S1090 of 2003 v Minister for Immigration
[2006] FMCA 621
•11 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1090 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 621 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India claiming fear of persecution for reason of persecution by the Muslim League – credibility – bias claim. PRACTICE & PROCEDURE – Delay. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
Randhawa v Minister for Immigration and Local Government and Ethnic Affairs (1994) 52 FCR 437
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Plaintiff S134 (2003) 211 CLR 441; 195 ALR 1
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547
| Applicant: | APPLICANT S1090 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 822 of 2004 |
| Delivered on: | 11 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 11 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Nanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Refugee Review Tribunal is joined as Second Respondent to the application.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 822 of 2004
| APPLICANT S1090 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal. The decision was made on 1st July 1999. The Applicant joined in the Muin & Lie class action in the High Court and when his application was remitted to the Federal Court he discontinued his application by consent and on 19th March 2004 brought a fresh application in the Federal Magistrates Court. The participation in earlier proceedings in the High Court and the Federal Court provides some explanation of the delay in bringing the matter to court but not a complete explanation.
Background
The Applicant is a citizen of India. He arrived in Australia on 18th September 1997 and lodged an application for a protection visa on 30th September. When the application was refused he sought a review of that decision with the Refugee Review Tribunal. The Applicant attended a hearing of the Tribunal and gave evidence on 26th May 1999.
He is a follower of the Muslim faith. He claimed that when he lived in Calcutta he had joined the Muslim League and some other organisations. He said that amongst their members were Pakistani underground agents. He said that he was asked to go to Pakistan for training as a militant, but he refused. Indeed, he told the court today that he had no desire to become a terrorist. He told the Tribunal that if he returned to India he was at risk from the Muslim League who wanted to either kill him or kidnap him because they did not want him to give evidence about a riot and murders in 1996, and because he had refused to go to Pakistan for training.
He also claimed to be at risk from local Hindu shopkeepers who were jealous of his family's success in business and also from the police who would detain or kill him, and they had detained him on numerous occasions in the past.
Tribunal’s findings and reasons
The Tribunal made findings that were critical about the Applicant's credibility. In a section of the decision headed "Credibility of the Applicant's claims" the Tribunal began by saying on page 85 of the Court Book:
The Tribunal has reservations about the credibility of the Applicant's evidence.
The Tribunal then went on to give examples and detailed reasons as to why the Tribunal had difficulties with the Applicant's credibility. These reasons are set out at pages 85 through to 87 of the Court Book. They include the following:
a)The Tribunal found the Applicant's evidence in the hearing as to when and why he had been arrested was not convincing.
b)The Applicant's evidence as to his brother being detained was not convincing because the applicant's initial evidence in the hearing was inconsistent with his later evidence in that same hearing.
c)The Tribunal noted that the Applicant's evidence was inconsistent as to his involvement in political groups.
d)The Applicant's evidence as to his being on a hit list was inconsistent.
e)The Tribunal found it unusual that the Applicant would be arrested 35 to 40 times including on suspicion of being a militant and/or Pakistani underground agent and/or on suspicion of murder yet never have been charged with anything.
f)The Tribunal noted that the Applicant's passport was issued in November 1996 and yet the Applicant did not leave India until September 1997 and the Tribunal found that that delay was inconsistent with the Applicant having a subjective fear of kidnap, murder or detention if he were to remain in India.
g)The Tribunal noted that it appeared unusual given the severity of the threats from the Muslim League and from local shopkeepers and the police as well as the Applicant's alleged belief that these threats would be carried out and yet he continued his contact with his home and work.
In summary, the Tribunal said at page 87 of the Court Book:
After considering the whole of the Applicant's evidence and the country information, the Tribunal does not accept the Applicant's claims are credible.
The Tribunal then turned to whether the Applicant's claims were Convention related. The Tribunal made this finding at page 87 of the Court Book:
However, for the purpose of determining the Applicant's claims, the Tribunal has accepted that the motive in part for harm to the Applicant from the Muslim League was his imputed political opinion, the motive in part for harm to the Applicant from the Hindu shopkeepers was his religion, and the motive in part for the harm to the Applicant from the police was his religion and/or imputed political opinion.
The Tribunal then went on to consider that if it accepted that the Applicant's claims were both true and Convention related, his problems appeared to be local problems in Calcutta. The Tribunal considered whether or not it would be reasonable for the Applicant to relocate and seek protection somewhere else within his country of nationality. In doing so, the Tribunal considered the reasoning of the Full Court of the Federal Court in Randhawa v Minister for Immigration and Local Government and Ethnic Affairs (1994) 52 FCR 437.
The Tribunal went on to consider the reasonability of internal relocation at pages 88 and 89 of the Court Book. The Tribunal concluded that after considering all the evidence, relocation from Calcutta within India was a reasonable option for the Applicant. The Tribunal, having considered the evidence as a whole, was not satisfied that the Applicant satisfied the criterion set out in s.36(2) of the Migration Act for a protection visa.
The Tribunal affirmed the decision not to grant a protection visa.
The application for judicial review
The Applicant sought a review of that decision in this court by means of his application filed on 19th March 2004. In that application the Applicant claimed that the Tribunal erred by exceeding its jurisdiction and constructively failed to exercise its jurisdiction.
The Applicant filed an Amended Application on 12th November 2004. In that application the Applicant provided particulars of his claim that the Tribunal had made a jurisdictional error. He provided four separate sets of particulars:
1. The Tribunal failed to give consideration to the fact that if the Applicant relocated to another state or area he would be abducted by the Pakistani underground agents or by the Muslim League members to Pakistan for military training.
2. The Tribunal constructively failed to give any valid reason why it would be safe to relocate to another part of India.
3. The Tribunal failed to consider the fact that the Applicant was already on the hit list and it would be dangerous for the applicant to continue to live (presumably in India).
4. That the Tribunal failed to understand that the Applicant did not face harassment from the shopkeepers who were trying to force him out of the trade area but from Pakistani underground agents, Muslim League members and the Indian authorities.
The Applicant has filed a Written Outline of Submissions on 28th March 2006. The submissions bear very little relationship to the Amended Application. The Applicant pleads nine grounds in the written submissions which I will deal with in order.
Ground 1 sets out the limitations from which a Court can set aside decisions made under the Migration Act 1958. The ground does no more than set out a statement of the law and does not refer specifically to the Applicant's case.
Ground 2 refers the court to the majority decision in the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 and also refers to another decision of the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Plaintiff S134 (2003) 211 CLR 441; 195 ALR 1.
There is no Ground 3. The Applicant refers to Plaintiff S134 (supra) in Ground 4.
Ground 5 explains that a court can set aside a decision of the Refugee Review Tribunal where there has been a denial of procedural fairness or where there is a failure to construe and apply visa criteria according to law. The Applicant goes on to claim that the Tribunal made jurisdictional error by way of identifying a wrong issue, relying on irrelevant material, making an erroneous finding and reaching mistaken conclusions.
Ground 6 complains:
The RRT appears to be biased and did not comply with procedural fairness when arriving at the decision to refuse the Applicant's claims.
Such an allegation is, of course, very serious and should not be made lightly. It must be clearly alleged and proved. I refer to SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. The ground goes on to attack the Tribunal's finding that it would be reasonable for the Applicant to relocate within his home country. The Applicant says:
Consideration should be given to the fact that the RRT accepts the genuine fears and the related claims as true but continues to hold that the Applicant could relocate to other parts of India.
The first point to be made is that that is a complete misquotation of the Tribunal's findings. The Tribunal went to great lengths to point out why the Tribunal did not accept the Applicant's evidence as credible. The Tribunal went on to consider the question of relocation and found that that was a reasonable option even if the Applicant's claims were true. That is far removed from a finding that the Applicant's claims were true, quite the reverse in fact. The ground goes on to say this:
The RRT has deliberately identified wrong issues in order to reject the Applicant's genuine claims as not plausible and acceptable.
This is a serious allegation in that it is an allegation of bad faith involving personal fault on the part of the decision maker. There is no evidence to support it whatsoever. The ground goes on to refer to the decisions in Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 at [574] – [576] and quotes from Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [83]. I am unable to see any connection with the present case in the reference to either Guo or Abebe.
The Applicant then relies on the decision of Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547 as to the Tribunal's rejection of the Applicant's evidence on the grounds of credibility. The relevant part of the quote from Kopalapillai which is unreferenced appears to be this:
There is no rule that a decision maker may not reject an Applicant's testimony on credibility grounds unless there is no possible explanation for the inconsistency, nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility in a refugee case.
The Applicant then goes on to make a submission that is totally at odds with the section of the decision in Kopalapillai just quoted. The Applicant submits that the Tribunal constructively failed to give any valid reason why it would be safe to relocate to another part of India when he feared persecution from the Indian authorities, Pakistani underground agents and the Muslim League members acting against the government. As I have said at pages 87 through to 89 of the Court Book the Tribunal gave detailed reasons as to why it would be reasonable for the Applicant to relocate to another part of India.
The submission goes on to claim that the reasons were unfair and out of context. Not only does the Applicant originally say that the Tribunal had failed to give any valid reason, the Applicant then goes on to say that the reasons were unfair and out of context. It is the Applicant's belief that the reasons were unfair, but a reading of the Tribunal's decision makes it quite clear that the reasons given by the Tribunal member were entirely in context.
The submission goes on to assert:
The RRT held a positive state of disbelief while making an adverse credibility assessment in his case.
It is quite clear that the Applicant's submission entirely misconceives the decision of the Full Court in Kopalapillai quoted by the Applicant. What the court said in Kopalapillai was that it was not necessary for a decision maker to hold a positive state of disbelief before making an adverse credibility assessment. The Applicant goes on to accuse the Tribunal of actually holding a positive state of disbelief while making an adverse credibility assessment. In other words, it appears that the Tribunal's grounds which were set out in some detail in the decision were even stronger than those referred to by the Full Court in Kopalapillai. The entire submission number 6 is misconceived.
Ground number 7 headed "Relying on irrelevant material" takes issue with independent country information referred to by the Refugee Review Tribunal. The Applicant submits that the independent country information was irrelevant but there was no valid reason as to why that should be so. The Applicant goes on to claim:
The RRT would have not have foreseen (sic) that the 9/11 attack on the USA, the Pakistan government's involvement, or the Iraq war that followed suit.
The answer to that is quite obvious. It would be expecting a Member of the Tribunal to have absolutely breathtaking powers of foreseeing the future to have been aware of events that took place from11th September 2001 onwards in a decision that was made on 1st July 1999. In the ground the Tribunal goes on to claim:
The RRT appears to be biased and did not comply with procedural fairness when arriving at the above decision. The Applicant finds that the above decision is flawed by a failure to comply with procedural fairness which involved a jurisdictional error.
There is no evidence of bias or failure to comply with procedural fairness. The Applicant was invited to attend the hearing and did so. The Applicant gave evidence and was questioned by the Tribunal about his evidence. The Applicant may be of the belief that it is evidence of bias or of failure to comply with procedural fairness not to be able to foretell the future or to hand down a decision that is not to the Applicant's liking, but that does not involve a jurisdictional error.
Ground number 8 is headed "Making an erroneous finding". It would appear from its very nature that this is no more than merits review or a challenge to the factual finding of the Tribunal. The ground itself goes on to challenge the Tribunal's factual findings and alleges that a jurisdictional error took place because the RRT failed to use its judgment sympathetically and with procedural fairness. There is no evidence of procedural unfairness and a failure to act sympathetically is not a ground for a jurisdictional error even if it has been established.
Ground number 9 is headed "Reaching a mistaken conclusion", which of itself suggests merits review. The entire ground relates, in fact, not only to a challenge to the fact of factual findings made by the Tribunal, but also:
Definitely a mistaken conclusion taking into consideration the present change of political situation in India, Pakistan and other parts of the world where the Muslims in general are looked upon as having connection with terrorist organisations.
As I indicated earlier, it is unreasonable to expect a Tribunal to foresee in July 1999 the state of the world in 2005 or 2006.
I note that the submissions bear little relation to the Applicant's Amended Application. There is no mention of bias or procedural fairness, even though the Applicant has had since 1st July 1999 to arrive at such conclusions. There is no mention of bias or lack of procedural fairness until the Applicant's submissions on 28th March 2006.
The Applicant told the Court that the Tribunal Member appeared to be laughing at him and either was or was not smiling at him, and he took that as some view that the Tribunal did not treat him fairly. I note that until today there has been no mention of that in any of the Applicant's proceedings.
The substance of the Applicant's claims is that the Tribunal did not believe him. The Tribunal set out detailed evidence as to why the Tribunal did not believe the Applicant's claims and noted that the Applicant's evidence at the Tribunal hearing itself was inconsistent in that the Applicant changed his story. The case presented by the Applicant today varies greatly from what was set out in the Applicant's Amended Application of 12th November 2004.
I am of the view that the Tribunal Member had grounds for making a factual finding as to the Applicant's credibility. Credibility is a factual matter and is very much the province of the Tribunal where there is evidence to do so. In my view the Tribunal had ample evidence.
There is no jurisdictional error demonstrated. The application will be dismissed.
The Applicant says that he is not allowed to work so he does not have an income. Whilst that may not be grounds for not making an order for costs which usually follow the event, it is a matter to be taken into account to consider a person's capacity to pay. I accept the fact that a person who is not working has a greatly reduced capacity to pay.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 27 April 2006
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