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[2009] FCA 617
Federal Court of Australia
2009-05-18
Rares J
Original judgment source is linked above.
REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The appellant is a citizen of India who arrived in Australia on 11 May 2007 and shortly afterwards applied to the Department of Immigration and Citizenship for a protection visa. Later in May 2007, the delegate refused to grant the visa and the appellant sought review of that decision in the tribunal. The tribunal initially affirmed that decision but, by consent, the Federal Magistrate's Court in 2008 set its decision aside and remitted the matter to the tribunal to be determined according to law. A differently constituted tribunal gave the decision the subject of these proceedings.
The Appellant's initial lack of claims 2 In his original application for a protection visa, the appellant did not provide any basis upon which his claim to protection should be considered. All he did in that application was to suggest that he would submit the evidence in support of his claims later. He did, however, write a two page statement to the department setting out some facts about him and made the bare claim that if he was returned to his country he would be killed by enemies. The delegate proceeded, by relying simply on the material before her, on the basis of s 54(3) of the Migration Act 1958 (Cth), to refuse to grant a visa without giving the applicant a further opportunity to make oral or written submissions.
The Appellant's claims in the tribunal 3 When the appellant filed his application for review in the tribunal, he included a lengthy type-written statement, some of which dealt with country information and other parts with his claims for protection. He claimed to be from Kerala State in India and to have lived in the State capital. He claimed that his father was a police officer, well-known in the area, who had intervened in a dispute in the local market between a woman fish seller and Muslims who were in apparent competition with the lady's business. He claimed that his father was a Hindu and that the woman was liked by most Hindus. He claimed that due to his father's involvement in disputes in the market he was hated by Muslims there. The appellant claimed that in 1992, when he was 18 years old, his father had to settle a dispute which had turned nasty between the woman and a Muslim. In the course of that dispute he asserted that the Muslims threatened to kill the woman, that his father had to intervene and ordered the Muslims to leave the market premises with their belongings. He claimed that four days after that incident between 8 and 10 Muslims beat his father and kicked him in his back repeatedly, affecting his kidney, who was then admitted to hospital. He claimed that his father was in a coma and died "there from." 4 The appellant claimed that, next, he and his mother feared to stay in their house after receiving death threats from Muslims and that they fled and hid. He asserted that they complained to the police but because there were no witnesses they were unable to bring any proceedings. He claimed that his mother then got a job with the police in the capital so that they would not be threatened by Muslims and criminals and that they avoided the marketplace. 5 He then claimed that in 1999 he was abducted by a group of Muslim goondas who threatened to kill his mother and his siblings if his family filed a case against them. He claimed they threatened to take him to Pakistan permanently and convert him to Islam if he attempted to identify any Muslims to the police. He claimed that he begged for his release and that his mother advised him to stay away from Muslims as they were very rough and could take him away without her knowledge. He claimed that while the BJP party was in power his family had managed to run their lives in the midst of threatening calls from unknown people but that after the CPI (M) Party came to power, the Muslims could once again take the law into their own hands by bribing the Communist Party leaders. He claimed this made it impossible to complain against the local Muslim criminals who were working with the Communist government officials. 6 The appellant claimed that he continued to be concerned about his father's death and that he and his mother felt they should find the culprits and bring them to court. He claimed to have joined the BJP Hindu youth group and along with them tried to make inquiries as to his father's murderers and that the group gave him full support and protection from Muslim criminals and goondas. He claimed that the Communist rule in Kerala State made it difficult for him to obtain assistance from the authorities. He also claimed that he had stayed at home after he lost his job in 2006. He claimed his mother still wanted him to pursue the question of his father's death and she encouraged him to continue inquiries through two of his father's senior police friends who had retired. 7 He claimed that he came to know at this time that the goondas and criminals were protected by government authorities and it would be difficult to prosecute them, but that in November 2006 one of his father's old friends gave him some information which led to uncovering the identity of the claimed murderers. He claimed that his mother contacted senior officers and explained the situation and stated that they could identify the culprits so that they could arrest them. He claimed to have paid 50,000 rupees as a bribe to find the culprits. He claimed that two Muslim criminals, from the fish stall at the market, were arrested and detained by the police but that later they were released to his and his family's astonishment. The appellant claimed that the BJP youths told his mother and him that it would be dangerous for him to move around on his own as he could be killed by Muslims at any moment. He claimed that his mother wanted him to apply for overseas travel, but in March 2007 he was abducted by unknown Muslim persons who took him to Delhi where he was kept in a room for nearly three weeks. He claimed that his abductors told him that he would be taken away from India permanently because he had information and that he was involved in the BJP youth wing in espionage against Muslims and that he should be taken away and killed because of the arrest of their Muslim colleagues. He claimed that he had pleaded for his release and denied his involvement in espionage. He claimed that his abductors told him that his informant was, in fact, one of their associates, that they would convert the appellant to Islam and that he would be trained with military skills and that if he refused to obey their orders he would be cut into pieces and thrown into the jungle to feed the animals. He claimed to have been terrified and sought his release. The appellant then claimed that, after being bound hand and foot, he was taken in a van for three to four hours, but that it ran out of petrol and he was abandoned only to be found by a stranger. He claimed that he then was assisted to flee to Bombay where he stayed with friends, contacted his mother and that she assisted him in obtaining a visa to leave India. He said that his mother had received threatening calls from unknown people and that she felt the authorities were working for the Muslims for big bribes and could not be trusted. He claimed that he travelled out of India along with other people and feared to return. 8 The appellant also supplied the tribunal with some country information as to conditions, particularly in Kerala State.
The proceedings in the tribunal 9 The tribunal wrote two letters to the appellant under s 424A of the Act. In the first it informed him that it had information from the department that on the same day as he received his visa, two other persons received visas, that he had travelled with those two other persons to Australia on the same flight and was then living with them. The appellant had landed in Adelaide but had gone from there to Sydney with those persons. The tribunal said that the applications for review submitted by each of the other persons appeared to have been written in the same hand as his had and that the typed statement of claims which he had submitted to the tribunal was, in many respects, the same as typed statements submitted by the other two persons with whom he was now living. 10 In the second letter under s 424A which was sent to him after the hearing, the tribunal asked the appellant to comment on a number of perceived inconsistencies between information he had given the department or the tribunal in his protection visa application or statement supporting his application for review and the oral evidence he had given. It invited his response to those considerable, apparent discrepancies. The appellant wrote back to the tribunal saying that he relied on the responses he had given orally to it during the course of the hearing in relation to the discrepancies that it had repeated in the letter. 11 After that, the tribunal wrote again to the appellant, this time under s 424(2) of the Act, inviting him to provide further information about the death of his father, including a death certificate, information relating to the report of the attack on his father to the police and any other information he considered that may be relevant to the tribunal to review. The appellant responded by attaching a handwritten copy of what he claimed to be his father's death certificate. He informed the tribunal that he had already stated his Convention claims about the circumstances of his father's death and thanked it for giving him natural justice. The handwritten document was in English and purported to be a form of death certificate in relation to the death of the appellant's father in May 1992. It appeared to be a photocopy, not particularly easy to read, but nonetheless in legible English. In two places in its decision record, the tribunal asserted that the death certificate had not been translated into English. That was wrong and was a matter which counsel for the Minister drew to the trial judge's attention and to mine. 12 In the tribunal's decision record it set out the course of the appellant's evidence to it in the hearing and discussed the various inconsistencies about which it had written in the second letter under s 424A of the Act.
The tribunal's decision 13 In its findings and reasons, the tribunal said that it had taken all the appellant's evidence into account together with the material that he had provided both to it and to the department, but concluded that it could not be satisfied that he was a witness of truth. The tribunal set out detailed reasons for that conclusion. It identified a number of significant discrepancies between various aspects of differing accounts that the appellant had given to it and to the department. These discrepancies included the following. First, in his application to the tribunal, the appellant had claimed his first kidnapping had occurred in 1999, but at the hearing he claimed that it occurred in 2003. When challenged, he claimed that the written version was the correct one. The tribunal was not satisfied that such a discrepancy could have been due to a mistake. 14 Secondly, in his oral evidence, he claimed that his father had been attacked by Muslims resulting in an injury to his kidney and that then he had been taken to the local hospital where he spent about five to six months before being moved, at one stage, to another hospital as he needed a transplant. He claimed in his oral evidence that his family could not afford a transplant and that the father returned home where he died. The tribunal pointed out that this was inconsistent with the account that he had given that the father was in a coma and, at least on one reading, died in the hospital. 15 Thirdly, the appellant claimed in his oral evidence that his second kidnapping occurred in February or March 2006 but that, after the tribunal had pointed out that his written statement had said that the kidnapping had occurred in March 2007, he said the latter was correct. The tribunal observed that the appellant's evidence about the second kidnapping, the date of his capture and his claim that it had occurred on the way home from work at a time when, on his own evidence, he had lost his job, supported its conclusion that he was not a truthful witness. 16 The tribunal noted the similarity and circumstances of the applications of two other people with the applicant to whom it had written in the first letter under s 424A and concluded that there was no coincidence between these three persons arriving together and making similar claims. It concluded that the appellant left India with those persons as part of a group for the purpose of making a claim for protection and not because he had left in fear of his life as he claimed. 17 The tribunal also found that the account of the first kidnapping was inherently implausible. It found that the appellant had asserted that in the space of about two hours he had been captured, taken to a room, beaten, that the captors had rung his mother, who had approached relatives and obtained 10,000 rupees before she travelled five to six kilometres to deliver the ransom. After being questioned about the time frame, the tribunal noted that the appellant changed his evidence to say it may have taken three hours. 18 Ultimately, the tribunal said that it accepted that the appellant was a Hindu but did not accept his account of how his father came to have any argument with Muslims, relating to the woman in the market place. It did not accept the appellant's account of the circumstances of his father's death. In saying that, the tribunal also said: "The applicant has provided a document which he claims is his father's death certificate. However, it has not been translated into English for the tribunal. Without being able to read the document, the tribunal is not prepared to accept the applicant's own evidence alone about the alleged event as the tribunal has found him not to be a witness of truth. Further, the conflict of the applicant's own evidence is that the circumstances of his father's death noted above leads the tribunal to conclude that his father's death was not, in fact, related to any alleged attack on him. The tribunal therefore finds that the applicant's father was not attacked by Muslims and did not die as a result of his injuries. As all the applicant's claims flow from this claim, the tribunal is led to conclude that his whole version of events, as claimed, is not true." 19 The tribunal concluded that the appellant's claims for protection had been fabricated in an attempt to engage Australia's protection obligations and that upon his return to India he would not experience serious harm, as defined in s 91R of the Act.
The grounds of challenge to the Tribunal's decision before the trial judge 20 The appellant's amended application to the Federal Magistrates Court contained six grounds. I will deal with each of these because his claim, in his notice of appeal, that the trial judge erred is based on the asserted failure of his Honour to consider his grounds as amounting to errors of law made by the tribunal and thus, jurisdictional errors by it. 21 The first ground was that the tribunal failed to accord procedural fairness under s 424 of the Act. The trial judge said that ground had been taken from a precedent which had no bearing on the present case but that it appeared to relate to s 424A(3)(a) of the Act. His Honour found that the tribunal's decision did not rely upon independent or country evidence about persecution in India and that its decision was based purely on its refusal to accept the appellant's veracity in relation to his uncorroborated claims of persecution. I do not consider that his Honour made any error in that finding. Indeed, it is plainly correct. 22 The second ground was that the tribunal failed to find that the appellant was a refugee within the meaning of Art 1A(2) of the Refugees Convention. As his Honour said, this ground confused the role of the tribunal, which was charged with the statutory duty of considering the appellant's claim that he was entitled to a protection visa, with the role of the court. It is not the function of the court to determine whether or not, as a matter of fact, a person meets the definition of a refugee. The court's role is to determine whether the tribunal acted in accordance with law and in a way which did not involve it committing a jurisdictional error in arriving at its conclusion. In my opinion, there was evidence before the tribunal on which it could come to the conclusion it did and I agree with his Honour that there is no error made out on this ground. 23 The third ground was that the appellant had given the tribunal sufficient evidence to persuade it to accept his claims of being physically assaulted. This was no more than an invitation to the court to engage in fact finding. The tribunal considered the appellant's claims and was not satisfied by them. As his Honour noted, correctly in my view, the tribunal considered the appellant's claims and concluded that he had given inconsistent and implausible evidence about his two abductions. This afforded the tribunal with a proper basis on which to come to the ultimate factual conclusion it did. 24 The fourth ground complained that the tribunal should not have concluded that the appellant's failure promptly to submit to the department an outline of his claims for a protection visa, after his initially lodging his claim on 14 May 2007, was a basis for concluding that his later submission to the tribunal of the basis of his claims, was not credible. His Honour noted that the appellant had submitted orally to him that the tribunal had not accepted his explanations for the delay in providing his statement of claims and had not been allowed more time by the delegate to do so. Those submissions were not repeated to me. The appellant simply told me that the decision turned on matters of fact, on which he was not successful and that he wanted to leave it to the Court to decide whether or not the appeal should be allowed. His Honour concluded that the tribunal relied on the appellant's delay in disclosing his claims, as opposed to the absence of information in the earlier application. The tribunal said that the statement provided to the tribunal in late June 2007 in connection with the application for review was quite detailed but not particularly complex or lengthy and that there appeared no reason why it could not have been provided, even in a less detailed form, with the protection visa application. The tribunal reasoned that that feature led it to the conclusion that the claims made were manufactured for the purpose of the application and were not genuine. It also pointed out, as I have said, a number of significant factual conflicts between the information in his original application for a protection visa, the statement provided in June 2007 and the oral evidence given by the appellant to the tribunal. 25 In my opinion, the tribunal was entitled to take those discrepancies and matters into account in its reasoning in arriving at its decision. As his Honour found, and I agree, it was open to the tribunal to form the view that the absence of any information about the appellant's history and claims in the two week period before the delegate made her decision, reflected on the genuineness of the claims that subsequently emerged. The tribunal gave proper consideration to those subsequent claims but found they were not persuasive. 26 The fifth and sixth grounds were considered together by his Honour, again, in my opinion, correctly. They suggested that the tribunal had, in some unspecified way, failed to consider properly whether the appellant would suffer serious harm, were he returned to India, for the purposes of s 91R(2) of the Act. As his Honour noted, the tribunal had rejected the applicant's account of what had happened, before it turned to the question of whether the claimed persecution involved serious harm to a person. Having rejected the appellant's evidence as manufactured or not credible, it was not necessary for the tribunal then to engage in a speculative exercise of assessing whether the appellant would face any serious harm of the kind he had claimed if he returned to India. The assessment of seriousness of that harm depended upon its acceptance of the appellant's account that he, in fact, had suffered the harm or harm of the kind that he claimed. His Honour was correct to say that the tribunal had not erred at this point in its reasoning, in finding that it was not satisfied that the appellant faced any risk of serious harm if he returned to India, having concluded that his story was essentially untrue. There was no material on which it could make such a finding as the appellant claimed it should have done. 27 This leaves the last issue, being the one raised, in fariness, by counsel for the Minister concerning the tribunal's mischaracterisation of the father's death certificate as not having been translated into English. His Honour found, as was obvious, that the tribunal made a mistake about that document but he concluded that he was not satisfied that this mistake amounted to a material jurisdictional error. His Honour noted that the certificate confirmed the date of the father's death but did not provide any probative evidence at all about its circumstances and that any failure by the tribunal to appreciate the contents of the document was immaterial to its reasoning on this part of the appellant's claims, or to his claims as a whole. Accordingly, he found that there was no jurisdictional error. 28 In the circumstances of the present case, the role of the court is not to enquire into the merits of the tribunal's determination but only to consider whether it observed the legal requirements set out in the Act and, so far as relevant, at common law, for it to arrive at its decision. There is no error of law simply in the tribunal making a wrong finding of fact: Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. The omission of the tribunal to pay proper regard to the contents of the death certificate did not mean that it failed to consider the applicant's case in accordance with its statutory and common law obligations. Had the tribunal read the certificate, it would have seen simply that the appellant's father died at about the time the appellant asserted but gave no information as to the cause of death. Accordingly, the certificate provided no information or assistance that could have advanced the appellant's claim that his father had been brutally attacked, or suffered injuries that ultimately led to his death. Having regard to the tribunal's detailed assessment of the appellant's credibility, the failure by the tribunal properly to read or understand the purport of the death certificate does not, in my view, lead to any suggestion that the result would have been affected had the tribunal read what was in the death certificate. 29 The most that could be said about the error by the tribunal is that its erroneous conclusion about the death certificate involved a relatively minor matter and provided no more than additional support for a conclusion as to credibility which it had arrived at on other grounds, where its ultimate conclusion was plainly open to it: cp: the position of a court on appeal from a decision of a judge where a credibility based finding is challenged on the basis that one minor matter was erroneously found by the trial judge: Cordelia Holdings Pty Limited v Newkey Investments Pty Limited [2004] FCAFC 48 at [60]‑[61] per Black CJ, French and Tamberlin JJ. 30 The grant of Constitutional writ relief is discretionary. In the present case, no useful result could ensue from the grant of the relief desired by the appellant. In my opinion, the error made by the tribunal in relation to the father's death certificate, was immaterial to the ultimate outcome. In those circumstances, the tribunal would have been bound to refuse the application for the relief claimed, even if the error were not a mere error of fact, as I have found it to be: cf: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619 [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Conclusion 31 For these reasons, I am of opinion, that the appeal fails and must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Dated: 9 June 2009 The Appellant: Appeared in person
SZLJI
Minister for Immigration and Citizenship