and had provided sufficient written reasons.  The findings the Tribunal made were open to it on the evidence before it.

c)      In relation to Ground 2

Country information concerning politics in Kerala is excluded from the operation of s 424A(1), by s 424A(3)(a) of the Act, noting the discussion in VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.

d)      In relation to Ground 4

As recorded by Tribunal staff, the hearing lasted three hours with a twenty minute break during the hearing. To the extent that the appellant intended to complain about being questioned by the Tribunal for a long period without a break, no evidence was adduced to support the contention.  The Tribunal’s Decision Record shows no complaint made by the appellant regarding stress or intimidation. The Court is entitled to treat the Tribunal’s Decision Record as accurate in these circumstances (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]; SZIWK v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 168 at [15]).

e)      In relation to Ground 5

The Tribunal had considered the appellant’s claim that he feared attacks from CPI(M) ‘toughs and goons’  and had taken particular note of them but it did not in the end accept them. Again, these findings were open to the Tribunal on the evidence before it.

f)        In relation to Ground 6

The Tribunal had considered the appellant’s claim that his political activities resulted in threats by CPI(M) members and the further claim that his family ‘suffered in political conflict’, but it specifically rejected these claims based on the inconsistencies in the appellant’s evidence regarding the injury to his wife in 1990 and 1996.

g)      In relation to Ground 7

It is for the appellant to satisfy the Tribunal that he meets the statutory criteria for ‘refugee’ status. The Tribunal, having found itself not satisfied, was bound to affirm the decision under review in accordance with s 65(1) of the Migration Act 1958 (Cth) (‘the Act’). This ground was essentially seeking impermissible merits review.

h)      In relation to Ground 8

The Tribunal found that the material before it did not indicate a ‘real chance’ of ‘future harm’ to the appellant. The Tribunal had rejected the appellant’s evidence of past harm by reason of any political opinion, imputed political opinion or religion and this finding was open to the Tribunal on the evidence and material before it.

14                  In conclusion, the Federal Magistrate found that the Tribunal had correctly understood the claims made by the appellant, and sufficiently explored those claims with the appellant and put to him its concerns about his evidence and noted his responses. The Tribunal had reached its conclusions based on the evidence before it and had applied the correct law in reaching those conclusions. Her Honour dismissed the appellant’s application accordingly.

GROUNDS OF THE PRESENT APPEAL

15                  The appellant filed a notice of appeal in this Court on 18 June 2008. The notice of appeal raises a single ground, numbered ‘2’ by the appellant:

The Court below erred in that ought to have held that the on the evidence before the Tribunal it was open to the Tribunal to find that the appellants were a refugee[sic] within the meaning of the Act.  In such circumstances the Tribunal erred in that:

Particular:

i.               it failed to properly apply the consideration that the applicants for refugee status ought to be given the benefit of the doubt inc circumstances where the Tribunal entertained the possibility that the applicants claims are plausible, which was the case here.

THE CONTENTIONS

16                  At the hearing of the appeal before me on 17 September 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms McWilliam appeared for the first respondent. 

17                  The appellant had earlier submitted an outline of written submissions.  In it he repeated the single ground of appeal raised in the notice of appeal, but added a new paragraph to the effect that: ‘[The Tribunal] failed to address the residual question as to how it should hold in the event that its finding that the appellant was not at risk of persecution was wrong’.  In addition, he set out a series of further matters which did not address the single ground of appeal, bur instead appeared to re-agitate many of the matters raised in the grounds of review before the Federal Magistrate and sought to raise two entirely new allegations: one of a denial of procedural fairness and the other, a complaint that the Tribunal was affected by actual bias. 

18                  In his oral submissions, the appellant merely said that he had ‘a lot of problems in India’ and he ‘was very frightened for his life’ if he returned there. 

19                  Ms McWilliam relied upon the outline of written submissions and the further outline of written submissions that had earlier been filed on behalf of the first respondent – the former addresses the single ground in the notice of appeal and the latter addresses the further matters raised in the appellant’s outline of written submissions.  In its initial written submissions, the first respondent submitted that:

‘This matter was not raised before the Federal Magistrate and since it is without merit the appellant should not be given leave to raise it before this Court.  The ground is without merit because the Tribunal had rejected the appellant’s claims after it found him not to be generally credible.  The Tribunal does not have to possess rebutting evidence before holding that a particular assertion is not made out, or to accept uncritically any and all claims made by an appellant.  It is for the appellant to satisfy the Tribunal that all of the relevant statutory elements are made out.

20                  In the subsequent written submissions, the first respondent submitted that most of these matters were not raised below and would require leave to be raised before this Court.  Leave should not be granted because none of the matters has any merit.  As to the matter that had been raised below, the first respondent essentially repeated the submissions above (under the hearing ground 1(b)).  As to the matters that had not been raised, using the headings adopted by the first respondent, the submissions may be summarised as follows:

(a)        Ground 1(a) – Failure to address residual question as to how it     should hold in the event that its finding that the appellant was not     at risk of persecution was wrong

            It is clear that the Tribunal had made a firm adverse credibility    finding, based on its view that the inconsistencies in the appellant’s            evidence were so material to the claim that he did not suffer the harm    claimed.  It was not, therefore, required to consider the position in the    event that its finding was wrong.

(b)       Ground 2 – Failure to comply with s 430 of the Migration Act 1958         

            The Tribunal found that the appellant did not suffer the harm claimed,     thus making it unnecessary to consider ‘the extent or nature’ of any            harm suffered.  Its reasons for finding that the appellant had not       suffered persecution are readily discernible as part of its reasons for       determining that the appellant’s evidence lacked credibility.  The      Tribunal manifestly recorded the facts that led it to make such a finding.

(c)        Ground 3 – Denial of procedural fairness: failure to afford the      opportunity to be heard on the issue of whether the appellant was    a credible witness

            The Tribunal is not required to give the appellant ‘a running        commentary’ on what aspects of his claims will and will not be          believed.  But in any event, the Tribunal had raised the issue of the             appellant’s credibility, and the reasons for its concerns, at the hearing     and expanded on that concern in a letter sent pursuant to s 424A of    the        Act.

(d)       Ground 4 – Adequate evidence provided

            This is a complaint about the merits of the Tribunal’s decision.  Such      matters are not reviewable in either the Federal Magistrates Court or          this Court.

(e)        Ground 5 – Failure to investigate and actual bias

            Section 424 of the Act gives the Tribunal power to obtain any   information that it considers relevant when conducting the review, but           does not impose any obligation on the Tribunal to undertake its own             investigation.

            As to the complaint of bias, such an allegation must be distinctly             made and clearly proved and it is not in the present case.  Moreover, it    is well established that it is a rare case in which bias, on the part of the        Tribunal, whether actual or apprehended, will be established from its      written reasons.

(f)        Failure to analyse properly the future harm the appellant may      face; failure to carry out the ‘real chance’ test

            The Tribunal properly assessed whether there was a ‘real chance’ in      the reasonably foreseeable future of any harm being suffered by the            appellant for a Convention reason.  The Tribunal’s reasons on that point show that the Tribunal did not neglect to analyse the ‘future           harm’ allegedly feared by the appellant if he were returned to India.

            Rather, the Tribunal’s adverse credibility finding caused it to reject the   appellant’s claims, which in turn caused the Tribunal to reject the     possibility of future harm to the appellant.  The Tribunal’s assessment       of the possibility of future harm was a finding of fact, open to the            Tribunal to make.

CONSIDERATION

21                  In relation to the single ground of appeal raised in the notice of appeal, on a generous interpretation, it appears to be similar to the seventh ground of judicial review raised before the Federal Magistrate.  Both grounds appear to allege that the Tribunal should have proceeded to find that the appellant was a ‘refugee’ within the meaning of that term in the Act.  I consider that the Federal Magistrate was quite correct in rejecting that ground for the reasons her Honour stated (see [13(f)] above).  Furthermore, once the Tribunal had found on credibility grounds that the appellant did not have a genuine fear of persecution, there was no necessity for the Tribunal to consider whether or not the other elements of the definition of ‘refugee’ in the Act might have applied to him.  Therefore, the single ground of appeal raised in the notice of appeal has no merit.

22                  As to the additional matters raised in the outline of written submissions filed by the appellant, these appear largely to replicate the grounds of review that were raised before the Federal Magistrate.  Putting aside the obvious deficiency that all of these matters complain about the Tribunal’s decision and do not allege error on the part of the Federal Magistrate, I have considered her Honour’s reasons in relation to each of the matters that were raised before her Honour and I respectfully agree with her Honour’s reasons for rejecting all of them.  Specifically, I agree with her Honour that there was no breach of s 430 of the Act (see [13 a)]above), there was no breach of s 424A of the Act (see [13 b)]and [13 c)] above) and there was no failure to consider or analyse any of the appellant’s claims (see [13 e)], [13 f)] and [13 h)] above). 

23                  As to the matters that were not raised before Federal Magistrate Emmett, I agree with the written submissions of Ms McWilliam that there was no denial of procedural fairness (see [20(c)] above), and no basis for concluding that the Tribunal demonstrated apprehended or actual bias (see [20(e)]above).  It follows that neither of these additional matters raised by the appellant in his written outline of submissions has any merit.

24                  In my view, therefore, the Federal Magistrate did not commit any error in reaching her decision and the Tribunal did not commit any jurisdictional error in reaching its decision. 

CONCLUSION

25                  For these reasons, I order that this appeal be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         19 September 2008