SZCKG v Minister for Immigration
[2005] FMCA 1641
•9 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKG v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1641 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – whether the RRT breached s.424A(1) of the Migration Act 1958 (Cth) in relation to material supporting the protection visa application considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), Part 5, s.424A |
| M55 of 2002 v Minister for Immigration [2005] FCA 131 Minister for Immigration v Al Shamry (2001) 110 FCR 27 NAQG v Minister for Immigration [2004] FCA 1613 NAZY v Minister for Immigration [2005] FCA 744 Re Minister for Immigration; Ex Parte Durairajashingham (2002) 168 ALR 407 Re Minister for Immigration; Ex Parte Miah(2001) 206 CLR 57 Re Minister for Immigration; Ex Parte S154/2002(2003) 201 ALR 437 SAAP v Minister for Immigration (2005) 79 ALJR 1009; (2005) 215 ALR 162 SZBNK v Minister for Immigration [2005] FCA 998 SZDMJ v Minister for Immigration [2005] FCA 1034 SZECF v Minister for Immigration [2005] FCA 1200 SZEKY v Minister for Immigration [2005] FCA 1138 SZFKL v Minister for Immigration [2005] FCA 931 |
| Applicant: | SZCKG |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 37 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 9 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 37 of 2004
| SZCKG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was completed on 19 November 2003 and was handed down on 11 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of persecution based on imputed political opinion. Relevant background facts are set out in the Minister's written submissions. I adopt paragraphs 2-14 of those submissions for the purposes of this judgment:
The applicant is a citizen of India. He arrived in Australia on 18 January 2003.[1]
[1] court book, page 14
On 28 January 2003 the Department of Immigration and Multicultural and Indigenous Affairs (Department) received an application for a protection visa from the applicant.[2]
[2] court book, page 1
On 25 March 2003 a delegate of the Minister refused the application for a protection visa. [3]
[3] court book, pages 41 - 50
On 3 April 2003 the RRT received an application for review of the delegate’s decision.[4] On 5 August 2003 the RRT wrote to the applicant, advising him that it was unable to arrive at a decision in his favour on the material before it. The applicant was invited to attend a hearing.[5] The applicant notified the RRT that he intended to come to the hearing.[6]
[4] court book, page 65
[5] court book, page 71
[6] court book, page 75
By letter dated 21 October 2003 the RRT provided the applicant with independent country information which it foreshadowed may be used by it to determine the applicant’s case.[7]
[7] court book, pages 81 - 141
The applicant attended the hearing (which was rescheduled to 5 November 2004 due to interpreter problems)[8] and gave oral evidence.[9]
[8] court book, page 153
[9] court book, page 143
On 19 November 2003 the RRT made a decision, affirming the decision of the delegate.
The applicant filed the application for judicial review on 7 January 2004, an amended application on 28 May 2004 and a further amended application on 28 October 2004.
Applicant’s claims
The applicant’s claims are set out in his application for a protection visa at court book, pages 36 – 38 and in his letter to the RRT dated 24 October 2003 at court book, pages 116 – 120.
Briefly stated the applicant claims:
a)he is Hindu;
b)his father was a Naxalite, and involved with Naxalite activities;
c)his father spent most of his time involved in Naxalite activities or in prison;
d)in Andrah Pradesh, where the applicant lived, there was much communal violence amongst Naxalite groups and the police. The Naxalite groups were very powerful;
e)the police and local community groups thought the applicant’s family was responsible or the growth of Naxalite activities in the area;
f)both the police and the Naxalite groups created problems for the applicant and his family;
g)the Naxalites thought the applicant decided not to help them, so they decided to kill the applicant;
h)the applicant escaped to Madras and lived with a relative;
i)he was arrested in Tamil Nadu with other Naxalites and tried under the National Security Act. He was denied bail, detained for three months and transferred to Hydrabad central jail;
j)he was tried again and sentenced to further imprisonment;
k)he was later released on bail;
l)he returned to Madras, but as he could not find a job, so he moved to Bombay;
m)he experienced language problems in Bombay and the police gave him troubles so he decided to move to Australia;
n)a friend arranged for him to obtain a visa to Australia; and
o)if he returns to India he will be tortured and ultimately killed by police or Naxalite groups.
The nub of the applicant’s claim is that he fears he will be killed by Naxalites upon his return to India. He maintains he will not receive police protection due to police corruption.
The RRT’s decision
The RRT accurately summarised the applicant’s claims at court book, page 152. It is evident that the RRT explored the applicant’s claims with him at some length.[10] The RRT:
[10] court book, pages 154 - 156
a)accepted the applicant’s general claims concerning his background, education and employment. However the RRT did not accept the remainder of the applicant’s claims;[11]
[11] court book, page162
b)found that the applicant was not a credible witness;[12]
c)noted that the applicant’s claims were vague, general and not sufficiently detailed to be believable;[13]
d)noted that there were material contradictions in the applicant’s case which were not explained to the RRT’s satisfaction;[14]
e)observed that the applicant made a number of recent inventions;[15]
f)noted that the applicant’s claims were at odds with independent country information.[16]
Having made the above findings the RRT then gave detailed explanations and reasons for the findings: see court book, pages 162.7 – 165.8.
Then RRT concluded:
…taken as a whole, in light of the implausibility of a number of aspects of the applicant’s claims, the fact that there were material contradictions in his testimony and in his evidence which were not explained to the Tribunal’s satisfaction, several of his claims were recent inventions, some of his key claims were at odds with independent evidence, some of his testimony was evasive and some of his claims were exaggerated, and some of his claims were vague, general or not sufficiently detailed to be believable, the Tribunal can only come to the conclusion that key aspects of the applicant’s claims and testimony were not credible and therefore finds that he is not a credible witness. Accordingly…the Tribunal is not satisfied that he has a well founded fear of persecution due to political opinion or for any other Convention reason.’[17]
[12] court book, page161.7
[13] court book, page161.8
[14] court book, page161.8
[15] court book, page161.9
[16] court book, page161.8
[17] court book, pages 165-166
The applicant relies upon his further amended application filed on 28 October 2004. The applicant had prepared a short affidavit on 28 May 2004 but it raises only legal issues and is superseded by the further amended application. The only evidence before me is what is contained in the green court book. The applicant elected to make no submissions.
The present grounds of review are summarised in the Minister's legal submissions. I adopt, for the purposes of this judgment, paragraph 16 of the legal submissions:
The further amended application contains two grounds of review alleging that the RRT exceeded its jurisdiction or constructively failed to exercise jurisdiction, and that it made an error of law. Those grounds are then particularised. As the grounds are formulaic, to the extent that it is necessary these submissions deal with each of the particulars.
In paragraphs 17 through to 24 Ms Clegg, for the Minister, deals with the grounds of the application and the particulars. Ms Clegg also made oral submissions. I agree with and adopt (as amended by me) paragraphs 17 through to 24 of the Minister's legal submissions for the purposes of this judgment:
Particulars (i) - (iii) and (viii)
Particulars (i) - (iii) and (viii) are not proper grounds of review. They are in the nature of submissions and do not have any logical bearing on the question of jurisdictional error in the present case. They do not warrant a response.
Particular (iv)
Section 422B applied to this decision. Accordingly, (within its field of operation) Division 4 of Part 5 of the Migration Act 1958 (Cth) (“the Migration Act”) provides an exhaustive statement of the natural justice hearing rule in this case. To the extent that Division 4 applies, the RRT was only required to adhere to the provisions of the Act. The RRT did comply with the Act.
As to the complaint that the RRT did not tell the applicant that it did not believe certain of his claims, it is well established that it not necessary for an administrative decision maker to put to an applicant that it does not believe his claims, or to expose its subjective reasoning process: Re Minister for Immigration; Ex Parte S154/2002 (2003) 201 ALR 437 at [54]. There is no requirement to provide a running commentary to the applicant giving full warning of all possible reasons for failure: Re Minister for Immigration; Ex Parte Miah (2001) 206 CLR 57 at [31].
As to procedural fairness and country information, it is noted that although the RRT was not obliged to provide the applicant with the country information upon which it relied (because it fell within the section 424A(3)(a) exception), the RRT did provide the applicant with an opportunity to comment on the adverse country information, thus satisfying the rules of procedural fairness in relation to the country information. [18]
Particulars (v) and (vi)
The applicant claims the RRT failed to take into account relevant considerations and took into account irrelevant considerations.
The RRT clearly had difficulty with the fact that some of the applicant’s claims relating to his fear of the Naxalites stemmed back to events which took place many years before the applicant departed India. This was a proper consideration. The fact that the applicant related his father’s activities to his own persecution[19] also bears the result that the date of his father’s detention is a relevant consideration.
When one considers these alleged grounds, it is evident that the applicant is attempting to re-visit the merits of the case. This is not permissible.
Particular (vii)
The applicant contends that the RRT failed to deal with or make findings in relation to certain factual matters as alleged by the applicant. The recited facts are nothing more than individual factual assertions to support the claim. It is well established that where the RRT queries certain aspects of a claim – as it overwhelmingly did here – it is unnecessary ‘for the RRT to give a line by line refutation of the evidence for the claimant’: Re Minister for Immigration; ex parte Durairajasingham (2002) 168 ALR 407 per McHugh J at [65].[20]
[18] court book see letter to applicant and attachments at court book, page 80
[19] court book, page 36.5
[20] This case is distinguishable from cases were there is a requirement that there be a finding made on a material claim or fact: see NAQG v Minister for Immigration [2004] FCA 1613 especially at [12] – [15] where Allsop J found a failure to make a finding that certain documents were fraudulent meant the RRT had committed jurisdictional error.
I also note that the legal obligation on the RRT is to deal with the essential integers or elements of the applicant’s claims, not with all items of evidence that may have been advanced in relation to those claims.
The only other issue is what Ms Clegg describes as the “SAAP issues” and discusses in paragraph 25 through to 28 of her written submissions. This issue was not raised by the applicant but was properly raised by the Minister. The issue is whether the RRT was obliged to disclose to the applicant adverse information contained in his protection visa application. The state of the law regarding that issue is presently somewhat uncertain. For the purposes of this judgment I agree with and adopt as follows paragraphs 25 through 28 of the Minister's legal submissions:
SAAP/Al Shamry issues
Due to the RRT’s reference in its decision to the material contained in the protection visa application, this is a case in which a question arises as to whether the combined effect of the decision of the High Court in SAAP v Minister for Immigration (2005) 79 ALJR 1009; (2005) 215 ALR 162 and Minister for Immigration v Al Shamry (2001) 110 FCR 27 has any impact on the decision.
There was no reliance upon the protection visa application ‘information’ which required compliance with section 424A(1) and (2) for two reasons.
First, it was the inconsistency between the information contained in the statutory declaration,[21] and the evidence given by the applicant at the hearing, and the evidence given by the applicant in his letter to the RRT[22] which the RRT relied upon – and not the information itself. Hence the protection visa application (and the written statement attached to it) cannot be said to be the reason or part of the reason for the RRT’s decision: SZEKY v Minister for Immigration [2005] FCA 1138 per Lindgren J; contra: SZECF v Minister for Immigration [2005] FCA 1200 per Allsop J.[23]
Second, and in any event, it appears that the information provided by the applicant in the protection visa application was ‘republished’ to a large extent in the applicant’s letter to the RRT dated 24 October 2003,[24] such that the information in the protection visa application became information provided by the applicant to the RRT for the purposes of the review. Accordingly, the exception contained in section 424A(3)(b) applies to the ‘information’ in any event: see M55 of 2002 v Minister for Immigration [2005] FCA 131, SZBNK v Minister for Immigration [2005] FCA 998 per Lindgren J at [27], SZDMJ v Minister for Immigration [2005] FCA 1034 per Gyles J and SZFKL v Minister for Immigration [2005] FCA 931 per Madgwick J at [7].
[21] court book, pages 36-37
[22] court book, pages 116-120
[23] In NAZY v Minister for Immigration [2005] FCA 744, Jacobson J took a different view. However, this interpretation of SAAP/Al Shamry has been questioned (although not directly rejected) by Lindgren J in SZBNK v Minister for Immigration [2005] FCA 998 per Lindgren J at [27] and SZDMJ v Minister for Immigration [2005] FCA 1034 per Gyles J.
[24] court book, pages 116 - 120
In particular, I accept that it can reasonably be inferred from the evidence in this matter that the applicant's protection visa claims were adopted by him for the purposes of his review application to the RRT. I base that inference on the following facts: first, it is apparent from the record of the RRT decision that the applicant's protection visa claims were discussed with him at the hearing. Secondly, the applicant presented to the RRT a document which largely restated those claims. Finally, in the absence of that document and the protection visa application, there would have been nothing whatsoever in writing explaining why the applicant was a refugee. If such a review application were valid, the RRT would have been bound to reject it.
I assume that the review application was valid and that it was based upon the same claims that the applicant had made in his protection visa application.
I am satisfied that the RRT proceeding was fair. I am also satisfied that the RRT adequately considered the applicant's claims and otherwise met its statutory obligations.
I find that there was no jurisdictional error in the decision of the RRT. The decision is therefore a private clause decision and the application must be dismissed.
On the question of costs, the Minister seeks an order that the applicant pay the sum of $4,000. I am satisfied that a costs order should be made and that the sum of $4,000 sought is reasonable when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the judicial review application, which I fix in the sum of $4,000. Finally, I will also order that the RRT be joined as the second respondent to the application.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 November 2005
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