SZCVD v Minister for Immigration

[2006] FMCA 665

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 665

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – apparent breach of s.424A of the Migration Act – RRT decision nevertheless supported by findings of adequate State protection ad ability of the applicant to relocate within India.

Migration Act 1958, ss.36, 91R, 422B, 424A, 425

Minister for Immigration v Al Shamry (2001) 110 FCR 27
SZEEU v Minister for Immigration [2006] FCAFC 2
SAAP v Minister for Immigration [2005] HCA 24;
WACO v Minister for Immigration [2003] FCAFC 171

Applicant: SZCVD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG513 of 2004

Judgment of: Driver FM

Hearing date: 4 May 2006

Delivered at: Sydney

Delivered on: 4 May 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr C Mantziaris

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent to the proceedings.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG513 of 2004

SZCVD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The decision was handed down on 4 February 2004.  The applicant is from India and had made claims of political persecution.  Relevant background is set out in paragraphs 2, 3 and 4 of the Minister's submissions.  I adopt those paragraphs as background for the purposes of this judgment.  I also adopt paragraphs 7, 8 and 9 of the Minister's submissions as setting out accurately the findings made by the RRT:

   The applicant is a citizen of India who arrived in Australia on 31 May 2003: court book, page 60.

   He lodged an application for a protection visa (class XA) on 25 June 2003: court book, page 3. The applicant claims that he fears persecution on the basis of his political activities as a member and leader in the Trinamool Congress Party (TMC): court book, pages 29‑30.

   The Minister’s delegate refused the application for a protection visa on 19 August 2003: court book, page 48. The RRT affirmed the decision of the Minister’s delegate: court book, page 90.

   The RRT had before it the Department’s file: court book, page 93.5. The applicant appeared before the RRT at the hearing and gave oral evidence and his adviser submitted to the RRT the document mentioned above.

   The RRT made the following findings –

   a)that the applicant is a citizen of India: court book, page 99.1;

   b)that the applicant ‘presented a hesitant, vague and incomplete account of his employment, financial situation and previous overseas travel’: court book, page 99.2;

   c)that the applicant described his political opinion and facts about his party and its leadership in ‘general’ terms: court book, page 99.3;

   d)that the applicant was known among TMC youth in the Dum Dum town district and in nearby towns, and was also probably known to his counterparts in the rival Communist Party of India (Marxist) (CPIM): court book, page 100.4;

   e)the RRT did not accept ‘that his personal campaigning efforts were so successful as to attract the more sustained adverse attention of CPIM supporters’: court book, page 100.6;

   f)that the applicant’s interest in politics was relatively low–key, not based on a strong political commitment and not indicative of political ambition: court book, page 100.8;

   g)that confrontations occurred between the applicant and his political opponents in the wake of the 2001 State elections, but ‘that there must also have been some personal or local factors which were essential and significant reason for this action’: court book, pages 100.10–101.1;

   h)that there was an incident in June 2002 in which the applicant was beaten, but that the 'description of its consequences are exaggerated, and that it did not result in serious harm’: court book, page 101.6;

   i)The RRT was not satisfied that the June 2002 incident was for the essential and significant reason of the applicant’s political opinion, or that it was linked with the incidents in 2001: court book, page 101.8;

   j)that the alleged February 2003 incident did not take place: CB102.1;

   k)that, in general, the CPIM’s activities are not supported by the government, and that there was no reliable independent evidence of political violence in the applicant’s home district of Dum Dum: court book, pages 102.3, 102.8;

   l)that the applicant can avail himself of adequate and effective State protection from harm from the CPIM or others: court book, page 103.2.

   m)the RRT did not accept that the applicant was subject to outstanding charges of terrorism or any other serious offences; and had not been subject to past persecution: court book, page 103.3–5;

   n)that the applicant could relocate elsewhere within India and would be able to pursue and develop his political interests in West Bengal politics and other political and non–political interests: court book, page 104.3;  

   o)the RRT was unable to be satisfied from the evidence before it that the applicant has a well–founded fear of persecution. The RRT found that the applicant is not a person who satisfies the criterion set out in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”): court book, pages 103.7, 104.5.

2. These proceedings began with an application for judicial review filed in this Court on 27 February 2004.  The applicant relies upon an amended application filed on 7 September 2004.  That application raises a single round of review, namely, that there was a want of procedural fairness in the rejection of a document submitted by the applicant subsequent to the hearing conducted by the RRT.  The applicant also filed written submissions on 19 April 2006.  Those submissions purport to raise a number of additional grounds.  The applicant should have filed a further amended application to reflect those grounds.  However, he is self-represented and I have elected to consider them.  I note that they are also addressed in the Minister's written submissions.

3. There is no substance to the asserted breach of the rules of procedural fairness in the amended application.  I agree with and adopt paragraphs 10 and 11 of the Minister's written submissions:

   The procedural fairness ground in the application

   The decision of the RRT was subject to s.422B of the Act, which states that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The applicant's allegation can therefore only be considered by reference to the procedural requirements of Pt 7 Div 4 of the Act.

   The purported TMC letter and s.424A(1):

   In accordance with s.424A and the principles stated in SAAP,[1] the purported letter considered by the RRT at court book, pages 99.4‑100.1 is not ‘information’ which has to be notified to the applicant under s.424A(1). This is because it is information which forms part of the application to the RRT, thereby falling within the exception created under s.424A(3)(b).[2]

   [1]     SAAP v Minister for Immigration [2005] HCA 24.

   [2]     SAAP v Minister for Immigration [2005] HCA 24; Minister for Immigration v Al Shamry (2001) 110 FCR 27; and SZEEU v Minister for Immigration [2006] FCAFC 2, [221].

4. In addition, even if there existed an obligation under the general law to accord procedural fairness, it was not breached.  Procedural fairness under the general law does not require disclosure of a decision-maker's thinking processes.  As was made clear by the Full Federal Court in WACO v Minister for Immigration [2003] FCAFC 171 at [54], there is no obligation to disclose concerns about a document which appears fraudulent on its face. It is apparent from what the presiding member says about the document in issue here on pages 99 and 100 of the court book that the document presented to the RRT was exceedingly dubious on its face.

5. There is also no substance in the asserted breach of s.425 of the Migration Act in the applicant's written submissions. The applicant was properly invited to a hearing before the RRT (court book, pages 61 and 62) and accepted that invitation (court book, page 63). He attended a hearing and his claims were discussed with him by the presiding member. The applicant's written submissions also take issue with the reasoning of the RRT, but that is no more than a contest over the merits of the RRT decision. The RRT considered the applicant's claims and rejected them. It was entitled to do so on the material before it.

6. The applicant's submissions also assert a breach of s.424A of the Migration Act. Although the details provided in those submissions do not assist him the issue is properly taken up by Mr Mantziaris in the Minister's written submissions. Mr Mantziaris also addressed this issue in his oral submissions. In paragraph 12 of his written submissions Mr Mantziaris notes that on page 101 at approximately point 3 of the court book the RRT drew attention to what it saw as an inconsistency between a claim of physical harm and hospitalisation made in support of the applicant's protection visa application (court book, page 30 at paragraph 7) and what the applicant said about that issue at the RRT hearing (court book, page 96 at about point 1).

7. Mr Mantziaris submits, on behalf of the Minister, that although the presiding member did have regard to the form and content of the applicant's protection visa claims in drawing attention to the inconsistency in the applicant's accounts that was not determinative of the outcome of the application before the RRT.  That was because the presiding member states (court book, page101) that the RRT gave the applicant the benefit of the doubt and accepted that there was an incident in June 2002 notwithstanding the inconsistency in the applicant's accounts.  However, as Mr Mantziaris also notes in paragraph 14 of his submissions, the presiding member went on to say:

   It finds, however, that the Applicant's description of its consequences are exaggerated, and that it did not result in serious harm within the meaning of s. 91R(1)(b) of the Act.

8. To my mind this indicates an acceptance by the RRT of what the applicant said at the hearing as reflected on page 96 of the court book in preference to what the applicant had asserted in his protection visa claims as set out in paragraph 7 of his statement on page 30 of the court book. The applicant had asserted in support of his protection visa that on 10 June 2002 he had been attacked by a group of hoodlums who had beaten him mercilessly and that he was nearly killed and left on the street. On any view, such treatment, if true, would amount to serious harm. The claim must therefore have been rejected. I also am of the view that it was that claim which the presiding member regarded as exaggerated. The rejection of the applicant's protection visa claim of serious physical harm is likely to have been part of the reason for affirming the decision of the delegate. I concluded that this is a borderline case of disclosure being required pursuant to s.424A of the Migration Act. It does not follow, however, that the applicant is entitled to relief.

9. The Minister makes an alternative submission that the RRT decision can be supported on alternative bases of reasoning.  That is set out paragraphs 15 to 20 of the Minister's written submissions.  That was a submission which I accepted in the case in which the issue was discussed by the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2. On the facts of that case, however, while the principle was accepted, its application was not accepted by the Full Court.

10. In this case, although the contrary is certainly arguable, I am persuaded that two independent bases do exist for the RRT decision which are not infected by the earlier adverse findings made by the RRT.  On page 102 and page 103 of the court book the presiding member says:

    A closely related issue is the availability of effective and adequate State protection should political opponents or others cause trouble.  The Tribunal notes reports of police corruption, and a reluctance of many to seek their assistance. However, the Applicant's claims that he and his father approached the police following the alleged attacks in 2002 and 2003, even though they were not in imminent danger, indicate their confidence in the willingness and ability of the police to provide protection from perceived CPIM threats.  The Applicant's complaints about the lack of arrests are unexceptional given that the Applicant was not able to identify any alleged perpetrators; they do not support a conclusion that there is a lack of State protection from CPIM violence.  The Tribunal recognises that the resource and organisational constraints under which the police operate mean that ‘absolute’ protection cannot be provided.  It is, however, satisfied that the Applicant, particularly in view of his and his family’s social and economic standing, can avail himself of adequate and effective State protection from harm from the CPIM or others. 

11. Further, at pages 103 and 104 of the court book the presiding member states:

    The Applicant's adviser raised the issue of relocation within India, in the event that the Tribunal found that he had been subject to persecution.  He claimed that the Applicant may face employment and other discrimination elsewhere in India due to his origins and language.  In addition to its finding that the Applicant does not have a well-founded fear of persecution, the Tribunal finds that if he were nonetheless apprehensive, he could reasonably relocate elsewhere in India.  The Applicant's age, his language skills (Bengali, with reasonable knowledge of English, and his evident ability to make himself understood in Mumbai, Malaysia and Japan), travel experience within India and overseas, and access to family financial resources make it reasonable for him to avail himself of national protection elsewhere in India should the need arise.

12. I accept the Minister's submission that these alternative findings independently and completely support the RRT decision, notwithstanding the adverse finding involving the breach of s.424A. It follows that consistently with the principle accepted by the Full Federal Court in SZEEU at [232]-[233], relief should be refused.

13. I will order that the application be dismissed.

14. In consequence of the dismissal of the judicial review application the Minister seeks an order for costs.  I am told that the Minister's actual costs are in the order of $8,000.  The Minister seeks an order on a party and party basis fixed in the sum of $5,000.  The applicant did not wish to be heard on costs.  Ordinarily, in these circumstances costs should follow the event.  The event is the dismissal of the application.  Although I have found a jurisdictional error, relief has been refused.  The consequence is, on reflection, that the applicant should bear the Minister's costs reasonably assessed on a party and party basis.  I will order that the applicant bear the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

15. I will also order that the Refugee Review Tribunal be joined as the second respondent to the application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 May 2006