FEDERAL COURT OF AUSTRALIA

SZNSA v Minister for Immigration and Citizenship
[2009] FCA 1440

SZNSA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 987 of 2009

RARES J

23 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s 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

(REVISED FROM THE TRANSCRIPT)

1                     This is an appeal from a decision of the Federal Magistrates Court refusing the appellant constitutional relief in respect of his challenge to a decision of the Refugee Review Tribunal given on 29 May 2009, affirming a decision of the delegate of the Minister not to grant the appellant a protection class XA visa;  SZNSA v Minister for Immigration (2009) FMCA 819.

2                     The appellant is a citizen of India.  He arrived in Australia in September 2008 and in early November 2008 he applied for a protection visa.  He claimed to be entitled to protection on the ground of being a refugee in respect of his political opinion based on his association with the All India Anna Dravida Munnetra Kazhagam (AIADMK) party.  He claimed to have joined the party in December 1999 as a youth and at the time a neighbour, with whom he became associated, S.V.T. Raja, was a youth committee leader.  The appellant claimed to have developed a close relationship with Mr Raja and as result of their political activities they attracted criticism from members of an opposition party, being the Dravida Munnetra Kazhagam (DMK).

3                     In his application for a protection visa, the appellant claimed that under Mr Raja’s leadership he and others became involved in providing social services to the community.  He claimed that the opposing DMK party did not like that activity and attacked members of the AIADMK numerous times.  He claimed that a number of “rowdies” from the DMK attacked members of his party and that if they complained to the police nothing was done, because of the power and influence of the DMK party in the area.  He claimed that because the DMK party did not like the way in which people in his village were supporting the AIADMK, they threatened to murder some of its members.

4                     He claimed that a member of Parliament from the opposing party planned to murder Mr Raja and himself using “rowdies” from a neighbouring town on 6 Septmber 2001.  He claimed that Mr Raja and he were on their way to a village nearby when suddenly their vehicle was blocked by a person who came out of the car and then suddenly six “rowdies” attacked them with both knives and iron rods.  He claimed that he escaped after being attacked with an iron rod and also stabbed.  The next day he claimed to have run into the bush and then lost consciousness, waking and finding himself in hospital.  He then learned that Mr Raja had been murdered.

5                     The appellant claimed that “rowdies” had come to his house and tortured his family, asking where he was, and that he then went to stay with his grandmother for a short period until his location there was learned by his political opponents.  He then claimed that his political opponents were keen to seek him out to murder him as well because he was the only eyewitness to Mr Raja’s murder.  He claimed that he then went to live in Chennai for 18 months but that during this period the DMK members went daily to his previous house, torturing his family, asking about him, and that he lost contact with his family because they fled.  He claimed that someone from the DMK party saw him in Chennai and he then went to North India for a further six months before finding a job in Thailand.  He arrived in Thailand in October 2003, worked there for two and a half years before returning to India in June 2006, staying there for about two and a half months searching for his family.  He claimed not to have been able to find them but that his opponents knew he was in India again and began searching for him so that he left for Thailand in August 2006 to save his life.  He claimed that he had stayed there for two more years but that his opponents came to know that he was there and came to Thailand to kill him.  He then claimed that he needed to come to Australia to seek protection.

The Delegate’s Decision

6                     The appellant was interviewed by the delegate.  She pointed out to him that a newspaper report from “The Hindu” newspaper dated 6 September 2001 differed greatly from his account of how Mr Raja came to meet his death.  In substance “The Hindu” report said that Mr Raja had been attacked by a man who had apparently trespassed on a garden belonging to Mr Raja’s assistant a few days earlier and cut down some banana trees. “The Hindu” account reported that Mr Raja had been hacked to death by a group of people while in his car with his 10 year old and eight year old daughter.  The report said that they were the only witnesses to the murder and that Mr Raja had been taking them to school.  The newspaper reported that the person who had been cutting the banana trees, together with six other “rowdies” waylaid Mr Raja near a theatre and attacked him with sickles and that he died on the spot in a pool of blood in the driver’s seat of his car.

7                     The delegate pointed out that the newspaper report, which she quoted in full in her reasons, differed greatly to the appellant’s account and in particular it suggested that he was not present at the time of the murder.  The appellant told the delegate that the opposition party knew that he had seen the murder and changed the reported story and that he had been pursued by these people for the past seven years.  As the delegate pointed out, it was curious that the appellant had been successfully traced by those alleged killers several times in different locations, both inside and out of India, over a seven-year period and yet, according to his own evidence, he had never been attacked or threatened, nor were attempts made on his life.

8                     The delegate also noted that the appellant had travelled without difficulty on his passport, had returned to India and despite his claims of being located in Bangkok by the DMK in August 2006, and later returned to work there without incident.  The delegate noted the appellant had been granted a visa to come to Australia in July 2008, but had not left Thailand until September 2008 and had not gone into hiding after he claimed he had been traced in Bangkok by the DMK.

9                     The delegate was not satisfied that the appellant had been involved in the incident resulting in Mr Raja’s murder, as he claimed and did not accept his explanation that the DMK had created the story, reported in “The Hindu” newspaper.  The delegate was not satisfied that the appellant was a member of the AIADMK, with a political profile, or a close associate of Mr Raja, as he claimed.  She found that he was a person with an unremarkable background and no political profile.  She was not satisfied that he was unable to locate safely elsewhere in India, which she knew to be a country with a huge population.

The Tribunal Hearing

10                  The appellant applied for a review of that decision to the tribunal.  On 4 February 2009 the tribunal acknowledged his application, and wrote to inform him that he should immediately send any documents, information or other evidence he wanted the tribunal to consider and that any documents not in English, “should be translated by a qualified translator.”  The appellant attended a hearing of the tribunal and gave oral evidence to it.

11                  In its decision record the tribunal set out the account of the hearing.  The tribunal noted that he told it that there were only two people in the car at the time immediately before Mr Raja was attacked;  namely, Mr Raja and himself.  The tribunal enquired of the appellant why he had returned to India from Thailand.  He responded that the DMK had come looking for him there.  The tribunal enquired when that was.  It noted that, after a very long pause, he said in September 2008, adding that they had come to the office where he worked, but that he had been in Hong Kong at the time.  The tribunal took the appellant through his travel history.  It then explained to him the significance of the fact that he had a visa to come to Australia, apparently issued before he had left for Hong Kong.  According to the tribunal’s account, he departed from Thailand four days after returning there from Hong Kong.  The appellant asked to give a written response to that issue.

12                  The tribunal raised with the appellant the report of the murder of Mr Raja in “The Hindu” newspaper.  The tribunal pointed out that there were very significant differences between the appellant’s statements about the attack and what was in the newspaper and that this could lead the tribunal to find that the appellant did not know Mr Raja, as he claimed, and that he was not involved in the events that he claimed.  The appellant said he had an identity card for the AIADMK.  He said that he was organising a friend to retrieve it from the party office.  He had only asked the friend four days before the tribunal hearing.  The appellant was given further time to provide this information.

13                  On 24 April 2009, he wrote to the tribunal reiterating his claims that the killing of Mr Raja was a political matter, he was present at the attack, was the only eyewitness and that the DMK opponents would want to kill him as the only eyewitness.  He said that the account given in “The Hindu” was not correct and had been published under the influence of the DMK because its publisher was scared of that party.

14                  On 29 April 2009, the appellant provided a letter with a copy of a document that he said was a membership card of the AIADMK and a translation of its contents.  However, in that letter the appellant did not identify the circumstances in which the translation was given.  There is no evidence that the tribunal was shown an original of the card.  In its decision record, the tribunal noted that it had not seen the original and that there was no accredited interpretation of it.  It found that the card was only a photocopy and there was no indication whence the document originated.  It did not accept the photocopy of the card as evidence of the appellant’s membership of the AIADMK.

15                  On 6 May 2009, the tribunal wrote to the appellant under s 424A of the Migration Act 1958 (Cth).  That letter set out information that, subject to his comments, would be the reason or part of the reason for affirming the delegate’s decision.  It quoted in full the account from “The Hindu” of 6 September 2001 relating to the murder of Mr Raja.  The tribunal’s letter pointed out to the appellant the apparent inconsistency between what was in the article and his account.  It informed him that it may use these difference to conclude that he was not credible or truthful and that he had manufactured his assertion of involvement in order to strengthen his claim for protection.  The appellant responded, again re-asserting that he had been with Mr Raja when he was murdered and that there was no information to prove the authenticity of the report of the incident in “The Hindu”.  He said that he would be killed by the DMK if he returned to India.

The Tribunal’s decision

16                  The tribunal found that the appellant’s version of the attack on Mr Raja was false.  It relied on the apparent accuracy and contemporaneity of the account in “The Hindu” as to the actual circumstances of the murder.  It found that as a consequence of this finding, the appellant was not truthful or credible.  It also found that his evidence of his involvement with the AIADMK was vague.  Accordingly, it found he was neither a member of that party nor closely associated with Mr Raja.  It found that he was not present on the occasion of the attack on Mr Raja and was not an eyewitness.  While the tribunal saw scars on the appellant’s right leg and right wrists, it was not satisfied that those injuries were the result of any attack on him by DMK members at the time of the attack on Mr Raja.

17                  It found, also, that his family were not tortured by the DMK and that they had not had to flee their home because of this.  The tribunal accepted that the appellant had left home and had lost touch with his family, and that was a source of grief for him, but it was not satisfied that those events were due to his involvement in the AIADMK party or through his being an eyewitness to the murder of Mr Raja.  The tribunal was also not satisfied with his accounts of the searches that the appellant alleged the DMK had continued to make for him in north India or in Thailand.  It found that his account of its searching in Thailand to be inherently implausible and rejected it.  The tribunal was also not satisfied that the DMK were still searching for the appellant.  It found that he had not left India because of any harm he feared from the DMK as a result of his alleged political involvement in the AIADMK or his claimed witnessing of Mr Raja’s murder.  It was not satisfied that he had a well-founded fear of persecution in India for a Convention reason.

The proceedings before His Honour

18                  Before his Honour, the appellant claimed that the tribunal had made jurisdictional errors by:

·               not informing him in its letter under s 424A that there could be adverse findings about his credibility on other inconsistencies in his evidence than those to which the letter referred;

·               expecting him to demonstrate a particular political motivation;

·               failing to accept his proffer of the copy of the membership card;

·               relying on “The Hindu” newspaper account of Mr Raja’s murder;  and

·               failing to give adequate reasons for rejecting his claims.

19                  His Honour considered each of the grounds in detail.  He observed, correctly in my opinion, that the assessment of the appellant’s credibility was, par excellence, a function of a primary decision-maker as McHugh J said in Re Minister for Immigration and Multicultural Affairs;  ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67].  His Honour rejected the first basis of the appellant’s application.  He found that the tribunal had not erred in approaching its assessment of the appellant’s credibility.  He found that it had done so after giving the appellant a letter under s 424A that properly set out the material from “The Hindu” and identified how it would be possible to use that material to come to its adverse credibility finding.  In my opinion, his Honour was correct to reject that ground of appeal for the reasons that he gave, namely that the tribunal set out in the letter a very clear indication that his credibility was an issue on this basis.

20                  His Honour rejected the second ground noting that the tribunal had to assess and give the weight it considered appropriate to documents submitted by the appellant.  In that context, he said that it was entitled to give the membership card no weight, particularly bearing in mind that there was no evidence that the translation was by a qualified interpreter or that the copy of the membership card was accurate.  Although his Honour observed that a likely explanation was that the appellant had produced the original membership card to the tribunal office when he submitted the copy document and letter, he said that that was not a matter relevant to an application for judicial review.

21                  There is no evidence in the material before me to suggest any basis for a finding that the appellant produced an original card to the tribunal.  I am of opinion that the tribunal was entitled to reject the copy card as evidence of the appellant’s membership of the AIADMK for the reasons that it gave.  No jurisdictional error was demonstrated in that respect as his Honour correctly found.

22                  The fourth ground repeated, in essence, the appellant’s complaint of the tribunal’s reliance upon “The Hindu” article.  His Honour noted that the tribunal was entitled to assess a claim against independent country information and other material and that there was no jurisdictional error made out on this count.  I agree.

23                  His Honour simply noted that another ground, which I have not mentioned, rehashed complaints about the newspaper report and the membership card.  The last ground was also rejected by his Honour on the basis that the tribunal had made clear in its reasons why it was not satisfied by the appellant’s evidence and why it found that he was not truthful.  He observed that these were matters entirely for the tribunal and could not form the basis of a finding of jurisdictional error.  I agree.

This Appeal

24                  Like his Honour, I have also reviewed the material in the appeal book but have not been able to discern any jurisdictional error in that material.  On the appeal, the appellant argued in his notice of appeal three grounds and elaborated these in a written submission and in oral address.

25                  The first ground of appeal was that his Honour erred in failing to find that the tribunal had not complied with s 424A by relying on unauthenticated information, politically motivated and not independent.  In essence, this was because it had relied on “The Hindu” article.  The second ground was that the tribunal had erred in law by rejecting the appellant’s claim on the basis that he was not truthful and credible.  The third ground asserted that the tribunal was not able to provide justified evidence to support its decision.  In his written submission, the appellant repeated his claim to have been a member of the AIADMK and to have been a close associate and witness of the murder of Mr Raja.  He again complained about the finding to the contrary by the tribunal.  He also complained that the tribunal’s letter under s 424A was just a formality and the tribunal had already made a decision that his version of the attack was false, so that no reply he made to the letter would satisfy the tribunal or lead it to change its mind.  In effect, this last matter alleged that the tribunal was apparently or actually biased.  In his oral submissions today, the appellant said that, in addition to the tribunal’s errors he asserted in relation to “The Hindi” article and the membership card, he had not been given enough time to obtain and collect evidence to support his case.  He complained that the tribunal had never asked him to obtain an approved translation after he had delivered his letter of 29 April, 2008, with the copy of the identity card, and had not informed him that there was any problem with its translation or the lack of production of the original card.

26                  As I have noted, the account of the attack on Mr Raja given in “The Hindu” newspaper was a matter that the delegate drew to the appellant’s attention in rejecting his account of the incident.  The delegate had allowed the appellant to comment on that account.  It was plainly an issue in the review before the tribunal.  The delegate having rejected the appellant’s account in early January 2009, the appellant was on notice when he applied to the tribunal that this issue would again need to be considered, as indeed it was both during the hearing before the tribunal and as a result of what was contained in the s 424A letter.  The letter, properly and accurately set out the matters required under s 424A and gave the appellant a full opportunity to deal once again with this issue.  I am of opinion that his Honour correctly rejected this complaint.

27                  The second and third grounds of appeal are nothing more than complaints that the tribunal found the appellant not to be a credible witness.  These matters are not such as attract an entitlement for the Court to enter into a merit review.  The role of the Court in such a proceeding as the present is to ensure that the administrative decision-maker has acted in accordance with, and within, the ambit that the Parliament has given him or her in the statute conferring power to make the decision.  Here, that is to be found in the Migration Act.  The duty of the Court is to ensure that the decision was made in accordance with law.  It is not to ensure that, if the Court were the decision-maker, the decision would be the same as the decision-maker arrived at by reason of his or her evaluation of the evidence before it.  The merits of administrative action, to the extent that they can be distinguished from legality, are matters for the decision-maker in whom the Parliament has confided the power and for that person alone:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ.

28                  I am of opinion that his Honour was correct, for the reasons that he gave, to reject the appellant’s complaints, and that grounds 2 and 3 in the notice of appeal have no substance.

29                  The appellant’s additional submissions again reiterated his complaints about the use of “The Hindu” newspaper and the tribunal’s rejection of the membership card.  For the reasons I have given, I am not satisfied that either of these two grounds has any substance, or raises any issue of jurisdictional error.

30                  The allegation of bias or apprehended bias is equally baseless.  The tribunal afforded the appellant a further opportunity in its letter of 6 May, under s 424A, to satisfy it that Mr Raja’s murder had occurred in the way that the appellant described rather than in the way that “The Hindu” had stated.  The appellant complained that he had not been given enough time to provide the tribunal evidence.  However, as I have indicated, from the time he learnt of the delegate’s rejection of his account of Mr Raja’s murder based significantly on the contents of “The Hindu” article and its divergence from his account of what occurred, he was on notice that this was, as was apparent, a critical question in his claim.  He had over three months to provide further material, and when the tribunal wrote to him on 6 May 2009 he was given a further three weeks to do so.

31                  I am not satisfied that there is any basis on which it could be asserted that the tribunal had already made up its mind when it sent the letter under s 424A.  Rather, it was doing what the Act required, namely, drawing to the appellant’s attention, in writing, a matter which would significantly go to its ultimate decision in the case so as to provide him with a further opportunity, in addition to the opportunity provided during the course of the hearing (see s 424AA) to address it on the fundamental factual dispute in the claim.  In my opinion the allegation of bias or apparent bias is not supported by any evidence and I reject it.

32                  For these reasons the appeal must be dismissed with costs.

Associate:                                                         Dated:  3 November 2009