SZBCC v Minster for Immigration
[2004] FMCA 65
•27 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCC v MINSTER FOR IMMIGRATION | [2004] FMCA 65 |
| MIGRATION – Visa – protection visa – review of a decision by the Refugee Review Tribunal – applicant claims Tribunal failed to allow his wife to give evidence in the hearing – applicant converted from Hinduism to Christianity – claims fear of persecution – transcript of Tribunal proceedings examined – no reviewable error found. Migration Act 1958 (Cth) SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 397 |
| Applicant: | SZBCC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1504 of 2003 |
| Delivered on: | 27 January 2004 |
| Delivered at: | Sydney |
| Hearing dates: | 26 November 2003 & 27 January 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf.
| Solicitor for the Respondent: | Ms Crawley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to these proceedings in the sum of $5750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1504 of 2003
| SZBCC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today is an application for a review of a decision by the Refugee Review Tribunal affirming the decision of a delegate of the respondent Minister not to grant a protection visa to the applicant.
The background to this matter is that the applicant is a man aged 22 years who was born on the 8th December 1981 in India. He arrived in Australia on a Student Visa on the 19th June 2000. He applied for a protection visa on the 6th June 2003. He claims that after he arrived in Australia he married an Australian Citizen who was a member of the Catholic faith and he subsequently converted to Christianity from Hinduism.
He was married on the 10th June 2001 and he and his wife now have a son called Nathan. His application for a protection visa was based on a claim of a fear of persecution if he were to return to India. The persecution that he fears is from extremist Hindu groups in that country, particularly in his home state. He said his father was active in politics which would also make him a target of supporters of the opposition party.
The delegate of the respondent Minister found that the applicant did not have a well founded fear of persecution on his return to India. On the 12th June 2003, the delegate found that the applicant was not a person to whom Australia owes protection obligations under the Refugees Convention.
The delegate was not satisfied that the applicant was a refugee. The decision that was made was that the delegate was not satisfied that the applicant was a person to whom Australia owes protection obligation under the Refugees Convention. He therefore did not meet a prescribed criterion under clause 866.221 for the grant of a subclass 866 protection visa, nor did the applicant meet the prescribed criterion under clause 785.221 for the grant of a subclass 785 temporary protection visa. The delegate found that the applicant had failed to satisfy the criteria of either subclass and therefore refused his application for a protection visa.
The applicant then lodged an application for review of that decision by the Refugee Review Tribunal. That application was lodged the very next day, 13th June. The applicant was, at that stage, in immigration detention and he has remained in immigration detention ever since. The applicant had been taken into custody and charged with an offence and had been held at the Metropolitan Remand Centre at Silverwater in the State of New South Wales between December 2002 and May of 2003. I note that his student visa had expired on the 19th October 2002. The applicant had been refused bail. However, the applicant has since been acquitted of that offence, and I am satisfied that he told the Tribunal of that fact. Once he was acquitted he then went from being held in custody bail refused to being held in immigration detention.
The application for a review was heard by the Refugee Review Tribunal on the 24th July 2003. The Tribunal informed the applicant by means of a letter dated the 24th June 2003 that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. Accordingly, a hearing was set exactly one month from the date of the letter from the Tribunal. It would appear that a comparatively early date for a hearing was set because of the fact that the applicant was then being held in immigration detention. The applicant has complained about the relative shortness of time that was afforded to him in preparing his case but I note that he was granted one month's notice of that hearing.
The Tribunal forwarded to the applicant a document headed, "Response to hearing invitation" which the applicant completed and returned. In that he indicated that his then address was the Villawood Detention Centre in New South Wales. He indicated that he wished to attend the hearing when, as far as the box for the question, "Do you need an interpreter?" was concerned, he ticked "no". There was a question, "Do you want the Tribunal to hear evidence from any witnesses?" He ticked, "no". There was a question, "Do you want to bring someone else with you to the hearing?" and he ticked, "yes" and he indicated the name of his wife.
The hearing took place on the 24th July 2003. The applicant's wife attended the hearing but did not give evidence. On the 1st August 2003 the Refugee Review Tribunal gave its decision. The Tribunal affirmed the decision of the delegate not to grant to the applicant a protection visa.
Looking at the decision of the Tribunal at page 112 of the Court Book I note that the Tribunal accepted a number of facts named as essential facts.
(i)The applicant comes from a strong Hindu family in Uttaranchal State.
(ii)In October 2001 he married his current wife who has been a Catholic all her life.
(iii)In October 2002 he converted to Catholicism.
(iv)Since the he has attended Catholic and Christian services conducted by a Catholic Chaplain at Silverwater Gaol and Hillsong Church respectively and studied the Bible.
(v)In February 2003 the applicant spoke to his parents in India and told them that he had converted to Catholicism. On that occasion they said they were very angry and disappointed with him and his father said that the opposition leader could give him trouble.
(vi)The applicant's friends have told him that his life could be in danger since the Hindu gurus who live close to his home area could hurt him since he converted to Christianity.
(vii)The applicant's father is now an ordinary member of the BJP in Uttaranchal.
Having accepted those facts the Tribunal found that the applicant did not have a well founded fear of persecution. This was based on material available to the Tribunal from the country information. The Tribunal found that the applicant's state of Uttaranchal has never been a stronghold of Hindu nationalism and the Tribunal did not accept the applicant's claim that there is a maximum population of Hindu extremists in Uttaranchal. The Tribunal found other aspects of the applicant's evidence to be purely speculative and noted that the part of his evidence was no supported by any country information.
In summary, the Tribunal found that based on the independent evidence, at best the applicant's chance of facing persecution for reasons that he had converted to Christianity were remote. The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason and affirmed the decision not to grant a protection visa.
The applicant lodged an application to this Court on the 4th August 2003. The applicant claimed that the Refugee Review Tribunal had been in error and sought a writ of Mandamus. The particulars of the claim were set out as follows:
"1. The decision maker failed to make a beneficial attempt to exercise its power, in the alternative failed to recognise that the applicant continues to harbour protection fears in respect of the danger and persecution he experienced and continues to fear in his native country.
2. The decision maker was not acting in good faith in making the decision to refuse the applicant a protection visa.
3. Due to an administrative decision made by a Commonwealth officer that a ground for review is:
(a)a lack of reasonableness as to its decision, and
(b)a denial of natural justice in respect of legislative procedures."
The application came on for hearing in this Court on the 26th November 2003. The respondent submitted that the Tribunal had given a number of reasons for rejecting the assessment by the applicant that his conversion to Christianity would expose him to a significant risk of harm if he were to return to India. The reasons set out in the submission are:
(a)Independent information which the Tribunal accepted indicating that Uttaranchal had never been a stronghold of Hindu nationalism;
(b)The applicant did not claim that he had actually suffered any harm or his family or anybody else had actually threatened him of harm because of his conversion to Christianity.
(c)There was no supporting independent evidence for the view that Hindus who converted to Christianity were likely to be targeted by Hindu extremists.
In the submission the respondent pointed out that the Tribunal found it unconvincing that the applicant's father's political opponents would seek to harm him as the father was apparently no more than an ordinary member of the particular party.
The respondent submitted that as far as the allegation that the Tribunal did not attempt to exercise its power in good faith was concerned that was a serious one involving personal fault on the part of the Tribunal. It should not be made without a proper basis and should not be upheld unless clearly proved. The authority for that proposition was SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 397. The respondent further submitted that the presence of error, even legal error, is not sufficient to prove that the Tribunal had not acted in good faith.
As far as the applicant's claim that the Tribunal had failed to recognise that the applicant continues to harbour protection fears, the respondent submitted, accurately in my view, that this was simply an attack on the merits of the Tribunal's decision. It is not uncommon for an applicant to allege a lack of good faith on the part of a Tribunal if the Tribunal does not agree with the applicant's contentions, but that is, of course, no more than a review of the merits.
The respondent pointed out that the applicant had not provided any particulars of the way in which the Tribunal's decision was said to be unreasonable and whilst the applicant in his application refers to reasonableness review, a quoted decision of the Honourable Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611, the respondent pointed out that where the duty to grant reviews of these are dependent on the decision maker's satisfaction as to whether particular criteria were met, the Court preferred the standard of reasonableness review to the approach set out in the English decision of Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 which was a decision which would allow judicial inquiry to whether the decision maker's satisfaction is based on correct conclusions of fact.
The respondent also referred the Court to the decision of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicant S20 of 2002 (2003) 190 ALR 59 where the question of a decision being set aside of the decision maker has reached a conclusion that no reasonable person could have reached which includes the decision maker misdirecting himself or herself was the test to be applied. The respondent pointed out that the question is not simply whether the court would have formed the same opinion as the decision maker because a finding of unreasonableness is not to be a cloak for a merits review and the authority for that is Minister for Immigration and Multicultural Affairs v Jia LeGing (2001) 205 Commonwealth Law Reports 507 page 532.
The respondent submitted that the Tribunal correctly understood the issue that it had to address which was whether there was a real chance that the applicant would face serious harm in India inflicted on him because of his religious beliefs. The respondents submitted that there was just no support for the applicant's contention that the Tribunal had reached its conclusion unreasonably. The question of denial of natural justice was raised by the applicant briefly in his application and raised in some detail in his submissions to the Court. The applicant made the point that the Tribunal had not acted in a bona fide way because the Tribunal did not listen to his side of the story properly.
He said that when he was talking to the Tribunal he was being constantly interrupted. He said that he wanted his wife to give evidence but the Tribunal would not let him. He said, "When I asked them if my wife could give that evidence the Tribunal flatly said that there is no need for it". He asked how could his wife have given evidence when she was told not to. She speaks English. She is an Australian citizen by birth. She was in fact present at Court on the 26th November and the applicant wished to call her to give evidence in the proceedings before me. He said that his wife wanted to say that there was a real danger if he went back to India and that he should be living with her rather than in detention.
He also said that his wife wanted to give evidence that because he was in detention she was having a lot of hardship and she was finding it difficult to cope. He reiterated his request that his wife should be interviewed or presumably give evidence. As a result of the applicant's claim that his wife was in the position to give evidence that would assist his case but was refused the opportunity to do so, I took the step of calling for a transcript of the proceedings before the Tribunal. A tape of the proceedings was made available and a copy of the tape was forwarded to the respondent's solicitors. The respondent's solicitors
I am told, made a copy of that tape and that tape was forwarded to the applicant.
The respondent's solicitors also arranged for a transcript of the tape to be made available and that document annexed to the affidavit of one, Sammy George Mansour, was admitted into evidence by me and marked as exhibit 1. There was no objection to the admission into evidence of that transcript. I am satisfied that both parties had the opportunity to listen to the tape and read the transcript before the transcript was made available to me as an exhibit in Court. On the hearing of the proceedings before me this morning, Ms Crawley for the respondent submitted that the transcript of the proceedings does not support the applicant's account of what went on at the hearing before the Tribunal.
I am of the view that that submission is correct. The first page of the transcript, going through the preliminary matters, indicates that at approximately point 5 on page 1 the Tribunal member said to the applicant, "Now", and the name of the applicant, "just to clarify” – he then referred to the name of the applicant's wife and said to her, "Good morning, you are here as an observer not as a witness so you are allowed to remain in the hearing room on the condition that you are not allowed to intervene during the course of the proceedings. Do you understand?" The transcript goes on to say, "Applicant's wife: Oh yes”.
The applicant's wife remained, along with the applicant's child, although eventually the applicant's wife took the child outside as the child was becoming talkative and made it difficult for the proceedings to be continued. I read through the transcript as a whole. It is certainly true that the Tribunal member asked the applicant a number of questions. At times the Tribunal member appeared to be cross-examining the applicant but that is a procedure that is to be expected. It should be borne in mind that the legislation provides that an applicant should be given the opportunity to appear and give evidence before the Tribunal.
If the Tribunal is not satisfied on the written material that the Tribunal can make a decision in the applicant's favour, it must follow that if the Tribunal could make a decision in the applicant's favour on the basis of the written material before it there would be no need for a hearing, as the Tribunal would just go ahead and make that decision. The Federal Court has pointed out in the decision of SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591, that it is to be expected that in a hearing of this nature where the applicant is given the opportunity to attend the hearing to satisfy the Tribunal, that there should be questioning of the applicant and some testing of his contentions and to my mind on reading through the transcript that is what happened and no more than that happened.
I am not satisfied that the transcript of the proceedings reveals any breach of natural justice by the Tribunal.
I am not satisfied that it was ever an issue for the Tribunal that the applicant's wife was to give evidence. Indeed the applicant had indicated beforehand in the document prepared by the legal adviser who was then acting for him that the applicant's wife was to attend purely as an observer or support person, that it was understood by the Tribunal that was the situation, that the Tribunal mentioned that to the applicant's wife and that she did not disagree with the contention.
The applicant sought to produce a Certificate of Baptism in the Catholic Faith. He had been cross-examined as to his religious beliefs as a result of his conversation. The Certificate of Baptism was in fact dated 19th December 2003 and the applicant explained that he had gone through a second Baptism ceremony. I rejected the document because quite clearly it referred to an event that had taken place some months after the hearing by the Refugee Review Tribunal. The Baptism ceremony had taken place between a first day of the hearing in this Court, 26th November and today. That document and the Certificate of Baptism therefore have no effect on the proceedings before this Court.
What the applicant is seeking to do is conduct a review of the merits of the decision of the Refugee Review Tribunal. It has often been said that it is not the function of this Court to conduct an all grounds appeal and in fact that is not the nature of these proceedings. It is a review of the proceedings of the Refugee Review Tribunal. I am not satisfied that the applicant has demonstrated any reviewable error and accordingly the application for review is dismissed.
I note that the respondent submits that he has been in detention and has been there for some months and has no funds. Whilst that may be a reason to be taken into account in some jurisdictions, it is not a reason that I should consider in this jurisdiction.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 6th February 2004
0
2
0