NBGO v Minister for Immigration
[2006] FMCA 1100
•19 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBGO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1100 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958, s.424A |
| Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61 Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 223 ALR 171 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | NBGO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2417 OF 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 19 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Refugee Review Tribunal is joined as a second respondent to the proceedings.
That the application is dismissed.
That applicant pay the costs of the first respondent fixed in the sum of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2417 OF 2004
| NBGO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 April 2004 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, who is a citizen of India, claimed to fear persecution for reason of her political opinion. She claimed in connection with her protection visa application that her husband was a member of the Sikh Students Federation of India and she also claimed that she had been harassed by the police in the Punjab for this reason. Her application was refused. She sought review by the Tribunal. She attended a Tribunal hearing.
The applicant’s evidence before the Tribunal was in essence, that in April 1994 the Punjab police came to her home in her husband’s village, that the police wanted her husband because he was associated with the Sikh Students Federation and because some people had come to their house for food and shelter and that on this occasion in April 1994 the applicant’s arm had been broken. She claimed that she and her children then moved to live with her brother in another village, but that the police continued to harass her there in search of her husband and her brother and his son who had left the house. She claimed at the hearing that her life would be in danger if she were to return to the Punjab because the anti-Sikh Congress Party was in power.
It is relevant to note that according to the Tribunal reasons for decision (which is the only account of what occurred in the hearing) the applicant told the Tribunal that her brother in Australia had her protection visa application form filled out by someone else who just asked her to sign the form and that she did not know what was in the visa application form because she was illiterate. On that basis the Tribunal preferred her evidence at the hearing to what was contained in that document to the extent of any inconsistency. It proceeded on the basis of her claims as put before it at the hearing, and also stated that it preferred the applicant’s own evidence to that contained in documents she had produced in support of her application to the extent of any inconsistency. Hence it preferred the applicant’s own evidence that she had never been charged with any offence in India to the suggestion, in a letter dated 25 December 2003 which had been provided to the Tribunal purporting to be from an advocate in India, that her case was still pending.
The Tribunal recorded the applicant’s claims. It had regard to the fact that, as it put to the applicant at the hearing, her evidence did not suggest that anything of similar significance to the incident in April 1994 had happened since that time. It also stated that it had to weigh her evidence and the evidence contained in documents she produced to the Tribunal against evidence available to it regarding the militant movement in Punjab. In particular it had regard to two affidavits which had been provided to the Tribunal by the applicant, purporting to be from the Sarpanch of one village and the ex-Sarpanch of another. The Tribunal described these affidavits as being in almost identical terms, which suggested to it that they were prepared for these people to sign. The Tribunal noted the applicant’s suggestion that if the affidavits were almost identical it was because they were both talking about her experiences. However it considered the fact that those documents were in almost identical terms diminished the weight to be attached to them.
The Tribunal also had regard to country information which it outlined and which it stated that it had put to the applicant in the Tribunal hearing and to the claims of the applicant’s brother who had given evidence at the Tribunal hearing about the applicant having a lot of difficulties, no money and nowhere to stay.
The Tribunal found, having regard to the independent evidence available to it, that it did not accept that there was a real chance that the applicant would be harassed by the police or otherwise persecuted because of her husband’s association with the Sikh Student Federation or because some people came to their home for food and shelter.
It did not accept that there was a real chance that the applicant would be persecuted for reason of any political opinion imputed to her or for her membership of the particular social group constituted by her family if she returned to India now or in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal decision by application commenced in the Federal Court on 21 May 2004. The matter was transferred to this Court. The applicant now relies on an amended application filed on 3 February 2005. That application was apparently prepared at a time when the applicant had legal representation although she is now self-represented. The application complains generally that the applicant is aggrieved because she has a well-founded fear of persecution. That complaint of itself seeks merits review and does not establish jurisdictional error on the part of the Tribunal.
The amended application then relies on a ground which is expressed as follows: “The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.” No particular procedures or provisions of the Migration Act 1958 (Cth) (the Act) or Regulations are identified in the amended application, and as expressed it does not establish jurisdictional error It continues that:
The applicant submits, in particular, that the Tribunal did not act according to substantial justice and the merits of the case.
Insofar as this is intended to rely on s.420(2)(b) of the Migration Act 1958 it does not establish jurisdictional error. As submitted for the respondent, this section is not a source of rights upon which the applicant can rely to establish jurisdictional error in the manner contended. (See the Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611 and NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 223 ALR 171 at [34] to [36]).
The amended application continues with a number of generally expressed particulars. The first is that the Tribunal member did not consider the facts of the case that the applicant has a well-founded fear in every part of India. The Tribunal did however consider the applicant’s claims as put to it at the Tribunal hearing and no jurisdictional error is established on the basis contended for by the applicant.
It is also contended that the Tribunal did not consider the material provided to the Department of Immigration and on which the applicant was relying. There is no such material before the Court other than the application and the claims made therein. As indicated above, based on the applicant’s evidence at the hearing as to the manner in which that document was prepared and that she did not know what was in the form, the Tribunal preferred the applicant’s own evidence as given at the Tribunal hearing to the extent of any inconsistencies.
No jurisdictional error is established in the Tribunal proceeding in that manner.
The next claim is a generally expressed claim that the Tribunal did not act according to natural justice and the merits of the case. It reiterates that natural justice was not “adopted and applied for” by the Tribunal and that all the real facts of the case were ignored. There are no other particulars in relation to the claim of natural justice and the generally expressed claim does not establish that the Tribunal fell into jurisdictional error. In those circumstances it is not necessary to consider the effect of s.422B of the Migration Act (but see Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61). There is no particularisation of what the so-called real facts of the case are that were said to be ignored. Moreover as indicated above the Tribunal considered the applicant’s claim.
The next ground is that in its treatment of the claim the Tribunal did not adopt the proper legal procedure or follow the guidelines and rules while deciding the case. This vaguely-expressed ground does not establish any jurisdictional error.
The next ground is that there was no evidence or other material to justify the Tribunal decision and that the Tribunal member considered case laws and material which was not relevant to this matter. Again, there is no identification of what it is that is said not to be relevant to this matter. Insofar as this is a reference to the independent information relied upon by the Tribunal, the weight to be given to particular items of independent country information is a matter for the Tribunal and no error has been established in the manner in which the Tribunal dealt with such material. Nor is it established by this claim that the Tribunal misunderstood or misapplied the applicable law. Given the Tribunal’s consideration of the applicant’s claims, the country information in relation to the situation of Sikhs in India and the Sikh militant movement, there is no basis for the applicant’s claim that there was no evidence to justify the Tribunal’s decision. Similarly, the general claim of an error of law such as incorrect interpretation of the law or incorrect application of the law to the facts is not established.
The final ground relied on in the amended application takes issue with what is said to be the Tribunal’s treatment of the claim that the applicant did not breach any visa conditions or any Australian law and claims that there is no criminal record and that the applicant is a law-abiding citizen and a highly respected person in her community. It is not clear what this ground is intended to refer to as there does not appear to be anything in the Tribunal decision addressing such issues. It does not establish jurisdictional error.
In written submissions counsel for the respondent addressed the issue of whether any breach of s.424A of the Act was apparent following from the decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. As indicated above the applicant had claimed that she did not know what claims had been made to the Department in the protection visa application and the Tribunal preferred her oral evidence to those claims to the extent of any inconsistency. However this is not a case in which the Tribunal rejected the applicant’s claims or found a lack of credibility based on inconsistency between claims in a protection visa application and evidence before a Tribunal. No breach of s.424A is apparent in relation to the Tribunal’s treatment of the applicant’s protection visa claims. Moreover, country information cited by the Tribunal is excluded from the obligation in s.424A(1) by s.424A(3)(b).
In oral submissions the applicant’s brother (who spoke for her to some extent) reiterated that the applicant had problems in the Punjab and feared for her safety and that people were still asking for her. However such claims take issue with the merits of the Tribunal decision. Merits review is not available in this Court.
In closing submissions it was contended for the applicant that she had given the Tribunal information and the Tribunal did not consider it. While this was not elaborated upon in submissions and indeed the applicant’s brother stated that he had not read the Tribunal’s decision, I have considered this claim on the material before the Court.
It is apparent that the applicant provided the Tribunal with a number of documents. As indicated above, two of those documents were supporting affidavits purporting to be from the Sarpanch and the
ex-Sarpanch of villages in India. The Tribunal had regard to those documents but found the fact that they were in almost identical terms diminished the weight to be attached to them. As it indicated, it weighed the material in those documents against all of the material before it including the independent country information in relation to the situation of Sikhs and the Sikh militant movement in India.
The applicant also put before the Tribunal a letter purporting to be from an advocate, suggesting that her case was still pending. It is apparent from what occurred in the Tribunal hearing that she also produced at the hearing untranslated documents in support of her claims, one of which was said to be from the president of the Sikh Students Federation in Amritsar saying that the applicant and her children were in danger, circumstances were worse and that if the applicant needed assistance it should be given to her. The other was said to be a 1994 document from the police station relating to her claims that her husband had been with the Sikh Students Federation and that they had been harassed by the police, that people had come to their house for food and shelter and that they had a case with the police station as a result. She told the Tribunal that the case related to her husband but that they had been harassing the whole family.
The Tribunal addressed the letter from the advocate preferring the applicant’s contrary evidence. There is no specific reference to the other documents in the Findings and Reasons part of the Tribunal decision. The first of those documents is a general document in support of the applicant. The Tribunal addressed the applicant’s claims and also the claims said to be made in the second document in association with its finding, in relation to the claim from the advocate that her case was still pending, that it accepted the applicant’s own evidence that she had never been charged with any offence in India.
In the circumstances of this case it has not been established on the material put before the Court that the Tribunal fell into error constituting jurisdictional error in the manner in which it assessed the applicant’s claims in relation to her own claim to have a well-founded fear of persecution. I note in that respect that the Tribunal proceeded on the basis that it accepted the applicant’s claims that in 1994 the police wanted her husband because he was associated with the Sikh Students Federation, consistent with the document that she produced to the Tribunal.
I also note that it accepted, without discussing further in the findings and reasons, her claim that her arm had been broken in 1994 consistent with the medical documentation that she put before the Tribunal. As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the respondent seeks costs in the sum of $4500. The applicant told the Court that she is not working and is helped by her brother and is not able to pay the costs. However, there is nothing in the circumstances before the Court to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The applicant’s impecuniosity is not a reason for not awarding costs although it may be a matter to be taken into account by the respondent in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
It is also appropriate, as the respondent seeks, that the Tribunal be added as a second respondent.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 7 August 2006
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