SZCPL v Minister for Immigration
[2006] FMCA 368
•16 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 368 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims breach of s.424A |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91S, 424A(1), 424A(3), 483 |
| Applicant: | SZCPL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG248 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 16 March 2006 |
| Date of Last Submission: | 16 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Mr I Muthalib, Blake Dawson Waldron |
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 $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG248 of 2004
| SZCPL |
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 Applicant is a 53 year old male who claims to be a citizen of India and of Punjabi – Sikh ethnicity and Sikh faith (“the Applicant”).
The Applicant has a wife, son born 31 May 1980, and daughter born 7 December 1985, who were residing in India when the Applicant left India.
The Applicant arrived in Australia on 22 February 2003, having legally departed from Delhi on a passport issued in his own name.
On 14 March 2003, the Applicant 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 intelligence police and authorities by reason of their belief that the Applicant was a Kashmiri militant.
On 11 April 2003, the Delegate refused the Applicant’s application for a protection visa 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 12 May 2003, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 10 December 2003, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 2 February 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
On 27 January 2005, the Applicant filed in Court, an amended application (“Amended Application”).
On 8 March 2006, the Applicant filed in this Court, an outline of his submissions. Attached to the submissions was a document entitled “Further Amended Application”, this document had not been filed prior to the final hearing date being, 16 March 2006.
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 proceeding
The Tribunal noted that it had before it the Department’s file, including the Applicant’s protection visa application and the Delegate’s decision record. The Tribunal noted that it also had regard to other material from a range of sources.
The Applicant appeared at the Tribunal hearing on 9 December 2003, and gave oral evidence.
The Tribunal noted that at the commencement of the hearing it summarised the Applicant’s claims as follows:
“The Applicant is a 51 year old Indian Sikh from Punjab. He is a truck driver.
He claims that sometime in 2000 while driving a truck he witnessed five peaceful demonstrators (demonstrating against the killing of 5 other demonstrators earlier) being killed in the village of Brakpora, Kashmir by the Central Reserve Police Force (CRPF) (the incident).
He states that there was a special enquiry to find out what happened. He claims that his employer had been approached by a human rights group for him to be a witness against the CRPF. Indian intelligence sent a message through his employer that he should not appear and threatened him with physical liquidation if he appeared before the inquiry. He claimed he left his job and village.
He was told he was on record as being a Kashmir militant.”
The Tribunal noted that the Applicant agreed with the correctness of the Tribunal’s summary of his claims. The Tribunal went on to ask the Applicant, relevantly, to provide further details in respect of the incident that the Applicant had claimed there was a crowd of people and that 5 people were killed. The Tribunal noted that it asked the Applicant when the incident at Brakpora happened and the Applicant replied the second week of March 2000.
The Tribunal noted that it put independent country information to the Applicant that was inconsistent with the Applicant’s evidence about the incident involving the killing of 5 people that the Applicant claimed occurred Brakpora. First, according to the independent country information, the Tribunal noted that the incident at Brakpora occurred in April 2000 and that the only incident involving the killing of 5 people was an earlier incident at Chattisinshpora which occurred in the fourth week of March 2000. The Tribunal noted that the Applicant replied that he did not know anything about the earlier incident at Chattisinshpora.
The Tribunal found generally that the information provided by the applicant was “vague and general.” It found that the Applicant’s information lacked the sort of detail which one would expect to be remembered if one had experienced the situations claimed. The Tribunal noted in particular that it found the Applicant’s responses “inadequate and unconvincing” to its queries about the differences in the independent country information’s account of the incident, which identified Chattisinshpora as the place where five people were killed, as opposed to Brakpora, where the Applicant claimed the incident occurred. The Tribunal found that the Applicant’s account was more likely to have occurred from an “insufficient appreciation of the specifics of incidents which one might expect to have after reading… media articles regarding the incident, rather than that which would be retained as the memory of being involved.”
Ultimately the Tribunal concluded that the lack of detail and substance before it, the contradictory country information and the Applicant’s vague and general answers caused it to conclude that the Applicant’s application is not “genuine.”
For those reasons the Tribunal found that the Applicant had “no genuine subjective fear of persecution” and was therefore not a person to whom Australia has protection obligations under the convention as amended by the Refugee’s protocol.
Hearing before this Court
The Applicant did not appear before this Court this morning, but was represented by his solicitor, Mr Jayawardena.
By consent, leave was granted to the Applicant to file in Court a Further Amended Application.
The Further Amended Application was in the following terms:
“That the Tribunal failed to follow the “procedural fairness” enunciated insec. 424A of the Migration Act 1958 due to its following consideration and adversely made against the Applicant’s claims:-
“The Tribunal put ICI to the Application which was inconsistent with that presented by him regarding the incident. Firstly, the incident at Brakpora (B) occurred in April 2002. Secondly, the only incident involving the killing of 5 people was the Earlier incident at Chattisinghpora (C) and finally it was this latter incident which occurred not in the second week in March 2000. The Applicant replied that he did not know anything about the earlier incident in C. He continued by giving names of number of people who had been killed in 2001. He claimed that those people had been fellow truck drivers.”
The Applicant submit that the Tribunal’s adoption of the Applicants oral evidence adversely and inconsistently against the Applicant’s Statement of Claims that was made to the Delegate of the first Respondent was contrary to the correct assessment that was acquired under the law relating to sec, 424A of the Migration Act 1958. This being the reason or part of the reason for refusing the Applicant’s application for review made to the Tribunal.”
Mr Jayawardena submitted that the Tribunal was obliged to put to the Applicant, in accordance with s.424.A(1) of the Act, the independent country information that it led to the Tribunal making adverse findings in respect to the Applicant’s claims. Mr Jayawardena submitted that the information upon which the Tribunal relied and referred to as “independent country information” was not excluded by s.424A(3) because it did not come within the exclusions referred to in that subsection. I do not understand that submission. The Tribunal identifies in its decision the sources to which it had regard and to which it referred to as the “independent country information.” Such information is of the type generally accepted as independent country information.
To the extent that the Further Amended Application states that the Tribunal adopted the Applicant’s oral evidence adversely and inconsistently against the Applicant’s statement in support of his protection visa application, such ground is misconceived. First the Tribunal summarised to the Applicant, as referred to above, at the commencement of the hearing its summary of the Applicant’s claims as it understood them to be and noted the Applicant’s concurrence with his summary. In those circumstances, on a fair reading of the Tribunal’s decision, the Applicant gave at least the content of the summary as identified by the Tribunal for the purpose of his review application.
Moreover, the Tribunal made no reference to any inconsistency existing between the summary adopted by the Applicant and anything else referred to in the Applicant’s statement in support of his protection visa application.
The inconsistency to which the Tribunal had regard was that disclosed by the independent country information in relation to the incident at which 5 people were killed. Those inconsistencies were in relation to the place and timing of the incident. As referred to above (see paragraph 22) the Tribunal concluded that the Applicant’s account was more likely to have come from media reports, rather than his own experience.
In those circumstances the Tribunal did not rely on any inconsistency between the Applicant’s statement in support of his protection visa application and his subsequent evidence to the tribunal.
Accordingly, the only relevant evidence to which the Tribunal had regard in making adverse findings against the Applicant was in respect of the contradiction of the independent country information with the Applicant’s claims. The authorities have made it clear that such information falls squarely within s.424(3)(a) and is therefore not subject to the requirements of s.424A(1).
Mr Jayawardena further submitted that it was not open to the Tribunal to accept the independent country information simply because it conflicts with the Applicant’s information. Again, this submission is misconceived in that the Tribunal made clear the reasons that it did not accept the Applicant’s claims and they included, in addition to the conflicting independent country information, the lack of detail and substance in the Applicant’s evidence and his vague and general answers given to the Tribunal.
Accordingly, this ground is rejected.
Conclusion
There is no jurisdictional error disclosed in the Tribunal decision. Accordingly, the Tribunal decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Kwong
Date: 16 March 2006
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