SZCVT v Minister for Immigration

Case •

[2006] FMCA 837

•

15 June 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVT v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 837
MIGRATION – Review of decision by Refugee Review Tribunal – applicant alleges Tribunal failed to deal with claims.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2); 65(1); 91R; 91S; 474; 483
Applicant: SZCVT
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG553 of 2004
Judgment of: Emmett FM
Hearing date: 22 May 2006
Date of last submission: 22 May 2006
Delivered at: Sydney
Delivered on: 15 June 2006

REPRESENTATION

Applicant appearing on his own behalf
Counsel for the Respondent: Ms R. Pepper
Solicitors for the Respondent: Mr I. Muthalib, Blake Dawson Waldron

ORDERS

  1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

  2. That the Refugee Review Tribunal be joined as Second Respondent.

  3. The application before this Court is dismissed.

  4. That the applicant pay the First Respondent’s costs in an amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG553 of 2004

SZCVT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. 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 a decision of the Refugee Review Tribunal (“the Tribunal”). On 17 February 2004, the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicant.

  2. The applicant is a 40 year old male who claims to be a citizen of India and of Hindu ethnicity and Hindu faith (“the Applicant”).

  3. The Applicant arrived in Australia on 17 May 2003, having legally departed from CSI Airport Mumbai on a passport issued in his own name.

  4. On 3 June 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.

  5. The Applicant claimed that he feared persecution by the Shiv Sena political party and the local police because senior members of the party were jealous of his successful political career and  believed he ‘broke there [sic] political ideology’.

  6. On 17 June 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 (“the Convention”).

  7. On 14 July 2003, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 23 January 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

  8. On 3 March 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

  1. 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.

  2. 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.

  3. Australia owes protection obligations to a refugee on Australian territory.

  4. 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.”

  5. 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.

Tribunal proceeding

  1. The Applicant gave oral evidence at a Tribunal hearing on 9 December 2003.

  2. The Applicant told the Tribunal that he was disqualified from the Shiv Sena party because of his involvement with a Muslim girl, and that, despite having been disqualified, he continued to be harassed by party officials and party members.

  3. The Tribunal noted that it asked the applicant to describe the harassment, and that the applicant responded that they would call into the office and make him sit there for hours, and would slap him in the face.

  4. The Tribunal noted that it explored with the applicant how this would happen when in fact he was no longer a member of the party, and noted the applicant's response, that because of their jealousy of him, they wished to destroy him and make sure he never participated in the party. The Tribunal noted that the Applicant was most vague in his response and that, given he was no longer a member of the party, he would not need to report to the office and in fact would not be of interest to the party members.

  5. The Tribunal found the Applicant's account of his association with the Muslim girl “confused and unconvincing”, and that his claim of harassment from members of the Shiv Sena party “vague and highly generalised”. 

  6. The Tribunal noted that, when it put to the Applicant that why would the political opponents wish to kill him on his return to India given he was no longer active in the party and no longer in a relationship with a Muslim girl, the Applicant was unable to provide an explanation.

  7. The Tribunal concluded that the Applicant did not face harm from members of Shiv Sena amounting to persecution for a Convention reason.

The hearing before this court

  1. By consent, leave was granted to the Applicant to rely on a handwritten amended application filed on 8 May 2006 and served on the First Respondent at the hearing.

  2. The amended application is as follows:

    “1. BY THE REASON OF THE DECISION THE APPLICANT WILL NOT BE ABLE TO LAWFULLY REMAIN IN AUSTRALIA

    2. THE APPLICANT IS CITIZEN OF INDIA. AS A CONSEQUENCE OF NOT BEING ABLE TO LAWFULLY REMAIN IN AUSTRALIA, THE APPLICANT MUST RETURN TO INDIA WHERE HE FEAR PERSECUTION

    THE GROUNDS OF THE APPLICATION ARE

    3. THE PERSON WHO MADE THE DECISION IS A MEMBER OF THE RRT (“THE RRT MEMBER”)

    4. THE DECISION IS A JUDICIALLY REVIEWABLE DECISION WITHIN THE MEANING of SECTION 475 (1)(B) OF THE MIGRATION ACT 1958 (“THE ACT”)

    5. The RRT Member did not have the Jurisdiction to make the decision within the meaning of Section 476 (1)(b) of the Act.

    PARTICULARS

    In reaching its decision, the RRT identified a wrong issue and/or asked itself the wrong question and/or ignored relevant material in a way that affected the exercise of the POWER in that the RRT:

    (i) Failed to consider the applicants case that he feared persecution by the Police, as a result of applicants challenge to and rejection of he(sic) demands and requirements made upon the applicant by the police

    (ii) Failed to consider the connection between the opposition political party Shivsa and the Police and the applicants case that he feared persecution by reason of the police and political party Shiv Sena withholding protection to the applicant from serious harm occasioned at the instance of Shiv Sena and

    (iii) Failed to determine whether by reason of the fears described in (i) and/or (ii) the first applicant had a well-founded fear of persecution by reason of an imputed political opinion and/or particular social group

    6. The decision was not authorised by the Act within the Meaning of Section 476 (1)(c) of the Act

    PARTICULARS

    The applicant refer to and repeat the Particulars set out in paragraph 5.

    7. The decision involved an error of law, being and error of law involving in incorrect interpretation of the applicable law, within the meaning of Section 476 (1)(e) of the Act

    The applicant refer to and repeat the particulars set out in paragraph 5.” (sic)

  3. The Applicant's amended application relies essentially on the particulars to paragraph 5 in support of grounds that allege jurisdictional error. I have considered below each of the 3 particulars as grounds with a view to discerning whether they are capable of supporting a claim of jurisdictional error.

Ground 1

  1. The first ground is a complaint that the Tribunal failed to consider or have regard to a fear of harm by the Applicant from the police, were he to return to India.

  2. The Applicant claimed in his Tribunal review application that he was arrested by police on 1 January 2003 and that, whilst no charges were laid against him, he was released when he paid a bribe. His claim was in the following terms:

    “Departing from India, as I was wanted to the police department, was not that easy.  But as I mention in the application, that I helped the Anti-Corruption department to make an arrest of a senior police officer, therefore I have some support from the police department also, and with help of money, I have made myself cleared from the Indian Immigration Department”.

  3. The Tribunal noted that the Applicant stated that he had to pay a bribe of something around $50,000, and that he reported the use of the bribe to the Anti-Corruption Bureau resulting in the arrest in January 2003 of the senior police officer responsible for the bribe. 

  4. The Tribunal rejected the Applicant’s claim that he faced harm from police because he reported an incident of bribery to the higher authorities. The Tribunal considered the claim lacked substance. The Tribunal relevantly stated the following:

    “The Tribunal does not accept that the Applicant faces harm from the police because he reported an incident of bribery to the higher authorities. The Tribunal considers that this claim lacks substance. In his protection visa application the Applicant claimed that he feared harm from the police because he had reported bribery. However in the hearing when the Applicant was asked what he feared on returning to India the Applicant made no mention on any fear of harm from the police.”

  5. In respect of the Applicant’s claim of a fear of harm from police, it is important to note that this fear was because of repercussions he may suffer because he reported the bribery issue to the Anti-Corruption Commission, if he were to return to India. That is not a claim that there is no state protection available. In fact, quite to the contrary. The Applicant himself stated that, having reported the bribe to the Anti-Corruption Commission, the police officer involved was arrested within days of the Applicant’s complaint.

  6. Ultimately, the Tribunal did not accept that the Applicant faced harm amounting to persecution on his return to India by members of the Indian police.  The Tribunal concluded that the Applicant was not credible in respects of key aspects of his claim. The Tribunal noted that it found the Applicant vague, unconvincing, and unable to elaborate upon his claims in a detailed and coherent manner.  

  7. In the circumstances, it is plain that the Tribunal considered the Applicant’s claim of a fear of harm from police and was not satisfied that such fear was well founded. That is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it provided reasons.

  8. Accordingly, this ground is not made out.

Ground 2

  1. The second ground is a complaint that the Tribunal failed to consider or have regard to harm feared by the Applicant from Shiv Sena.

  2. The Tribunal referred particularly to the Applicant's claims as set out in the application for review by the Tribunal, where relevantly the applicant stated:

    “As I mentioned in my application that Shiv Sena, the political party, has disqualified me from the party membership at that time.  Whatever membership identity provided had to be surrendered to the party office.  Therefore, I could not be able to provide you documentary evidence before you”.

  3. It is for the Applicant to satisfy the Tribunal that the elements required by the Migration Act as found in s 36 and s 65, being the prescribed criteria, are met by the Applicant.

  4. In relation to the Applicant’s  claim of a fear of persecution by the Shiv Sena party, the Tribunal noted the following:

    “The Tribunal has come to the conclusion that the Applicant is not credible in respect of key aspects of his claims for protection. At the hearing the Applicant was vague, unconvincing and unable to elaborate on his claims in a detailed and coherent manner. Not being satisfied in respect of these aspects of his claim, which are discussed below, leads the Tribunal to conclude that the Applicant was not in genuine fear of persecution nor is there a real chance of persecution on his return to India.”

  5. The Tribunal plainly considered the Applicant's claim of a fear of harm from the Shiv Sena, but ultimately was not satisfied that the prescribed criteria for refugee status had been met by the Applicant. The Tribunal was not satisfied that the Applicant has a well founded fear of persecution from members of the the Shiv Sena party and therefore is not a person to whom Australia owed protection obligations under the Convention. That is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it provided reasons.

  6. For those reasons the Applicant's claim that the Tribunal failed to consider, or have regard to his claim of harm feared by the Applicant from members of the Shiv Sena party is not made out. 

Ground 3

  1. The third ground is a complaint that the Tribunal failed to consider whether the Applicant was a member of a particular social group, namely, persons who opposed Shiv Sena.

  2. Plainly the Tribunal considered the Applicant’s claim of fear of persecution from the Shiv Sena party in his own right. The First Respondent submits that there was no evidence before the Tribunal that the Applicant was ever an opponent of the Shiv Sena party. In those circumstances, it is not possible for the Applicant to claim that he was a member of a particular social group made up of opponents of the Shiv Sena party. I agree with that submission.

  3. Accordingly, this ground of review is not made out.

Other grounds

  1. The First Respondent submits that no other reviewable ground is apparent from the Applicant’s handwritten documents and there is no jurisdictional error apparent on the face of the Tribunal’s decision. I agree.

Conclusion

  1. There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

  2. Accordingly, the application before this Court is dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S.Kwong

Date:  15 June 2006

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