SZCUB v Minister for Immigration

[2005] FMCA 495

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCUB v MINISTER FOR IMMIGRATION [2005] FMCA 495

MIGRATION – RRT decision – Sikh from Punjab claiming persecution by police due to political activities – disbelieved by Tribunal – no error found.

Migration Act 1958 (Cth), ss.422B, 424A, 424A(1), 424A(3)(a), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62
Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212

Applicant: SZCUB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 278 of 2004

Judgment of: Smith FM

Hearing date: 30 March 2005

Delivered at: Sydney

Delivered on: 30 March 2005

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Jack Singh Solicitor & Associates

Counsel for the Respondent: Mr P Reynolds

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. First and second applicants to pay the respondent’s costs in the sum of $6000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 278 of 2004

SZCUB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated

   
   

   23 December 2003 and handed down on 20 January 2004.  The Tribunal affirmed the decision of a delegate refusing a protection visa to the applicants, who are a husband, his wife and two children.  Since the wife and children relied upon acceptance of the claims of the husband to come within the Refugee Convention, I shall refer to the husband as “the applicant”, as did the Tribunal.

2. Section 483A gives the Court, “the same jurisdiction as the Federal Court in relation to a matter rising under this Act”. In matters such as the present, jurisdiction is conferred by s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I do not have power to set aside the decision and remit the matter for further hearing unless I am satisfied that the Tribunal decision was affected by jurisdictional error. The Court does not itself have power to consider whether the applicant satisfies the Convention definition of refugee or should be given a protection visa.

3. In the present case, the applicants arrived in Australia on visitors’ visas on 22 April 2003.  On 19 May 2003, a solicitor, Jack Singh Solicitor and Associates, who is also a migration agent, lodged an application for protection visa on behalf of the applicant.  The application attached a statement, witnessed by Jack Singh, dated 19 May 2003, and made by the applicant.  It contained 13 paragraphs.  In it the applicant said that he was born on 25 May 1959 in a village in the Punjab and came to Australia on 22 May 2003.  He said that he had come because his and his family’s life was in danger in India:

   …as I was actively involved in a political party called Akali Dal (MANN Group), which was founded by the late Akali Dal leaders while India got independence from British rule.

   … 

   I am an active and one of the most important member of this political party

   …

   4. I used to participate on every committee meeting of this party. …

   5. The ruling Congress party consider our party as a communal and racist religious body and they want to eliminate us and our party members.  Before the State Assembly election Akali Dal (Badal Group) was in power and our party did not get any threats but after the election which was held a year and half ago, our party Akali Dal (Mann Group) had been black listed.  This ruling Congress Party represented by Captain Amrinder Singh, Chief Minister of Punjab, is trying its best to finish our party and it members by instituting false cases on our party members and most our main leaders has already been detained in the jails.

   6. As I have been a Branch level president of this party, I have received too many physical and oral threats. Since last one year the Congress party leaders are trying to kill me and my family and they threatened me that if I do not join the Congress party then they will eliminate us for ever.

   7. On too many occasions the Congress party supporters called me at my home but I was so scared that I went underground.  But in July last this year, the Police and the congress party workers succeeded to hijack me, though they took me to some unknown place.  The tortured me so badly that I could not walk for two weeks.  Then they instituted some false charges of criminal nature against me and eventually after torturing me for three days I was admitted me in the civil Hospital Nawanshabr, India.  My brother and my party workers helped me to get out of that nightmare.  At the end my brother suggested me to leave the country for good with family otherwise Congress supporters will finish me and my family.

   8. As Congress party is in power and they have very influential persons, they can come to know of my whereabouts.  Even they notified the Indian police to chase me up and police is still looking for me and my family.

   9. In 2002 I managed to get my and my family’s passports and a Visitor visa by giving money to the Indian the authorities.

   10. I left India with my family on 20 May 2003.  I came to know that Australian Immigration Department is very helpful to accommodate the refugee people.  I arrived in Australia on

   
   

   22 May 2003.  Me and my family have spent all my money and now I am entirely dependent on religious bodies and charities.  I request you to provide me a full time working permission.

   11. In case me and my family are forced to go back to India I fear persecution in the hands of the state’s and Indian police, based on the cruelty that I was subjected to while in India.  

4. In fact, his application and passport showed that he had arrived in Australia on 22 April 2003 and not the date stated in the statement.

5. The delegate refused the application due to its inconsistencies and the fact that the applicant had provided very few details of his claimed political activities in India and no evidence of such activities. 

6. On 21 July 2003, Mr Jack Singh filed an application for review in the Refugee Review Tribunal on behalf of the applicants.  The reasons for making the application were stated: “to be advised”.  However, no submission or further documents in support were sent to the Tribunal prior to a hearing, which the Tribunal conducted on 8 December 2003.  The applicant attended the hearing with “his advisor”, whose name is not recorded in the papers before me.  It appears from the Tribunal’s reasons that it questioned the applicant closely about his claims and, in particular, the fact that they were expressed in almost identical terms to a claim made by another applicant who had arrived in Australia and had applied for a protection visa about a month before the applicant applied.  The Tribunal also questioned him about other aspects of his statement. 

7. After the hearing, on 18 December 2003 Mr Singh submitted documents purporting to be in support of his client’s application, and which had been “received by our client from overseas”.  I am satisfied that the Tribunal considered those documents, not withstanding their late tender.  A further document was sent by Mr Singh to the Tribunal on 7 January 2004, after he had received notice that the Tribunal was about to hand down its decision on 20 January.  In the Court papers before me is a letter from the Tribunal confirming that this very late document was considered by the Tribunal.  I can see no basis on which the applicant can complain about the treatment of that material, and no submission has been made to me today concerning this aspect of the matter.

8. At the start of its reasons, the Tribunal refers to its questioning of the applicant concerning the claims made by the other applicant who had used “the same words and even had the same grammatical mistakes”.  It said:

   Having explored this matter with the Applicant in some depth at the hearing, and notwithstanding his responses, the Tribunal does not accept that the claims contained in his statement of 19 May 2003 are true or are his own.  The Tribunal finds that this also goes to the question of his credibility.

9. However, the Tribunal:

   Nevertheless, proceeded to consider the applicant’s claims and responses made at the hearing, including his responses to matters contained in his protection visa application, as it was able to explore these with him in some detail.

10. The Tribunal made a series of findings about his claims, including that it did not accept that the applicant was “one of the most important members of this political party”, nor held the position of branch level President, nor had any political profile whatsoever.  Its conclusion was based on its questioning of the applicant and circumstances personal to him.  The Tribunal did not accept the claims that the applicant had reason to fear persecution from the Congress Party.  It made a further finding that it was satisfied that the applicant had embellished his claims with the objective of enhancing his claim for a protection visa in those respects.

11. The Tribunal addressed the applicant’s claim that he had been detained for four or five days in June 2001.  It noted that some of the material that had been tended after the hearing, purporting to be affidavits verifying this incident, had asserted that the event had occurred in July 2003.  However, this was some three months after the applicant had claimed, and the department’s movement data had confirmed, that he and his family had arrived in Australia.  The Tribunal said “accordingly, the Tribunal is not satisfied that these affidavits are evidence that the applicant was detained in June 2001”, and it gave no weight to the affidavits.  Plainly, there is no error in the Tribunal reaching that conclusion.

12. The Tribunal addressed further aspects of his claims, and stated the general conclusion:

    In view of all of the above and its earlier finding about the applicant’s credibility, the Tribunal does not accept that the applicant was hijacked and detained for four or five days in June 2001, or indeed at any other time, and does not accept that there is a real chance that the applicant as a low-level worker involved in the most menial of party activities would experience serious harm amounting to persecution on the basis of his religion or political opinion if he returned to India, either now or in the foreseeable future.

13. The Tribunal made reference to independent country information when it said:

    Further, the Tribunal accepts independent country information that there is no evidence to suggest that the members of the Akali Dal (MANN Group) are being persecuted in India.

14. The Tribunal then addressed the applicant’s claims that he had been forced to pay a bribe in order to obtain a passport and other circumstances concerning the passport.  The Tribunal did not accept those claims.

15. The Tribunal then addressed the allegation that there were false cases instituted by the Congress Party against the applicant, but noted that the applicant had not elaborated on these claims, nor provided any evidence, such as a copy of an arrest warrant.  It also concluded that:

    However, even if the police are looking for him for some undisclosed reason (including because a case, false or otherwise has been or may be made against him) the Tribunal is satisfied that this is a matter for the courts in India to determine.

    The Tribunal referred to independent country information about democracy and the constitution in India, which supported its opinion that “he can in these circumstances seek legal redress from the courts in India.” 

16. The Tribunal completed its reasoning by making a finding that it was:

    satisfied that if for any reason the applicant did not wish to return to his home village, it would be reasonable for him to live in another part of the Punjab or indeed elsewhere in India, without there being a real chance of serious harm amounting to persecution for a conventional reason.

    I do not, however, read its reasons as providing this conclusion about relocation as an independent reason for affirming the decision, since the Tribunal refers to its previous findings that the applicant would not be subject to serious harm because of his political opinion or religion, and to its adverse findings about his credibility concerning his claims. 

17. Reading the reasons of the Tribunal as a whole, I am unable to identify any arguable grounds for jurisdictional error affecting the Tribunal’s proceedings or decision.  It has engaged in a thorough assessment of all the evidence and claims made to it, and in my opinion has reached conclusions which were properly open to it and which reveal no legal error.

18. The applicant commenced proceedings in this court in an application filed on 24 February 2004, purporting to act for himself and his family. It alleges that the Tribunal did not observe procedures required by the Migration Act to be observed in connection with the making of the decision and, in particular, that the Tribunal did not act according to substantial justice in the merits of the case in respect of eight dot points. These make general assertions that the Tribunal did not consider the facts of the case; did not act according to natural justice; did not consider the materials and documents provided by the applicant; did not adopt the proper legal procedure; and that its treatment of the applicant’s claims was unjustified and improper exercise of power involved in an error of law, and an unintelligible point. No particulars were provided of these grounds. It appears to me, for reasons that I will explain, that this document was prepared by Mr Jack Singh, solicitor.

19. On the first court date before a Registrar on 30 June 2004, there was no appearance for the applicant.  The Registrar stood the matter over.  On the adjourned date, 14 July 2004, there was again no appearance, but Mr Singh had filed a notice of appearance on behalf of the applicants.  The Registrar adjourned the case for another week.  On 21 July 2004, Mr Singh did appear ,and directions were given for the applicants to file and serve an amended application, giving full particulars, by 6 October 2004.  The matter was stood over for directions on 28 January 2005. 

20. No amended application was filed as directed, but on 24 January 2005 a document headed, “Amended application”, was filed by Mr Singh which, although differently worded, suffered from the same vices as the originating application.  The matter came before me on 28 January 2005.  Faced by the Minister’s request that the matter be dismissed for non-compliance, Mr Singh, who appeared for the applicant, undertook to file another amended application.  I directed the applicant to file and serve any amended application and affidavits on or before 28 February 2005, and I set the matter down for final hearing before me today.

21. On 15 February 2005, Mr Singh filed a document headed, “Amended application”, which is plainly a reproduction of the original application in this matter, with two of its dot points omitted.  The identity of the two documents is the reason why I consider that Mr Singh was probably the author of the original application.  Necessarily, the amended application suffered from the same vices as the original application, due to its complete absence of meaningful particulars of grounds of review.  In this respect, it was more – not less – deficient than the previous amended application.

22. No written submission was filed as directed 14 days before the hearing.  Yesterday a document headed “Applicant’s submissions” was filed on behalf of the applicants, signed by counsel for the applicants, Mr A Kumar.  The document shows as the filing party the applicants in person, and not their solicitor. 

23. Mr Kumar appeared today in company with Mr Singh.  After some questioning they both confirmed that Mr Kumar was instructed by Mr Singh to appear today for the applicants.  Mr Singh suggested that he wanted to file a notice of ceasing to act, but conceded that he had not filed such a document, and was unable to satisfy me that he had served the appropriate notices to allow him to do that under the rules of this court. 

24. On Mr Singh’s instructions, Mr Kumar then applied for an adjournment of today’s hearing.  He sought to rely on a document purporting to be a medical certificate concerning the applicant, which stated “In my opinion, according to history given, he is medically unfit to travel and attend court on 30/3/2005”, on a diagnosis of “acute gastroenteritis”.  No suggestion was made that the female applicant was unable to attend today, and no reason was provided to me as to why the attendance of either of the applicants was necessary.  It was not suggested that instructions could not be conveyed by telephone.

25. After considering the application and the history of the matter, I refused the adjournment application.  Although it may be desirable for an applicant to be able to attend a proceeding of the present nature, it did not appear to me that this was necessary in the interests of the administration of justice in the present case.  I took into account that the applicants were represented by solicitor and counsel, that the sole issue for the court was whether the Tribunal’s decision was affected by jurisdictional error, and that the court had not been requested by the applicants’ solicitor to arrange for the attendance of an interpreter.  In these circumstances, I could not see any material prejudice to the applicants in the matter proceeding without their personal attendance.  After I gave that ruling, Mr Singh left the court, leaving Mr Kumar to make submissions on behalf of his clients.

26. Mr Kumar did not attempt to develop arguments by reference to any of the applications that had been filed in this court, but addressed his written submission.  In that submission, after reciting background to the matter, several contentions are made from paragraphs 31 onwards.

27. In paragraphs 31 to 33, the contention is made that the Tribunal:

    Did not properly consider the real reason for the persecution.

    There is no substance to this allegation and it was not addressed by Mr Kumar.  Plainly, the Tribunal did address all the reasons for the claimed persecution put forward by the applicant, and did so by finding the claims devoid of credibility. 

28. In paragraphs 34 to 36, the contention is made that:

    The Tribunal made no enquiry about the treatment of the special group of individuals in his class and therefore fell into jurisdictional error.

    It was contended that the Tribunal should have investigated the activities of MANN Group and failed to do that, and that it applied a preconceived notion in relation to the applicant’s claims to have held positions of significance in that Group. 

29. There is no substance in those submissions.  The criticisms of the Tribunal’s finding go merely to matters of assessment of fact.  The contention that the Tribunal was under a duty to enquire further about the MANN Group was made without support of authority, and is inconsistent with authority (see Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 at [18]; Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 at [15], and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).

1. Paragraph 37 of Mr Kumar’s submission suggested that the Tribunal had fallen into error for not attaching appropriate weight to the affidavits forwarded by Mr Singh after the hearing.  Mr Kumar did not press that submission and it was obviously lacking in merit.  It was plainly open to the Tribunal to give them no weight.

2. Paragraph 38 submitted that findings were made by the Tribunal which were not available on the evidence before it.  That submission was not addressed by Mr Kumar and has no basis.

3. Paragraphs 40 to 49 contend that the Tribunal made jurisdictional error in its use of country information without giving the applicant an opportunity to comment on the material.  Reference is made to Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 in relation to the requirements of procedural fairness in that respect.  However, as Mr Kumar conceded, that case cannot be relied on in the present matter, because it is subject to s.422B of the Migration Act.  This provides that the statutory procedures of Division 4 of Part 7 of the Migration Act are “taken to be an exhaustive statement of the requirements of the natural justice hearing ruling in relation to the matters they deal with”.

4. There is now well established authority that the Tribunal has no duty to allow an applicant an opportunity to address general country information relevant to an assessment of refugee claims. This is because this is a matter dealt with by s.424A of the Migration Act, and the duty is expressly excluded by s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264). 

5. In relation to procedural fairness, reference is made in the course of Mr Kumar’s written submission to Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62. However, I consider that citation to be inappropriate in the context of an opportunity to comment about country information. No evidence was presented for the applicants to show circumstances in their case with any similarity with the circumstances in that case.

6. Mr Kumar’s submission in paragraphs 51 to 55 sought to argue that the Tribunal made errors in relation to its findings on relocation.  I had difficulty understanding his contention, but in any event, as I have indicated above, I do not consider that any error by the Tribunal in that respect would vitiate its decision.  As I have indicated, its decision was based on a fundamental finding as to the credibility of the applicant in relation to his claims to fear persecution in India, as well as detailed rejection of his claims.

7. Paragraph 55 of Mr Kumar’s submission cites the recent High Court case concerning safe refuge in third countries (NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6). I can see no bearing of that case on the present.

8. Mr Kumar’s final submissions in paragraphs 56 to 59, made a submission that the Tribunal erred in relation to applying government policy.  It seems to me that submission plainly has no bearing on the present case and Mr Kumar did not press it.

9. No other submissions were made by Mr Kumar and, as I have indicated, I can see no other argument which might have been put on behalf of the applicants.

10. Since I have been unable to find any jurisdictional error affecting the Tribunal’s decision, and for the above reasons, I dismiss the application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  20 April 2005