SZCQT v Minister for Immigration - [2007] FMCA 2069

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCQT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2069

MIGRATION – Review of decision of RRT – where grounds are incomprehensible, prolix and essentially seek merits review.

Migration Act 1958, ss.422, 424A, 476

WAEE v Minister for Immigration [2003] FCAFC 184

Applicant:

SZCQT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2757 of 2006

Judgment of:

Raphael FM

Hearing date:

28 November 2007

Date of last submission:

28 November 2007

Delivered at:

Sydney

Delivered on:

28 November 2007

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2757 of 2006

SZCQT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. He arrived in Australia on 29 December 2002 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 30 January 2003. On 30 May 2003 a delegate of the Minister declined to grant him such a visa and on 22 June 2003 he applied to the Refugee Review Tribunal for review of the delegate's decision. A Tribunal, differently constituted, purported to affirm the delegate's decision on 16 December 2003 but that finding was overturned in the Federal Magistrates Court on 5 April 2006 and the matter was returned to the Tribunal to be determined according to law.
The second Tribunal invited the applicant to attend a hearing which he did on 8 August 2006. After the hearing the Tribunal sent to the applicant a letter inviting him to comment on information pursuant to s.424A of the Migration Act 1958 (the “Act”). On 28 August 2006 the applicant responded to that letter. On 4 September 2007 the Tribunal determined to affirm the decision not to grant a protection visa and handed its decision down on 21 September 2006.
The applicant's grounds for claiming that he was a person to whom Australia owed protection obligations arose out of his ethnicity as a Sikh and a member of a low caste, described as Lubhana. In his application for a protection visa the applicant made a number of claims about persecution from the Hindu majority in the area in which he lived and worked upon the family farm. The claims included periods in detention and what he claimed was persecutory treatment at the hands of the police. As a result of these activities the applicant was required to remain in hiding for a period of approximately 18 months before he used a passport that had been obtained some time beforehand to travel to Australia.
The most significant incident which the applicant spoke and made claims about appeared to have been associated with a land dispute in his village. He told that his family had been granted a 20 year lease in about 1956 but had continued farming the land until about 2001 when there was a dispute with the government, the owner of the land, about the continuation of the arrangement. The Tribunal questioned the applicant about this and it appears that although he had alleged that the government decision to grant a lease of the land to persons other than his family was due to discrimination against Sikhs and members of his caste the Tribunal concluded that it was more likely than not that if his family had agreed to pay the price required by the government a new lease would have been granted.
The Tribunal did consider all the other claims made by the applicant in relation to the alleged persecution and compared the evidence given at the hearing with the evidence given at the previous Tribunal hearing and the claims made by the applicant in his documentation. It came to the conclusion that the applicant was not a person of credibility.
The Tribunal also considered the possibility of claims arising from certain other matters which the applicant had mentioned. The first related to his brothers and family members. Both of the applicant's brothers have been in the Army. One left during problems between Sikhs and Hindus in the Punjab and the other appears to have been dismissed from the Army because he was charged with stealing ammunition. The Tribunal considered whether the applicant might be persecuted by virtue of his association with his brothers and on the basis that he, like they, was a Sikh. The Tribunal concluded [at CB 135]:
“Whatever may have arisen from the alleged actions of the applicant's brothers, based on the applicant's claims at hearing on 8 August 2006, I understand that both brothers, the applicant's parents, and the applicant's wife and children currently safely reside in his home village in India. The elder brother ‘lives of his Army pension’ and the younger brother has obtained clerical work. Accordingly, I do not accept the applicant or his family have a well-founded fear of persecution in India for reasons of the alleged actions of his brothers or family (for any Convention reason).”
The applicant also claimed that he might be persecuted by reason of obtaining a false passport:
“At the Tribunal hearing on 8 August 2006 the applicant explained that when the Indian authorities would issue a passport they commonly spoke to the local village chiefs and/or elders and/or council prior to issuing same, and he did not believe he would receive a favourable report from them. Thus it appears the applicant's principal, if not sole concern, related to the local village chiefs or elders and/or council and not the Indian authorities. Therefore the present council rejects his claims provided inter alia to the previous Tribunal, including that the police did not want him to have a passport, as false.”
The Tribunal concluded its decision by making a finding that the applicant was able to relocate within India. It dealt with the applicant's claims that his family had advised him that his whereabouts were still being sought by unknown persons and that these persons would find him wherever he went. The Tribunal rejected this claim as false. It considered that the applicant could safely relocate with India and that it was reasonable in all the circumstances for him to do so. These matters were considered comprehensively at [CB 137].
The Tribunal dealt with the s.424A letter and the applicant's response. It outlined the response before saying:
“With respect, the Tribunal is not satisfied the above claims are sufficiently different to the ones discussed in its above findings and reasons that they require further consideration.”
On 27 February 2007 the applicant filed with this court an amended application which contains 14 grounds upon which it is said the Tribunal fell into jurisdictional error. The applicant provided me with no submissions, either orally or in writing, upon these grounds. It should be said that they do have a familiar ring to them but that does not mean that the court should not consider them. The first ground states:
“The Tribunal failed to internalize the circumstantial grounds of the review application and in weighing both the subjective claims of the review application and in reviewing the huge supporting facts and documents and such has breached section 426(2), s426(3), s427(4) and s440(2)(b) of the Act.”
In the absence of any enlightenment from the applicant as to what "internalising the circumstantial grounds of the review application" means I am either left to guess or to make a finding that the ground cannot possibly succeed on the basis of its incomprehensibility. I prefer to do the latter because I do not think it is fair either to the court or to the respondent, or even to the applicant, to presume that he meant something he has declined to explain.
The second ground suggests that the Tribunal erred because it did not make mention of certain documents that the applicant had presented to it. Whilst there may be a requirement upon the Tribunal to consider every claim advanced by an applicant there is no obligation for the Tribunal to make reference in its decisions to every piece of evidence presented. As the Full Court said in WAEE v Minister for Immigration [2003] FCAFC 184 at [46]:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.”
The third complaint made by the applicant relates to the Tribunal's ignoring of evidence and making findings in the face of contradicting evidence. This seems to me to be an attempt to get the court entwined in a merits review which, of course, is impermissible.
The fourth ground is a statement, which I need not comment upon, and the fifth ground is a rehearsal of the applicant's main claim as is the sixth. The seventh ground said that the Tribunal:
“Failed in its written statement that a breach of the rules of natural justice, therefore it raises the ground under s.476 of the Migration Act.”
The scope of the obligation of the Tribunal to provide the applicant with natural justice in this instance is limited by s.422B of the Act and as I have already pointed out s.476 deals with the jurisdiction of the Federal Magistrates Court. Again, in the absence of any particularisation, I cannot make further comment upon this claim but and dismiss it.
The eighth ground once again refers to internalising circumstantial grounds and I would repeat the comments which I made in respect of ground one.
The ninth ground complains that the Tribunal relied on independent country information obtained from Australian sources. The Tribunal has for years relied upon these sources and such reliance has not been impugned in any court. I would not wish to be the first to do so.
The tenth ground suggests that the applicant provided a detailed submission and necessary supporting documents but these were not considered sufficient to establish refugee status. This is not a ground of review, it is a request for reconsideration of the factual case put forward by the applicant, a reconsideration this court cannot give.
The eleventh complaint also deals with matters of fact and not with allegations of jurisdictional error. This complaint seems to be continued at paragraph 12 of the application and suffers from the same failing, that it seeks merits review rather than pointing to jurisdictional error. The thirteenth and fourteenth grounds are also argumentative factual reiteration with which this court is unable to deal.
It follows from what I have said above that I am unable to find any ground upon which the Tribunal has fallen into jurisdictional error in this case. I dismiss the application. I order that the applicant pay the First Respondent’s costs assessed in the sum of $4,250.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: