SZBTJ v Minister for Immigration
[2007] FMCA 1654
•5 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBTJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1654 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – Tribunal only required to set out those findings on questions of fact that are material to its decision. |
| Migration Act 1958, ss.91X, 422B, 422B-429A, 424A, 425, 430 Migration Legislation Amendment (Procedural Fairness) Act 2002, sch.1 |
| Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZBTJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 60 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 July 2007 |
| Date of Last Submission: | 26 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Jack Singh & Associates |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 60 of 2007
| SZBTJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 5 June 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 20 November 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 5 August 2002 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision made on 2 September 2003 which was quashed by order of this Court dated 27 April 2006 (Court Book (“CB”) page 81).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… a 49 year-old male… unmarried, a Hindu and a businessman. He said he had resided at one address in new Delhi since 1957 and had been self employed in a business, the nature of which he did not disclose, from June 1977 until March 2002. (CB 125)
The applicant claims to fear persecution in India because of his political opinions.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-21 of the Tribunal’s decision (CB 125-142). Relevantly, they are in summary:
a)the applicant was a Hindu and a strong supporter of the Bharatiya Janata Party (“BJP”). He was a member of its Youth Federation. Because the applicant as well as his whole family, were strong supporters of the BJP, the Congress Party began fabricating false cases against BJP supporters and the applicant’s family was harassed. A false case was brought against the applicant’s father and he was tortured for being a BJP supporter;
b)the applicant experienced mistreatment by the Congress party supporters. His father and family were attacked several times and his relatives were also attacked. They were threatened that they would have to suffer for supporting the BJP for several years. The applicant obtained a visitor visa to come to Australia. The applicant’s parents continue to receive threatening letters from Muslim organisations and from the Congress Party, who are still looking for the applicant, as the applicant has been helping the rights of Hindus. The applicant believes that if he goes back to India, he will be arrested under false charges by police under the instructions of the Congress Party;
c)at the second Tribunal hearing the applicant said:
i)he had been harassed and assaulted by police in India and was told to stop doing what he was doing and join the Congress Party. He said this occurred after school, which the Tribunal calculated to be in 1970;
ii)Congress Party supporters and the police would pick him up and make false cases against him;
iii)he was taken away and told to stop working for the BJP and was hit on the head, but he could not remember when this happened; and
iv)in 2001 he had been detained for a night in a police station, tied up with ropes and assaulted.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)at the second Tribunal hearing, the applicant claimed that he did not fear Muslims – only the police. Accordingly, the Tribunal was satisfied that the applicant did not have a well-founded fear of serious harm amounting to persecution for a Convention reason from Muslims in India as he previously implied because he is a Hindu or for any other Convention-related reason;
b)the applicant’s answers to questions put to him by the Tribunal revealed no knowledge of the BJP, its manifesto or policies. The Tribunal did not accept that the applicant was a party leader, even at the local level, that he held a position of any real significance in it, that he was regarded as such a threat to the Congress Party that they would have bothered to target or torture him, or would seek to track him down wherever he went in India in order to harm him;
c)the applicant had embellished his claims and was not a credible witness;
d)at the Tribunal hearings, despite repeated questioning, the applicant was unable to say what the false cases against him were about, or to provide any details about them. Further, the Tribunal was satisfied that if the applicant had been charged with any offences, the applicant would not have been issued with an Indian passport and allowed to leave India, as he had been able to do without any difficulty. The Tribunal was therefore satisfied that there had not been false charges made against the applicant for a Convention-related reason, and the Tribunal did not accept this claim;
e)in light of the inconsistencies and improbabilities in the applicant’s claims that he was detained and beaten up by police the Tribunal did not accept that he had at any time been attacked or mistreated by police in India and, accordingly, that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis; and
f)despite the applicant’s claims that he could not relocate within India because there would be Congress supporters wherever he went, the Tribunal found that given its findings about the applicant’s credibility and lack of political profile, it would have been reasonable for the applicant to have relocated somewhere else in India if he did not want to return to Delhi.
Proceedings in this Court
The applicant’s claims are not clearly expressed. They appear in both the amended application and in the document entitled “Statement of Particulars” filed on 16 July 2007. They can be distilled to be as follows:
a)the Tribunal did not observe procedures that were required by the Act;
b)the decision was an improper exercise of power;
c)the Tribunal failed to set out its reasons for its decision, its findings of fact and the evidence on which these findings were based;
d)the Tribunal incorrectly applied the “real chance” test;
e)there was no evidence or other material to justify the decision; and
f)the Tribunal failed to consider all the evidence which was before it.
The Tribunal did not observe required procedures
The procedures required by the Act are determined by the version of the Act which applied at the time the application to the Tribunal was filed on 30 August 2002, which is the date on the receipt stamp appearing at CB 51, but no specific reference is made by the applicant to any statutory provision which he says has not been observed. One of the particulars to this asserted ground of review is that the rules of natural justice were not followed. The statutory codification of the natural justice hearing rule effected by s.422B had just been introduced at the time of the applicant’s application to the Tribunal. Item 7 of sch.1 to the Migration Legislation Amendment (Procedural Fairness) Act 2002 provides that the new s.422B was to apply in relation to any application for review made on or after the commencement of the relevant provision of the amending Act. The amending Act commenced on 4 July 2002.
The procedural requirements prescribed by the Act are found in div.4 of pt.7 of the Act (ss.422B – 429A). A consideration of the evidence reveals that the information on which the Tribunal relied in making the findings on which its decision to affirm the delegate’s decision was based was either given by the applicant to the Tribunal for the purposes of its review, was canvassed in the Tribunal’s s.424A(1) letter dated 24 October 2006 or was country information. Consequently, no breach of s.424A is disclosed. As to s.425, the applicant was given two opportunities to appear before the Tribunal to give evidence and present arguments. The applicant has not adduced any evidence to suggest that either, let alone both, of the hearings he was afforded by the Tribunal was not real or meaningful or was just a hollow shell. Indeed the Tribunal’s decision record indicates quite the contrary, and, moreover, at the end of the second hearing the Tribunal asked the applicant if he had anything else he wanted to put to it and he replied that he did not. (CB 134).
The amended application also asserts that the Tribunal failed to consider the statement the applicant submitted to the Minister’s department and did not consider the evidence the applicant gave at the Tribunal hearing on 24 October 2006. The Tribunal says at p.4 of its decision that it had read the departmental file and on the same page it quotes the statement which the applicant submitted to the Minister’s department. As to the applicant’s evidence at the hearing, the detailed recitation of the evidence which the applicant gave to the Tribunal on 24 October 2006, and which is found at pages 11 to 13 of its decision record, contradicts the applicant’s assertion. Consequently, this asserted ground of review has no basis in fact.
Decision was an improper exercise of power
This ground was not particularized and is really only a catch-all allegation which has no substance independent of the other grounds raised by the applicant.
Failure to give reasons
Essentially what the applicant is saying is that the Tribunal was in breach of its obligations under s.430(1) of the Act. That sub-section provides:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
It is not necessary for the Tribunal to make or set out findings additional to those which it made. It is only required to set out its findings on those questions of fact which it considered material to the decision it made and to the reasons it had for reaching that decision: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [68]. This it did. The paragraphs in the Tribunal’s decision under the heading “Findings and Reasons” set out the Tribunal’s findings of fact and also, in some detail, set out the evidence on which those findings were based. Further, the Tribunal sets out how that evidence and those facts led to the decision on the review which it ultimately made, thus disclosing the reasons for its decision.
Real chance test
At page 3 of its decision, the Tribunal discussed the “real chance test” and did so without disclosing an erroneous understanding of it. However, in the circumstances of this application, the test had no role. This is because the Tribunal found, based on its adverse view of the applicant’s credibility, that it did not accept his claims, which were based on his alleged political activities and alleged subsequent attacks on and mistreatment of him. Having rejected the bases of the applicant’s claims, there was no need to embark on a consideration of whether the claimed fear of persecution was a well-founded one, based on the “real chance test”. As a result, the Tribunal did not need to apply the test to the applicant’s circumstances. That is to say, there was no application of the test, let alone a misapplication of it, and no jurisdictional error is disclosed in connection with this asserted ground of review.
No evidence
The applicant supplied the following particulars of his allegation that there was no evidence or materials to justify the Tribunal’s decision:
The Tribunal based its decision to a significant extent on the following conclusions reached by it without proper evidence or justification:
(i) That the applicant was not a member of the Bharatiys Janata Party and its Youth Federation.
(ii) That the Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention reason.
(iii) Assertion by the applicant that … the Applicant received any threats from the Police or Congress party workers or the Police continue [sic] to harass him.
The first of these particulars misstates the Tribunal’s findings. At pages 22 – 23 of its decision it did accept that the applicant was a follower of and worker for the BJP and its youth wing, although not a leader. It made no express findings on the subject of actual membership. In any event, membership of the BJP or its youth wing, as such, was not the essence of the applicant’s claim, which was based on his involvement in the party. It was the high level involvement which he claimed that the Tribunal did not accept.
The second and third particulars reflect conclusions made by the Tribunal which the decision record reveals were open to it on the evidence for the reasons already discussed.
Jurisdictional error is not made out in respect of this asserted ground of review.
Failure to consider facts
One element of this ground was articulated in the applicant’s submissions at the hearing in this Court. A second element is found in the “Statement of Particulars” document. A third element is a particular of the asserted breach of the rules of natural justice set out in the amended application and which has already been considered in these reasons.
At the hearing the applicant submitted that the Tribunal had failed to consider all the evidence before it, namely the affidavit of Ujagar Singh and the letter of Mr Raj Kumar Gupta, both of which are referred to at p.10 of the Tribunal decision. At p.22 of its decision, under the heading “Findings and Reasons” the Tribunal discusses and gives consideration to these documents. Moreover, as far as they went, the Tribunal accepted what they said but it also found that they were not evidence that the applicant was the political leader he claimed to be. For these reasons, I find that the Tribunal did not fail to consider these documents and that this asserted ground of review is not made out.
In relation to the second element of this allegation, namely the assertion in the “Statement of Particulars” document that the Tribunal ignored the claim that the applicant’s father and family members were harassed and tortured by Congress Party members and the police, I adopt the Minister’s submissions:
In relation to the third matter, the Tribunal referred to this claim on numerous occasions (CB 126.2, 127.8, 128.7, 129.9, 130.7, 131.3, 142.9), so it cannot be said that the evidence or claim was not taken into account. The Tribunal rejected the claims in relation to harassment and torture on the basis of the inconsistencies in the applicant’s evidence, and thus the applicant’s credibility. Given that finding, there was no obligation on the Tribunal to expressly refer to every aspect of the applicant’s evidence on the point which the Tribunal rejected in forming its view of the applicant’s credibility: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47]).
Consequently, on the facts, this asserted ground of review is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 5 October 2007
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