SZCQA v Minister for Immigration
[2006] FMCA 345
•14 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCQA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 345 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in India due to political affiliation – claim Part B documents not provided to Refugee Review Tribunal – claim independent country information should have been provided prior to hearing |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 418(3); 422B; 424A; 424(3)(b); 425; 474; 483 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZCQA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG277 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 February 2006 |
| Date of Last Submission: | 23 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Ms N Johnson, 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 $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG277 of 2004
| SZCQA |
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 the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 7 January 2004, to affirm the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The applicant is a 23 year old male who claims to be a citizen of India and of Indian ethnicity and Islamic faith (“the Applicant”).
The Applicant arrived in Australia on 6 February 2003, having departed from Cochin, India on a passport issued in his own name.
On 11 January 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 the police and the Bharatiya Janata Party (“BJP”) for being a member of the Communist Party of India-Marxist-Leninist Party (“CPIML”).
On 20 February 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 31 March 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 5 February 2004, the Applicant filed an application and affidavit in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Short Minutes of Order made on 11 June 2004, the Applicant filed an amended application on 23 August 2004 (“Amended Application”) seeking review on the following grounds:
“1. That the tribunal failed to follow proper procedure under section 418(3) of the Migration Act 1958.
2. That a breach of the rules of natural justice occurred in connection with the making of the decision.
3. That taking an irrelevant consideration into account in the exercise of a power and failing to take a relevant consideration into account in the exercise of a power which involved error of law in tribunal’s decision.
Particulars:1 The Tribunal did not provide me particulars of information’s from the Australian embassy reports, which formed the reason of the tribunal’s decision.
Particulars:2 Refugee Review Tribunal did not consider whether or not the applicant’s claim is genuine or failed to take into account relevant documents in deciding applicant’s case.
Particulars:3 The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs did not comply with s 418(3) of the Migration Act, because he had failed to give the Registrar of the Refugee Review Tribunal part B document’s in his possession or control, which was “… a failure by the Secretary to comply with the requirements of s 418(3) of the Act might, in some cases, result in or contribute to jurisdictional error on the part of the Tribunal…” as per Gaudron J and Gummow J in Muin, Lie Vs Refugee Review Tribunal.”
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.
The Tribunal proceeding
The Tribunal had before it the Department’s file, which included the protection visa application and the Delegate’s decision record. The Tribunal noted that it had regard to the material referred to in the Delegate’s decision and other material available to it from a range of sources. The Tribunal identified with particularity the claims made by the Applicant in his statutory declaration dated 10 February 2003, in support of his protection visa application (“Statutory Declaration”).
The Applicant gave oral evidence to the Tribunal on 17 November 2003. The Tribunal noted that the Applicant confirmed that the information, contained in the Applicant’s Statutory Declaration was true and correct.
The Applicant’s relevant claims and Tribunal findings are accurately summarised in the First Respondent’s outline of submissions as follows:
“2. The applicant, a citizen of India, was a member of the Communist Party of India Marxist Leninist (CPIML) union. In September 2001, the applicant was assaulted by members of the All India Anna Dravida Munnerta Kazhagam (AIADMK) union and by Bharatiya Janata Party (BJP) for participating in a strike against the applicant’s employer. The police arrested, and tortured the applicant and laid false charges against him. When the applicant returned to work he was tortured by members of the AIADMK union. On 17 April 2002, he was arrested and beaten by police and had false charges laid against him for inciting communal violence and supporting Muslims.
3. On the basis of substantial inconsistencies between the applicant’s claims and his evidence at the hearing, including concessions that some of his claims were not true, the Tribunal concluded that the applicant had “fabricated his essential claims” (CB 78.4). The Tribunal did not accept that the applicant was a member of, or involved with, the CPIML (CB 78.6). It did not accept that he was arrested either following the strike or in April 20025, that he was tortured by union members or that false charges were laid against him in relation to an attack on a rival union member (CB 78.8).
4. Similarly, the Tribunal did not accept that the applicant had a significant political or religious profile (CB 79.1). Consequently, it did not accept that the authorities were planning to arrest him for his political activities (CB 79.2). It rejected the applicant’s claim that he been arrested for inciting communal violence, supporting Muslims or encouraging people to turn against the government (CB 79.1 to 79.6).
5. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason (CB79.8).”
The proceeding before this Court
The Applicant was unrepresented before this Court although he had the assistance of an interpreter. The Applicant relied on an amended application, filed on 23 August 2004, and set out as follows:
“1. That the tribunal failed to follow proper procedure under section 418(3) of the Migration Act 1958.
2. That a breach of the rules of natural justice occurred in connection with the making of the decision.
3. That taking an irrelevant consideration into account in the exercise of a power and failing to take a relevant consideration into account in the exercise of a power which involved error of law in tribunal’s decision.”
The Applicant submitted that the Tribunal did not take account of his claims and that he was not given an opportunity to “say my case”. The Applicant said that he was “under tension at the hearing” and was not well or fit. I pointed out to the Applicant that he had never made any of those claims before. The Applicant did not proffer any further explanation and did not assert that he had made any such complaint before the Tribunal. To the extent that the Applicant was seeking to raise a further ground based on this submission, implying some lack of procedural fairness, it is rejected.
The grounds upon which the Applicant otherwise relied are dealt with below.
Ground 1 – Applicant’s claim that the Tribunal failed to comply with s.418(3) of the Act.
This ground is misconceived in that s.418(3) imposes an obligation upon the Secretary of the Department to give to the Tribunal all the documents in its control and possession. It imposes no obligation on the Tribunal itself. There is no identification by the Applicant of any documents that the Secretary of the Department failed to provide to the Tribunal. The Tribunal noted that it had the Department’s file before it, including the protection visa application and the Delegate’s decision record. There is nothing before me to suggest that the Department did not comply with the obligation imposed by s.418(3). The overwhelming inference is that the Tribunal did receive the material that the Secretary of the Department was obliged to provide.
Accordingly, this ground is rejected.
Ground 2 – Applicant’s claim that Tribunal breached the rules of natural justice in making its decision.
There are no particulars provided in support of this ground.
Pursuant to s.422B of the Act the rules of natural justice, with which the Tribunal is obliged to comply, are those contained in Part 7 of the Act. Essential to the Tribunal’s discharge of its obligation under Part 7 is compliance with s.425 and s.424A of the Act. Relevantly, s.425 of the Act requires the Tribunal to invite the Applicant to attend a hearing and s.424A requires the Tribunal to give certain information to the Applicant prior to the hearing. There is no complaint by the Applicant based on a breach of s.424A and none is apparent on the face of the Tribunal’s decision.
On 1 September 2003, the Tribunal, in compliance with its obligations pursuant to s.425 of the Act, sent an invitation to the Applicant at his identified mailing address inviting him to attend a hearing on 10 November 2003. On 7 November 2003, the Applicant wrote to the Tribunal seeking an adjournment due to ill health.
In accordance with the Applicant’s request, the Tribunal rescheduled the hearing and on 7 November 2003, the Tribunal wrote again to the Applicant inviting him to attend a hearing on 17 November 2003.
In the circumstances, the Tribunal discharged its statutory obligations to provide the Applicant with natural justice.
Accordingly, this ground is dismissed.
Ground 3 – Applicant’s claim that Tribunal took into account irrelevant consideration in the exercise of its power and failed to take account relevant considerations.
Particular 1 - The Tribunal did not provide any particulars of information from the Australian Embassy Reports which form the reason of the Tribunal’s decision.
The documents referred to by the Applicant in this ground form part of the independent country information to which the Tribunal is entitled to have regard. Such material is excluded from the obligations placed upon the Tribunal pursuant to s.424A of the Act to give certain information to the Applicant with an opportunity for the Applicant to comment on such information (s.424(3)(b)). In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] the Full Court of the Federal Court stated:
“It is not…an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.”
There was no obligation on the Tribunal to give to the Applicant, prior to the hearing, the Australian Embassy Reports, being the documents to which this particular refers.
Accordingly, this ground is rejected.
Particular 2 – The Refugee Review Tribunal did not consider whether the Applicant’s claim is genuine or failed to take into account relevant documents in deciding the Applicant’s case.
The Applicant confirmed at the hearing before this Court that there were no documents provided by the Applicant prior to the hearing of the matter, other than the material furnished by the Applicant in support of his protection visa application. However, the First Respondent stated that the Applicant did provide an annotated copy of Amnesty International Report on India 2002 following the hearing which was attached to a letter dated 1 December 2003.
The Tribunal specifically referred to the “annotated copy of Amnesty International Report on India 2002” sent to the Tribunal by the Applicant on 1 December 2003. The Tribunal noted that the Applicant requested, in his letter, to consider the material and noted that he stated “I am a refugee and have difficulties in obtaining court documents. Therefore I am sorry that I am unable to provide the said court documents.”
In the circumstances, the Tribunal considered the Applicant’s information, although it was provided subsequent to the hearing. However, the Tribunal preferred the independent information before it. Such a course was open to the Tribunal.
Accordingly, this ground is rejected.
Particular 3 – The Secretary of the Department of Immigration Multicultural and Indigenous Affairs did not comply with s.418(3) of the Act because he had failed to give the Registrar the Refugee Review Tribunal Part B documents in his possession or control.
This particular, in so far as it relates to s.418(3) of the Act, has been dealt with in relation to Ground 1.
Moreover, there was no agreement that any of the Part B documents had been omitted from provision to the Tribunal. Nor does the Applicant identify any particular documents omitted. Further, there is no concession by the First Respondent that any Part B documents had been omitted from provision to the Tribunal in the case before this Court.
Accordingly, this ground is rejected.
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 forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 14 March 2006
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