SZBZP v Minister for Immigration
[2006] FMCA 124
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBZP v MINISTER FOR IMMIGRATION | [2006] FMCA 124 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether inconsistency constituting jurisdictional error – whether Tribunal erred in rejecting claims in the absence of supporting material. |
| NAPL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1263 Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 |
| Applicant: | SZBZP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2556 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 24 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That the application is dismissed.
That the Applicant pay the First Respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2556 of 2003
| SZBZP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 23 October 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of India who arrived in Australia in July 2000. In August 2000 he applied for a protection visa. His application was refused and he sought review by the Tribunal. On 25 June 2002 the Tribunal, as first constituted, affirmed the delegate's decision. The applicant sought review in the Federal Court and on
9 October 2002 Wilcox J dismissed the application for review on the basis of the interpretation of s.474 of the Migration Act as then understood (see NAPL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1263) albeit finding that there was a jurisdictional error in the first Tribunal decision.
On 20 May 2003 a Full Court of the Federal Court allowed an appeal, finding in light of the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24, that judicial review was available in relation to the jurisdictional error identified by Wilcox J, (that the Tribunal had failed to deal with particular aspect of the applicant's claims). The matter was remitted for reconsideration by the Tribunal. It is that reconsideration that is the subject of the present proceedings. The applicant sought review of the decision handed down on 23 October 2003 by application filed in this court on 25 November 2003. The applicant now relies on an amended application filed on 13 September 2004.
The applicant claimed that he was an Indian national of Tamil ethnicity and language who, as a student, had become active in support of Sri Lankan Tamils, that he had been contacted by the Tamil Tigers and had been asked to help them and had done so and that the police had arrested him on suspicion and kept him in custody for a period of one month. In his protection visa application he claimed that while in custody on this occasion he was kept half-naked and tortured and that false charges were “framed” against him. He also claimed that his family had been threatened, that he was arrested again on suspicion, taken into custody, chained by both arms, interrogated and forced to sign blank papers and confess to false charges and that when he refused to do so, he was cruelly beaten and gaoled for three months. He claimed that after his release, he decided to leave India, due to “continuous torture” by police and intimidation by the Tigers. He believed the police had framed new charges against him and involved him in old and new cases. The applicant elaborated on his claims in the course of the first Tribunal review and in both Tribunal hearings.
In the Tribunal decision in issue, the Tribunal outlined the background to the applicant's claims and detailed at some length the claims that he had made over time and, in particular, in the second Tribunal hearing. It accepted that the applicant as a young man had felt sympathy with the cause of the Tamil Tigers in Sri Lanka and that his activities in support of the LTTE in his region in India had led to his being interrogated by the police on two occasions on suspicion of involvement in Terrorist activities. In making this finding it referred to the claims made in connection with his initial protection visa application which I have referred to above. The Tribunal recorded that in discussion of these incidents at the first Tribunal hearing, the applicant said that during his first detention he was beaten and not properly fed or clothed but that he had provided no detail or additional material to support this claim. It also recorded that in the case of his second detention, he said he was not beaten but suffered mental distress and when asked about the “torture” referred to in his documentary testimony he had explained this as a reference to police approaches to his family asking about his whereabouts. The Tribunal had regard to his acknowledgement that the reason for these arrests was that he was suspected of breaches of law applying to everyone in India, that he agreed that it was not surprising the police took a continuing interest in him in view of his past association with the LTTE and that this interest was legitimate police work and not Convention-based persecution. The Tribunal also recorded that at the second Tribunal hearing the applicant had referred to previous police mistreatment and his belief that he might again experience such mistreatment but that he did not otherwise refer to his claims in relation to previous police mistreatment or to outstanding charges against him.
It continued at paragraph [49]:
The information available to the Tribunal suggests that the outcome of these investigations in 1999 was that the applicant was not convicted, further charged or subjected to any penalty. The applicant acknowledges that the effect of the investigations was to dissuade him from providing further assistance to the LTTE. The Tribunal finds, on the basis of the applicant's testimony and the material he has put before the Tribunal as discussed above, that on two occasions in 1999 he was arrested, held in custody and interrogated but that while it is plausible, that he may have suffered unpleasant treatment, this treatment did not amount to serious harm or mistreatment as discussed in para 8 above.
The Tribunal also observed that while the applicant had claimed to the Federal Court that the police in India were still arresting and questioning people who helped the LTTE in the past, he had provided no material to support this claim. He had claimed in his protection visa application that the police had framed new charges against him and involved him in old and new cases but had given no details of such alleged charges.
It also had regard to the fact that the applicant had spoken of his departure from India in terms suggesting he believed he needed to leave clandestinely (having told the Tribunal at the second hearing that he had come to Australia to attend a Hindu religious ceremony, dressed in special clothing and with a group of similarly attired people) but the Tribunal considered his claim that he had been able to leave India only because he was able to hide himself in a Hindu religious group to be unconvincing. It recorded that it had put to him that the authorities would nevertheless be able to identify him from his name and details in his passport and noted that the applicant had not disputed this in the hearing. The Tribunal considered from the applicant’s testimony at the hearing that he was able to leave India unhindered, despite independent country information suggesting some capacity by the Indian authorities to impede departure by persons wanted by them. It was not convinced from the matters raised by the applicant that he was of any ongoing adverse interest to the Indian authorities.
The Tribunal also had regard to independent information in relation to the then current situation in Sri Lanka and the peace process since late 2001. On the basis of cited independent evidence it considered that the improved situation considerably reduced any likelihood of the Indian authorities seeking to pursue the applicant over his past pro-LTTE activities in the changed circumstances, given that the applicant had been investigated in the past by the authorities and, in the Tribunal's view, found not to have committed any offence requiring ongoing action.
On this basis, the Tribunal found that the applicant did not face a real chance of experiencing Convention-related persecution at the hands of the Indian authorities now or in the reasonably foreseeable future arising from his past association with the LTTE in India or his pro-Tamil political opinion.
The Tribunal also considered the applicant's claimed fear of harm from the LTTE but did not accept that this fear was well founded having regard to the peace process, the limited role of the assistance he claimed to have provided some time previously and its view of the extent to which the LTTE would now be concerned about his decision in 1999 following police action against him to abandon that assistance. The Tribunal recorded that it asked the applicant if he could provide more information to support his claim to be at risk of vengeance by the LTTE and that he had claimed that his parents had been contacted and that there had been such incidents in many places. It found that these claims were unsupported by any material put forward by the applicant and that there was no real chance that the LTTE would put pressure on him to provide further assistance against his will or seek retribution against him for his past withdrawal of assistance.
Nor, in the light of the minor nature of his past assistance and the changed circumstances, did the Tribunal accept that the LTTE would seek the applicant’s assistance on return to India and in that light, did not accept as credible his claims that the LTTE had been asking about his whereabouts in the recent past. It was not persuaded that he would be under any significant pressure from the LTTE on his return to help them either at that time or in the reasonably foreseeable future. The Tribunal found that even if the applicant did provide such assistance or undertake pro-LTTE activity there would not be a real chance of this leading him to experience any form of Convention-related persecution. In any event the Tribunal considered that if there was some risk of action against the applicant by the LTTE he would be able to obtain effective protection from the Indian authorities.
The Tribunal found that the applicant's claims did not establish that he faced a real chance of serious harm or mistreatment for a Convention reason on return. Taking account of his evidence, together with independent country information, it was not satisfied that he had a well-founded fear of persecution within the meaning of the Convention.
The amended application filed on 13 September 2004 raises two grounds. The first is that there is an inconsistency within the Tribunal findings. It is contended that in paragraph 48 of the decision the Tribunal stated that the applicant did not provide any material to support his claim that he was mistreated and not properly clothed during his detention by the police, but in paragraph 49 concluded that his treatment did not amount to serious harm or mistreatment.
In written submissions the applicant elaborated on this claim contending that after the first hearing the first Tribunal decision accepted that he was mistreated but concluded that this was because of his suspected breaches of law. He took issue with the fact that the differently constituted Tribunal had, as the applicant put it, “reverted” its findings and doubted the mistreatment claim by pointing out that the applicant was unable to provide sufficient evidence for that claim.
No jurisdictional error is established in the manner contended on the material before the Court. In paragraph 48 of the Tribunal decision in issue, the Tribunal accepted the applicant's testimony in his protection visa application that his past activities had led to his being interrogated twice. It then recited the claims he made at the first hearing in relation to each of his detentions, the absence of detail or supporting material to support the claims at the hearing about what occurred in his first detention, and his evidence at the second hearing and explanation for what he had meant by ‘torture’. It noted that while he referred to previous police mistreatment, he did not otherwise refer, at the second hearing, to his claims in relation to previous police mistreatment or to outstanding charges against him.
In paragraph 49 the Tribunal then undertook the task of assessing whether the applicant had suffered serious harm in the past. As set out above, having regard to the outcome of the investigations, the absence of conviction, charges or penalty, and the fact that the effect of the investigations was to dissuade him from providing further assistance to the LTTE the Tribunal found on the applicant's testimony and the material he had put before the Tribunal, that on two occasions he was arrested, held in custody and interrogated, that it was plausible that he may have suffered unpleasant treatment, but that it did not amount to serious harm or mistreatment.
The applicant takes issue with the Tribunal's factual findings. The claim that the first Tribunal took a different approach to the evidence of the applicant is not such as to establish jurisdictional error on the part of the second Tribunal. It was a matter for the second Tribunal to weigh the evidence before it and to make findings on the basis of that evidence.
The Tribunal finding in paragraph 48 that the applicant had been interrogated by the police on two occasions while detained refers to its summary of his claims in the protection visa application detailed above in relation to his mistreatment in custody. It appears that the Tribunal accepted the elements of mistreatment claimed by the applicant in relation to his first detention in the statutory declaration accompanying his protection visa application. Even if the Tribunal finding that such treatment did not amount to “serious harm” or “persecution” within the meaning of the Refugees Convention might be described (as Wilcox J described all treatment the applicant complained of to the first Tribunal) as "a startling one", nonetheless, as his Honour held in that instance, similarly in this instance, it is a conclusion of fact and does not establish jurisdictional error. Further the Tribunal in this instance had regard not only to the absence of detail or additional material to support the subsequent elaboration of his claims about mistreatment during his first detention but also to his explanation that he had not been beaten during his second detention but suffered mental distress in its finding. It also noted the absence of further clarification at the second hearing. In these circumstances there is no inconsistency in its decision such as to constitute jurisdictional error.
Moreover, the finding in relation to past mistreatment is not in all the circumstances critical to the Tribunal decision given its finding that circumstances had changed in India and that, on the basis of these changed circumstances and the limited involvement of the applicant in the past, he was no longer of interest to the Indian authorities. Hence whether the applicant had suffered serious harm in the past was not determinative.
In the applicant's written submissions he contended that he clearly stated in his material and during the hearings that he was beaten, tortured, chained and not properly fed, forced to sign blank papers and asked to confess to false charges. Insofar as this takes issue with the factual findings of the Tribunal, factual findings are a matter for the Tribunal and not for the Court and this does not establish jurisdictional error. If the applicant is contending that the Tribunal has not understood or has not taken into account aspects of claims that he made in his material or in the Tribunal hearings, either before the first Tribunal or the second Tribunal, no such error is established. The Tribunal outlined the claims made in the statutory declaration accompanying his protection visa application and thereafter. It addressed such claims. No jurisdictional error such as a failure to take into account relevant considerations has been established in relation to its consideration of those claims.
Insofar as he is claiming (and it is not entirely clear that he intends to do so) that the Tribunal was not accurately recording his claims at the Tribunal hearings, there is no evidence of the conduct of either of the Tribunal hearings before the Court other than the Tribunal reasons for decision. In these circumstances no jurisdictional error is established on such a basis.
The second ground relied on in the amended application is that the Tribunal dismissed several of the applicant's claims purely on the basis that he was unable to provide additional material or detail. Reference is made to paragraphs 50 and 54 of the Tribunal reasons for decision which referred to the absence of supporting material in relation to police activities in India, in relation to the charges which the applicant claimed had been laid against him and in relation to incidents where the LTTE contacted people and sought the assistance of former helpers or as to any retribution against former helpers.
The amended application states that there were two main reasons why the applicant was unable to provide these materials; first, that the police did not deal with him or detain him according to law, that pro-LTTE activists were arrested and mistreated without legally charging them and that this made it impossible for persons like him to provide legal evidence and, secondly, that if he could provide any material now he would have to seek the assistance of his family in India who live in a village and who do not have enough exposure to help him.
This ground does not establish jurisdictional error. It was open to the Tribunal not to accept the applicant's claim that Indian police were still arresting and questioning people who helped the LTTE in the past in the absence of material supporting this claim. Further, it is not suggested that the applicant had in fact provided details in respect of his claim to be subject to new charges or supporting documentation and it was open to the Tribunal not to accept these claims without further detail. Similarly, in relation to the claim that the applicant feared harm from the LTTE for having failed to provide it with his assistance based on other “incidents”, in the absence of information such as country information as to the practice of the LTTE, it was open to the Tribunal to make the findings that it made on the material before it. In so doing it made no jurisdictional error. The applicant's reference to needing to seek the assistance of his family is not such as to establish a jurisdictional error by the Tribunal on the material before it at the time of its decision.
In written submissions the applicant also took issue with the Tribunal finding on the basis of independent country information that his claim that he had been able to leave India only because he was able to hide himself in a Hindu religious group was unconvincing. The applicant claimed in submissions that the authorities were not able to stop him leaving India because they did not have his details on records because he was not formally charged during his detentions by the police on two occasions in 1999. However, this claim goes to the merits of the Tribunal decision-making and does not establish jurisdictional error.
The Tribunal reasons for decision recount that the Tribunal put to the applicant that the authorities would have been able to identify him from his name and other details in his passport and that this was not disputed by the applicant. In other words it raised the information on which it relied with the applicant for his comment. The fact that the applicant now provides an alternative explanation does not establish that the Tribunal fell into error in proceeding in the manner that it did on the material before it, particularly as it did so in the context of having regard to claims that he had made in his protection visa application as to the police having framed up new charges against him and involved him in old and new cases.
Finally in written submissions the applicant takes issue with the fact that the Tribunal took into account the peace process in Sri Lanka since late 2001. The applicant submitted that there was news about recent developments in Sri Lanka that had put the peace process in jeopardy. He referred to internet sources discussing events in Sri Lanka. However such submission does not establish jurisdictional error on the part of the Tribunal. There is no suggestion that this was material before the Tribunal or related to the situation in Sri Lanka as it stood at the time of the Tribunal decision. This information as to later developments in Sri Lanka does not assist the Court to determine whether or not the Tribunal fell into jurisdictional error on the material before it.
The applicant contends that these developments have completely altered the Tribunal's findings about the situation in Sri Lanka. As pointed out by counsel for the respondent, if it is the applicant's case that circumstances have changed since the Tribunal decision, it is open to him to apply to the Minister for leave to make a further protection visa application on the basis of changed circumstances. It is not something that establishes that the Tribunal, which made its decision in October 2003, fell into jurisdictional error at that time.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. I consider that the amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date:
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