SZACC v Minister for Immigration

[2003] FMCA 290

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACC v MINISTER FOR IMMIGRATION [2003] FMCA 290

MIGRATION – Review of RRT decision – application for protection visa – whether the applicant has a well-founded fear of persecution – duty to inquire – whether there is a duty to follow the decisions of other Tribunal members – findings of credibility – Wednesbury unreasonableness – jurisdictional error – whether there is a reviewable error.

Migration Act 1958 (Cth), ss.424(1) and 427(1)(d)

Ahmed v Minister for Immigration [2001] FCA 506
Gnanasambanther v Minister for Immigration [2001] FCA 693
Minister for Immigration & Multicultural & Indigenous Affairs v Anthony Pillai [2001] 106 FCR 426

Applicant: SZACC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1221 of 2002

Delivered on: 3 July 2003

Delivered at: Sydney

Hearing date: 3 July 2003

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Self-represented

Counsel for the Respondent: Mr A McInerney

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1221 of 2002

SZACC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is an Indian citizen who arrived in Australia on 9 October 1999.  On 5 November 1999, he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs.  His application was considered by a delegate of the Minister who decided on

   
   

   31 December 1999 to decline to grant a protection visa.

2. On 20 January 2000, the applicant applied for a review of that decision by the Refugee Review Tribunal (RRT).  The decision was reviewed by the Tribunal, which made its decision on 24 October 2002, and handed it down on 14 November 2002.  The Tribunal determined to uphold the original decision of the delegate.

3. The applicant has sought judicial review of the decision of the Refugee Review Tribunal by way of an application filed in this court on

   
   

   27 November 2002.  In that application, he lists nine grounds for appeal.  These are: 

   1.The Tribunal member erred in law by not putting any weight whatsoever upon the copy of the letter received from the Mujahideen Organisation, the office of Jammu and Kashmir Freedom Movement, Muzafar Abad.

   2. The Tribunal member erred in law by not placing any weight whatsoever in respect to the evidence presented by the witness in the matter.

   3. The Tribunal member erred in law by not placing any weight whatsoever upon the report of Human Rights, which corroborates the claims being made by the applicant concerning his experience whilst in Kashmir.

   4. The Tribunal member erred in law by not using his power to check upon the genuineness or the veracity of the document, which directly quoted the applicant being involved in the release of the political detainees.

   5. The Tribunal member erred in law by failing to take into consideration the precedent case, whereby the applicants have had similar claims acknowledged and ultimately found eligible for the grant of protection visas.

   6. The Tribunal member erred in law by not giving any weight whatsoever to the press release issued in Muzafar Abad, in which there is a direct reference of the event upon which the applicant based his claim.

   7. The Tribunal member erred in law by drawing inferences, which was contrary to the evidence presented before the Tribunal. 

   8. The Tribunal member erred in law by drawing inferences, which could not be reasonably drawn from the evidence before him.

   9. The Tribunal member erred in law by coming to a decision that no reasonable member could come to in the light of the evidence before it.

   These grounds for appeal were not in any way further particularised, and no written submissions were received from the applicant. 

4. The factual matrix which founded the applicant's alleged well-founded fear of persecution for a convention reason was that prior to coming to Australia he was an officer in the Indian Army stationed in Kashmir.  He informed the Tribunal that he became concerned about the treatment by the Indian army of young Kashmiris and he became more and more sympathetic to the causes of the Kashmir Democratic Alliance and the Mujahideen.  In mid-1998, the applicant was transferred to Kashmir in order to undertake a demographic survey of the area.  He observed many innocent youths being detained by the army and interrogated in a barbaric manner.  He, together with other officers, engineered the release of about 13 young detained Kashmiri youths on or about 16 July 1999.

5. The applicant claims that he then deserted from the army and took shelter with the Mujahideen.  He had remained in hiding from 16 July 1999 until he left for Australia on 8 October 1999. 

6. The applicant travelled to Australia on his own passport which had been issued in about 1998.  He had previously applied for Australian visas in 1998 and in early 1999, but these had not been granted.  Finally one was granted which enabled him to travel. 

7. The Tribunal's decision in the matter is given in its summary of findings and reasons between [CB 111 and 112].  At [CB 112], the Tribunal says:

   “He may have attended meetings of dissident groups, though I did not find his evidence of such an association convincing.  If he did attend such meetings, I am not satisfied that this has, or will put him in any risk of persecution.    

   The applicant claims that in mid-1998 he and another officer deserted from the Indian Army after releasing 13 Kashmiri detainees.  The applicant then went into hiding.  He was able to obtain a visa to enter Australia.  Some three weeks after that visa was issued he left India on his own passport by air.

   I note the country information regarding departing India through airports.  It seems inherently improbable that an Indian army officer, who had committed a serious offence and deserted, would be able to leave India by air three months later, travelling on his own passport. 

   I heard the various explanations offered by the applicant as to how this may have occurred.  I did not find his evidence on those matters to be convincing, nor was I satisfied that the applicant's evidence regarding his desertion from the Army and his releasing of detainees was truthful.

   Having heard the applicant's evidence, I am not satisfied that he deserted from the Indian Army, or that he released Kashmiri detainees. 

   I am not satisfied that the applicant is at any real risk of arrest, imprisonment, being killed or any other form of persecution, should he return to India.

   I am satisfied that the applicant became dissatisfied with his life and with certain conditions in India and he had a genuine desire to leave India from 1998 on.  I am satisfied that the applicant was eventually successful in being granted a visa in September 1999, and travelled to Australia some weeks later.

   I am not satisfied that the applicant has a well founded fear of persecution.”

8. When the matter came before me today, the applicant, who appeared on his own behalf, told me that he did not believe the behaviour of the Tribunal was good.  He complained that the Tribunal did not respond to his greetings.  He told me that the main objection of the Tribunal was to the method upon which he purported to have left India on his original passport.  He told me that he had paid money to an agent to help him to leave, and in reply informed me that if you pay money in India you can get almost anything.  The applicant felt there was too much emphasis in the Tribunal's decision on the method by which he left the country and his ability to leave the country.

9. In his helpful written submissions, Mr McInerney has dealt with matters raised in the applicant's grounds for appeal.  He rightly says that the complaints concerning the weight put by the Tribunal upon various matters is not something which can constitute jurisdictional error.  It is clear from the authorities that the Tribunal is entitled to assess the weight of the evidence itself.   Indeed, that is its major duty.  If the court places itself in the position of the Tribunal, and seeks to alter the Tribunal's decision based upon its own views of the weight of evidence, it will be committing an error itself. 

10. In regard to the complaint that the Tribunal did not check upon the genuineness or veracity of the documents submitted, I note that whilst the Tribunal has power to initiate such inquiries, by virtue of ss.424(1) or 427(1)(d) of the Migration Act 1958 (Cth) (“the Migration Act”), there is no obligation upon it to do so in any particular case. See Ahmed v Minister for Immigration [2001] FCA 506; Gnanasambanther v Minister for Immigration [2001] FCA 693 at [20]; Minister for Immigration & Multicultural & Indigenous Affairs v Anthony Pillai [2001] 106 FCR 426 at [86].

11. The difficulty that the applicant has in convincing the court that a decision not to investigate constitutes an issue indicative of unreasonableness or failure to consider a relevant matter, which would mean that the failure went to jurisdiction, is that the documents which are contained at [CB 92 and 94], do not directly refer to him.  The documents were considered by the Tribunal but it would appear that it did not find them sufficiently convincing. 

12. The complaint that the Tribunal did not follow another precedent of another Tribunal or delegate has no basis in law.  The Tribunal's duty is to decide the case before it on the basis of the evidence which is presented to it.  Factual findings made in another case cannot bind the Tribunal nor does it give rise to a duty to take those findings into account.

13. I am not entirely clear what inferences that the applicant is alleging the Tribunal ultimately drew.  What the Tribunal did was to come to some views about the applicant's credibility by comparing the information provided by him with country information and making a general assessment of the applicant's evidence.  This, again, is the very duty of the Tribunal. 

14. The reference to unreasonableness would appear to be a reference to unreasonableness of the type known as Wednesbury unreasonableness.  The authorities dealing with this proposition indicate that it is a ‘rare bird indeed.’  It cannot arise out of competing views of evidence. 

15. It is correct for the applicant to say that the main pillar of the Tribunal's finding was the fact that the applicant managed to leave an airport in India and fly to Australia some three months after he had allegedly deserted from the Army and helped to release some prisoners.  I note that the applicant's concern about this matter was expressed to the Tribunal by way of a letter dated 21 December 2001.  It is found at [CB 47].  In that letter he gives an explanation as to how he was able to leave the country. 

16. The Tribunal took that letter into consideration as well as the applicant's oral evidence concerning the matters.  It balanced those explanations against what it knew of the situation in India, it came to the conclusion that the explanation was inherently improbable.  The Tribunal based that decision upon available evidence and, in the circumstances, it seems to me that it is not a matter which is capable of review. 

17. I must, therefore, dismiss this application, which I do.  I order that the applicant must pay the respondent's costs, which I assess in the sum of $4,250.00 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrate Court's Rules. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

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