SZCLA v Minister for Immigration
[2005] FMCA 929
•30 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLA v MINISTER FOR IMMIGRATION | [2005] FMCA 929 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – Court cannot conduct a merits review – credibility of a witness is a matter for the decision-maker and not for the Court conducting a judicial review – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 277
| Applicant: | SZCLA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 63 of 2004 |
| Delivered on: | 30 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 30 June 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 63 of 2004
| SZCLA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 24 November and handed down on 17 December 2003. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
Background
The background to this matter is that the Applicant is a citizen of India. He arrived in Australia on 9 January 2003 and on 19 February of that year he lodged an application for a protection (class XA) visa. On 28 February a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused his application for a protection visa and on 26 March 2003 the Applicant applied for a review of that decision. The Applicant attended the hearing of the Refugee Review Tribunal and gave evidence.
The Applicant's claim is that he is a married man of Indian Sikh ethnicity. He said he was a member and an active supporter of the All India Sikh Students Federation and had been so since 1989. He had been heavily involved in political activities of that organisation. He said that on three occasions between the years 1989 and 1992 he had been detained by the police in Punjab and had been interrogated and tortured. The Applicant said that he left Punjab in 1992 to live in Rajasthan, but in January 1996 he was again arrested and detained and interrogated. He said that during that time he was assaulted before he was released. He said that he had to pay a bribe to secure his release and when he returned home he found that his house had been burned to the ground. He made the decision to return to Punjab.
In 1996 having returned to Punjab he was involved in a demonstration in Amritsar and was detained by the police and again interrogated. He said that on two occasions between then and 1998 the Punjab police detained him and tortured him and beat him whilst he was in custody. He went into hiding and decided to go to New Delhi and eventually after a further raid by the police on his home at a time when he was absent he left India and travelled to New Zealand in April 2002. The Applicant remained in New Zealand for a period of about nine months, although he did not apply for refugee status in that country. He entered Australia on 9 January 2003 by means of a visa that he had obtained lawfully in Auckland on 3 January that year. That visa was valid until 9 April 2003. By that time, as he told the court today, after he had obtained advice from friends he applied for a protection visa in this country.
The Tribunal member made it clear that she did not accept the Applicant's claims. At page 81 of the court book in the findings and reasons in the third paragraph the Tribunal says:
I do not accept the Applicant's claims. His claim of membership of AISSF - (which is the All India Sikh Students Federation) is implausible and his claims that the police continue to harass and harm AISSF supporters is not supported by the independent evidence as discussed below. I am of the view that the Applicant has created his claims in order to enhance his claim to refugee status.
The Tribunal quoted from a considerable amount of country information relating to the AISSF and its activities within India and actions taken towards it by the government. In the last line on page 84 of the court book continuing onto page 85 the Tribunal member said:
The Applicant did not impress the Tribunal as a reliable witness whose assertions might simply be accepted at face value. Although it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. I am not required to accept uncritically any and all the allegations made by an applicant. Persecution for a particular convention reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reasons claimed. It is for the Tribunal to be satisfied that all of the statutory elements are made out.
The Tribunal made it quite clear at page 85 that the Tribunal did not accept that the Applicant was a member of the AISSF and did not accept that on three occasions between 1989 and 1992 he was detained and tortured by the Punjab police for his political opinion and or that the police raided his house in 1996. The Tribunal did not accept that he was released after paying a bribe or that his house was burned down. The Tribunal did not accept that between 1996 he was detained and tortured by the Punjab police twice and went into hiding.
The Tribunal was not satisfied - and this appears on page 86 of the court book - that the Applicant had significant profile or involvement with AISSF or that he was a sympathiser or a supporter. The Tribunal found that the Applicant had not been harassed or harmed for a convention reason in India and was not satisfied therefore that he had a well‑founded fear of convention-based persecution on his return to India.
The Applicant filed an application on 12 January 2004. The grounds for the application were these:
i)The decision of the RRT involved an error of law, whether or not the error appears on the record of the decision.
ii)The RRT attached great importance to the Applicant's failure to lodge a protection visa application in New Zealand.
There appear to be a setting out error in paragraph (iii) in that the number (iii) should really appear in front of the earlier paragraph beginning:
The RRT made a jurisdictional error when it failed to have regard in its reasons to important relevant material going to a central consideration in the Applicant's matter, namely what type of harm he would face when he went back to his country.
That paragraph seems to have been tacked onto the paragraph (ii) relating to not applying for a visa in New Zealand. The fourth ground was:
There was no evidence to justify the making of the finding by the Tribunal member that the Applicant was not in fear of his life during this period and alleged incidents did not occur and the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.
Those were the grounds. The Applicant provided a set of written submissions which differ somewhat from the grounds set out in the application. The first three paragraphs relate to the history of the proceedings. Paragraph 4 says:
The Tribunal has recited the formal requirements of the four key elements of the convention, but the reasons do not show how and why the requirements fall short of and do not meet the requirements of the convention.
The Applicant explained that a friend had helped him prepare this application and he was unable to comment on the meaning of this rather confusing paragraph. Paragraphs 5 through to 9 of the application relate to a challenge on the findings of fact which of course the court cannot consider as the court is not permitted to reconsider the factual evidence on a judicial review.
At paragraph 11 the applicant points out that the Tribunal did not find him to be a credible witness. It found that much of the evidence he provided was implausible or unconvincing. At paragraph 13 the Applicant says the tribunal fell into a jurisdictional error inasmuch as it focused its attention on the issue of credibility and failed to take properly into account other evidence and material in relation to the plight of many Sikhs who had suffered persecution by reason of religious and political beliefs.
Unfortunately, the Applicant cannot lightly pass over the fact that the Tribunal did not find him to be a credible witness and did not find his evidence to be credible. It is, as I pointed out to the Applicant during the course of the hearing today, a major hurdle in having his case accepted. I have read the written submissions by Counsel for the Respondent, Mr Kennett, who points out in paragraph 9 that the Tribunal did not err by focussing on the issue of credibility in failing to take into account other evidence and material about the plight of Sikhs in India. He goes on to say that the Applicant's credibility was central to his claim that he feared persecution on the basis of his membership of the AISSF.
As Mr Kennett also pointed out in paragraph 12, following on from its assessment of the Applicant's credibility the Tribunal made a positive finding that the Applicant had created his claims and, in other words, it did not accept that he was in Australia because of a subjective fear of persecution in India. That conclusion made it unnecessary to consider whether he did have a fear of persecution that would be well-founded. He cites as authority the decision of SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at 12. He went on to say that there was no need for the Tribunal to consider other possible reasons why the Applicant might be persecuted in future.
In paragraph 14 of the Applicant's submission the Applicant says that the Tribunal fell into jurisdictional error in considering the claims raised by the Applicant at the hearing that he feared persecution by reason of his political beliefs and by reason of his religious beliefs.
In my view, that can be answered simply by saying that the Tribunal did consider the Applicant's claims relating to the fact that he is an ethnic Sikh. He claimed that he was involved in the All India Sikh Students Federation and that he had been involved in various demonstrations. He said that he had been detained, interrogated and tortured by the police accordingly. In my view, the decision is replete with examples of consideration by the Tribunal of those claims by the Applicant. Unfortunately for the Applicant, the Tribunal did not accept the credibility of his claims.
At paragraph 15 of his submissions the Applicant said that the Tribunal made a jurisdictional error in failing to examine all the other sources of available country information and other evidence and to make a finding whether the Applicant had a well-founded fear by reason of (a) his action and also his imputed beliefs and (b) by reasons of his religious beliefs. The answer to that was put by Mr Kennett correctly, in my view, in his submission that the Tribunal was under no duty to search out all the other sources of available country information and other evidence. The authority for that proposition is WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 277 at [24] and [25].
In paragraph 16 the Applicant says that the Tribunal made a jurisdictional error in failing to consider whether or not the Applicant could have a well-founded fear notwithstanding the fact that he may not have suffered any actual serious harm. This submission appears to be misconceived. I asked the Applicant about that submission and he said he had in fact suffered actual serious harm. He said that he had been tortured and beaten by the police on several occasions when he had been apprehended and taken into custody and he had told the Tribunal exactly that. Indeed, the Tribunal decision recites those claims by the Applicant at pages 79 and 80 of the court book. The Tribunal also considered that claim at page 85 of the court book. It is not necessary for the Tribunal to agree with an applicant's contention in order to show that it has considered it. It is quite open to the Tribunal to consider a particular contention but disagree with it. That in fact is what the Tribunal did.
Finally, in paragraph 17 of the Applicant's submission the Applicant says the Tribunal made a jurisdictional error in failing to correctly consider and apply the test of well-founded fear of persecution for the purpose of the Refugees Convention.
Mr Kennett points out that the finding by the Tribunal that the Applicant's credibility was such that the Tribunal believed that he had created or fabricated his claims made it unnecessary for the Tribunal to consider whether if the Applicant did have a fear of persecution it could be well-founded. The authority for that is SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [12].
The Applicant raised two other points in his oral submissions. One is that at page 80 of the court book the Tribunal recites that the Applicant's passport was issued in July 1997. That is clearly wrong and indeed Mr Kennett conceded that the Tribunal had made an error. The Applicant clearly stated in his application that his passport was issued on 26 November 1997, and that appears at page 14 of the court book and indeed at page 39 of the court book there is a very clear photocopy of the Applicant's passport. An examination of the passport quite clearly shows a date of issue of 26 November 1997.
That is a factual error clearly made by the Tribunal member. It does not, as Mr Kennett submits, assist the Applicant. It is purely an error of fact and a minor at that even if inexplicable. What Mr Kennett submits is that the correct date of the passport does not assist the Applicant's case at all because the passport was issued in 1997 when the Applicant had said that between 1996 and 1998 he was detained and tortured by the Punjab police twice. He was beaten and tortured and decided to go into hiding and went to New Delhi. Had the issue of the passport been discussed at the hearing it may well have been that the Tribunal would have asked the applicant how he managed to obtain a valid passport at that stage when, on his evidence, he was clearly under notice from the police and had been beaten and detained to such an extent that he decided to go into hiding.
The Applicant relies on that point of the error in the date of the passport to show that the Tribunal did not consider his application carefully. In my view, it is a clerical error and the only error about which the Applicant has made a successful claim. My reading of the decision does not show any jurisdictional errors.
A claim that the Tribunal did not consider the application carefully is not of itself a ground for judicial review. The error, and error it is, remains as just that; it is a clerical error on an issue of fact that does not and cannot amount to a jurisdictional error. There is no reviewable error. The application is dismissed.
Costs usually follow the event and I do not see any reason why I should depart from that ruling in this situation. The Respondent's lawyers seek the sum of $4200.00 on a party and party basis. That of course includes the fact that counsel was briefed to appear. In my view, that figure is well within the range prescribed by Schedule 1 of the Federal Magistrates Court Rules. I order that the Applicant is to pay the Respondent's costs fixed in the sum of $4,200.00.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 1 July 2005