SZBDA v Minister for Immigration - [2005] FMCA 45

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDA v MINISTER FOR IMMIGRATION

[2005] FMCA 45

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – whether the RRT overlooked a relevant consideration considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.474

Kopalapillai v Minister for Immigration (1998) 86 FCR 547

Minister for Immigration v Yusuf (2001) 206 CLR 323

NAOB v Minister for Immigration [2003] FCAFC 33
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 W148/00A v Minister for Immigration (2001) 185 ALR 703
WAJW v Minister for Immigration [2004] FCAFC 330

Applicant:

SZBDA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1544 of 2003

Delivered on:

20 January 2005

Delivered at:

Sydney

Hearing date:

20 January 2005

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms A Gibson
Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1544 of 2003

SZBDA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 June 2003 and handed down on 16 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Gujarat in India and made claims of persecution based upon membership of a particular social group.
The proceedings before the Court commenced with an application for judicial review filed on 6 August 2003. That application was defective in that it did not clearly identify any jurisdictional error in the decision of the RRT. In the light of that defect the case came before me on 16 August 2004, noting that the applicant had at that time failed to comply with an order made by Registrar Segal on 15 October 2003. Order 2 made by the registrar by consent on that day required the applicant to file and serve an amended and fully particularised application, together with any evidence upon which he proposed to rely by 12 December 2003.
I gave the applicant until 30 August 2004 to file and serve an application which identified at least one jurisdictional error and particularised each jurisdictional error asserted. In consequence of that order the applicant filed an amended application on 27 August 2004. That application attaches a typewritten statement by the applicant. In that statement the applicant recites his claims to a protection visa. He attaches eight documents which he says supports those claims. With one exception which post-dates the decision of the RRT, all of those documents appear to have been before the RRT.
The applicant asserts that when he initially made his protection visa claims he was poorly assisted by a migration agent whom he calls Mr Khan. He asserts that the RRT dealt with his claims on the false basis on which they were put by Mr Khan rather than on the correct basis which he attempted to explain to the RRT at the hearing conducted by it. This amounts to an assertion that the RRT overlooked relevant considerations in that it failed to consider part or all of the applicant's claims.
Apart from the assertion in the amended application, there is nothing to support the applicant's claim before the Court. The applicant did not take up the opportunity he was given to provide evidence in support of his application to the Court. The documents he furnishes go to the merits of his protection visa claims but not to the asserted jurisdictional error. The court book discloses on page 51 that Dr Jyoti Bharati, who was assisting the applicant by mid June 2003, pointed out to the RRT the error or errors made by the applicant's former migration agent. The applicant was invited to a hearing before the RRT and did attend. The decision and reasons of the RRT make clear that the RRT was well aware of the applicant's assertion that he had been disadvantaged by mistakes made by his first migration agent. The presiding member sets out the claims accompanying the applicant's original protection visa application and recites the correction identified earlier by Dr Bharati. The presiding member on page 68 of the court book recites the applicant's correction of statements originally made on his behalf. The presiding member sets out on pages 68 to 70 of the court book what she says occurred at the hearing.
There is no evidence before me to satisfy me that the record of the hearing given by the presiding member is inaccurate. The reasons for decision of the RRT indicate to me that the RRT considered all of the claims made by the applicant at the hearing.
I agree with and adopt for the purposes of this judgment paragraphs 3‑16 of the written submissions prepared by Ms McNaughton on behalf of the Minister:
The applicant has claimed in a two paged typed document attached to his amended application for review filed on 27 August 2004 that certain matters were put to the RRT but were not taken into consideration. He also purports to list a number of errors made by the RRT. It is not immediately apparent which matters are alleged by the applicant not to have been taken into consideration. The matters mentioned by the applicant include:
·He belongs to a poor and socially backward community in India, deprived of essential needs like equality and basic support from the community;
·They belonged to a very small village in India called Vaggad where his father was a small time farmer;
·There was a big class difference in that village, they were continually harassed by the rich community and as a result they had to leave all their land and migrate to the nearby town Ahmedabad.
·They had to make a fresh start in Ahmedabad because they took nothing with them;
·After struggling for many years he and his father were able to set up a small cloth retail shop in Ahmedabad.
·Because he had suffered so much at the hands of the rich and upper class, he started an organization to help the socially backward class. This led to his harassment by upper class people, so he gave up his social work, “and doesn’t oppose the wrong doing of these people. The proof of the atrocities lies in the fact that I have stab wounds on my legs”;
·Even after all these “atrocities” he never left his ground and was struggling hard to make a good living for the deprived people.
·He arrived here on 26 February 2002 as a tourist. After a few days, in March, there were communal riots in his town. Taking advantage of the riots, the upper class people, annoyed at his social work, burnt away his house and his shop and threatened his family that if he returned they would kill him. They injured his father, beat him hard on the lower part of his body and he is not able to work.
·He is financially “broke down” and his life would be in danger if he returned. The situation has not changed much, and his family is being threatened to be killed if he returns to India. His family is residing in another suburb of Ahmedabad, but the harassment is not over.
The errors mentioned by the applicant are as follows:
·When he arrived here the applicant was unable to speak English “or even Hindi”. His solicitor took advantage of that and put up “very wrong application”. He told the RRT who noted down his “real case” which was noted in a new paper and on the audio cassette. However, the documentation the applicant received from the Court does not mention that conversation.
·His case was not considered on the basis of his new case, but of his old case put in his original application by his solicitor;
·He has provided “substantial” documents to DIMIA and to the RRT which have been “incorrectly interpreted and assessed”.
As at the date of the preparation of these submissions, no written submissions have been received from the applicant.
Nature of applicant’s original claim for refugee status
The applicant set out his original claims for refugee status in a statement attached to his initial application called “Statement of Claim” (pp26-27).
The applicant specifically claimed the following:
a)He belongs to the lowest caste in India which is discriminated against. They cannot sit with higher caste Hindus, nor have friendships or relations with them. There are reports that his people are burnt alive, their houses set on fire if they spoke out against the high class Hindus. They cannot get employment or any good status in life.
b)He joined his father in farming, his father died, but the farm was boycotted by the upper three classes of Hindus and they had to close down their farming.
c)Upon this, he formed a social committee for upholding the rights of lower caste Hindus. He launched peaceful protest rallies, and presented a charter of demand. He launched a strong protest against conditions where lower caste Hindus are forced to work cleaning toilets.
d)The applicant and his colleagues were bashed and badly humiliated. The applicant was roped into many false cases, and was beaten by the Hindus of the upper class. He was illegally confined. He was prosecuted many times, and discriminated on the basis of his race and social group.
e)The applicant’s life was in danger, he obtained admission to an Australian institution, got a student visa and arrived in Australia to save his life.
In a letter to the RRT by a Migration Agent Jyoti Bharati, dated 4 June 2003 and received on 6 June 2003 (pp51-2), it was specifically recorded that the previous migration agent had misunderstood the applicant’s Gugrati Hindu language and incorrectly recorded that his father died. It is stated “This is fact that he (father) was beaten but he never died”. That letter also included five letters about the applicant.
The RRT’s decision
The RRT set out the applicant’s initial claims in some detail at pages 66-67, and then summarized the effect of the letters referred to in the preceding paragraph. The RRT then set out in further detail claims made orally at the hearing (pp68-70). At page 68.7 the RRT recorded that the applicant stated that some of the information in his primary application and attached statement was incorrect and specifically noted two corrections: that his father was not dead, and he arrived on a visitor’s visa not a student visa.
In its ‘Findings and Reasons’ set out at pp70-73 the RRT set out in detail its reasons for not accepting the applicant’s claims. In rejecting the applicant’s claim he was of the lowest caste, it noted the family’s farming history until 1992, which was followed by a business successful enough to fund the applicant’s trip to Australia. It also noted the applicant’s 14 years of education. The RRT then noted (at p71.6ff) the “at best equivocal, but often inconsistent, and at times contradictory” evidence relating to when the family held the farm, why he failed to complete his university course, and his claimed political activities on behalf of the poor farm workers. At p72.2, the RRT noted in particular that the applicant twice stated that he had just ‘come for a visit’ to Australia and that at the time of his departure “everything was fine” and he had no intention of applying for refugee status in Australia at the time he left India. Accordingly, the RRT did not accept he had undertaken his stated political activities, nor that he had been harassed or beaten as a result of them.
In light of an equivocal answer about his family’s current address in India, the RRT did not accept that the house and family shop had been burnt down (p72). The RRT then set out its reasons for not accepting the documentary evidence which it considered self serving and unsubstantiating.
Given the applicant did not repeat the claims that he had been falsely charged with many offences in India and had been unlawfully detained, the RRT dismissed the claims.
In summary (at 73.1) the RRT found the applicant’s claims to be complete fabrications.
The law
In order for the applicant to succeed, he must show that the decision made by the RRT is not caught by s.474 of the Act, the privative clause. As conveniently summarized by the Full Court of the Federal Court in NAOB v Minister for Immigration [2003] FCAFC 33 at [11], the effect of the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 can be summarised as follows:
In summary, the High Court held that s474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of ‘decisions made under ….[the] Act”. Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s474. Put shortly, s474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice.
Summary of the respondent’s argument
The applicant has failed to indicate any specific matter that the RRT failed to consider. Apart from the mention of stab wounds on his legs the respondent is unable to identify any matter mentioned by the applicant in his revised application for review that was not covered by the RRT in its reasons. The RRT appeared to deal with the claims as made to it orally in the hearing, together with the documentary evidence, which in turn accord with the applicant’s claims as set out above in [3]. The RRT gave cogent reasons for rejecting the applicant’s claims and for rejecting the documentary evidence placed before it. These findings were properly open to the RRT: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-9; W148/00A v Minister for Immigration (2001) 185 ALR 703 at [64] - [69].
In any event, there is no evidence that the applicant did raise the issue of stab wounds to his legs before the RRT. It is for the applicant to put the transcript of the hearing before the Court to establish that the matter was raised before the RRT. Even if such material was before the RRT, the remarks of the Full Federal Court in WAJW v Minister for Immigration [2004] FCAFC 330 are apposite:
In any event, it is clear that the general finding of the Tribunal quoted […] above is capable of encompassing consideration of all the evidence which was before the Tribunal. It was not obliged to cite each piece of evidence before it: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf") at [67] – [68] per McHugh, Gummow and Hayne JJ. This contention of the appellant is in substance an argument inviting this Court to interfere with the conclusions on merits which lies only in the jurisdiction of the Tribunal.
In my view, no jurisdictional error in the decision of the RRT has been established. Accordingly, the decision of the RRT is a privative clause decision.
I must therefore dismiss the application and I do so.
On the question of costs, the application having been dismissed, costs should follow the event. Ms Gibson submits that costs of $3,300 have been incurred on behalf of the Minister on a party/party basis, excluding the proceedings in respect of which costs have already been awarded. I am satisfied that costs of at least $3,000 have been reasonably and properly incurred on behalf of the Minister on a party/party basis. The applicant simply invited me to make an order as to costs which was just.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 January 2005