SZCQA v Minister for Immigration
[2008] FMCA 1300
•19 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCQA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1300 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no matters of principle raised. |
| Migration Act 1958, ss.424A, 424AA, 441A, 441C, 474 Migration Regulations 1994 reg. 4.35 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZCQA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 195 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 August 2008 |
| Date of Last Submission: | 20 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr M. Izzo |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 195 of 2008
| SZCQA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was a member of the Communist Party of India-Marxist-Leninist (“CPI(ML)”). He alleges that while in India he was arrested and falsely charged by the police and tortured by political opponents. The applicant arrived in Australia on 6 February 2003.
The applicant claims to fear persecution in India because of his real or perceived political views and because of his religion.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 20 February 2003. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 10 December 2003 which was quashed by order of the Federal Court of Australia on 29 June 2007.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 14 of the Tribunal’s decision. Relevantly, they are in summary:
In a statement attached to his protection visa application the applicant made the following claims:
a)he was involved with the CPI(ML) in India and consequently had difficulties with his employer, political opponents, colleagues and the authorities;
b)he and other workers were boycotting their employer for one day and the company sacked everyone who participated in the strike;
c)those who were dismissed were fasting outside the company premises and people from the All India Anna Dravida Munnetra Kazhagam (“AIADMK”) and Bhartiya Janata Party (“BJP”) came and attempted to stop them from fasting. The applicant suffered a head injury and the local police arrested him;
d)the police framed charges against him alleging he had attacked an AIADMK man with a knife and dagger. He was brought before the Madras District Court and released on bail;
e)he was selected as district committee member of the CPI(ML) in South Madras and his main task was to recruit new members. He also organised many demonstrations against the state government;
f)the police arrested and falsely charged him with “erupting communal fight” and he was put in prison for three months;
g)he was subsequently arrested on suspicion of supporting Muslims and “erupting communal violence”, detained for one week and his fingerprints taken;
h)the police and the local BJP were planning to arrest him under the emergency Act so he fled to Australia; and
i)he fears return to India on the basis he would be rearrested and interrogated if the authorities found out he was supporting the Muslim community. He fears being tortured and killed.
The applicant appeared at the Tribunal as first constituted on 17 November 2003 and made the following additional claims:
a)he joined the CPI(ML) in May 2001 and left after 26 March 2002;
b)following the strike in September 2001 and his arrest the applicant was reemployed by his employer. Union members of the AIADMK and the Dravida Munnetra Kazhagam (“DMK”) put pressure on him to join their parties, tortured him and he was beaten periodically from September 2001 to March 2002. He did not report these incidents to his employer or to the police;
c)on 17 April 2002 he was arrested and taken to Triplicane police station and detained for a day. The police asked him a lot of questions and beat him, however, he was not charged;
d)on 2 November 2002 he was arrested for “turning people against the government and recruiting people to join”. He was taken to the police station and appeared in the Madras District Court on 3 November following which he was released. The applicant said that he did not know who the judicial officer was who determined the matter;
e)he had not organised any demonstrations against the state government; and
f)he was never in gaol for three months and information in the statutory declaration to this effect was a mistake.
In a statement received by the Tribunal on 23 October 2007 the applicant said:
a)he joined the CPI(ML) because his friends were members not because he was interested in the party’s policies. He had limited knowledge of the CPI(ML);
b)he was not interested in politics or violence and he was only involved in strike action. The authorities and the AIADMK, DMK and BJP falsely accused him of demonstrating against the government;
c)the authorities in Tamil Nadu considered him a terrorist and if he had realised that the CPI(ML) had connections with the Naxalites he would not have been involved with the union;
d)the police and local politicians were convinced he is a criminal because he was a member of the CPI(ML); and
e)he could not live anywhere in India as he had a reputation as a person wanted by the authorities for his involvement with the CPI(ML).
The applicant appeared before the Tribunal as secondly constituted on 30 October 2007 and made the following additional claims:
a)the police accused him of involvement in the Coimbatore bombing. He had not mentioned this previously because he was afraid he would be considered to be a terrorist;
b)his brother was arrested and tortured because the authorities could not find him; and
c)in 2002, after the police accused him of involvement in the Coimbatore bombing, he fled to Kerala to avoid harassment and he was there for two months. He surrendered voluntarily to the police and was detained for one day, questioned and fingerprinted. He was not charged or told why he was a person of interest but was threatened with further harassment if he remained in Kerala so he returned to Chennai.
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)the Tribunal found that the applicant did not provide an accurate account of his circumstances to the Tribunal either as first or as secondly constituted because he was fabricating his claims throughout the processing of his protection visa application. It did not accept that the applicant presented an accurate or truthful account of his circumstances in India and was not satisfied as to his general credibility, noting that:
i)although the applicant alleged he was an active member of the CPI(ML), he had limited knowledge regarding the party and its activities and, when taxed concerning this, he stated he had no real interest in the CPI(ML) but joined because his friends were members. The Tribunal did not accept that the applicant could have been actively involved with the CPI(ML) in the way he described and yet be so uninformed about the party and its activities;
ii)the applicant’s claims that he was targeted on the basis of his religion changed over time; initially he made broad claims relating to communal violence in Tamil Nadu including that he was forced to flee to other states to avoid the authorities who were targeting him; but later he alleged that he was targeted in connection with the Coimbatore bombings, was perceived to be associated with real or suspected terrorists and was accused of being implicated in terrorism; and
iii)although the Tribunal accepted that the applicant is a Muslim, it rejected his claim that he was targeted for this reason. It found that if the applicant had been targeted for this reason he would have been able to recall the targeting and provide a consistent description of the targeting each time he was asked to provide his claims;
b)the Tribunal was not satisfied that the applicant’s limited knowledge regarding the CPI(ML) and the inconsistent way in which he described his circumstances in India can be attributed to his state of mind, his health, language difficulties, communication and memory difficulties or lack of opportunity to present his claims fully. The Tribunal also did not accept that the applicant was initially too frightened to present all his claims fully and consistently to the Department and the Tribunal. It found that his limited and superficial knowledge regarding the CPI(ML) was because he never had any interest in or involvement with it; and
c)the Tribunal found that if the applicant was involved in the activities which he described and if he was targeted by the authorities and others for the reasons he stated, he would have been able to provide a consistent account of his circumstances in India each time he was asked to present his claims. The Tribunal found the applicant fabricated his claims throughout the processing of his protection visa application to enhance and strengthen his case for a protection visa.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal decision was infected with jurisdictional error and procedural error and this was determined to the interest of the applicant. The Tribunal asked itself the wrong question and applied the wrong test.
…
(3)The Tribunal erred in law in arriving at the decision in relation to the social class or group.
(4)That the prinicples of natural justice was breached in the conduct and the making of the decision by the Tribunal.
(5)The Tribunal failed to provide the applicant an opurtunity to comment on the information pursuant to section 424A of the act.
At the hearing the applicant made the following additional allegations:
a)the Tribunal dealt too quickly with the review application and was only interested in legal error;
b)the Tribunal entered onto the review having already decided that the applicant’s case was fabricated;
c)the Tribunal rejected the application because the applicant was not able to supply documentary support for his allegations;
d)the Tribunal did not want to consider the details of the applicant’s case; and
e)it was not open to the Tribunal to conclude that inconsistencies in the applicant’s accounts betokened fabrication.
Dealing with each of these grounds in turn:
Tribunal asked itself the wrong question and applied the wrong test
The applicant particularised this allegation as follows:
a)The Tribunal failed to consider from the perspective of the persecutors as to whether the applicant held an different idiology and policital opinion since the applicant feared persecution by such persecutors.
b)The Tribunal completely ignored the additional evidence furnished by the applicant, namely the amnesty report given during the earlier proceedings, as the Tribunal has failed to comment about the relevancy or its acceptability or otherwise in its decision.
In this case, the applicant’s claims failed before the Tribunal because it did not accept their truthfulness. It was not a matter of whether the people whom the applicant alleged persecuted him had a political ideology or opinion different from his. Nor did independent country information, such as the Amnesty International report referred to in the decision record as having been provided to the Tribunal as first constituted, have any relevance to the decision reached by the Tribunal as secondly constituted. Unless the applicant’s essential allegations concerning the discrimination, abuse and persecution he alleged he endured were accepted by the Tribunal, there was no need for it to turn its mind to the actions and views of third parties.
In this case, before the Tribunal asked any other question it had to determine whether the applicant’s factual allegations were to be believed. They were not. As a result, the matters which the applicant raises in the first asserted ground of review cannot form the basis of a conclusion that the Tribunal erred.
Tribunal erred in its decision relating to the social class or group
The applicant particularised this allegation as follows:
a)The Tribunal in para 2 of its Findings and Reasons having observed that “The Tribunal finds that the applicant has limited and superfacial [sic] knowledge regarding CPIML” failed to treat the applicant as belonging to such social class.
What the applicant alleges to be an error of law is, in fact, a factual conclusion which he disputes. This conclusion was that the applicant never had any interest in or involvement with the CPI(ML). Such a finding was logical and reasonably open to the Tribunal on the evidence before it. Whether the applicant’s claimed membership of the CPI(ML) should be characterised as placing him within a particular social group rather than, or in addition to, such claimed membership being considered in the context of real or imputed political belief, is of no significance in the circumstances of this matter. The applicant’s claim to have a well-founded fear of persecution for a convention reason, based on his alleged involvement with the CPI(ML), was rejected by the Tribunal as a fabrication when it concluded that his claims to fear harm, for any of the reasons he articulated, were fabricated by him to enhance his protection visa application (page 17).
For these reasons, the second pleaded ground does not disclose a basis upon which the Tribunal’s decision might be set aside.
Breach of natural justice
The third pleaded ground was particularised as follows:
The Tribunal did not provide adequate oppurtunity [sic] for the applicant to repond [sic] to the Tribunal queries
The applicant has not identified in what respect he was denied an opportunity to respond to the Tribunal’s queries. To the extent that this allegation may relate to the hearing before the Tribunal as secondly constituted on 30 October 2007, the applicant has adduced no evidence to suggest that he needed or sought additional time within which to respond to the queries put to him by the Tribunal at that time. The only evidence on the point is the Tribunal’s summary of that hearing set out in its decision record. The correctness of that record has not been challenged and it contains nothing which would support an inference that the applicant was denied an adequate opportunity to respond to the questions which the Tribunal put to him at the hearing.
It may be that the applicant is alleging that the s.424A notice served on him did not permit him enough time within which to provide a response. Ignoring the fact that the applicant did provide a six page reply in which no complaint is made concerning the time within which the reply had to be provided, such an allegation would fail on the facts. Absent any suggestion to the contrary, I infer that the s.424A(1) notice was dispatched to the applicant in accordance with s.441A(4) of the Act. Pursuant to s.441C(4), the applicant is taken to have received the notice on 20 November 2007. Regulation 4.35 of the Migration Regulations 1994 (“Regulations”) requires that an applicant is to be given 14 days after the date on which the s.424A notice is received within which to provide the information or comments sought by the notice. That day was 4 December 2007 which was the date specified in the notice by which a reply was to be received by the Tribunal. Consequently, the response period specified in the s.424A notice complied with the requirements of the Act and the Regulations.
For these reasons, the third ground pleaded in the application is not made out.
Breach of s.424A of the Act
The allegation that the Tribunal failed to provide the applicant with an opportunity to comment on information pursuant to s.424A of the Act is particularised as follows:
The Tribunal failed to advise the applicant that he may seek additional time to respond in relation to particulars which the Tribunal orally gave in order to affirm the decision.
The particulars seem to have no factual relationship with the events in question. The Tribunal did not rely upon s.424AA to provide orally to the applicant particulars of information which it considered would be the reason or part of the reason for affirming the delegate’s decision. Rather, the Tribunal sent to the applicant a written notice pursuant to s.424A in which it provided such particulars. That notice is reproduced at CB 102–105. In so far as the applicant alleges that he was unaware that he could seek additional time within which to respond to that notice, the notice itself provides the answer. In third last paragraph it stated:
If you cannot provide your written comments/response by 4 December 2007, you may ask the Tribunal in writing for an extension of time in which to provide the comments/response. If you make such a request, it must be received by the Tribunal before 4 December 2007 and the request must state the reason why the extension of time is required. The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
For these reasons, on the facts, the allegation is not made out.
The Tribunal did not conduct a proper review
The applicant’s allegations that the Tribunal as secondly constituted dealt too quickly with his review application and was, in any event, only interested in legal error is unsupported by evidence. The Tribunal dealt in some detail with the applicant’s factual allegations, as the decision record discloses. The “RRT Hearing Record” reproduced at CB 94–95 shows that the Tribunal hearing lasted one hour but there is no evidence to suggest that this was too brief a period, particularly as the applicant had already provided considerable detail of his claims on previous occasions.
As to the Tribunal being concerned only with legal error, it would be surprising if the Tribunal as constituted on the second occasion had not conducted its review with an eye to avoiding the error made by the Tribunal as constituted on the first occasion. But a reference to a need to avoid error does not change the objective facts, based on the decision record, that the Tribunal conducted a proper review of the facts and properly discharged its function. The applicant has not identified, with the exception of his allegations concerning the Amnesty International report referred to above at [17], any instances of the Tribunal not considering matters which he considered to be of importance to his application.
In these circumstances, this ground discloses no jurisdictional error on the part of the Tribunal.
Bias
The applicant’s allegation that the Tribunal entered onto the review with its mind already made up is a serious allegation for which cogent evidence must be adduced. No such evidence was put before the Court by the applicant and the only evidence which touched on the issue was the Tribunal’s decision record. There is nothing in that record upon which the Court could base a conclusion that the Tribunal’s mind was already made up before the review commenced or the hearing was held. Consequently, this allegation is not made out.
Lack of documentary support
There is nothing in the Tribunal’s decision record to support a conclusion that the Tribunal required the applicant to produce documentary corroboration of his allegations. However, even if it had, it is apparent that the Tribunal did not reach its decision based on the absence of any such documentary corroboration. The applicant failed in his review application because of the inconsistencies and implausibilities in his account, not because it was uncorroborated.
The Tribunal did not want to consider the details of the application
No evidence which touches on this issue was before the Court, other than the Tribunal’s decision record. That record demonstrates that the applicant’s various core claims as well as the factual detail advanced in support of those claims were rehearsed by the Tribunal in its decision record. Under the heading “Findings and Reasons”, the Tribunal turned its mind to those matters to reach the conclusion that the very details which the applicant now alleges were not considered by it, in fact, demonstrated that the applicant had fabricated his claims. For these reasons, this ground does not demonstrate jurisdictional error on the Tribunal’s part.
Inconsistencies did not show fabrication
This allegation was not clearly articulated during the applicant’s oral submissions at the hearing in this Court but it appears that he challenged the Tribunal’s factual conclusion that fabrication of his claim could be discerned from the disparate allegations he made and accounts he gave. Decisions on factual matters such as these are ones reserved to the Tribunal. They cannot be reviewed by the Court in judicial review proceedings such as these. Consequently, such an allegation would not amount to a basis upon which the Tribunal’s decision might be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
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: 19 September 2008
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