CZBE v Minister for Immigration
[2012] FMCA 953
•30 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZBE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 953 |
| MIGRATION – Appeal from Refugee Review Tribunal – alleged failure to consider evidence of political persecution – findings of credibility adverse to applicant. |
| Migration Act 1958 s.36(2)(a), 424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | CZBE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 22 of 2012 |
| Judgment of: | Neville FM |
| Hearing date: | 30 August 2012 |
| Date of Last Submission: | 30 August 2012 |
| Delivered at: | Canberra |
| Delivered on: | 30 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms Cumming |
| Solicitors for the First Respondent: | Clayton Utz, Canberra |
| Counsel for the Second Respondent: | n/a |
| Solicitors for the Second Respondent: | n/a |
ORDERS
The Application filed 26 March 2012 be dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 22 of 2012
| CZBE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Following a short hearing, oral judgment was delivered on 30 August 2012. What follows are the reasons as revised from the transcript.[1]
[1] Upon the appeal being lodged with the Federal Court of Australia, the file relating to this matter was removed to the Sydney Registry of that Court. It was only returned to this Court on 11th October. It was not possible to edit, revise and finalise these reasons without the relevant file: hence the delay in providing settled reasons.
An application was filed on 26 March 2012, which sought to review a decision of the Refugee Review Tribunal (“the RRT” or “the Tribunal”) that was delivered on 22 February 2012.[2]
[2] The application for protection visa was refused by a delegate of the First Respondent on 15 August 2011. As stated in the letter from the Delegate to the Applicant the application for protection visa was refused “…because you [the Applicant] did not satisfy subsection 36(2) of the Migration Act 1958.” The Delegate’s decision and notification from the Department to the Applicant dated 15 August 2011, begins at p.55 of the Court Book (“CB”).
The Applicant seeks orders in the following terms in relation to the ruling by the Tribunal that was adverse to his cause:
1. An order in the nature of certiorari setting the purported decision of the Tribunal aside.
2. An order of prohibition to restrain the Respondent from giving any further effect to the purported decision.
3. An order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law.
4. An order that the Respondent pay the applicants costs and such other orders as the Court sees fit.
The grounds of the application are as follows:[3]
[3] The Applicant filed an affidavit on 26 March 2012, in which he said: “1. I am an Indian Citizen arrived and applied for protection visa under the refugee Convention in Australia. The delegate of the Minister and the Tribunal member refused to grant my visa. 2. The Tribunal decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequences of the claim. Herewith I attached RRT decision.”
1. The Tribunal failed to carry out its review function and to exercise its jurisdiction.
Particular of Grounds [sic]
a) the tribunal did not consider the applicant who had been under immense and intimidating pressure from opposition party members and harassed because of the applicant’s father [sic] membership with BSP party.
b) In relation to above the Tribunal did not consider the applicant’s claim that if he has to go back to India in near future, opposition members will seriously harm him.
2. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant [sic] circumstances and the consequences of the claim.
3. The applicant satisfy [sic] the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
The First Respondent sought orders dismissing the application (and an order for costs). The First Respondent submitted that:
(a)there was no jurisdictional error in the decision of the Tribunal;
(b)the Tribunal [properly] considered the claims of the Applicant, and afforded him natural justice in accordance with Part 7, Division 4 of the Migration Act;
(c)the Tribunal made findings as to credibility that were open to a reasonable decision-maker on the evidence.
Background
The Applicant is a citizen of India, who was born in September 1992 and who reads, speaks and writes Punjabi and English. He claims to be a Sikh. Of some significance, according to the Tribunal, his parents and brother live in India.[4] He lists his occupation as “student.”
[4] It is recorded at [20] of the Tribunal’s reasons that the Applicant’s “parents and brother live in India.” However, at [29] of its reasons, the Tribunal states: “In Australia the applicant is living with his parents.”
He arrived in Australia on 28 February 2011 on a visitor visa.[5] On 24 May 2011 the Applicant lodged an application for a protection visa[6] claiming fear of persecution in India on the basis of his Father’s former membership of the Bharatiya Janata Party (“the BJP”) and both his Father’s, and his own, subsequent adherence to the Bahujan Samaj Party (“the BSP”).[7]
[5] CB p.116.
[6] CB pp.1-54.
[7] CB pp.25-26 & the Tribunal’s reasons at [22].
In the Tribunal’s reasons, at [22], there is outlined the Applicant’s claims for protection. By way of summary, they relate (as already briefly noted) to his Father being a member, initially, of the BJP, then later of the BSP (another political party), and that the Applicant became involved in some political activity, such that, so the Applicant says (as recorded by the Tribunal), he became well known to the opposition party, and that the Applicant and his family members “were threatened by the major party members.”
The Tribunal records that this “did not stop his beliefs or their expression and he canvassed house to house distributing leaflets and organising mini meetings among the minorities.”
The Tribunal records, still at [22], that the Applicant contends that on one occasion he was “dashed to the ground” and kicked with blood coming from his mouth. It is contended further that the Applicant was threatened with death, which caused him “lasting damage mentally and physiologically so he decided to leave India.”
In [24] of the Tribunal’s reasons, there is recorded (and which need not be reproduced here) detail from a record of interview between the Delegate and the Applicant on 9 August 2011. It might be said, however, that the detail in this part of the Tribunal’s decision is an elaboration of the basic claims and contentions already outlined earlier in these reasons in relation to the Applicant’s political activities and the alleged persecutory consequences of it.
Among other things, the Applicant confirmed that his Grandparents continue to live in India as does his brother.
The various factual claims of the Applicant are explored in detail in the Tribunal’s decision at [25] – [50]. They need not be summarised here.
It is also important to note that the Tribunal wrote to the Applicant, pursuant to s.424A of the Act, on 19 January 2012, in which it invited him to comment on particular matters set out in that letter. Sixteen separate issues were raised with the Applicant. They are set out at [50] of the Tribunal’s reasons.[8]
[8] CB pp.124-125.
The Tribunal’s reasons record the Applicant’s response, at [51].
Summarily, I note the following further matters from the Tribunal’s decision.
First, the Tribunal noted, beginning at [55] of its reasons, that it had a number of concerns about the Applicant’s evidence “which cause the Tribunal to find that the applicant is not a credible witness and has not been truthful in relation to his experiences in India, his reasons for leaving India and his fears about returning to India.”
Secondly, and by way of amplification, the Tribunal observed that the Applicant’s evidence was inconsistent in relation to his contentions concerning his Father’s alleged political affiliations.
Thirdly, the Tribunal further observed that the Applicant’s evidence was also inconsistent in relation to his own involvement in political affairs in India. Indeed, as the Tribunal noted, at [57] and [58], given the centrality of Indian politics to his claim for refugee status, his knowledge of matters relevant to his claim concerning Indian politics was “superficial.”
Fourthly, in relation to the Applicant’s claims and evidence in relation to attacks being made on him because of his [various] political allegiances and involvement, at [59], the Tribunal found it to be “inconsistent and unpersuasive.”
According to the Tribunal, similarly unpersuasive was the Applicant’s evidence with respect to his Father’s involvement in and causally related [alleged] mal-treatment from various elements in Indian politics.
At [61] of its reasons, the Tribunal confirmed – and to a significant degree - that it did not regard the Applicant as being a credible witness, or that any of his claims (other than his identity and nationality) were true.
In sum, the Tribunal found, at [64], that “considered singularly and cumulatively” the Applicant’s circumstances did not establish that he had a well-founded fear of persecution for a Convention reason if he were to return to India now or in the reasonably foreseeable future.
Discussion & Resolution
At the outset of its reasons, the Tribunal properly referred to the statutory framework of the matter before it by reference, firstly, to s.36(2)(a) of the Act, secondly by reference to the well-known definition of “refugee” under the Convention Relating to the Status of Refugees (1951) [and as amended by the Protocol Relating to the Status of Refugees (1967)], and thirdly (at [10]) to a range of High Court decisions that have discussed the definition and application of the term “refugee.” I need not repeat these matters.
Next, the Tribunal outlined, in some detail at [11] – [17], the essential elements of the definition of ‘refugee.’
It is important to recall here the limited and circumscribed nature of the review application now before this Court, which is necessarily limited to jurisdictional error. Often, if I may say, it is somewhat easier to define this notoriously difficult term by reference to what is excluded rather than what it comprehends. Of particular significance in the current application is that “merits review” is not, and may not be, part of the review process.
The are many cases which explore – to varying degrees – the so-called ‘metes and bounds’ – of what is and what is not permissible consideration of what does and what does not constitute jurisdictional error.[9]
[9] Cf. the High Court’s comments in Kirk v Industrial Relations Commission (2010) 239 CLR 531 at [71] where the majority said: “It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error.”
Thus, Brennan J said in Waterford v Commonwealth:[10]
…a finding on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law.
[10] (1987) 163 CLR 54 at [14].
Rather more recently, the High Court said in Minister for Immigration and Citizenship v SZJSS, at [23] (internal citations omitted):[11]
[23] General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
[11] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
In the joint judgment of Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs; Appellant S396/2002 v Minister for Immigration & Multicultural Affairs, at [73] and [78], their Honours said (internal citations omitted; emphasis in original text):[12]
[73] The objective element [of the Convention definition of “refugee”] requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant.
[78] The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.
[12] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs; Appellant S396/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.
In relation to the specific grounds of the current application, ground 1 refers particularly to the Tribunal’s [alleged] failure “to carry out its review function” and further its [alleged] failure to “consider the applicant” and his particular circumstances, as well as the [alleged] failure to consider what would happen to the Applicant if he were to return to India.
In relation to each of these matters, it is clear on the face of the record that (a) as a matter of procedure or process, the Tribunal had regard to its proper function as a reviewing tribunal, and (b) it considered each of the contentions raised by the Applicant, including whether he genuinely faced a fear of persecution if he returned to India.
Fatal to the Applicant’s contentions in this Court are two matters in particular.
First, the Tribunal confirmed on a number of occasions and gave reasons for so finding, that the Applicant was not a witness of truth. His credibility was seriously undermined by the inconsistencies in his evidence. Such a finding in relation to credibility is not open to review by this Court.[13]
[13] Generally, see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407. In this latter case, McHugh J said, at [67], that “a finding on credibility … is the function of the primary decision-maker par excellence.” Although not relied upon, I note that the Delegate said (see CB p.68; p.9 of the Delegate’s reasons) that in the Applicant’s evidence there were “[n]umerous inconsistencies and contradictions” which ultimately led her to consider that the Applicant’s claims were not credible. I have previously noted in these reasons the formal findings to similar effect of the Tribunal.
Secondly, even if it could be alleged let alone sustained (which I do not accept that it could) that the Tribunal did not properly review all of the Applicant’s evidence and claims, I note, in particular, that after the hearing, the Tribunal wrote to the applicant setting out 16 areas where it asked for clarification and or afforded him the opportunity to provide further evidence. The Applicant responded as recorded in [51] of the Tribunal’s reasons. Notwithstanding the further responses from the Applicant, the Tribunal remained unmoved in its assessment of the evidence.
It follows from what has been said in relation to Ground 1 of the application that the more generic claims set out in grounds 2 and 3 in the Application are also not made out.
Ground 2 is simply a statement to the effect that the Tribunal’s decision is “unjust” and that the Tribunal did not properly take account of the evidence. Put another way, in my view, this amounts to saying no more than the Applicant disagrees with the Tribunal’s decision. As such, this does not constitute a ground upon which the Court could properly intervene in the Tribunal’s fact-finding and consequent decision.
In Abebe v Commonwealth of Australia,[14] at [187], Gummow and Hayne JJ described the function of the Tribunal in the following way: "The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out."
[14] (1999) 197 CLR 510.
Their Honour’s comments apply to the process and the findings here. Ground 2 is not made out.
Ground 3 of the application in the current appeal again refers to the alleged failure of the Tribunal to accept that the Applicant had made out or otherwise had presented evidence that satisfied the elements of the definition of “refugee” under the Convention. Further, the Applicant contends that the Tribunal did not consider the evidence of the Applicant in establishing, he says, the relevant elements of the Convention.
Patently, for the reasons already given, the Tribunal did have regard to the terms of the Convention, the definition of “refugee”, relevant decisions that considered that definition, and the evidence of the Applicant in the light of such a jurisprudential framework. Ground 3 is not established.
Should it need to be stated, in addition to the reasons already given, I accept the submissions filed on behalf of the First Respondent on 27 August 2012.
For the above reasons, and in all of the circumstances of the matter, the appeal from the Tribunal’s decision cannot succeed. The application must therefore be dismissed with an order for costs in accordance with the Schedule attached to this Court’s Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 18 October 2012
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