MZXPI v Minister for Immigration
[2007] FMCA 1560
•9 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXPI v MINISTER FOR IMMIGRATION | [2007] FMCA 1560 |
| MIGRATION – Refugee Review Tribunal – no point of principle. |
| Applicant: | MZXPI |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 255 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 9 August 2007 |
| Date of last submission: | 9 August 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 9 August 2007 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondents: | Ms C.L. Symons |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed 5 March 2007 be dismissed.
The applicant pay the respondents' costs fixed at $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 255 of 2007
| MZXPI |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Revised from Transcript)
The applicant in this matter seeks judicial review of a decision of the Refugee Review Tribunal dated 17 January 2007. The applicant is a citizen of India, who arrived in Australia on 7 June 2006. The applicant sought a protection visa on 20 June 2006. This was refused by a delegate of the minister on 31 August 2006. The applicant then applied for a review of the decision in the Refugee Review Tribunal on 2 October 2006. The Refugee Review Tribunal affirmed the decision of the delegate not to grant a visa. The delegate's decision is a lengthy one, running for 31 pages.
The applicant's claims related to persecution on the basis of his political opinion and religious affiliation extending beyond being of the Muslim faith to include his participation with a particular Islamic group.
There were a very large number of inconsistencies and matters that caused the tribunal to have some doubt as to his version of events. As a consequence, the tribunal member provided him with a notice under section 424A, setting out evidence and other reasons that tell against his claim. The notice runs for four pages. It contains a large number of points (approximately 14). The applicant did not respond to that notice.
As the reasons of the tribunal for disbelieving the applicant and refusing the application are extensive, it is not convenient to quote the relevant passages. I find that the summary provided by counsel for the Minister in her outline of the case provides an appropriate outline of the decision. In that summary, counsel said:
11. The RRT did not accept that the applicant was ever a member of, or involved in, either the MDMK or Tauhid Jamad: (CB 129). The RRT rejected the applicant's claims based on its assessment of the applicant's credibility (CB 128.4 and 129.2).
12. The RRT also concluded that the applicant would not face persecution because of his religion from his claimed involvement with Tauhid Jimad including his involvement with religious conversions. The RRT relied on country information about religious co-existence and constitutional protection for freedom of religion in India to conclude that the applicant would not face a real chance of persecution for any other reason associated with his religion: (CB130).
13. The RRT found that the applicant's evidence about his involvement with the MDMK was vague and unconvincing because:
13.1 The RRT found the applicant's knowledge was minimal when contrasted with his and his father's claimed level of involvement in the MDMK. In particular, the RRT was critical of his poor knowledge about candidates, election results and the arrest of senior MDMK officials.
13.2 The RRT did not accept that the applicant and his father campaigned for an MDMK candidate in 2006 after they where harassed by the MDMK party.
13.3 The RRT did not accept that the DMK caused tax officers to harass the family business between 1996 and 2001 given the DMK and MDMK resolved their differences in 1999.
13.4 The RRT did not accept that the licence of the family business was cancelled by the DMK in May 2006 based on when it happened - well after their rift with the DMK in 1993.
13.5 The RRT placed no weight on the applicant's inconsistent evidence about when and whether the applicant and his father were expelled from the MDMK.
14. Consequently, the RRT did not accept that the applicant and his family ever had any political profile. The RRT did not accept the applicant, or his family, were ever targeted by the DMK, or MDMK nor charged or implicated in the political murder.
15. The RRT also found the applicant's evidence about his involvement with Tauhid Jamad lacked credibility. The applicant provided inconsistent and vague evidence about:
15.1 When he joined Tauhid Jamad. He alternately suggested that he joined in 2000, 2001, 2002 and 2004.
15.2 Why he joined Tauhid Jamad. He could not articulate the CD message that apparently prompted his membership.
15.3 What he did in Tauhid Jamad. He said he organised meetings but provided little detail about the venue, frequency and how he organised these meetings.
15.4 His role in conversions for Tauhid Jamad. The applicant could not detail how he helped with conversions and what the Tauhid Jamad did to encourage conversions.
15.5 The RRT also found the applicant's evidence that he did not attend a mosque or observe Muslim practices in Australia was incongruent with his claim that he was heavily involved in Muslim activities in India.
16. Consequently, the RRT concluded the applicant was not ever associated with Tauhid Jamad and hence was not arrested in 2003.
17. The RRT concluded that the applicant was not previously harmed because of the MDMK or Tauhid Jamad and consequently that he did not face a well founded fear of persecution for an actual, or imputed political opinion or for reason of his religion or race.
The grounds for the application as set out in the application filed by the applicant are as follows:
1. The Tribunal has accepted that I am a Muslim and also accepted there has been violence against Muslims but never assessed my claim against the convention grounds of race/religion being a Muslim.
2. The Tribunal accepted that I was arrested and threatened by the Police for engaged in converting the non-Muslins to Islam and being a member of the Muslim organisation Tauhid Jamad but applied the wrong test that I must have been charged by the Police to trigger persecution for convention ground.
3. The Tribunal jurisdictionally erred by not holding that the licence of our shop was cancelled due to political opinion.
4. The Tribunal as its decision record at page 17 last paragraph quotes inter-alia “that the UNP continued to implement an inclusive and secular platform based on religious tolerance;…”. And I am at a loss to understand what was the abbreviation to UNP and the so called independent information mentioned in this paragraph do not exist and the tribunal was confused and reckless in its decision making process and has not discharged it duty under the Migration Act and thereby jurisdictionally erred.
The applicant followed this up with a set of Contentions of Fact and Law containing eight paragraphs.
At the hearing before me, the applicant's claims centred almost entirely upon issues going to the merits of the decision. The applicant also sought to have a rehearing as he now wished to provide further evidence to the tribunal. The applicant was not able to set out in concise form any particular unfairness that he said he suffered in the tribunal process. This is consistent with his written submissions, the relevant parts of which were as follows:
2. The Tribunal accepted albeit reluctantly that I did display some level of awareness of matters do with the MDMK (CB-Page 126). At one stage it says that the evidence of my involvement with the MDMK was vague and unconvincing. At another time it says that my evidence was not credible. This is solely because the Tribunal downloaded, some internet information and tried to match my answers with that. It is clear to me that the Tribunal neither knew nor attempted to know what my case was all about.
3. The Tribunal has said that my evidence was vague in a number of significant respects, vague and lacking in credibility, unconvincing and so on. I think this is a most unusual and unfair way to assess my claim. The Tribunal was completely ignorant of the politics in Tamil Nadu state in India. This is very clear from the manner in which the Tribunal has taken its country information, without attempting to understand it in relation to my claims. This becomes more apparent when the Tribunal uses UNP (C13- Page 116 last paragraph) which is a political party in Sri Lanka and has nothing to do with my claim.
4. The Tribunal has been very unfair to me when it questioned me about candidates who stood for the elections and matched my answers with statistical reports it had got from the computer. I say it is unfair because no matter what your involvement in politics no one can remember the exact election results. Also one has to understand the politics in ones country. But what the tribunal member has done was to weigh of my statement as to what happen in a county like Australia. This is very unfair. I would respectfully say that it was the Tribunal that has been vague and unconvincing in its findings and based on some half baked information, has bluffed its way throughout. I am not able to respond to this decision effectively because every where or almost every where if the Tribunal says my evidence was vague or very vague, then it has not done its job properly by giving definite findings.
5. The Tribunal has set out in very detail the questions it had asked me. If this was the level of its examination, I am unable to understand why it had not sought to clear up my doubtful answers by asking more questions rather than it saying that my answers were vague and unconvincing.
6. I am not able to understand the letter that the Tribunal sent me asking me to reply when it did ask me at the hearing these questions and secondly when I had given these answers, what was the need for the Tribunal to send me a letter. Because I have already given the Tribunal the required information.
7. It is clear to me in two important points ie- my involvement with Tauhid Jamad and the MDMK party the tribunal did not address and/or explore my evidence. However these claims are very important because Tauhid Jamad activities involved in the forced conversion issues and the involvement of the radical Hindu party BJP. This is very important but I am sure the tribunal did not understand and/or explore or deliberately wanted to avoid it. It is clear to me that the manner in which the Tribunal extracted country information about political parties in Tamil Nadu India, it did not have a fair idea or attempted to have a fair idea of the complexities of Indian politics nor attempted to have. At the least the Tribunal failed to consider an. integer of my claim- Vide Htun - v-MIMA {2001} 194 ALR.
Counsel for the minister has carefully analysed the application and written submissions and summarised them as identifying, in substance, six grounds, which she summarised as follows:
22.1 The RRT did not assess the applicant's general claim that he would be persecuted because he was Muslim and failed to properly explore his claim about Tauhid Jamad activities and conversion of non-Muslims: Application paragraph [1] and Contentions paragraph [7]
22.2 The RRT accepted that the applicant was arrested and threatened by police for converting non-Muslims but applied the wrong test to this evidence when it found that the applicant must have been charged by police for converting non-Muslims in order to trigger persecution: Application paragraph [2].
22.3. The RRT erred by not holding that the shop licence was cancelled due to political opinion: Application paragraph [3].
22.4 The RRT misapplied country information in assessing the applicant's credibility: Contentions paragraphs [3] and [4].
22.5 The RRT erred when assessing the applicant's evidence as vague by not giving definite findings and did not try to clear up 'vague and unconvincing' answers by asking for more information: Contentions paragraphs [4] and [5].
22.6 The RRT erred by sending the applicant the section 424A letter: Contentions paragraph [6].
Counsel for the minister has then gone through each of the grounds that she has identified and provided concise and appropriate answers to each one as follows:
Ground (a)
23. The first respondent submits that ground (a) cannot be sustained. The applicant made a bare claim that he would face persecution as a Muslim in his protection visa application: (CB 21 and 22). However, before the RRT, the applicant did not agitate or elaborate on that claim, other than as an incident of his claim that he would face persecution as a member of the Tauhid Jamad or in the course of converting non-Muslims. The RRT properly considered the two latter claims, as well as a general claim that he would be persecuted as a Muslim. The RRT concluded at CB 129:
As the Tribunal does not accept that the applicant was connected with either the MDMK or Tauhid Jamad as claimed, it does not accept that he or his family have ever been in any way harmed by members of other political parties, religious extremists, thugs, the authorities or others because of an actual or imputed political opinion or because of actual or imputed involvement in religious conversions or other activities on behalf of the Tauhid Jamad. (emphasis added)
Then at CB 130:
… Nevertheless, the Tribunal finds that the chance that the applicant would face persecution for reasons of his ethnicity or his religion is remote. As reflected in the US Department of State's report, relations between India's religious groups are generally amicable with the vast majority of Indians of every religious creed living in peaceful coexistence. The constitution provides for freedom of religion and the government generally respects this right in practice. The Tribunal does not accept that the applicant has suffered harm in the past because of an association with a Muslim organisation called Tauhid Jamad, because of actual or imputed involvement with religious conversions, or for any other reason connected with his religion. (emphasis added)
Ground (b)
24. Contrary to the applicant's assertion, the RRT did not accept that the applicant was arrested and threatened by police for converting non-Muslims. The applicant's complaint in relation to this ground appears to arise from the discussions at the hearing, in relation to the applicant's role in the Tauhid Jamad. The RRT in the course of these discussions put to the applicant independent country information that indicated that no one had ever been charged under the anti conversion law, and that it had not seen any reports that the anti conversion law had been used to arrest people. Further, the law had been repealed in 2004. This discussion discloses no error.
25. Ultimately, the RRT made a finding of greater generality that the applicant was not ever arrested. The RRT specifically finds at CB129.2:
The Tribunal does not accept that the applicant was arrested in 2003 or at any other time for involvement with the Tauhid Jamad or because he was implicated in the conversion of people to Islam.
26. It follows that the RRT did not apply the wrong test and the first respondent cannot identify any point in the RRT findings where the RRT applies this test.
Ground (c)
27. The RRT did not accept 'that the DMK government cancelled the family's licence in 2006': (CB128.4). The primary basis for the RRT's finding was the credibility of the applicant. On the basis of the RRT's assessment of the applicant's credibility, the RRT made a finding of greater generality that the applicant and his father were not politically involved and hence were not targeted by the DMK at all. The RRT alternatively found that the applicant's family's dispute with the DMK stemmed from 1993 but the DMK only cancelled the licence 13 years later in 2006 and on this basis, it was implausible that the DMK would cancel the applicant’s family’s licence.
28. The first respondent submits that the RRT made both the more general and more specific findings on logically probative grounds. Consequently, while the applicant may disagree with these findings, they are findings of fact which cannot be challenged by the applicant on judicial review.
Ground (d)
29. The applicant complains that the RRT was 'completely ignorant of the politics in Tamil Nadu state in India' and consequently relied on country information 'without attempting to understand it in relation to my [the applicant's] claims'.
30. It is well established that it is a matter for the RRT as to what (if any) country information it considers relevant and what weight to accord it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. In this case, the RRT relied on country information as a means of testing the applicant's claims about the elections that he was involved in, the law on conversion and religious freedom in India. The first respondent submits that this use of country information discloses no reviewable error.
31. Further, to the extent that the applicant accuses the RRT of having been unfair in its expectations that the applicant recall certain detail of his claims, the first respondent notes that in fact the RRT made a number of comments that suggest it was fully cognisant of the limitations of memory: see for example at CB 127.3
32. The applicant also complains that the RRT referred to information about the UNP, a Sri Lankan political party which was not relevant to his review. The RRT appears to have made a typographical error in referring to the UNP rather than the UPA (United Progressive Alliance). The first respondent submits that the Court should infer that the RRT intended to refer to the UPA as it does so in the country information which is relevant to the applicant's case, which same country information is expressed in language which is almost identical to that which is used in connection with the reference to the UNP. The typographical error does not create a manifestly absurd result and should not be used as a basis to overturn the decision. See: S14/2002 v Refugee Review Tribunal [2004] FCAFC 171;Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 but cf SZIFI v MIMIA [2007] FCA 63.
Ground (e)
33. The applicant complains that the RRT said his evidence was 'vague' but did not ask more questions to clear up the applicant's doubtful answers.
34. It is clear from the RRT's reasons that the RRT extensively quizzed the applicant but was not satisfied with the applicant's level of detail in his answers. The RRT decision reveals that the applicant simply could not answer questions even when pressed by the RRT. No amount of questioning could cure the applicant's evidence if the applicant simply did not have the answers to the RRT's questions.
35. The RRT decision indicates that the RRT adequately traversed the 'determinative' factors of the decision: per SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [44] - [50] particularly [47] which sets out the requirement that:
[47] … It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
36. Consequently, the first respondent submits that there is no reviewable error on this ground agitated by the applicant.
Ground (f)
37. The applicant complains that the RRT should not have sent the section 424A letter because 'he already [gave] the Tribunal the required information' and asked the applicant those questions at the hearing. The applicant's complaint ignores the role of section 424A in the light of the decisions in SAAP and SZEEU. The first respondent submits that the RRT was obliged to invite the applicant to comment on the information in the section 424A letter and no error arises from traversing material in a hearing as well as in a section 424A letter. In any event, the first respondent notes that the applicant did not reply to the section 424A letter.
I accept the submissions of the Minister. The substance of the applicant's claim before me is one that seeks merits review. He seeks to challenge various findings made by the tribunal, all of which were open to the tribunal on the facts and material before it. The fact that a tribunal reaches a decision that is against an applicant because the tribunal do not accept his version of events is not, by itself, a ground for judicial review. Judicial review is limited to jurisdictional error. This is usually seen in cases where the tribunal has failed to consider the case put to it or failed to comply with the law relating to the visa category or the hearing process or failed to have regard to the material before the tribunal or otherwise erred in the conduct of the process of decision‑making. Of course not every minor error by a tribunal member is a ground for judicial review.
Most significantly, if the tribunal complies with the law, provides the applicant with a proper opportunity to be heard and to present his case and considers the material before it, it is not for this court to decide whether it reached the correct conclusions on the facts when, as in this case, the conclusion reached was clearly available to it on the facts before it.
A further matter raised by the applicant at the hearing related to a claim that he gave evidence at the tribunal hearing as to detail of his involvement with an Islamic organisation. However, there is no evidence before me to show what evidence he gave to the tribunal, either in an affidavit from him or a transcript. On the material before me, I could not be satisfied that the tribunal erred in failing to have regard to this.
With respect to his claim that he now has more evidence and that he could not obtain that evidence immediately because his family had moved and he lost contact with them, I note that he does not allege that he sought more time to provide this to the tribunal or answer to the section 424A letter. Obtaining further evidence after the hearing is not a proper basis for judicial review.
In the circumstances, I therefore dismiss the application.
In this matter, the Minister has been entirely successful and seeks the scale fee for costs. The scale fee appears appropriate given the nature of the file and the conduct of the matter.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
Date: 11 September 2007
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