SZCME v Minister for Immigration
[2007] FMCA 611
•26 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCME v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 611 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – alleged failure to afford applicant natural justice in Tribunal hearing – alleged failure to give applicant a real and proper hearing. |
| Migration Act 1958, ss.91X, 422B, 424, 424A, 425, 430, 439, 440, 476 |
| Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 Antipova v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 480 |
| Applicant: | SZCME |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3777 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 April 2007 |
| Date of Last Submission: | 3 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3777 of 2006
| SZCME |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 12 December 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
6 November 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 12 March 2003 refusing the applicant’s application for a protection visa.
The decision the subject of these proceedings is the second decision of the Tribunal in respect of the applicant’s application for a protection visa. The first decision was set aside by order of the Federal Court dated 25 July 2006 (Court Book (“CB”) page 85).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background Facts
The Tribunal described the applicant as follows:
… the applicant is a 46 years old male; an Indian Tamil;
a Muslim; was born and educated (for 10 years) in Adirampattinam; speaks, reads and writes English and Tamil, and speaks Hindi; lived at the same address in Adirampattinam from birth until 2000 and then for a year in Chennai; was married in Adrampattinam in April 1974; was employed as a salesman between 1996 and 2001, and between 2001 and 2001 was self-employed on his coconut farm… (CB 133)
The applicant claims to fear future persecution in India because of his political activities and religious beliefs.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-11 of the Tribunal’s decision (CB 133-140). Relevantly, they are in summary:
a)the applicant became a member of the political party Tamil Nadu Muslim Munnetra Kazhagam (TMMK) in 1996. In 1997, he became Secretary for the Pattukkottai Taluk;
b)the Hindu people in the applicant’s village were against him as he was an active member of TMMK and he was threatened by some radical Hindu leaders not to be involved in anti-Hindu activities;
c)the applicant decided to “relax for a while” and went to Germany on 17 February 1999 and returned to India on 28 February 1999;
d)on 15 November 1999 the applicant arranged a public meeting and organised a rally to be held on 6 December to commemorate the babri masjid destruction which had occurred on 6 December 1992. However, after threats from a prominent Hindu leader, the rally was cancelled;
e)on 1 December 1999, the police came to the applicant’s house and he was arrested along with some other TMMK members. He was released on 8 December 1999, without any charges being laid against him. Whilst in custody, he was beaten several times and rarely fed;
f)in June 2001, the applicant was re-elected as Secretary and started to organise a rally for 6 December 2001. Although he wrote to the district collector seeking permission to hold a peaceful rally, he did not receive a response; and although the local Hindu leader asked him not to proceed with the rally, the applicant ignored him and continued with his preparation for the rally;
g)on 30 November 2001, the police arrested the applicant and then released him without charge “because they don’t have any evidence other than [he is] secretary of the TMMK”;
h)as the applicant did not want to go to gaol once a year, he decided to join Dravida Munnetra Kazhagam (DMK);
i)the applicant “rallied for the DMK party” and against the AIADMK and the BJP. After the DMK lost the 5 May 2001 state election and AIADMK came to power, the Chief Minister arrested a DMK leader which led to major clashes throughout Tamil Nadu between the DMK and AIADMK;
j)AIADMK members came to the applicant’s house and asked his parents his whereabouts. The applicant’s parents asked the applicant to leave. Fearing for his life, the applicant left his village as soon as possible and went to Chennai. He then left Chennai for Delhi where he remained for four months for security reasons. He then went to Mumbai where he remained for three months;
k)after nearly a year away, the applicant read in newspapers that the situation between AIADMK and the Hindus had calmed down. The applicant returned to his village and resumed his life as the secretary of TMMK and as an important member of DMK in his village;
l)after the applicant heard there had been a law introduced which denied the right of people in Tamil Nadu to convert to another religion, the applicant conducted a public protest meeting in his village. The police arrested him immediately and took him to the police station, but released him without charge;
m)two days later, one of the applicant’s friends told him the police had “pass this message” to the Chief Minister and advised him that there was “going to be a big problem”. The applicant was “scared” and fled his village. The following day the police and an AIADMK leader came to his house asking about the applicant and told his parents they had an arrest warrant for him; although the applicant claimed he was merely “asking [for his] rights”. He stated that a “couple of years ago, one of the Australian family was killed even a small kid by the Hindu people because he is doing religious work and many Hindus convert to Christian”;
n)when the applicant rang his parents a week later, his mother advised him that for the protection of himself and his family, he should leave India, as because of him, his family would also be in trouble, as not only were the Hindu extremists after him, but now the police and the AIADMK were against him. The Tamil Nadu government would have no problem tracing him anywhere in India and killing him;
o)the applicant arranged with a friend who had a travel business to obtain an Australian visa for the applicant and he arrived in Australia on 28 November 2002.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)in the applicant’s oral evidence, he stated that he did not claim to fear harm from the opposition parties but from the ruling parties; then he appeared to change his mind and claimed that he feared harm from the opposition parties not the ruling parties;
b)the Tribunal found that the applicant was embellishing (if not fabricating) his evidence in order to enhance his claims;
c)the Tribunal was not satisfied the applicant was subject to the adverse attention of any person, group or government;
d)the Tribunal was not satisfied the applicant founded a political party or group as he claimed (or was even a founding member) and rejected the applicant’s claims to have been arrested and imprisoned at any time;
e)because of inconsistencies in the applicant’s evidence, the Tribunal did not find the applicant to be a credible witness;
f)the Tribunal rejected the applicant’s claim to have been threatened by members of the RSS (a Hindu extremist group) “many times”;
g)the Tribunal did not accept the applicant’s explanation for not residing at his own home after December 2001;
h)the Tribunal did not accept the applicant’s “mere assertions” that his alleged objection to the Indian anti-conversion laws would give rise to protection obligations for him;
i)on the basis of country information available to it, the Tribunal was not satisfied that for the mere fact of being a Muslim, such persons have a well-founded fear of persecution in India as a whole, or in Tamil Nadu in particular;
j)the Tribunal found the applicant has no more than a remote chance of being subject to harm amounting to persecution if he returns to India;
k)accordingly the Tribunal was not satisfied that the applicant has a real chance of persecution for reason of his religious beliefs, practices or activities in Tamil Nadu;
l)the Tribunal did not accept that the applicant was owed refugee protection obligations on the basis that he was a “liberal thinker, which contradicts with the Hindu extremists” or on the basis that he “cannot pursue a normal life or access to basic rights of freedom of thought, movement, communicate or help people”;
m)the applicant claims to have been subject to an arrest order since 1999. However, given the applicant’s claims to have resided in his own home until at least December 2001, the Tribunal was satisfied that the authorities (and anyone else) could have located him at his own home during this two year period if he had been of any interest to them;
n)the applicant claims to have principally resided away from his home between December 2001 and November 2002. As such, the Tribunal was satisfied the applicant can safely relocate within India;
o)the Tribunal was not satisfied that the applicant would be sought or traced, or that anyone would actually be interested in doing so, should he return to his home in India, let alone should he relocate to another place; and
p)given the applicant had secured work commensurate with his skills in India (and away from his “native area”), has obtained part-time work in Australia and has shown himself willing and able to live in Australia for a few years, a country with a language and culture significantly different from his own, the Tribunal was not satisfied that any language or employment difficulties (or any other reason) would make it unreasonable for the applicant to relocate.
The Tribunal’s finding was one significantly based on its findings concerning the applicant’s credibility. It said:
… given his abovementioned evasiveness, and for the other reasons set out below, the Tribunal is satisfied the applicant has at least embellished (if not fabricated) his claims in order to invoke refugee protection obligations in Australia. The Tribunal is sufficiently satisfied with this finding that to the extent to which it may not have expressly rejected his material claims, it now rejects all his material claims to invoke refugee protection obligations in Australia as false. (CB 141)
In essence, the Tribunal found that the applicant:
a)was not a credible witness;
b)was not as politically active as he claimed and had fabricated his claim of political persecution in order to invoke refugee protection obligations in Australia;
c)did not have a real chance of persecution for reason of his religious beliefs, practices or activities in India; and
d)could safely and reasonably relocate within India.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. A breach of rules of natural Justice occurred in connection with the making of decision.
2. The Tribunal failed to internalize the circumstantial ground of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and such has breached section 424, section 430, section 439, section 440 of the Act.
3. The Tribunal in its decision of 6 November 2006 failed in its written statement [such] that [there was] a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act.
At the hearing in this Court the applicant also raised issues concerning the conduct of the hearing before the Tribunal which implied that the Tribunal was in breach of s.425 of the Act by reason that:
a)the applicant was asked to give his evidence in a hurry and to respond “yes” or “no”;
b)because the Tribunal hearing occurred during Ramadan the applicant was fasting and affected by his fasting; and
c)the interpreter did not interpret accurately.
Dealing with each of these grounds in turn:
Breach of rules of natural justice
This asserted ground of review has not been particularised by the applicant and no denial of natural justice is apparent from the documents contained in the Court Book. In this respect, the Tribunal hearing which occurred on 19 October 2006 was subject to the terms of s.422B and, more generally, div.4 of pt.7 of the Act. In that regard, the Tribunal gave the applicant a notice under s.424A (CB 102 – 109) in response to which the applicant supplied further information (CB 114 – 115), the Tribunal had regard to that information pursuant to s.424 (CB139 – 140), the Tribunal, being unable to make a decision on the review in the applicant’s favour on the basis of the information before it, invited him to a hearing pursuant to s.425 (CB 110 – 111) and the applicant did attend and gave evidence (CB 140).
In respect of the Tribunal’s obligations under s.425, the fundamental issue at which the Tribunal arrived was its conclusion as to the applicant’s credibility which was also an issue identified by the delegate who had not been satisfied that the claimant had given an entirely credible account of the circumstances in India (CB 54), having previously noted that there was a number of factors casting serious doubts on the credibility of the applicant’s claims (CB 49). Other issues were also put to the applicant in the comprehensive s.424A letter, including the previously-constituted Tribunal’s lack of belief that the applicant had any political problems in India and that the Tribunal’s failure to be satisfied that certain of the applicant’s actions, or inaction, were consistent with a genuine fear of persecution in India (CB 109).
For the above reasons, no breach of the Tribunal’s natural justice obligations to the applicant in respect of the hearing has been demonstrated and this asserted ground of review is not made out.
The applicant has not alleged bias against the Tribunal.
The Tribunal failed to internalize the circumstantial ground of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and such has breached section 424, section 430, section 439, section 440 of the Act
The meaning of this ground is difficult to discern but appears to be an invitation to the Court to review the Tribunal’s decision on the merits of the application and an assertion that the identified sections of the Act were contravened.
To the extent that this ground is an application for a merits review, it must fail. As was said in Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ:
In the present context, 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. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. (footnotes omitted)
To the extent that the applicant alleges breaches of the pleaded sections, ss.439 (disclosure of confidential information) and 440 (Tribunal may restrict publication or disclosure of matters) are, as the Minister has submitted, inapplicable.
As to s.424, for the reasons already stated in relation to the first asserted ground of review, no breach has been demonstrated in respect of that section. As to s.430 and the Tribunal’s obligation to give reasons, the Tribunal’s decision meets the requirements of the section and, consequently, no breach is disclosed.
For these reasons, this asserted ground of review is not made out.
The Tribunal in its decision of 6 November 2006 failed in its written statement [such] that [there was] a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act
Again, no particulars of this asserted ground have been provided and, for the reasons given in respect of the first asserted ground of review, the allegation of a denial of natural justice is not made out.
The reference to s.476 of the Act is of no assistance to the applicant as this section provides for the jurisdiction of this Court in relation to migration decisions, as that expression is defined by the Act. It does not provide the applicant with a ground of review and consequently this third asserted ground of review is not made out.
Breach of s.425
Applicant not given a proper hearing
The inference to be drawn from the applicant’s assertion that he was hurried in the giving of his evidence and asked to respond to questions with “yes” or “no” answers is that he was prevented from giving the evidence he wanted to give, although he did not actually say this either in his evidence to this Court or in submissions. Rather, his evidence was consistent with being pressed by the Tribunal to be responsive to its inquiries at the hearing on 19 October 2006. As the Tribunal says in its decision at CB 140 – 141:
… it proved very difficult to elicit the applicant’s claims at the Tribunal hearing. This was because the applicant had to be repeatedly reminded of the importance of answering the questions put to him; he did not respond to many of the questions put to him (unless repeatedly asked); and he changed some of his material claims in the course of the Tribunal hearing (even after the Tribunal had repeatedly confirmed the previous claim).
Further, the applicant agreed in cross-examination that, at the conclusion of the Tribunal hearing, he had been invited by the Tribunal to submit additional information if he wished to. This reflects the following passage in the Tribunal’s decision at CB 141:
When asked at the end of the Tribunal hearing if he wished to say anything else in support of his case, the applicant claimed he wished to do so but he was tired as it was during Ramadan (the Tribunal then advised him he could provide information to it for consideration any time before his decision was handed down).
Consequently, although the applicant may have been, and probably was, pressed by the Tribunal to be responsive and to the point in the giving of his answers, this does not amount to a situation such as was seen in Antipova v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 480 where, by refusing to hear the evidence the applicant wanted to give, the Tribunal rendered the invitation to the hearing an invitation that was not real or genuine resulting in jurisdictional error. The applicant’s evidence does not support a conclusion that he had been prevented from giving evidence or presenting arguments relating to the issues arising in relation to the decision under review.
Moreover, notwithstanding that the applicant had been directed by order of the Court to provide a copy of the transcript of the Tribunal hearing should he wish to rely on anything that was said at the hearing, he failed to do so. Consequently, there is no other evidence before the Court which might suggest that the invitation to a hearing was not a real one.
The applicant was affected by his fasting
In his evidence to the Court the applicant said that he was fasting for Ramadan and was “not particularly quite sound” and may have been unable to give proper replies to the Tribunal or to say everything which should have been said.
However, the Tribunal was aware of the significance of Ramadan and the effect which the applicant’s fasting may have had on him. As noted in the quotation in paragraph 25 above, it invited him to submit additional information following the conclusion of the hearing. The Tribunal also made observations of the applicant’s affect during the hearing with the significance of the applicant’s fasting in mind. In this regard, it said this:
The Tribunal understands that Muslims regularly fast (no food or water), during the daylight hours for the month of Ramadan. However, the applicant appeared lucid at the hearing (in that he appeared to express himself without confusion), at least with respect to those matters about which he wished to speak.
(CB 141)In the absence of any evidence adduced by the applicant to demonstrate that he had been affected by his fasting in a way not discerned by the Tribunal and to such a degree that its consequences for the presentation of his evidence and arguments were not remedied by the invitation to submit further material after the Tribunal hearing, there is no basis to conclude that the applicant was denied the opportunity to put his case.
Translation inadequate
The applicant gave evidence of his concerns regarding the accuracy of the translation services provided to him at the Tribunal hearing. In this regard, he said that although at the start the interpreter translated correctly, towards the end he made some “inconsistent interpretation”, and said that people like the applicant come to Australia to earn and that it was best he returned to his country. The applicant did not know whether this was a translated comment of the Tribunal member or was volunteered by the interpreter. The applicant said that he did not think that the interpreter interpreted correctly what the Tribunal member told him so he asked the interpreter to “explain” correctly.
However, as already noted, no transcript of the hearing has been provided to the Court, nor has any expert evidence been adduced by the applicant to demonstrate that the translations at the Tribunal hearing were deficient or inaccurate. The applicant is not in a position himself to say this as he lacks the expertise. He can only raise the issue as a matter of concern to him, but it is one which he has not advanced by putting any probative material before the Court.
What is before the Court is the following comment of the Tribunal:
As the Tribunal had utilised the services of the interpreter at this hearing on previous occasions and had no reason to doubt he was competent and professional, and the same confusing responses to questions were recorded as being provided by the applicant at the previous Tribunal hearing, the present Tribunal is not satisfied that his confusing responses were for instance, a consequence of his condition while fasting. (CB 142 – 143)
In circumstances where the applicant has done no more than make unsubstantiated assertions in relation to the quality of the translation services, and the Tribunal has made positive observations in relation to the interpreter’s skills, I do not accept that there was any deficiency or inaccuracy in the translations provided at the Tribunal hearing.
For the above reasons, the applicant has not demonstrated that the Tribunal breached its s.425 obligations in respect of the matters he raised at the hearing in this Court.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 26 April 2007
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