SZHTR v Minister for Immigration & Citizenship [2007] FCA 915

FEDERAL COURT OF AUSTRALIA

SZHTR v Minister for Immigration & Citizenship [2007] FCA 915

MIGRATION – findings made by the Refugee Review Tribunal about credibility – consideration of whether there was adequate foundation for definite pronouncements of fact – no jurisdictional error Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12 SZHTR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 545 OF 2007

BUCHANAN J

22 JUNE 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 545 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SZHTR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J DATE OF ORDER: 22 JUNE 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant is to pay the costs of the first respondent as taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 545 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SZHTR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 22 JUNE 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of India. He arrived in Australia on his most recent visit on 22 March 2005. On 20 April 2005 he lodged an application for a protection (class XA) visa. That application was refused by a delegate of the first respondent, Minister for Immigration and Citizenship' ('the Minister') on 9 August 2005. The appellant applied to the Refugee Review Tribunal ('the RRT') on 23 August 2005 for a review of the delegate's decision. 2 It is evident from the transcript of the hearing before the RRT and from the decision of the RRT that it developed serious reservations about the appellant's credibility during the hearing. Those concerns were raised directly with the appellant. One matter of concern was the difficulty of reconciling the appellant's claimed fear of persecution in his own country with his pattern of travel between India on the one hand and New Zealand (where he has a brother) and Australia on the other. On his application form for a protection visa the appellant represented that he had never before travelled outside India. In his accompanying statement, however, he disclosed that before his arrival in Australia on 22 March 2005 he had visited New Zealand between 21 December 2004 and 10 March 2005. No application for a protection visa was made in New Zealand. The appellant told the RRT he did not want to live there. The appellant's two most recent passports in fact showed upon examination that in the seven years between January 1998 and March 2005 the appellant had spent about three and a half years in either New Zealand or Australia. 3 The appellant's explanations for his departure from India on 21 December 2004, return to India on 10 March 2005 and departure for Australia on 21 March 2005 were as follows. In his original statement he said that as a result of various kinds of mistreatment and persecution he was advised by his parents 'to leave the country for good'. He went to New Zealand. He did not apply for a protection visa despite his suggestion that he had left India permanently. He returned to India nearly three months later because his wife said everything had been cleared up and his life was not in danger. However, when he returned to India the police caught him at the airport and he was badly tortured. He was released when his wife and friends paid a 'huge bribe to the police and authorities'. His wife and parents, he said succeeded in getting him a visitor's visa to Australia. 4 However, it was apparent that the appellant had obtained his visa to visit Australia in New Zealand, before he returned to India. The RRT found the appellant unconvincing in his claims. In particular, it did not accept his claims that he was persecuted and sought a protection visa because he was in fear of his life. It also gave little weight to his documents purporting to show he had been falsely charged by police or to his claims to be a member of the Badal Group, a political party that lost government in his state of Punjab in elections in 2002, or that he had been subjected to attacks by police and Congress Party supporters in 2004 as a result. 5 The RRT made a series of findings rejecting the factual foundation of the appellant's claims. It did so accepting the principle stated by a Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 ('Rajalingam'). The RRT said: 'If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) FCR 220). 6 The RRT provided a cogent and detailed explanation for its conclusions that it did not accept the factual foundation of the appellant's claim for a protection visa. It introduced those findings, and its explanation of them as follows: 'The applicant claims to fear persecution in India at the hands of police and Congress party supporters, because of his active involvement in the Badal group. He claims to have been bashed by both police and Congress party supporters, that he is wanted on false charges and has been declared a "proclaimed offender."' 7 Thereafter it discussed the claims, and the evidence in support of them in detail. It made clear the part that the appellant's lack of credibility played, if at all, in the assessment of each aspect. 8 It explained why little weight was given to documents which the appellant provided. These assessments were all matters for the RRT and not for this Court or the Federal Magistrates Court. No jurisdictional issue arises from them. 9 Based on its findings the RRT concluded that it was 'therefore not satisfied that the applicant has a well-founded fear of persecution in India'. 10 There can be no suggestion the RRT did not give attention to the matters relied on by the appellant. It did give those matters attention and decided them against the appellant's claims. Subject to one issue to be discussed later there is no basis to suggest jurisdictional error. 11 The RRT rejected the appellant's claims in a decision signed on 20 October 2005 which was sent to the appellant with a letter dated 10 November 2005. The appellant filed an application for judicial review of the RRT decision in the Federal Magistrates Court on 7 December 2005. There were three grounds advanced. They asserted, in summary, that the RRT had failed to assess the appellant's 'fears of harm', denied him procedural fairness and was biased. On 13 March 2007 Driver FM dismissed the application for judicial review. His Honour concluded that none of the grounds were made out. He said: '6. The applicant failed before the Tribunal because it did not believe his claims. It is obvious from the record of the Tribunal decision that the presiding member had serious concerns about the internal consistency and plausibility of those claims. The adverse credibility findings made by the Tribunal were open to it on the material before it. 7. Having rejected the applicant's claims as a fabrication in unequivocal terms, it was unnecessary for the Tribunal to consider those claims as if they were true. Accordingly, there was no relevant failure to apply the relevant test of persecution under either the Convention or s.91R of the Migration Act. Neither was there any failure on the part of the Tribunal to perform its statutory functions under either s.65 or s.414 of the Migration Act. There was also nothing procedurally unfair about the manner in which the Tribunal performed its functions. 8. The Tribunal met its statutory obligations to invite the applicant to a hearing and to give him the opportunity to present his claims and address the Tribunal's concerns. The Tribunal did not fail to meet its obligations under s.424A of the Migration Act to disclose in writing adverse material that appeared to be determinative. I note in that connection that, although the Tribunal was concerned about inconsistencies between what the applicant said at the hearing conducted by the Tribunal and what he had put in his protection visa claims, the latter were re-presented by the applicant to the Tribunal in writing at the hearing. 9. Neither is there any substance to the assertion of bias. While the applicant was not believed, the manner in which the presiding member expressed himself does not indicate either a closed mind or pre-judgment. 10. I find that the applicant has failed to establish any jurisdictional error on the part of the Tribunal. Neither on my own perusal of the material, is any jurisdictional error apparent to me. Accordingly, the decision is a privative clause decision and the application must be dismissed. I will so order.' 12 The appellant filed an appeal to this Court on 2 April 2007. The Notice of Appeal contains two grounds. They raise the same issues disposed of by Driver FM in paras 7 and 8 quoted above. They allege that his Honour erred in not coming to the opposite conclusion. In my view there is no substance in the grounds of appeal. 13 Findings about credibility in circumstances such as those which arose in the present case, where obvious and unsatisfactory inconsistencies were presented which went to the heart of the appellant's claims, are matters for assessment by the RRT. They are not matters for this Court or the Federal Magistrates Court, which may not intervene unless jurisdictional error is shown, and then only to remit a matter for further attention. 14 However, there was one feature of the RRT decision which I found troubling. At the conclusion of its discussion about the appellant's claims the RRT made the following statements: 'The Tribunal therefore finds that the applicant was not a member of the Badal group. It finds that he was not subjected to attacks by police and Congress Supporters in August 2004 or at other times. It finds he was not, and is not the subject of criminal charges in Punjab, false or otherwise and is not wanted by Indian authorities. It finds that his journeys to New Zealand and Australia were not motivated by any fear on his part, but by other reasons unrelated to the Convention. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution in India.' 15 On one view these are findings which go much further than expressing the RRT's conviction that the appellant failed to make out his material claims. They may be seen as expressing a positive satisfaction that certain things did not in fact occur. 16 It does not seem necessary for the RRT to go as far as it did. The work of the RRT does not proceed upon the balance of probabilities in the same way as in a civil trial and it is not necessary, as it is in a court, 'to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial' (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 (Wu Shan Liang'). Moreover, I have some doubt about the underlying foundation for such definite pronouncements about detailed issues of fact. 17 As I read the decision of the RRT, the material before it, while not sufficiently establishing the appellant's claims, in most cases did not positively contradict them either . A notable exception was the appellant's claim that his decision to come to Australia at the time of his entry on 22 March 2005 was only made once back in India after his three month visit to New Zealand, whereas the visa for Australia was obtained while he was still in New Zealand. However, a foundation of this kind, not just to reject the appellant's claims as not established by a substantial margin, but to positively reject them as contrary to fact, does not appear to have been available in the same way for most of his claims. 18 A finding made without an adequate foundation may cease to be simply a finding of fact. A consideration of the circumstances may reveal that an error of law has occurred. That possibility, of course, must be assessed in a legal context that gives full weight to the nature of the task committed to the RRT and the limits on judicial review. Confidence (or at least a lack of uncertainty) by the RRT that its findings on factual matters are sound may be of substantial importance to the question of whether it should leave room, in its ultimate assessment, for the possibility that a claimed event had occurred. (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576; Rajalingam at [62]). However, the RRT is not bound to make explicit its degree of conviction (Rajalingam at [64]). In the present case it should be accepted that the RRT had a high degree of confidence that there was no sufficient basis to accept the appellant's claims, and good reason, including his lack of credibility, to reject them. 19 Although it was not necessary for the RRT to make positive findings that certain circumstances and events, claimed by the appellant to exist, did not in fact exist (as opposed to not being established) and even though I have some doubt that such findings, had they been necessary, were open on the limited material before the RRT, the present is not a case where the appellant can claim that the RRT made an error of law because it asked itself the wrong question. If the findings go beyond indicating a high degree of confidence by the RRT in its conclusions, at worst it may be said that it was not necessary for the findings to have been made in those terms. As the manner of expression, upon examination, does not affect the way in which the RRT reasoned to its conclusions and does not reveal jurisdictional error my initial reservations about those issues cannot provide any foundation upon which the appeal might succeed (see Wu Shan Liang at 272). 20 Mr Reilly, who appeared for the Minister, also drew my attention to a decision of a Full Court in Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12. The case turned on whether the RRT had properly given attention to the likelihood of future persecution. It does not deal directly with the matter which has exercised my mind in the present case. However, French J did make the following observations (at [9], [41] and [45]): '9. The Tribunal progressed from difficulty in accepting the respondent's evidence, to findings of implausibility in respect of key aspects of it, to non-acceptance of those key aspects and thence to a positive finding of fabrication. … 41. … An accumulation of logical or other difficulties in an applicant's claims may constitute a basis for rejecting them. Similarly, where a number of claims are made which are found to be implausible, that accumulation may warrant the global finding that they are not true, not merely that they are unlikely to have happened. … 45. … When read together the conjugation of difficulty in accepting various elements of the evidence, the implausibility of the claims and their non-acceptance coalesce in an unsurprising finding of fabrication. That finding, read in context, suggests that the conclusions of implausibility were more than conclusions about likelihood. For not only were the respondent's claims implausible, they were not accepted. That is to say, the Tribunal did not believe them…' 21 These observations may very readily be applied to the present case. They are consistent with accepting, as I do in this case, that there was a proper foundation for a confident view by the RRT that the claim for a protection visa should be rejected. The observations made by French J do not go directly to the matter which concerned me, which was the possibility the RRT may have made findings necessary to its conclusions which lacked adequate support as a matter of law, not just as a matter of fact or available inference. Nevertheless, I accept that the circumstances of the present case do not present a problem of jurisdictional error. 22 As no jurisdictional error has been shown in the present case, nor any error in the judgment under appeal the appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan J.