SZCPD v Minister for Immigration
[2006] FMCA 391
•21 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 391 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant declined hearing invitation by the RRT – RRT unable to establish relevant facts – unsupported finding that the applicant not a refugee – refusal of relief in the exercise of discretion – presumption that the applicant, having declined the hearing invitation, had nothing further to say – RRT unable to be satisfied that the applicant was a refugee. PRACTICE AND PROCEDURE – Observations on the desirability of the Minister producing to the Court all material submitted by an applicant to a review tribunal. |
| Migration Act 1958 (Cth), ss.65, 359A, 424A |
| Applicant: | SZCPD |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG236 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 21 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena |
| Counsel for the Respondents: | Mr P Carr |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
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 $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG236 of 2004
| SZCPD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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”) handed down on 13 January 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of political persecution in India. Background facts are set out in paragraphs 2 to 6 and also in paragraphs 8 to 17 of the Minister's written submissions.
I adopt those paragraphs as background for the purposes of this judgment:
The applicant is a citizen of the Republic of India who arrived in Australia on a visitor’s visa on 16 August 2003[1].
[1] court book, page 5.
The applicant lodged an application for a protection visa (Class XA) on 28 August 2003[2].
[2] court book, page 1.
The Minister’s delegate refused the application for a protection visa on 3 October 2003[3].
[3] court book, page 49.
The applicant lodged an application for review on 21 October 2003[4].
[4] court book, pages 50-53.
The RRT on 13 January 2004 affirmed the decision not to grant a protection visa[5].
[5] court book, page 70.
The RRT had before it the Department’s file (which included the protection visa application and the delegate’s decision record) and it also had regard to other material from a range of sources[6].
[6] court book, page 67.
The RRT noted that it had written to the applicant on 10 November 2003 indicating that on the available material supporting his application it was unable to make a favourable decision on that information alone[7].
[7] court book, page 67.
The RRT noted it had invited the applicant to give oral evidence and present arguments at a hearing on 7 January 2004[8].
[8] court book, page 67.
On 26 November 2003 the applicant informed the RRT (in writing) he did not wish to provide oral evidence and consented to the RRT proceeding to make a decision in his absence[9].
[9] court book, page 67. See also page 59.
The RRT noted the applicant’s written statements to the Department and the RRT were (two statutory declarations dated 25 August 2003)[10] identical and that he claimed to be a Sikh aged twenty three from the village of Dhapai located in the Punjab in India[11].
[10] See court book, index items 1 and 4.
[11] court book, page 67.
The RRT noted the applicant had claimed in 1999 he was a school student and that his cousin was being sought by the police on suspicion of involvement in terrorist activities with the police often visiting his family’s house looking for his cousin[12]. As a result of these distractions his parents sent him away to study[13].
[12] court book, page 67.
[13] court book, pages 67-68.
The RRT also noted the applicant claimed that when he returned to his village the police questioned him about why he had been gone for so long, accusing him of helping his cousin and providing accommodation for him and other terrorists[14]. The applicant was neither detained or charged. Following what the applicant regarded as police harassment he moved to Delhi where he was employed as a cashier from February 2001 to July 2003 residing at the same address throughout this period[15]. The police rang his employer several times and informed Delhi police that [the applicant] was supporting terrorist groups. As a result Delhi police interrogated and tortured him for three days. The applicant did not identify when this occurred. Apparently he was then released and warned if he told anyone about this treatment he would be detained again. The police continued to harass him, questioning him when there were shooting incidents in the Punjab[16]. He found it impossible to continue in his job because he was mentally tortured[17].
[14] court book, page 68.
[15] court book, page 68.
[16] court book, page 68.
[17] court book, page 68.
The RRT accepted the applicant was a national of India and a Sikh[18].
The RRT did not accept the applicant’s assertions about his human rights violations by the Indian police both in the Punjab and in Delhi. In so doing it relied upon the following:
a)He had provided little detail about the claims which made it difficult to establish why he became the target of such treatment.
b)He was unable to shed light on the issue of why no charges were made against him at any stage.
c)He did not claim any other member of his family had been similarly targeted despite the fact they were also related to his cousin[19].
d)He provided no documentary evidence that he was tortured something that might have been expected if he required medical treatment[20].
e)He was able to obtain a passport in his own name in 2000 without any apparent difficulty and to leave India legally in 2003 whilst he was suspected by Indian authorities of involvement in terrorist activities[21].
Without more information the RRT was unable to establish the facts and did not accept he had been targeted by the police as alleged.
[18] court book, page 68.
[19] court book, page 69.
[20] court book, page 69.
[21] court book, page 69.
The applicant relies upon an amended application filed on 6 August 2004. Only one ground in that amended application was pressed, that is the assertion that the RRT made a jurisdictional error when it failed to consider the claim of the applicant in determining the application on the basis of the evidence that was available to the RRT. Mr Jayawardena, for the applicant, characterised this as either or both a constructive failure on the part of the RRT to exercise its jurisdiction or an instance of the RRT overlooking a relevant consideration or relevant material. Mr Jayawardena took issue with the RRT’s findings[22] about the applicant's claims. He submits that the manner in which the RRT dealt with the applicant's claims discloses a failure to give any meaningful consideration to them.
[22] court book, pages 68 and 69
The applicant's claims are set out in his statutory declaration[23]. In my view, on a fair reading the presiding member did consider in a meaningful way the applicant's claims, and formed a view about them. The view that the presiding member formed was apparently that there was insufficient detail in the applicant's claims to support a decision in his favour. The presiding member, after reviewing the applicant's claims, said[24]:
[23] court book, pages 29 and 30
[24] court book, page 69
Without more detailed information from him, I am unable to establish the relevant facts…
Curiously, the presiding member went on to say in the same sentence:
…and do not accept that he has been the target of any police ill‑treatment, or suspected of any anti-government activities in India.
Even more curiously in the next sentence the presiding member says:
For the above reasons I find that [the applicant] does not have a well-founded fear of Convention-related persecution in India.
Rather than the precise ground advanced by the applicant, this appeared to me to raise the question of whether the RRT was able to reach the degree of satisfaction required by s.65 of the Migration Act 1958 (Cth) (“the Migration Act”) in order to make the finding set out at paragraph 4 above. Section 65 provides that after considering a valid application for a visa, the Minister if satisfied that, relevantly, the criteria prescribed by the Act and regulations have been satisfied is to grant the visa or if not so satisfied is to refuse to grant the visa. The question for determination by the RRT in this case was whether the applicant satisfied the criteria for the grant of a protection visa. Relevantly, the RRT needed to be satisfied or not satisfied that the applicant had a well-founded fear of Convention related persecution in India, or satisfied that he did not.
The reasoning of the RRT could not in my view have supported a finding that the applicant did have a well-founded fear of Convention related persecution in India. There was, in the presiding member's view, insufficient information to support such a conclusion. Similarly, in my view, the presiding member's reasoning did not support a conclusion that the applicant did not have a well-founded fear of Convention related persecution in India. She was simply unable on the limited information available to establish the relevant facts. The conclusion that would have been supported by that reasoning would have been a conclusion that the presiding member was not satisfied that the applicant had a well-founded fear of Convention related persecution in India.
On the face of the decision the principal finding reached by the RRT was not supported by its reasoning. This suggests jurisdictional error. Mr Jayawardena adopted that contention in submissions. Mr Carr, for the Minister, pressed upon me the proposition that the reasons of review tribunals should be given a beneficial interpretation and that the decision can be interpreted as a statement of lack of satisfaction. I accept the principle that tribunal reasons should be read beneficially. It would be possible on that basis to explain away as awkward expression the statement that the presiding member did not accept that the applicant had been the target of any police ill-treatment or suspected of any anti-Government activities in India.
In my view, however, a beneficial reading cannot support a contention that the principal finding made by a tribunal should be interpreted as different from the actual finding made. The actual finding made was that the applicant was not a refugee. The finding was made on the basis of reasoning which on any logical view could only have supported a finding of lack of satisfaction that the applicant was a refugee, not a finding that the applicant did not qualify for a visa because he is not a refugee.
In my view, the exercise of power by the RRT miscarried in circumstances pointing to jurisdictional error. Ordinarily, such a finding by the Court would support the granting of relief in the form of constitutional writs of certiorari and mandamus. However, the
Court has a discretion to withhold relief. The applicant declined the invitation sent to him to attend an oral hearing before the RRT. His response to the hearing invitation appears at page 59 of the court book. I am entitled in the light of that evidence to proceed on the basis that the applicant had nothing further to tell the decision-maker. There is no evidence before me of anything that would support a different conclusion.
On that basis it would in my view be futile to remit this matter to the RRT for a fresh hearing. The material could not have supported a positive finding that the applicant was a refugee, it could only have supported a negative finding that the decision-maker could not be satisfied that he was a refugee.
I will not therefore grant relief notwithstanding the apparent jurisdictional error that I have identified.
The other issue I raised with Mr Carr and Mr Jayawardena was whether s.424A of the Migration Act may have been breached. It is apparent that the RRT’s reasoning was dependent upon the applicant's claims as set out in his statutory declaration[25]. That was a statement of the applicant's claims as made to the Minister's Department. The presiding member[26] states that an identical written statement of the applicant's claims had been made to the RRT. Assuming that to be the case, the Minister is entitled to rely on s.424A(3)(b) of the Migration Act in response to any claim of a breach of s.424A(1). Unhelpfully, only the statutory declaration made to the Minister's Department is reproduced in the court book. However, Mr Carr pointed out to me that there is a reference to a statutory declaration made to the RRT on the index page of the court book. It appears that a decision was made by the Minister's representatives not to reproduce the form of statutory declaration presented to the RRT. Given the serious issues which arise in many cases concerning ss.424A and 359A of the Migration Act it is undesirable that documents presented to a review tribunal be omitted from books of relevant documents.
[25] court book, pages 29 and 30
[26] court book, page 67
I accepted as exhibit R1 a copy of the applicant's RRT application apparently faxed by the applicant's representatives to the RRT on 21 October 2003. That fax included a copy of the statutory declaration. I accept from that exhibit that the information contained in the statutory declaration presented to the Minister's Department was re-presented on behalf of the applicant to the RRT.
Accordingly, there was no obligation on the part of the RRT to disclose to the applicant any information relied upon in that statutory declaration in the course of making its decision.
Having regard to the above, I will dismiss the application.
In the light of the dismissal of the judicial review application, the Minister seeks an order for costs. Mr Carr submits that a fair party/party assessment of the Minister's costs is $4,600. He seeks, on behalf of the Minister, 50 per cent of that amount, taking into account my reasons, especially my finding of a probable jurisdictional error. Mr Jayawardena did not dissent from that proposition. I will order that the Refugee Review Tribunal is joined as the second respondent to the application; the application is dismissed and the applicant is to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,300.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 March 2006
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