SZAPL v Minister for Immigration
[2004] FMCA 444
•5 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAPL v MINISTER FOR IMMIGRATION | [2004] FMCA 444 |
| MIGRATION – Review of RRT decision – where Minister filed a notice of objection to competency – where applicant claims well-founded fear of persecution for Convention reason of political opinion – where applicant’s account inconsistent with independent country information before the Tribunal – whether country information so out of date as to amount to a denial of procedural fairness or natural justice – whether applicant seeking merits review – whether findings and reasons of Tribunal evidence of a denial of natural justice or breach of procedural fairness – whether Tribunal failed to consider part of applicant’s claim. |
Migration Act 1958 (Cth), ss.477(1A), 477(2)
WAEE v MIMIA [2003] FCAFC 184
SCAA v MIMIA [2002] FCA 668
NAST v MIMIA [2004] FCA 86
| Applicant: | SZAPL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 829 of 2003 |
| Delivered on: | 5 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
The applicant to pay the respondent's costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 829 of 2003
| SZAPL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of India. He arrived in Australia as a temporary business entrant in July 1999 and applied for a protection (class AZ) visa on 31 August 1999. On 16 February 2000 a delegate of the Minister declined to grant him such a visa and the applicant sought review of that decision from the Refugee Review Tribunal on 1 March 2000. The Tribunal interviewed the applicant and discussed his claims with him in detail. On 30 January 2002 it determined to affirm the decision not to grant the protection visa and handed that decision down on 21 February 2002. The applicant sought review of the decision from this court on 14 May 2003. A period which was substantially outside the 28-day limit contained in s.477(1A) of the Migration Act. For that reason the Minister's solicitors filed a notice of objection to competency. A notice of objection to competency in these circumstances is only relevant to an actual decision of the Tribunal so that if a decision is found to have been made in jurisdictional error a notice of objection has no validity. However, if a non-jurisdictional error is found then the objection must be accepted pursuant to s.477(2) of the Act.
The applicant's claim to a well-founded fear of persecution for the Convention reason of political opinion arises from his very long standing association with a naxalite group known as the People's War Group or PWG. The applicant, who is a member of the untouchable caste, joined the group after an association with the DMK which was then the ruling party in Tamil Nadu where he lived. He had remained a working member of the DMK between 1978 and 1982. He joined the PWG in 1982.
The applicant gave a history of involvement in political activity set out by the Tribunal between [CB 93] - [CB 102]. This history indicated that he had suffered for his political views by being placed in gaol frequently. He alleged that he suffered as a result; he also suffered beatings and wounds. He claimed that his older sister's son had been captured and beaten to death in 1998.
The applicant's employment situation as put to the Tribunal was somewhat vague. He seemed to have obtained some living from his political activity and in the period before he came to Australia went to work in the hospitality industry.
Notwithstanding the applicant's claim to have several cases pending against him or having been in prison on a number of occasions and being generally sought by the police he managed to leave India in July 1999 with the help of a friend, who he said, bribed people on his behalf.
The Tribunal raised with the applicant a number of matters on which it believed that his evidence was inconsistent with independent country information it had in its possession. In particular, the Tribunal raised with the applicant his claim that in Tamil Nadu the PWG was not involved in armed struggle. When the applicant confirmed that this was the case the Tribunal concluded at [CB 105] – [CB 106]:
“The applicant suggested that the PWG in Tamil Nadu was a peaceful group which had not taken up arms to fight the government. However, as I put to the applicant, if that were the case, I do not accept that the group would have anything to fear from the government. The Australian Department of Foreign Affairs and Trade has advised that supporters of registered parties in India are free to promote their political views in accordance with Indian law...I do not accept, therefore, that it is credible for the applicant to claim that he was repeatedly arrested and that false charges were brought against him by reason of his involvement in what he claims was peaceful political opposition to the government in Tamil Nadu.”
The applicant had also claimed that his son had suffered from Down’s syndrome as a result of the police harassment of his wife during her pregnancy. This was a matter considered by the Tribunal but not accepted. Likewise, the Tribunal did not accept that a wound which the applicant had evidence of receiving had been caused by persons for a Convention reason. The Tribunal concluded at [CB 107]:
“I accept that the applicant genuinely holds the political opinions he expressed at the hearing before me regarding corruption in Indian politics but having regard to the independent evidence available to me, I do not accept that there is a real chance that he would be persecuted by reason of expressing those political opinions if he returns to India now or in the reasonably foreseeable future, provided that he keeps his expression of his political opinions within the bounds of Indian law.
I accept that the applicant feels a sense of injustice because he comes from an untouchable caste but I note that he was nevertheless able to complete his secondary education and to undertake industrial training. The applicant does not claim to have been discriminated against in employment in India by reason of his caste and I do not accept his evidence that he never held a job in India (apart from working briefly as a kitchen hand in a hotel in Tiruvur) and that he supported himself and his family through his political work. Since I do not accept the applicant’s account of his involvement in politics I consider that this claim is part and parcel of his fabricated claims.”
The applicant in his application set out certain grounds upon which he sought review. These were substantially expanded by a document filed on 7 November 2003 which the applicant told me today represented his submissions. It is appropriate that I deal with that document and express why I believe that none of the matters there constitute grounds upon which I could grant review in this case.
The first point relates to the age of the country information utilised by the Tribunal in coming to a view that the PWG Group which is committed to armed confrontation is not active in Tamil Nadu. The information relied upon was dated October 1998. This does not seem to me to be so sufficiently out of date that it would cause concern in respect of what is, in effect, a matter of evidence and a part of the Tribunal's fact-finding exercise with which this court cannot interfere. In any event, it seems to me rather illogical for the applicant to make this point because he stated that he had not been involved in the armed struggle.
Points 2, 3, 4 and 5 seem to me to be a variation on the theme of point 1 relating to the way in which the PWG was organised and worked in Tamil Nadu. The applicant introduced a new fact concerning a violent attempt upon the life of the Chief Minister of the Andhra Pradesh State which was not before the Tribunal. This matter is not one which I can take into account.
At point 6 there is a criticism of the way in which the Tribunal rejected the applicant's allegation that he was involved in politics in a particular and important way. It alleges that the Tribunal did not go into each and every situation. In WAEE v MIMIA [2003] FCAFC 184 the full court said at [46]:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived ..... The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of the high volume of applications.”
At point 7 the applicant argues that the Tribunal had simply rejected his son's Down’s syndrome and had not seriously considered the killing of his nephew. He said these facts indicated bias or a closed mind on the part of the Tribunal. In SCAA v MIMIA [2002] FCA 668 von Doussa J gave an extensive judgment upon what might be considered to be bias in the mind of the Tribunal and at [38] he said:
“In my opinion it would be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process and if the decision is against the party complaining the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of a matter give rise to no inference as to the state of mind of a decision maker before and whilst the matter was under consideration, not a pre-judgment of the issues that fell for decision.”
At point 8 the applicant argues that the Tribunal had failed to give the required "weight" for the “wound certificate” issued by the government doctor. The Tribunal most certainly considered this matter and commented upon it. I have already made the comment that the question of weight to be given to a matter of evidence is not a question that goes to the issue of jurisdictional error by the Tribunal.
Point 9 is an attempt to indicate why the applicant was unable to establish his case to the satisfaction of the Tribunal. As Allsop J said in NAST v MIMIA [2004] FCA 86 at [6] – [7]:
“My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicant have been lawfully and properly considered. What is necessary to understand is that the Tribunal was given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well founded fear of persecution under the Refugee Convention.
Pursuant to the Statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of the events given by the applicant.”
I have no reason to believe that the approach outlined above is not the approach taken by the Tribunal in this case.
Point 10 in the applicant's submissions relates back to point 1 and the age of the information upon which the Tribunal relied. The applicant has not particularised how old this information is but I am satisfied that the same strictures would apply to it.
Points 11, 12 and 14 are merely pleas to allow the applicant to remain in the country and not grounds upon which this court can interfere with the decision of the Tribunal.
Point 13 suggests that the Tribunal has ignored certain facts about the alleged persecution of the applicant and his family. I am satisfied from the Tribunal discussion and its reasons for decision that this is not the case and that the Tribunal did consider all the matters raised by the applicant both in his written application and in what he said to it at the hearing.
For the reasons given above I am unable to find any ground upon which the applicant could successfully challenge this Tribunal's decision on the basis that in coming to it it fell into jurisdictional error. There being no jurisdictional error the provisions of s.477(2) must apply. The application is not competent having been made at a time after the expiry of 28 days from the original decision of the Tribunal.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 13 July 2004
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