FEDERAL COURT OF AUSTRALIA

SZMPN v Minister for Immigration and Citizenship [2009] FCA 203

SZMPN and SZMPO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1925 of 2008

MCKERRACHER J

6 MARCH 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants are to pay the costs of the first respondent fixed at $2,300. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website..

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellants are husband and wife, and citizens of India.  They arrived in Australia on 30 November 2007.  On 4 January 2008 they lodged an application for a protection visa with the Department of Immigration and Citizenship.  Only the husband pursued a claim for refugee status.  His wife relied on his claims as a dependent family member.  (The appellant husband will be referred to as the appellant)  A delegate of the first respondent refused the application for a protection visa on 28 March 2008.  On 11 April 2008 the appellants applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  The Tribunal affirmed the delegate’s decision.

2                     This is an appeal from a judgment of a Federal Magistrate delivered on 11 December 2008 (SZMPN & Anor v Minister for Immigration & Anor [2008] FMCA 1702).  His Honour dismissed an application for judicial review of the decision of the Tribunal handed down on 17 July 2008.  

THE APPELLANTS’ CLAIMS

3                     The appellant claimed to fear persecution because of his political opinion.  He claimed that he lived in Mumbai and worked in the cloth manufacturing business.  He had gone into that business partnership with another man whom he claimed was a member of the Congress Party.  His partner suggested to the appellant that he join the Bharatiya Janata Party (BJP) with a view to keeping his business partner informed about information concerning that party.  After an incident in Mumbai in which trains were bombed, one of the appellant’s workers at the factory was arrested by the police.  The appellant feared that he would also be implicated in the bombings because this person worked for him.

4                     He claimed that he was threatened by anti-social elements.  One night when returning home he was attacked by people on motorbikes, was injured, and had to visit the doctor.  He was frightened about going to the police and therefore decided to leave India with his wife to seek protection in Australia.  He was frightened to return to India because he thought the people who attacked him might kill him.  

5                     The delegate did not accept that Congress Party members threatened or attacked the appellant and found that even if his claims of fear of harm were accepted, the fear of harm was limited to the immediate period following the bombings and the risk did not continue.  The appellants could access effective state protection or relocate within India to avoid harm.  Accordingly, the appellant’s fear was not well-founded.

BEFORE THE TRIBUNAL

6                     The Tribunal put to the appellant at the hearing that it found his oral evidence ‘confused and vague’ such that it doubted that what he was saying was true.  It also expressed doubt that his claims were Convention related.  The appellant claimed that he feared harm on the basis of his political opinion because he was a member of the BJP and his partner was a member of the Congress Party.  When the Tribunal brought to his attention the fact that he had earlier stated that he had no real interest in politics, the appellant claimed that since joining the BJP he had developed a genuine interest in politics.  By raising such matters with the appellant during the course of the hearing, the Tribunal placed him on notice of the determinative issues on the review. 

7                     The Tribunal accepted that the appellant was a Hindu from Mumbai and had worked in the clothing industry.  It did not accept that he or any associate had been involved in the bombings in Mumbai in 2006.  The Tribunal did not find him to be credible and thought his evidence was evasive and shifting.  The Tribunal found that the appellant’s oral and written evidence on his belief as to harm and motivation for such harm to be most unconvincing.  It found evidence about the link between the claimed arrest of an employee following a bomb attack on the train and threats of harm to him were most unclear.

8                     The Tribunal also noted that:

… the applicant could not elaborate in a meaningful way as to approaches he had made to the Indian authorities in respect to his claimed threats.  Nor did he provided (sic) an explanation as to why he could not avail himself of the protection of the Indian authorities in respect to his claimed fear of future harm, over and above the general statement that his business partner had contacts in the government.

9                     The Tribunal was not satisfied that the appellants were persons to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention) and affirmed the decision of the delegate not to grant the appellants a protection visa.

THE FEDERAL MAGISTRATES COURT

10                  Before the Federal Magistrate the appellants claimed that:

1.                  The Tribunal's decision was in breach in s 424A(1) of the Migration Act 1958 (Cth) (the Act) by not disclosing certain information being:

(a)        Independent evidence PP6.

(b)       US Department of State country report 2002 PP5.

(c)        The Indian Central Bureau of Investigation PP6.

2.                  The Tribunal made an error of law and lacked procedural fairness. 

3.                  The Tribunal denied the appellants natural justice because it failed to provide him further time to produce other evidence.

11                  The learned Federal Magistrate, in relation to the alleged breach of s 424A of the Act, was unable to find any reference to any of the documents which the appellants referred to in the report of the delegate or of the Tribunal or elsewhere.  His Honour therefore concluded that ‘in all probability’ the person who completed the appellants’ application for judicial review included this ground in error.  

12                  In any event, the reason for the Tribunal’s decision was its inability to be satisfied on the basis of the appellant’s ‘ambivalent’ and ‘vague’ evidence that he was a witness of truth.  ‘Information’ for the purpose of s 424A does not include ‘the existence of doubts, inconsistencies or the absence of evidence’:  SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.  Nor does it extend to ‘conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps etc...’:  VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477.  Accordingly, there is no ‘information’ that enlivened the Tribunal’s obligations pursuant to s 424A and no breach of that section had occurred.  No error is revealed in the approach and finding of the learned Federal Magistrate. 

13                  In relation to ground 2, his Honour noted that no particulars were provided by the appellants.  Nor was his Honour able to detect any breach.  He noted that this was a matter to which s 422B of the Act applied and in the absence of any meaningful particulars the Court could not assist the appellants. 

14                  The application of s 422B to this matter meant that the Tribunal was not required to afford the appellants common law natural justice:  Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.  The appellants were entitled only to the rights afforded to them under Pt 7 of the Act and the Tribunal’s compliance with those requirements means that the appellants were accorded procedural fairness. 

15                  Finally, in relation to ground 3, his Honour found that there was no indication from the Tribunal's grounds and reasons that it was ever asked for further time to produce additional evidence, and in the absence of a tape or a transcript, his Honour was unable to take this complaint any further.  The Tribunal could not be criticised for failing to have regard to the request for further time where the appellants had failed to provide any evidence or information to demonstrate that such a request was ever made to the Tribunal.  It was the appellants’ responsibility to make out their case before the Tribunal and the Tribunal was under no obligation to make inquiries:  Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.

16                  The learned Federal Magistrate also heard the appellant on his complaint of a statement made by the Tribunal member that ‘he should return to India and if something went wrong it could be their responsibility’.  The appellant could not take the learned Federal Magistrate to any evidence of this statement being made or in what context and therefore, he was unable to take this complaint any further.  His Honour noted that there was no evidence before the Court to support this assertion and, in any event, such a statement made without context did not satisfy his Honour that any error of law on the part of the Tribunal had been committed. 

17                  His Honour noted that the onus was on the appellants to demonstrate that the Tribunal had made an error of law and it was not for the Court to ‘hazard a guess’ at the reason for any such comment by the Tribunal:  Abebe v The Commonwealth (1999) 197 CLR 510. 

18                  As no jurisdictional error was established, his Honour dismissed the application.

GROUNDS OF APPEAL

19                  The notice of appeal raises the following ground:

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

Particular:

It failed to properly apply the consideration that the applicant for refugee status ought to have be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the [appellant] claims are plausible, which was the case here.

20                  At the hearing of the appeal before me the appellants expressly relied upon their written submissions.

21                  Those written submissions repeated the ground of appeal in the first paragraph.  The remaining three paragraphs raised three new matters.  The first complaint was that the Tribunal denied the appellants procedural fairness by reaching an adverse conclusion that the appellant was not a credible witness being a conclusion that was not obviously open on the known material without giving him the opportunity to be heard in respect of those matters.  This submission must be rejected.  The Tribunal made clear its reasons for not accepting the credibility of the appellant.  According to its reasons, it pressed the appellant for more precision in the course of the hearing and informed him that it found his oral evidence to be confused and vague and that it doubted that his evidence as to perceived or likely harm was true.  The credibility conclusion is not susceptible to review.

22                  The next paragraph of the submissions contends that the appellant’s circumstances satisfied all the four elements of a ‘refugee’ as defined in Art 1A(2) of the Convention.  The elements were correctly stated in the submissions.  Once again though, it is clear that the Tribunal did not believe the appellant.  It did not accept he feared persecution or that there was a credible basis for his fear of persecution.  Its reasons for so concluding were reasonable and were the subject of discussion in the course of the hearing before the Tribunal.  An opportunity was given to the appellant to make submissions on the topics which were relevant to the Tribunal’s credibility finding.  The submission is not accepted.

23                  The fourth paragraph in the appellant’s submissions contends that the Tribunal failed to investigate the claims, specifically the grounds of persecution in India.  Therefore the decision was affected by actual bias.  As mentioned, this submission does not support the ground of appeal but, in any event, it is without merit. 

24                  The circumstances in which it may be possible to demonstrate bias by reference to the written reasons of a decision alone are rare and exceptional (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [37]-[38].  There is nothing on the face of the Tribunal’s reasons to indicate that it was biased.  Allegations of bad faith on the part of an administrative decision-maker are not to be lightly made and must be clearly alleged and proved (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at44; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127].  The appellant has not provided any particulars of bias or bad faith which would be sufficient to satisfy the heavy burden of establishing such allegations. 

25                  To the extent that the appellant complains about the Tribunal’s findings themselves, it is not for the Court to review the merits of the appellant’s claims or the fairness and correctness of the Tribunal’s findings as to those claims (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).  

CONSIDERATION OF THE APPEAL GROUND

26                  The appellants claim that the Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellants were refugees. 

27                  In assessing the applicant’s credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.  However, the Tribunal is not required to uncritically accept any or all of the allegations made by the applicant: Randhawa.

28                  The reasons of the learned Federal Magistrate do not address this contention because it was not raised in the proceedings before his Honour.  In any event, the ground is misconceived.  The principle referred to is contained in the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the United Nations High Commissioner for Refugees.  But the Handbook is to be regarded more as ‘a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention’:  Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ.  The Tribunal is under no obligation to uncritically accept any and all allegations made by an applicant:  Randhawa 52 FCR 437 at 451.  Moreover, the Handbook states that ‘the benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility’:  Randhawa at 451.

29                  Even if this guiding principle did impose some obligation on the Tribunal (which it did not), it is clear from the Tribunal’s decision that the Tribunal was not satisfied that the appellant was a truthful witness or that his claims were plausible.  The Tribunal, whilst accepting that the appellant was a Hindu from Mumbai working in the clothing industry, did not accept any involvement by himself or any associate in the bombings in Mumbai in 2006.  The Tribunal found that the appellant's oral and written evidence as to who he believed wished to harm him and their motivation for such to be most unconvincing.  It found evidence about the link between the claimed arrest of an employee following a bomb attack on the train and threats of harm to the appellant were most unclear.  The Tribunal, not unreasonably, made firm adverse credibility findings, on the basis that it found his evidence ‘most unconvincing’, ‘vague’, ‘ambivalent’, ‘evasive’, ‘shifting’ and ‘most unclear’.  The Tribunal did not find the appellant to be credible and thought his evidence was evasive and shifting.  As such, the appellant was not entitled to the benefit of any doubt. 

30                  It is well settled that credibility findings are a matter ‘par excellence’ for the Tribunal, which is not open to judicial review: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.  

31                  No jurisdictional error can be found in relation to the Tribunal’s decision. The Tribunal identified with particularity all of the appellant’s claims and supporting material before it; explored the appellant’s claims with him at a hearing; raised with the appellant the inconsistencies in his evidence; raised with the appellant its doubts over his claims; made findings based on the evidence and material before it; and, applied the correct law to its findings in reaching its conclusion that it was not satisfied that he was a person to whom Australia has protection obligations under the Convention.

32                  His Honour's conclusion was correct.

CONCLUSION

33                  The appeal will be dismissed.  The appellants are to pay the costs of the first respondent fixed at $2,300. 

Associate:

Dated:         6 March 2009