SZCBQ v Minister for Immigration
[2006] FMCA 735
•31 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCBQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 735 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 474, 483 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration [2005] HCA 24 SZEEU v Minister for Immigration [2006] FCAFC 2 VUAV v Minister for Immigration [2005] FCA 1271 |
| Applicant: | SZCBQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2654 of 2003 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 26 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Tamil interpreter |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as a second respondent.
The name of the first respondent is amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2654 of 2003
| SZCBQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 4 December 2003 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 22 October 2003 and handed down on 18 November 2003, affirming a decision of the delegate of the first respondent made on 17 October 2002, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZCBQ”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Giles Short, reference N02/44913, contains the following background information.(CB 55-56) The applicant is a citizen of India and arrived in Australia as a temporary business entrant in July 2002. He applied for a Protection (Class XA) visa on
13 August 2002. A delegate of the Minister refused the application for a Protection (Class XA) visa on 17 October 2002 and on 13 November 2002, the applicant applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 51)
At the time of the Tribunal hearing, the applicant was in his early thirties; he is also a Muslim from Tamil Nadu. He had completed 10 years of education in his home village of Adirampattinam and was employed there in agriculture until July 2000. He claims that in 1995 he became a member of the Tamil Nadu Muslim Munnetra Kazhagam. In 1998, the party secretary died from a heart attack and the applicant was nominated acting secretary. The applicant believed Muslims did not have educational and employment opportunities in Tamil Nadu because they were a small community there. Local Hindus who belonged to the Bharatiya Janata Party (BJP) were against him.
In November 2000, the applicant was arrested and beaten by police. After joining the Dravida Munnetra Kazhagam party, he was pressured by members of the All Indian Anna Dravida Munnetra Kazhagam (AIADMK) to join them. After this, he accused AIADMK leaders of corruption and used their words to turn Muslims against them. AIADMK supporters went to his house looking for him and the applicant fled to Rajasthan where he stayed for nine months. He was arrested twice, around the anniversary of the destruction of the Babri Masjid Mosque.
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s findings and reasons is contained in the first respondent’s written submissions prepared by Sparke Helmore:
4.The RRT did not accept the credibility of the applicant’s claims. More specifically, the RRT made the following findings:
(a) It found the applicant’s evidence to be “vague and confused”, that he provided inconsistent evidence at the hearing and inconsistent evidence between his statement accompanying his protection visa application and his evidence at the Tribunal hearing;
(b) It found that the applicant’s evidence regarding the relationship between the AIADMK and the BJP was inconsistent with the independent country information (“ICI”) which therefore cast doubt on his claims;
(c) On the basis of its findings regarding the applicant’s credibility, it rejected that he was involved in politics in his home village in Tamil Nadu and that he was threatened by the AIADMK and the BJP;
(d) It rejected that the applicant was threatened by Hindu leaders and arrested around the time of the anniversary of the Babri Mosque incident;
(e) It relied on ICI regarding the government’s efforts in maintaining law and order and monitoring intercommunity relations to reject the applicant’s claim that he could not access state protection because the BJP were in power;
5.The RRT did not accept that the applicant was person to whom Australia owed protection obligations.
Application for Review of the Tribunal’s Decision
On 4 December 2003, the applicant filed an application for review under s.39B of the Judiciary Act. The application does not contain any grounds of review. However, the application does contain the following claim:
A declaration that the decision of the Refugee Review Tribunal to affirm the decision of the Delegate of the Minister of Immigration not to grant a Protection visa is erroneous and has no effect in law.
On 8 June 2004, the applicant filed an amended application which contains the following grounds:
A. JURISDICTIONAL ERROR of the Refugee Review Tribunal: committed by the Refugee Review Tribunal in not accepting the claim of the applicant that he had been subject to persecution in India, that he was compelled to seek asylum in Australia, as Australia is a signatory of the UN determination of the status of refugees and the 1967 protocol. The applicant has had horrendous experiences in India, which fall within the convention, as grounds for asylum. The applicant and his family were under persecution in India, and to save their life the entire family relocated to Australia, to seek refuge.
B. In spit of overwhelming evidence, the Tribunal rejected the claim of the appellant that he was subject to persecution from the fanatical, fundamentalists who belonged to the Bharatiya Janatha Party – the party controlling the central Government and the RSS – Rashtriya Seva Samithi. This was the reason why he was compelled to flee India for Australia, in search of refuge and asylum. He had joined the Tamilnadu Muslim Munetra Kazhagam and worked tirelessly for the upliftment of the besieged Muslim community and as such carned the virulent hatred of the Hindu fundamentalist elements. He became the leader of the TMMK in his village after the death of the president. He too had worked for the DMK in Tamilnadu. He had stated that he had been involved in propaganda work for both the TMMK and the DMK. Because the Hindu Fundamentalists came to his house and assaulted him twice, his family and his parents were compelled to relocate to Rjasthan, in search of security and peace.He lived in Rajasthan for nine months, after which he had obtained a passport, with the help of his friends, so that he could travel to Australia and obtain refugee status. Prior to this he had been arrested two or three times.
C. The Tribunal erroneously failed to accept that the appellant was subject to persecution in Tamilnadu, India because of religious reasons – because he was a minority Muslim. His political profile and his religion are inextricably linked. As leader to the TMMK in his village, he engaged himself in social and homeless and the destitute. All the troubles which he was compelled to face stemmed from the fact he was a Muslim and engaged himself in political affairs, for the upliftment of the Muslims.
D. He was compelled to relocate to Rajasthan with his own family and his parents for nine months. He was compelled to come back to Tamilnadu, at the end of this period, as he was not safe even in Rajasthan, from the vengeance of the Hindu fundamentalists. He was asked by the Tribunal why he could not relocate to another part of India, to escape the dangers from the fanatical elements of the Hindus, represented by the BJP and the RSS. Relocation for a person with the profile of the appellant is theoretical. In reality, even though his life was at risk, it was virtually impossible for the appellant to relocate to any part of India, as the only language he knew well was Tamil. It was a serious communications problem for him. Further without a knowledge of the language of his new domicile, it would not be possible to earn a living.
E. The Tribunal erroneously concluded that he was not a trust-worthy witness even though all that he stated was the absolute truth.
F. The appellant would not have left his own family and his parents, if his life was not in danger. (copied without alteration or correction)
Reasons
The applicant appeared as a self-represented litigant with the assistance of a Tamil interpreter. At the directions hearing before Registrar Hedge on 18 January 2005, the applicant was directed to file and serve written legal submissions and a list of authorities 14 days prior to the hearing. This order was not complied with. The applicant was invited to make oral submissions to this Court in support of his application. This invitation was declined. The applicant said that he would rely upon the contents of his amended application. I note that the applicant participated in the Court’s free Legal Advice Scheme and received written advice from the panel lawyer allocated to him.
Mr Reilly, counsel for the respondents, submits that the amended application seeks to attack the findings of fact made by the Tribunal and therefore seeks impermissible merits review. Mr Reilly contends that the Tribunal’s findings regarding the applicant’s credibility were open to it on the evidence before it; and were within its jurisdiction. A substantial part of the amended application is a repetition of the applicant’s background – particularly that with regard to his participation in various political parties and the resultant internal and external disputes. The amended application does not identify any errors other than disagreeing with the Tribunal’s finding against the applicant. No jurisdictional error is identified or established.
Merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision. It is a function of the Tribunal to conduct a full review of a decision by the Department.
Mr Reilly submits that in accordance with the Minister’s obligation as a litigant, the respondents have also considered the applicant’s claims in respect of the SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2. In particular, Mr Reilly refers the Court to Section D of the Tribunal application where the applicant stated (CB 40):
Please refer my statement claim of my refugee application.
That is, the applicant expressly relied upon the statement accompanying his protection visa application in his application for review. He therefore gave that information to the Tribunal for the purposes of that application.
In SZEEU v Minister for Immigration it was established that the Tribunal is bound to provide an applicant with particulars in writing of any information that might be the reason or part of the reason for its decision. In the present case, the applicant may argue that most of the information that was before the Tribunal was that provided in his protection visa application. His Tribunal application contained only very limited information in Section D, which made direct reference to his original visa application. That reference had the effect of drawing that material into the Tribunal decision. The Tribunal relied on inconsistencies between the applicant’s evidence at the hearing and his statement accompanying his protection visa application.(CB 63.9-64.2)
The statement accompanying the protection visa application was provided by the applicant for the purposes of the Tribunal application; therefore s.424A(3)(b) of the Act was enlivened.
Mr Reilly referred the Court to VUAV v Minister for Immigration [2005] FCA 1271 at [9], [10], [11] and [13] per Merkel J, where His Honour considered a similar set of circumstances to that before this Court:
9.In the circumstances of the present case, s 424A (1) required the RRT to give notice to the appellant, and invite his comment upon, the information in his visa application form provided that it was not given by the appellant for the purpose of his application for review: see s 424A (3)(b) and Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27.
10.However, as was pointed out by Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], if an applicant for review in, or as part of, the application for review relies upon information provided by the applicant in, or as part of, the application for a visa, the applicant will be taken to have given that information for the purpose of the application for review. As is apparent from the decisions in SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 and NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, views may differ on whether that criterion has been satisfied in a particular case.
11. In the present case the criterion has been satisfied. In the appellant’s application for review, in giving his reasons for making the application, the appellant stated, inter alia:
‘PLEASE REFER TO MY PREVIOUS STATEMENT FOR FURTHER INFORMATION.’
13. Accordingly, the information from the appellant’s visa application that was part of the reason for the RRT’s decision was information given by the appellant for the purpose of his application for review and therefore the RRT was not required by s 424A (1) to specifically inform the appellant of, and invite the appellant to comment upon, that information: see s 424A (3)(b).
Mr Reilly submits that that applicant was clearly inviting the Tribunal to consider the statement attached to his original visa application. Consequently, the Tribunal relied on inconsistencies between the applicant’s evidence at the hearing and the statement accompanying his protection visa application. That applicant failed before the Tribunal on the basis of its findings concerning the applicant’s adverse credibility.
Conclusion
The applicant in these proceedings is a self-represented litigant appearing with the assistance of a Tamil interpreter. This places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I acknowledge the applicant faces great difficulty as he does not speak the language, nor does he understand the legal system in which he has brought these proceedings. I am satisfied the applicant has been given the opportunity to receive independent legal advice under the Court-sponsored scheme, and to amend his application. It is apparent that the applicant did not comprehend aspects of the proceedings or how he was to succeed in his application. I am satisfied that none of the grounds identified in his amended application can be sustained. Neither is it apparent that any other grounds of review exist which suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 31 July 2006
3
8
2