FEDERAL COURT OF AUSTRALIA

SZBJH v Minister for Immigration and Citizenship [2009] FCA 942

Migration Act 1958 (Cth) s 424A 

SZBJH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 591 of 2009

BUCHANAN J

24 August 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

BUCHANAN J:

1                          The present appellant’s claim for a protection visa has been considered four times by the Refugee Review Tribunal (“the RRT”) established under the Migration Act 1958 (Cth) (“the Act”).  On each occasion his claim for a protection visa has been dismissed and a protection visa refused.  On three prior occasions the matter was returned to the RRT because jurisdictional error in the processes or decision of the RRT was either found or admitted.

2                          The appellant, a citizen of India, arrived in Australia on 3 July 2001.  On 10 August 2001 he applied for a protection visa.  The appellant claimed to be a Sikh at risk of persecution from Hindus because of his religion and on political grounds.  His application was refused by a delegate of the first respondent’s predecessor on 28 June 2002.  On 26 July 2002 the appellant applied to the RRT for a review of the delegate’s decision and a little over twelve months later, on 5 August 2003, the RRT handed down a decision rejecting his claims for a protection visa.  The appellant was not believed.  The RRT found:

“The Tribunal finds that the applicant is not a credible witness.  Many of the key aspects of his testimony and his claims were simply not plausible.  There were many material contradictions which were not explained to the Tribunal’s satisfaction.  Some of his testimony and some of his claims were vague or not sufficiently-detailed to be believable.  There were a number of recent inventions.  Some of his key claims were at odds with the independent evidence.”

3                          The RRT’s conclusions, and its finding that the appellant lacked credibility, were attacked in subsequent proceedings before the Federal Magistrates Court of Australia (“the FMCA”).  The FMCA found that, in an important respect, the RRT had misunderstood the appellant’s claims and, as the possibility could not be excluded that a different decision might have been made by the RRT, the appellant’s application for review of the decision of the delegate was, on 25 May 2005, referred back to the RRT for further attention (SZBJH v Minister for Immigration [2005] FMCA 669). 

4                          In the appeal papers there appears a subsequent letter, purporting to be signed on behalf of the Consulate-General of India, and to be dated 8 September 2005, which was sent to the RRT.  It identified the appellant by name, date of birth and passport number and sought notification of the outcome of his application for refugee status when the application had been determined.  The letter purporting to be from the Consulate-General of India was received by the RRT, it would appear, before the appellant appeared before the second member of the RRT on 16 September 2005.  A letter of reply was sent by the New South Wales District Registrar of the RRT declining to “divulge information in relation to matters that may or may not be before the Tribunal”.  This purported communication from the Consulate-General of India achieved some later significance.

5                          On 8 December 2005 the RRT, constituted by a different member, handed down a further decision again affirming the delegate’s decision not to grant a protection visa.  The RRT again found the appellant to be unreliable.  It said:

“The Tribunal finds the Applicant’s evidence unsatisfactory in many respects.  His written evidence was very general and unclear; for example about the various Hindus and/or other persons or groups, and about how and why he was targeted by them.  The Applicant’s oral evidence to this Tribunal was at times, vague, contradictory, exaggerated, and implausible; for example about where he actually lived in the two years of moving around, whether he lived at his home until he came to Australia or left it immediately after the September 1999 incident, about whether he was a wealthy farmer or had no money to bribe police, about whether his wife was threatened or not, about whether he was released by police on condition he move away, and about living in hiding for nearly two years a few days at a time at different places yet he had a valid passport and could have left the country or even relocated.  The Tribunal also notes that some of the Applicant’s oral evidence to this or the former Tribunal was at odds with his written evidence; for example, he told this Tribunal that he didn’t see the perpetrators of the September 1999 incident, yet his written evidence is that he had an argument with them and closed the door on them and then they fired shots at the house; he wrote that he was kicked, punched and beaten with steel bars and hockey sticks but he told the Tribunal that he was beaten with batons.”

6                          However, the RRT went on to say that, putting those difficulties aside, and even if the appellant’s claims were true, it was not satisfied that he was entitled to a protection visa.  The RRT did not accept that any attacks against the appellant, assuming they had occurred, had occurred by reason of religion or political opinion.  No reference was made to the letter purporting to be dated 8 September 2005 and to be from the Consulate-General of India.

7                          On 28 November 2006 the second decision of the RRT was set aside by consent when the Minister accepted that the RRT had committed a jurisdictional error by failing to take into account a relevant matter.  That relevant matter was identified as the letter from the Consulate-General of India dated 8 September 2005.

8                          On 14 February 2007 the appellant provided an “outline of submissions” to the RRT.  He relied upon the letter from the Consulate-General of India as relevant to the questions of whether he would be persecuted if he returned to India and whether he could relocate in India.  He suggested that the letter contradicted various findings made in the second decision of the RRT.  Apparently, the appellant then, on 19 February 2007, attended a further hearing before the RRT, constituted by yet another member, where reference was made to the letter.

9                          On 21 February 2007 an Assistant Director employed at the RRT sent an email to the Consulate-General of India attaching the letter dated 8 September 2005 and enquiring about its authenticity.  The attachment obscured the name and passport number of the applicant to preserve his privacy.  In a reply the following day the following was said, amongst other things:

“It is a fake letter with forged signatures and forged letter head.”

10                        On 22 February 2007 the RRT wrote to the appellant, in accordance with its obligation under s 424A of the Act to draw his attention to matters which might be adverse to his application for review of the delegate’s decision, inviting his comment.  The RRT letter said, in part:

“As you are aware and as discussed in the course of the hearing on 19 February 2007, there is a letter dated 8/9/05 before the Tribunal alleged to be from the Consulate General of India, Sydney.  Subsequent to the hearing and without revealing any identifying details about you (or anyone else), the Tribunal has sought information from the Consulate.  The Consulate has advised the Tribunal that the letter is a forgery; the Consulate advised that the letter is fake with forged signatures and forged letter head.

This information concerns the Tribunal as it could suggest that you could have been involved in sending to the Tribunal a forged document to support your claim that you are of interest to the Indian authorities.

This information is relevant because it may raise doubts about your credibility and the veracity of your claims.  It could also mean that the Tribunal will not give any weight to the letter.

You are invited to comment on this information.”

11                        On 14 March 2007 the appellant replied in strong terms rejecting any suggestion that he had been involved in sending the letter.

12                        In a decision handed down on 12 April 2007 the RRT, for a third time, affirmed the decision of the delegate on 28 June 2002 to refuse the appellant a protection visa.

13                        In its third decision the RRT said:

“There is before the Tribunal a letter dated 2 December 2005 [sic] which was sent prior to the handing down of the previous Member’s Decision of 18 November 2005, allegedly from the Consulate General of India – Sydney referring to the applicant’s application for ‘refugee status’.  If authentic and genuine, this could have suggested that the applicant is of interest to the Indian authorities.  Since remittal, the Tribunal has received advice from the Consulate confirming that the letter is forged.  The Tribunal considers a forged official letter to be very serious, a potential offence which could carry penalty under Australian law.  Whilst the Tribunal has serious doubts, on the basis of the available material, the Tribunal cannot make a positive finding as to whether or not the applicant had any involvement.  The Tribunal can only speculate.  However, the Tribunal has decided to give the applicant the benefit of the doubt and accepts as being plausible that the applicant had no involvement in forging and or sending the letter to the Tribunal.  Consequently, the Tribunal has not used the issue of the letter in an adverse manner to the applicant.  As the letter is forged, the Tribunal is satisfied that it is not evidence that the applicant is of any interest to the Indian authorities or that the Indian Consulate in Sydney is aware of the applicant’s applicant for a protection visa.”

14                        The opening remarks in this paragraph contained some obvious errors.  The letter was dated 8 September 2005, not 2 December 2005.  It was, accordingly, not dated between the time on which the previous RRT decision was signed (18 November 2005) and the time it was handed down on 8 December 2005.  It was the reply by the RRT itself which was dated 2 December 2005.  However, those errors have no lasting significance.

15                        The RRT again found the appellant not to be a credible witness.  Again it rejected his claims and affirmed the decision of the delegate.  It indicated that the issue raised by the letter was not used in a manner adverse to the appellant, although, being a forgery, it gave no support to his claims.  A further application was then made by the appellant to the FMCA.  On this occasion, on 3 August 2007, the application for judicial review was refused (SZBJH v Minister for Immigration & Anor [2007] FMCA 1395).  The FMCA concluded that no jurisdictional error had been identified and that, accordingly, the application for judicial review should be refused.  The appellant appealed to this Court.  On 21 April 2008 a judge of this Court allowed the appeal and remitted the matter again to the RRT (SZBJH v Minister for Immigration and Citizenship [2008] FCA 501).

16                        The appellant’s notice of appeal to this Court on that occasion had raised three grounds of appeal.  He did not provide any written submissions prior to the hearing of the appeal.  However at the appeal he provided comprehensive written submissions which raised a further ground.  That ground concerned whether the RRT had committed a jurisdictional error “when it misapprehended the appellant’s claim to be a member of a particular social group”.  In the result, the three original grounds were rejected but the fourth ground was found to be established.  The third RRT decision had stated that the appellant had not articulated any particular social group but that the RRT had considered a particular social group of “Sikh landowners”.  The appellant, however, had identified a social group of which he claimed he was a member.  That social group was Punjabi Sikh Jat landowners.  On the appeal it was concluded that attention was required to this smaller group.  The Court said:

“44.      It will be a matter for the Tribunal to determine whether or not the smaller and more precisely identified social group receives adequate State protection from the Indian authorities.”

17                        It is important to note, however, that all the other grounds of the appeal were rejected including challenges to the findings of the RRT that the appellant was not a credible witness and had fabricated aspects of his claims for the purpose of enhancing his application.  No issue arose on the appeal concerning the forged letter.

18                        After the appeal was upheld on 21 April 2008 a further letter was sent to the appellant by the RRT dated 29 May 2008.  It said, in part:

“You are invited to provide the following additional information:

●          Your reasons for disagreeing with the previous Tribunal decision, dated 21 March 2007 (RRT reference 061019997), including any disagreement you have with the accuracy of the summary of evidence as set out in that decision;

●          Details of any changes (whether by way of amendment, addition or deletion) to the claims you originally set out in 2001 which may have arisen because of changed circumstances since 2001; and

●          Any further comments you may wish to make in relation to the Tribunal’s receipt of a forged letter in 2005, purportedly from the Indian Consulate General, concerning you.  In this regard, you should be aware that the Member now considering your case may not necessarily take the same view as that of the previous member, and could possibly draw an adverse view of your credibility arising from the receipt of this letter.”

19                        On 1 July 2008 the appellant’s solicitors provided to the RRT a further written statement by the appellant.  In this statement the appellant appeared to rely upon the purported letter from the Consulate-General of India as evidence from the Indian authorities that he may be subject to persecution if he returns to India. 

20                        A fourth decision by the RRT was handed down on 14 October 2008.  A fourth member of the RRT reviewed all the previous evidence given by the appellant.  The RRT also summarised evidence given at the latest hearing for the purpose of further consideration of his claims by the RRT.  The RRT, it would appear, returned at the hearing to the issue of the letter.  In its decision handed down on 14 October 2008 the following was said:

“145.    The Tribunal said it now wished to address the issue of the letter received by the Tribunal and which purported to come from the Indian Consulate-General.  Information had previously been given to him indicating that the results of the Tribunal’s inquiries had indicated the letter was a forgery and had not been sent by the Indian authorities.  It said that, having examined the letter, it was satisfied that the letter was plainly a forgery.  However, he had recently re-raised the issue and claimed the document indicated an adverse interest in him by the Indian authorities.  It asked why he believed that to be the case.

 146.     The applicant said he had not made such a claim.  He said he did not claim to be against the Indian government in any way.  The Tribunal said that it had placed him on notice in a recent letter that it might not take the same view as the T3 about the possibility that he had arranged for that letter to be sent to the Tribunal.  It had received his comments on that possibility, as conveyed by his agent.  However, it could conceive of no reason why anyone other than he, or someone acting on his behalf, would be aware that he had an application before the Tribunal while at the same time being in a position to identify him by name, date of birth, and his passport number.  The Tribunal said it could conclude that he, or someone acting on his behalf arranged for the letter to be produced and sent to the Tribunal.

 147      In response, the applicant said that the letter in question did not identify him by name, date of birth or passport number.  The Tribunal showed him the letter in question and read to him relevant parts which did so identify him.  He said he had not been aware of this.  The Tribunal pointed out that he had, through his legal representatives obtained a copy of that letter.  The Tribunal said that, in any event, the fact remained that he was so identified in the letter and asked who, other than himself or someone acting on his behalf would have been in a position to know these things.

 148.     He said he was a simple person and did not have the capacity to create such a letter and said he had never been to the Indian Consulate.  He suggested that his opponent may have had the motivation to do that.”

21                        After the hearing before the RRT, in a further statement provided to the RRT on 19 September 2008, the appellant denied any suggestion that he was involved in the letter being sent.  The RRT referred to the appellant’s further statement in its latest decision.

22                        At the heart of the appellant’s claims was an allegation that a neighbour had wished to take over his farm and had induced various people, including police and members of political parties, to harass him.  In its latest decision the RRT expressed some doubt about the factual foundation for the appellant’s assertions concerning his neighbour’s conduct and motivation.  However, for the purpose of its consideration of whether the appellant might have a well founded fear of persecution it appears that the RRT was prepared to proceed upon the basis that the claims about the neighbour had some substance.  The RRT said:

“172.    The applicant was clearly placed on notice … that his evidence suggested that the main reason his neighbour wished to harass him was to induce him to leave his farm, because that farm was adjacent to the neighbour’s, and not for any Convention reason relating to religion, socio-economic position related to his caste and wealth or political opinion, or indeed any combination of Convention reasons.  There was a secondary reason for the neighbour’s animosity, namely that the applicant had brought others along to try to resolve the dispute.  However, that was consequent upon the prior existence of the land dispute.

 173.     Against that background, while noting the applicant’s assertions as to the motivations of those whom he claims to fear, … the Tribunal finds that the essential and significant reason for any animosity towards the applicant on the part of the neighbour is the juxtaposition of their respective farms and the fact that the neighbour has a desire to expand his operations onto the applicant’s land, and not because of the applicant’s race, nationality, religion, political opinion (real or imputed) or membership of any particular social group. 

 174.     The applicant claims that the neighbour does not like him because of their religious differences.  However, there is nothing before the Tribunal to suggest that the neighbour has caused any problems for any other Sikh in the neighbourhood, whether Jatt or otherwise, or landowner or other wise.  [The Tribunal considers that, in Punjab, the term ‘Sikh’ encompasses ‘Punjabi Sikh’]  In particular, the applicant has given evidence that his brother, who farms the other piece of land originally owned by their father, and on the other side of the village from his land, and that of his neighbour, has not experienced any difficulties from the neighbour.

 175.     The Tribunal further finds that the physical assaults and threats, and other actions taken against the applicant (and/or his family) by the people the applicant described as supporters of Shiva Sen and Bajrang Dal, and by local police, arose because those people sided with his influential neighbour, and not because of any issue of religion, political opinion, socio-economic position or any combination of these.

 176.     The Tribunal having made the findings in the previous three paragraphs, it finds that the essential and significant reason for any harm the applicant claims to fear is not because of his religion or his membership of any ‘particular social group’ whatsoever, including ‘wealthy landowners or ‘Sikh (or ‘Punjabi Sikh’ or ‘Punjabi Sikh Jatt’) landowners.’

 177.     In reaching these conclusions, the Tribunal has noted the applicant’s claims that police accused him of being a Sikh terrorist.  However, his evidence was that this was merely an excuse to justify the harassment on the neighbour’s behalf.  The Tribunal accepts his evidence that he is not a member of any political party or group and that he has not been politically active in any way and that he had no connection to Sikh terrorists or to the Sikh militancy of the 1980s and early 1990s in Punjab.  The Tribunal accepts his evidence that the police knew this.  Had the police genuinely believed the applicant to be a terrorist or even imputed him with terrorist sympathies the Tribunal would have not have expected them to release him after only two nights (or even ‘four days’ as he initially told T1) without any charges being laid.

 178.     The Tribunal has also noted the applicant’s claims that police demanded money from him and his family, and his agent’s assertion in the most recent submission…, that the Indian authorities will deny the applicant protection because he is a ‘Punjabi Sikh Jatt landowner.’  However, as noted above … the applicant said the police who mistreated him and refused to assist him included Sikhs as well as Hindus.  On the basis of the evidence before it, the Tribunal finds that any attempts at obtaining bribes were motivated by general corruption and greed on the part of the police … and not because of any Convention reason related to the applicant’s religion, or socio-economic position.

 179.     The Tribunal is satisfied beyond any doubt that any failure on the part of Punjabi police to protect he applicant against his neighbour and those acting on his neighbour’s behalf does not arise for any Convention reason.  Rather, the Tribunal finds that, as is the case with other people acting on his neighbour’s behalf, the reason arises simply because the neighbour had more influence than he.  The Tribunal finds that, were the applicant to return to India in the reasonably foreseeable future, any failure on the part of police to protect him from possible private harm directed at him by his neighbour or those acting at the neighbour’s behest, would not arise because of any Convention reason.”

23                        The RRT then returned to the question of the letter and said:

“180.    In a submission to the Tribunal in July 2008…, the applicant has again raised his claim that the letter of 8 September 2005 allegedly from the Indian Consulate General is evidence that the Indian government has an adverse interest in him and will harm him on his return to India.  The Tribunal does not accept this claim.  As indicated to him in the Tribunal’s letter of 22 February 2007, there is evidence before the Tribunal that that letter is fraudulent.  The Tribunal accepts that evidence and finds that the letter was not sent by the Indian Consulate-General’s office and is fraudulent.  There is therefore nothing before the Tribunal to suggest that the Indian Consulate-General is aware that the applicant has sought protection or that he has a case before the Tribunal.

 181.     In these circumstances, the Tribunal finds that the Indian authorities have no adverse interest in the applicant and that they are not anxious to find out when his case is determined, being unaware that there is such a case.  It finds that he would not be at risk of persecution by the Indian authorities, including the police, for a Convention reason, were he to return to India in the reasonably foreseeable future.”

24                        In the third RRT hearing the appellant had apparently speculated that his neighbour or some supporter of his neighbour might have written to the Indian authorities.  This suggestion appeared to proceed upon the premise that the letter was genuine.  As to this suggestion the latest RRT decision said:

“182.    Having found the letter to be fraudulent, it does not accept that it is evidence that the applicant’s neighbour wrote about him to the Indian authorities… .  Nor does the Tribunal accept that the letter was sent by his enemies … to try to ‘frame’ him.  The Tribunal can think of no reason why anyone other than a person acting on the applicant’s behalf would be aware that he had an application before the Tribunal and would be in a position to fabricate a letter identifying the applicant by name, date of birth and, especially, passport number.

 183.     The Tribunal considers that the most likely explanation is that the letter was fabricated on the applicant’s behalf and submitted to the Tribunal for the purpose of strengthening his claim that the Indian authorities are interested in him.  However, the Tribunal makes no finding to that effect, as it is not necessary to do so, given its earlier findings.”

25                        It is important to note that the RRT’s supposition, that the letter was fabricated on behalf of the appellant, was stated not to play a part in the decision to refuse his claims for a protection visa.

26                        The appellant again applied to the FMCA for judicial review of the RRT decision.  On 28 May 2009 the application to the FMCA was rejected (SZBJH v Minister for Immigration & Anor [2009] FMCA 473).  The appellant relied upon a number of grounds.  Each was rejected by the FMCA. 

27                        The grounds of the latest appeal to this Court were stated as follows:

“(1)      The Honourable Federal Magistrate erred by not finding that the Refugee Review Tribunal made jurisdictional error as it denied procedural fairness to the applicant under s 424A.

 (2)       The Federal Magistrate erred by not finding that the Refugee Review Tribunal made jurisdictional error as it held that the harm suffered by the applicant is not Convention related.

 (3)       The Federal Magistrate erred by not finding that the Refugee Review Tribunal made jurisdiction[al] error as it made a finding without asking a question it should have asked the applicant during the hearing and thus breached s 425(1) of the Act.

 (4)       The Federal Magistrate erred by not finding that the Refugee Review Tribunal made jurisdictional error as it misunderstood what is meant by Convention reason.”

(Particulars omitted.)

28                        The grounds of appeal to this Court raise the same issues as were considered by the FMCA.  The appeal can only succeed if the FMCA is shown to have been in error in the conclusions which it reached. 

29                        The latest notice of appeal was filed with an accompanying short affidavit sworn by the appellant.  It said nothing about any legal or jurisdictional issue but made the following statement:

“I rely on persecution suffered in India.  I fear my persecution will continue if I returned to India.”

30                        The appellant was directed to file written submissions in support of his appeal.  He did not do so.  At the hearing of the appeal I allowed the appellant to hand up, in support of his appeal, an extensive written submission.  The appellant acknowledged that the written submission (which was in good English whereas the appellant spoke through an interpreter) was beyond his own capacities and that he “had help” to produce it.  The submission, in substance, repeated contentions discussed in the judgment of the FMCA.  It did not, however, attempt to identify any error in the reasoning of the FMCA, merely stating that the conclusions of the FMCA in relation to the contentions were erroneous.

31                        The only independent contribution which the appellant was able to make to his appeal (and I make no criticism of him in this regard) was to appeal to some perceived power in the Court to allow him to stay in Australia.  Such an invocation misunderstands the limited power of the Court.  That is not the fault of the appellant who, no doubt, wishes to remain in this country but it can not advance his position in the present appeal.

32                        The judgment of the FMCA, from which the present appeal is brought, involved a careful analysis of the appellant’s arguments.  The appellant was then legally represented.  There is little point in simply repeating all those matters in the present judgment as the judgment of the FMCA is freely available.  The appeal process provides a facility for review of the judgment of the FMCA but it is the task of an appellant to make some endeavour to demonstrate errors, flaws or inadequacies in the reasons of the FMCA affecting its conclusions and to show that a different view of the legal position should therefore be taken.  No such endeavour was made in the present case. 

33                        It is not necessary for me to canvass the detailed reasons given by the FMCA for rejecting each of the arguments advanced on behalf of the appellant.  In my view no error in those reasons or in the conclusions of the FMCA has been identified.  The appeal therefore cannot succeed and should be dismissed with costs.

Associate:

Dated:         24 August 2009