SZCHP v Minister for Immigration
[2005] FMCA 1099
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCHP v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1099 |
| MIGRATION – Review of decision of RRT – whether the applicant made a claim that he belonged to a particular social group – where the applicant’s complaint concerning the rejection of certain evidence by the Tribunal is considered an attempt to ask the court to engage in merits review – where the applicant failed to be specific in his complaint. |
| Migration Act 1958, s.424A |
| NARE v Minister for Immigration [2004] FCA 554 SZDFO v Minister for Immigration [2004] FCA 1192 |
| Applicant: | SZCHP |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2885 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 July 2005 |
| Date of Last Submission: | 29 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2005 |
REPRESENTATION
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000.
Leave is granted to the applicant to join in these proceedings as second respondent the Refugee Review Tribunal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2885 of 2003
| SZCHP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 24 December 2002. On 31 December 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 June 2003 a delegate of the Minister refused to grant a protection visa and on 10 July 2003 the applicant applied for review of that decision. The Tribunal wrote to the applicant offering him an opportunity to attend a hearing as it had considered the material before it in relation to his application but was unable to make a decision in his favor on that information alone. The applicant attended the hearing and the Tribunal made a decision to affirm the decision of the delegate on 3 November 2003 which it handed down on 27 November 2003.
The visit to Australia on 24 December 2002 was not the applicant's first visit. He first came to this country in 1998 to study and made several return visits to India before his final arrival. The applicant is a Muslim from the state of Tamil Nadu and he claims to have a well founded fear of persecution for the convention reason of religion and membership of a particular social group. He told the Tribunal that he and his family were arrested on 11 March 2002 and taken to a local police station where a false case was filed against them. He said they were placed in jail and were tortured and three days later they were produced at the Tandjor local court where they were sentenced to three months imprisonment without bail. In jail they were tortured by Hindus who were connected with a political organisation. After his release he was required to attend the police station twice daily for three months. The applicant said that he carried out good works not for any political party but in order to provide support to any organisation which did good. However, he was particularly involved in philanthropical activity with recently converted Muslims from the lower Hindu castes. The applicant had a grandfather who was closely associated with his local mosque and appears to have been the mullah of that mosque.
The Tribunal was not satisfied with the credibility of the applicant's claims. At CB [96] it states:
“The Tribunal finds it implausible that simple and even handed philanthropy of the sort described by the applicant would be sufficient reason for the police or politicians to be suspicious of him or angry with him even allowing for some possible misapprehension about his motives. The Tribunal is not satisfied that the applicant's claims in this regard are credible.”
The Tribunal notes that after his alleged problems with the authorities in March 2002 the applicant left India in September 2002 for Australia. He returned to India in November 2002 apparently because of his grandfather's death in detention and his brother's disappearance. In this regard the Tribunal says:
“Notwithstanding these claims the Tribunal is satisfied that if the applicant had a well founded fear of persecution he would not have been willing to return to India. Further, the Tribunal is also satisfied that he would not have been willing to expose his wife, child and other members of his family to increased danger through their connection with him by so doing ... in view of the fact that the applicant did return to India in November 2002 the Tribunal is not satisfied that his claims to have been persecuted in the period March to September 2002 are credible.”
The Tribunal did accept the possibility that a short period of preventive detention that the applicant claimed to have occurred to him in December 2002 may have occurred. But notes that:
“If this did happen the Tribunal finds that the applicant by his own account was not mistreated and was released the next day after paying them the bribe. The Tribunal finds it significant that the applicant was by his own account not beaten, tortured or abused in any way in this brief detention and was not satisfied that he suffered any serious harm through it.”
The Tribunal concluded that the applicant did not have an objective basis for his fears.
The applicant filed an amended application on 10 May 2005 in which he noted eight grounds on which he believed the Tribunal had fallen into jurisdictional error. These can be divided, as they have been by Mr Wigney in his helpful written submissions at 4.2, into four groups:
1. The Tribunal failed to consider whether the applicant was a member of a political social group that group being persons whose parents who had been tortured and had been actively pursued by their persecutors for eventual elimination.
2. The Tribunal rejected the applicant's evidence about sufficient basis for doing so.
3. The Tribunal used critical adverse information obtained after the delegate's decision which was neither provided to the applicant before the hearing nor put to him during the hearing.
4. General and unparticularised assertions of error.
In regard to the first complaint I am unable to find where the applicant ever made a claim that he belonged to a particular social group that comprised those persons which are described above. Nor did he tell the Tribunal that he feared persecution by reason of his membership of that or any other particular social group. The applicant did not give the Tribunal any assistance to enable it to assess whether he belonged to such a social group or whether he feared persecution because of his membership. In the absence of any evidence that could draw a connection between the applicant and a particular social group the Tribunal was within its rights not to make a separate conclusion concerning it. Perhaps more problematic for the applicant is that those family members who were allegedly detained were detained because of their association with him rather than his association with them. The Tribunal rejected the evidence that the applicant gave about the alleged detention and therefore there was no ground upon which a particular social group could have been formed.
The complaint about rejection of the applicant's evidence is an attempt to get this court to indulge in merits review which is not permitted. The Tribunal is the decision-maker tasked with the responsibility of deciding on the credibility of an applicant and it has given logically probative reasons for not accepting the story put by this particular applicant. This is not a matter with which the court can interfere. The applicant does not identify the critical adverse information but it is suggested by Mr Wigney and seems to me to be correctly identified as a United States State Department International Religious Freedom Report 2002 which is included within the green book at CB [80-85]. This information is information which would seem to me to be excluded from the provisions of s.424A by the provisions of section 424A(3)(a) of the Migration Act 1959 (the “Act”). The general and unparticularised assertions of error are once again an attempt to get the court to indulge in impermissible merits review.
Today the applicant was not so specific in his complaints. Until I interrupted him he proposed to rehearse his grounds for seeking asylum in Australia. He told me that he was not satisfied with the Tribunal's decision. He told me that he was scared and in fear of returning to India. He believed that if he did so he would lose his life. The applicant did not articulate any additional grounds on which he believed the Tribunal fell into error. In NARE v Minister for Immigration [2004] FCA 554 and SZDFO v Minister for Immigration [2004] FCA 1192 Allsop J described the role of the courts in relation to these matters. In the shorter of those expositions he said in NARE at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this court does not, and cannot, involve a simple re-finding of facts found by the Tribunal. Rather, the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance, asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task.”
In SZDFO v Minister for Immigration his Honour said at [12]:
“It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations.”
I quote these judgments at length because I cannot possibly articulate the matter better than his Honour.
Having considered the matters put to me by the applicant and having read the court book I am unable to find any basis upon which it could be said that the Tribunal may have fallen into jurisdictional error in the manner in which it came to its conclusions. I must therefore dismiss this application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4000. I give leave to the applicant to join in these proceedings as second respondent the Refugee Review Tribunal noting the undertaking of the respondent's solicitor to file an appearance in the name of that organisation.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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