SZCOX v Minister for Immigration
[2006] FMCA 374
•24 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 374 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution due to political affiliation with the Akali Dal Party – claim of failure to properly consider evidence – claim of breach of s.424A |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 425; 431(b); 431(d); 474 |
| Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 |
| Applicant: | SZCOX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG222 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 March 2006 |
| Date of Last Submission: | 14 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena |
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Mr A Carter, Sparke Helmore Lawyers |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG222 of 2004
| SZCOX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 7 January 2004, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicants are husband and wife. The first named applicant is a 47 year old male who claims to be a citizen India, of Sikh ethnicity and faith (“the Applicant”). The second named applicant is a 37 year old female and is the wife of the Applicant. The second named applicant’s protection visa depends on the Applicant.
The Applicant claims that prior to arriving in Australia he was a registered medical practitioner with a qualification in Ayurvedic Medicine Training.
The applicants have a son born 4 September 1986, and a daughter born 6 April 1989, who remained in India when the applicant left India.
The applicants arrived in Australia on 22 April 2003, having legally departed from New Delhi allegedly paying money to the police to obtain passports.
On 13 May 2003, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution by Indian authorities and police by reason of the first named Applicants’ political opinion and position with the Akali Dal Party (“the ADP”).
On 23 June 2006, the Delegate refused the applicants’ applications for protection visas on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 22 July 2003, the applicants filed an application for review before the Tribunal. On 9 December 2003, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 29 January 2004, the applicants filed an application and affidavit in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Tribunal proceedings
On 5 December 2003, the applicants appeared before the Tribunal and both gave evidence in support of their application.
The Tribunal had before it the Department’s file including the protection visa application and the Delegate’s decision record.
The Tribunal noted that the applicants’ claims in the protection visa application and other submissions were “differently couched than those presented and the hearing.” The Tribunal noted that, as the Applicant gave sworn testimony at the hearing which enabled the Tribunal to explore various aspects of the claims in detail, the Tribunal generally accepted the version presented to the Tribunal at the hearing over the claims made in the written application and submissions. I do not understand those comments by the Tribunal to be suggesting that the differences in the way in which the applicants framed their claims in their protection visa applications and in oral evidence caused the Tribunal to make any adverse finding in respect of either of the applicants, nor was any such difference part of the reason for the Tribunal affirming the decision under review.
The applicants’ claims and the relevant findings of the Tribunal are accurately summarised in the Respondent’s outline of submissions at paragraphs 10 to 14 and paragraph 16, set out as follows:
“10. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason [CB 134.1].
11. The Tribunal did not attain the requisite level of satisfaction, in effect, for two reasons.
12. First, the Tribunal did not accept the applicant’s claim that he was a supporter and active worker for the Akali Dali party and held the position of general secretary of youth Akali Dali Badal, Ahmedgarth, gave lectures on the party’s strategies and manifesto and criticised political opponents (basically the Congress Party) and sometimes became involved in clashes with them [CB 128.5].
13. The Tribunal:
(a) accepted that the applicant was a doctor who had a skill in demand which could be used throughout India [CB 132.9].
(b) found that the applicant had only limited involvement in politics in Ahmedgarth and did not have a high political profile [CB 132.9].
(c) did not accept that the applicant would have, or could have, used all his patients to work like ambassadors to campaign for the Akali Dali candidate, and was satisfied that the applicant had greatly exaggerated his claims in order to enhance his claims to refugee status [CB 129.4].
(d) did not accept the applicant’s claim that the applicant’s life would be in danger if he returned to India, that the police had been harassing him, and that he would be killed because of his connection to the Akali Dali party now that the Congress party was in power in the Punjab [CB 130.2].
(e) was satisfied that if there was any media coverage of the difficulties that the applicant encountered he would have been able to obtain copies of the relevant articles and would have provided these to either the Department of the first respondent or the Tribunal, but did not do so, and that this matter raised serious doubts about the applicant’s claims and the applicant’s credibility [CB 130.3].
(f) accepted the applicant’s association with the Akali Dali Badal party but did not accept that the applicant had a high political profile, was the general secretary of the youth Akali Dali Badal, Ahmedgarth, gave lectures on the parties strategies and manifesto and criticised political opponents, or was in charge of the Akali Dali Badal candidate’s campaign for the legislative assembly in January 2002 [CB 130.7];
(g) was not satisfied that the applicant was arrested and detained on four occasions because of his political beliefs during which he was severely tortured, beaten and abused [CB131.8];
(h) did not accept that the applicant was wanted by the police or had been subjected to State persecution [CB131.8].
14. In summary, the Tribunal did not accept that the claims made by the applicant were true, and rejected the applicant’s claims having regard to the Tribunal’s assessment of his credibility.
16. Secondly, the Tribunal was satisfied that it would be reasonable for the applicant to relocate elsewhere either in the Punjab or in India more generally and that, if he did so, there was not a real chance that he would serious harm amounting to persecution for a convention reason [CB 133.5].
Hearing before this Court
The Applicant was represented before this Court by Mr Jayawardena who sought leave to file a Further Amended Application to be read as supplementary to the Amended Application, filed on 25 August 2004. By consent, leave was granted to the Applicant to file the further amended application in Court. The Further Amended Application identified the following ground as follows:
“The Tribunal was in breach of its obligation pursuant to s.424A in failing to give to the Applicant, in accordance with SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”), information, being the inconsistency in the Applicant’s claim in the incident taking place on 20 July 2002, as claimed in his protection visa application, and his oral claim before the Tribunal that such incident occurred on 20 September 2002.”
This ground is dealt with below in these reasons as “Ground 5”.
Orders were made on 11 June 2004 directing the applicants to file an amended application by 25 June 2004. The applicants filed an amended application on 25 August 2004 (“Amended Application”). The applicants relied only on the grounds below identified in these reasons in their Amended Application:
Ground 1
“(1) The Tribunal made jurisdictional error by drawing the following conclusion where there is no evidence and thus questioning the credibility of the applicant.
Particulars
Page 14. para 1 – ‘The Tribunal finds that this goes to the question of his credibility. Satisfied that he has greatly exaggerated his claims in order to enhance his claims for refugee status.’
Page 16 – lines 26-28 – ‘The Tribunal has not been able to satisfy itself that he was arrested and detained on four occasions because of his political beliefs during which he was severely, beaten and abuse.’”
Ground 2
“(2) The Tribunal was Wednesbury Unreasonable in holding that that (sic) the applicant was not able to provide certain information, thus holding this against him.
Particular
(a)Page para 2, line 18 – ‘The Tribunal put to the first Applicant that it was having difficulty understanding that a Doctor with a profile who had been in charge of the for the January 2002 legislative elections for the Akal Dal Badal party and had been brutally mistreated by the police on four occasions because of his claimed political activities, there was no mention of the Applicant in the many press cuttings he had submitted.’”
Ground 3
“(3) The Tribunal made wrong conclusions contrary to the evidence available to it-
Particulars
Page 17 – line 16- ‘The Tribunal accepts that the CIA visited his house, insulted her in-laws and tore her clothes. However when asked why she came to Australia, she did not claim it was because of this incident…’”
Ground 4
“(4) The Tribunal made jurisdictional error by breaching s430(1)(b) & s430(1)(d) in relation to its findings in –
Particulars
Page 17 –para 2 –line5-7 ‘The Tribunal has previously found that he has only had limited involvement in politics in Ahmedgerh and did not have a high political profile’”
Mr Jayawardena addressed each of the grounds upon which the Applicant relied.
Ground 1
Mr Jayawardena submitted that the Tribunal’s finding that the Applicant had greatly exaggerated his claims in order to enhance his claims for refugee status was not a finding open to the Tribunal having regard to the evidence and material before it.
The Tribunal’s conclusion in respect of this matter was based on claims by the Applicant that his patients were working “like my ambassadors to campaign for our candidate”. The Tribunal noted that it asked the Applicant if use of his patients in a political campaign was in breach of ethical standards and noted that the Applicant replied that he had a private practice and used to tell people about the main aims of his political party and what it stood for. The Tribunal also noted that it put to the first Applicant that it found it hard to accept that the applicant would be able to use all his patients to canvass for a political party. The Tribunal noted that the first Applicant responded that he “influenced his patients”. The Tribunal noted that it put to the Applicant, in light of this response, that it had difficulty accepting that none of his patients had their own political views. The Tribunal noted that the Applicant replied that some of his patients may not have agreed. The Tribunal noted that the Applicant’s claim was that he used all his patients to work “like my ambassadors to campaign for our candidate”.
The Tribunal noted that it accepted the Applicant was a doctor but did not accept that he would have, or could have, used his patients in that fashion.
Those findings caused the Tribunal to conclude that the Applicant had greatly exaggerated his claims in order to enhance his refugee status. That is a conclusion that was open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Ground 2
Mr Jayawardena submitted that this ground was similar to Ground 1 and was intended to address a complaint that the Tribunal did not have regard to press clippings furnished by the Applicant to the Tribunal that showed photographs of the Applicant with various political figures. I was directed particularly to a photograph of the Applicant with the party president and then Chief Minister of Punjab, said to be taken on 5 August 1998.
The Tribunal noted that, despite the many press cuttings submitted by the Applicant, none mentioned the Applicant. However, the Tribunal did note that the Applicant showed the Tribunal “some photographs of himself with the chief Minister”. The Tribunal noted that it pointed out to the Applicant that many of the cuttings referred to “nasty things happening to many people from his party, but there was no reference to him.” The Tribunal noted that the first Applicant replied that his local area of Ahmedgarth did not have a high political profile and for that a reason the media did not say anything about him.
The Tribunal noted that it put to the Applicant that it found it “extraordinary” that there would not be any media coverage of the brutality to which the Applicant alleges he was subject, given that the Applicant was a doctor in a big city and therefore and eminent person within the Ahmedgarth community. The Tribunal noted that the Applicant replied that there were some press articles in the local media but that he did not have any of them with him. The Tribunal noted that it found such explanation surprising in circumstances where the Applicant had provided extensive documentation to the Tribunal.
The Tribunal also noted that the Applicant had his family still living in the local area of Ahmedgarth and found that there appeared to be no reason why they could have obtained copies of local press reports that involved and mentioned the Applicant. The Tribunal noted that the Applicant had stated that “nobody could find these newspaper articles.” Based on this evidence, the Tribunal did not accept that the Applicant had been reported in the local newspapers and found that such a conclusion affected the first Applicant’s credibility.
The Tribunal made these findings and conclusions in the light of the Applicant’s claim that he was a doctor with a high political profile who had been in charge of the campaign for the January 2002 legislative elections for the Akali Dali Badal party and had been brutally mistreated by police on 4 occasions because of his political activities.
It is quite clear, from the Tribunal’s noting of the exchange, above that it addressed in detail with the Applicant its concerns about the failure of the many press clippings, with which it was provided, to mention the Applicant and the failure of the Applicant to provide any local press clippings, in which the Applicant was mentioned.
Those findings and conclusions were open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Ground 3
Mr Jayawardena submitted that this ground related to an error by the Tribunal in concluding that the applicants’ claims of abuse of the second named applicant in July 2002 were not the reason the second named applicant came to Australia. The Tribunal noted that “when asked why she came to Australia she did not claim it was because of this incident or her fear of serious harm amounting to persecution rather because they have relatives here and she came here to see her brother-in-law.”
Mr Jayawardena submitted that, where the Tribunal accepted the second named applicant had been mistreated and insulted by police who were drunk at the time, it was not open to the Tribunal to conclude that the reasons she came to Australia because she had relatives here.
Certainly, the transcript, tendered by the Applicant, discloses that in answer to a question “why did you come to Australia”, the second name applicant replied “I had relatives here, my brother-in-law. That is the reason we came here.” The Tribunal does not make a finding of fact as to the reason why the second named applicant came to Australia. The Tribunal was simply not satisfied that the incident involving the second named applicant was for a Convention related reason or was serious harm amounting to persecution for a Convention reason. These are findings of fact that were open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Ground 4
Mr Jayawardena submitted that the following passage from the Tribunal’s decision disclosed a finding by the Tribunal that the Applicant had a high political profile:
“The Tribunal put to the first Applicant that it was having difficulty understanding that as a Doctor with a high political profile who had been in charge of the campaign for the January 2002 legislative elections for the Akal Dal Badal party and had been brutally mistreated by the police on 4 occasions because of his claimed political activities, there was no mention of the Applicant in the many press cuttings he had submitted.”
Mr Jayawardena further submitted that this quote conveys a finding by the Tribunal that it made findings in accordance with those claims, namely, that the Applicant had a high political profile and had been in charge of the 2002 political campaign the Akali Dali party and had been brutally mistreated by police on numerous occasions.
I reject such a construction of the Tribunal’s decision. It is quite plain that the Tribunal is doing no more than identifying the claims made by the Applicant and indicating the difficulty it had with those claims, and is not making findings in accordance with those claims.
The relevant findings of the Tribunal, throughout the decision are that, whilst it accepted that the Applicant had some limited profile in the Ahmedgarth branch of the Akali Dali party, he did not enjoy the higher political profile that his claims would seek to convey.
In any event to suggest that the construction contended for is a breach of ss.431(b) and 431(d) is misconceived. Plainly, the Tribunals set out its decision on the review and referred to evidence and material on which its findings of fact were based.
Accordingly, this ground is rejected.
Ground 5
Mr Jayawardena submitted that this ground pleaded that the adverse credibility findings made in respect of the Applicant arose from the Tribunal’s findings of inconsistencies which were part of the reasons for refusing the Applicant’s application for review.
The Further Amended Application identified the following passage in the Tribunal decision as containing the error claimed:
“When the Tribunal said that in his statement he has claimed his house was raided on 20 July 2002, the first Applicant initially repeated his house was raided on 20 September 2002 and but when further pressed by the Tribunal given his claim in his protection visa application, he then said that it was 23 July 2002 when he turned himself in. The applicant then denied he had said September, but the Tribunal asked the Interpreter whether that the First Applicant had indeed said September 2002, and he confirmed this was the case.”
Mr Jayawardena also referred the Court to the transcript where this incident is explored with the Applicant by the Tribunal. The transcript certainly discloses that the Applicant was claiming that his wife was “apprehended” on 20 July 2002 and his house raided. The transcript discloses the Applicant claimed that he turned himself in on
23 September 2002, after which his wife was released. The transcript discloses that the Applicant muddled the dates of 23 July and 23 September and finally confirmed that he turned himself in on 23 July 2002 after his wife’s release.
The Tribunal, whilst noting the difficulties that the Applicant had with the dates, was “nevertheless willing to give the Applicants the benefit of the doubt about when he claims they occurred.” The Tribunal used the words “they” to refer to the claims relating to the raiding of the Applicant’s house, the apprehension of his wife, her subsequent release and the Applicant turning himself into authorities. As stated above, the Tribunal was not satisfied that this incident was Convention related or involved serious harm amounting to persecution for a Convention reason.
In the circumstances, the discrepancy in the dates upon which the incident occurred did not form part of the reason for the Tribunal affirming the decision under review. In the circumstances, there was no breach by the Tribunal of its obligations under s.424A of the Act.
Accordingly, this ground is rejected.
First respondent’s submissions on relocation
The First Respondent submitted that, even if the Tribunal findings of fact were affected by jurisdictional error, the Tribunal had found that it was both reasonable and practical for the first named Applicant to relocate elsewhere in India. In reaching those conclusions, the Tribunal noted that the Applicant did not claim to have a high political profile outside Ahmedgarth and that the applicants had lived in Moga from March 2002 without any difficulties. The Tribunal noted that it found it significant that the Applicant, himself, claimed that, because Ahmedgarth did not have a high political profile, the media did not provide any coverage of his situation and that any coverage was confined to the local media. Those findings were based on the applicants’ statements to that effect.
In considering the issue of relocation, the Tribunal is obliged to consider whether it is reasonable and practical to expect the Applicant to relocate (Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 277).
The Tribunal had regard to the practicalities affecting such relocation and noted that the Applicant is a doctor with a skill in demand throughout India. It also noted that the applicants’ two children, now in their late teens, continue to live in India without encountering any difficulties, as do the applicants’ parents.
The Tribunal found that there was not a real chance that the applicants would experience serious harm amounting to persecution for a Convention related reason and that, if they chose not to return to Ahmedgarth, it would be reasonable for them to relocate in Punjab, or elsewhere in India.
The Tribunal’s findings of fact, upon which it relied in considering the issue of relocation, are based solely on claims made by the Applicant, himself, and are not based on any finding of fact in respect of which jurisdictional error could be found to exist.
It is plain that the Tribunal had regard to the specific circumstances relevant to the applicants and applied the correct tests in considering whether it was reasonable for the applicants to relocate.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error. Accordingly, the decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court is dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 24 March 2006
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