SZCWE v Minister for Immigration - [2007] FMCA 2123

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2123

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZCWE”.

Migration Act 1958 (Cth), s.91X

Abebe v Commonwealth of Australia (1999) 197 ALR 510
Chand v Minister for Immigration & Ethnic Affairs [1997] FCA 1198
Craig v State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAYO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1161
Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration & Multicultural Affairs; Ex Parte Yusuf (2001) 206 CLR 323
SBMD v Minister for Immigration & Multicultural Affairs [2006] FCA 1344
SCAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 237
SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 361
SZWEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286

Applicant:

SZCWE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3385 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

10 August 2007

Delivered at:

Sydney

Delivered on:

21 December 2007

REPRESENTATION

Solicitors for the Applicant:

Mr A Silva of Silva Solicitors

Counsel for the Respondents:

Ms S A Sirtes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 17 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3385 of 2006

SZCWE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant is a Sikh man who claims that he was born in Delhi, India. He seeks protection in Australia as he claims his life would be in danger if he returned to India. The applicant claims India’s Hindu society and government will not allow him to live in peace. He claims that Sikhs have been tortured physically, psychologically and economically. He claims that militant Hindus suppress, harass and kill members of minority groups and that he supports an independent state for Sikhs.
The applicant arrived in Australia on 29 March 2003 and applied for a Protection (Class XA) visa on 24 April 2003. A delegate of the first respondent refused to grant the visa on 17 June 2003 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. On 5 May 2006, the Court ordered by consent that the Tribunal’s decision be quashed and the matter determined according to law. The matter was reheard by a second Tribunal which handed down its decision on 29 September 2006 affirming the delegate’s decision. The current application to this Court seeks review of the second Tribunal’s decision (Tribunal reference 060434465).
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. An affidavit of Sylvia Nicholas Silva, affirmed on 9 February 2007, contains a transcript of the Tribunal hearing of 14 July 2006. These two documents were read into evidence and are the only evidence before the Court.
Leave was granted for the applicant to file a further amended application at the commencement of the Court hearing. The further amended application contains one ground of review.

Consideration

Ground one:
The Tribunal made jurisdictional error since it:
(a) failed to take into account independent evidence which it was bound to take into account; and
(b) failed it its fact finding process by its “gross error, manifest illogicality and unreasoned perversity”
in the way it treated the corroborating evidence from the applicant’s former lawyer in India by giving no weight at all on the basis it was vague, which treatment of the evidence was part of the reason for the Tribunal reaching a lack of satisfaction that the applicant is not a refugee.
Particulars
About this issue, the Tribunal stated starting at page 18.9 (CB 139.9) that:
However, the Tribunal found Mr Lohara’s evidence about what sort of problems the applicant had experienced vague. Even when asked directly about the sorts of problems the applicant had experienced Mr Lohara did not elaborate. Mr Gill too said that the applicant had problems with the police because of Mr Pala and Mr Zaffarwal. However, for a lawyer who claims to have helped the applicant whenever he encountered these problems, the Tribunal also found his evidence about the applicant’s alleged problems with the police vague. Hence, the Tribunal has given no weight to their evidence about these matters (emphasis added).
The transcript shows starting at page 41.16 the discussion that took place between the Tribunal and Mr Gill, the applicant’s former lawyer in India. There was no basis at all for the finding that the evidence was vague. The Tribunal was provided information which the Tribunal simply did not pursue any further.
Mr Silva, for the applicant, submits in written submissions that the relevant discussion between the Tribunal and Mr Gill, the applicant’s former lawyer from India, appears in the transcript with the critical parts highlighted as follows:
Member: [SZCWE] is claiming to be a refugee, do you know anything about that?
The Interpreter: Yes, the local police used to harass him a lot when he was here so I think he should be granted protection in Australia.
Member: What first hand?
The Interpreter: Yes, a number of times he was tortured on hands of police, that is what he is saying. He was treated as a terrorist. Just telling him that you are typing it up.
Member: That’s all right.
The Interpreter: Okay. Pro Khalistan Movement, was a supporter of Pro Khalistan Movement.
Member: How do you know that these things happened?
The Interpreter: Because I had, being his advocate I had a client relationship to him, with him and I had been to police station with him.
Member: And over what period of time did these things occur?
The Interpreter: During the whole period of time when he stayed in India these things happened repeatedly again and again. First he was in Ludhiana then he went to Delhi and from Delhi he went to Australia.
Member: So how many times did you assist [SZCWE] as his advocate in problems with the police?
The Interpreter: Number of times according to my memory, number of times.
Member: And if you were living in Ludhiana, did you help him when he had problems in New Delhi?
The Interpreter: Yes, when he was in Ludhiana.
Member: So how do you know he had problems in New Delhi if you weren’t helping him there?
The Interpreter: He used to seek my advice, he used to pass on messages to me and let me know how he had been facing problems in Delhi.
Member: When you say that you helped him with these problems, what exactly did you do?
The Interpreter: You mean in Ludhiana or in Delhi?
Member: Did I say Delhi?
The Interpreter: No, you didn’t say anything, so I’m saying you might be confused because we were talking about Delhi and we are talking about Ludhiana, so.
Member: You say that you helped [SZCWE] with problems he had in Ludhiana with the police, how did you help him?
The Interpreter: I made actually several complaints to the human rights groups and then I had to contact the police station, you know, several times for him. Yes, correct.
Member: Is there any other evidence that you would like to give today, Mr Gill?
The Interpreter: What I would like to say is…
Member: Can you just tell him …
The Interpreter: He had problems because of his association with Mr Harpl Singh Pala who was actually killed in an encounter by the police and his life was actually been miserable in India. It had become very difficult for him to survive here at all. [SZCWE] was tagged by the police as an extremist.
Member: Why would he be seen as an extremist and a terrorist when he never engaged in any terrorist or violent conduct and why would the police have continued to harass him when Mr Pala was dead, after he was dead?
The Interpreter: Yes, it wouldn’t. The problem was you see because he was working in the transport industry and those terrorists, one of those terrorist leaders, he used to – Wassan Singh Zaffarwal, he used to travel in his bus so that’s why all this, which gave rise to all these problems and he used to carry ammunition and weapons also in [SZCWE’s] bus.
Member: How do you know that?
The Interpreter: What I’m saying is the police had a suspicion; this is what they thought about him.
Member: Yes, but I’m asking you how do you know that the police – how do you know that the leaders, that Zaffarwal was travelling on the bus carrying ammunitions?
The Interpreter: Yes, because I used to go to police station for him and police used to suspect [SZCWE], that he was doing work for Wassan Singh Zaffarwal. Wassan Singh, Wassan Singh Zaffarwal. Yes, he’s spelling the name.
Member: Yes, I know the name.
The Interpreter: It is somewhere written there. We have the name here.
Member: Anything else? Would you tell him to …
The Interpreter: He had been facing a lot of problems until 2002 when he was in India and if he comes back to India now his life will still be in danger. That’s all.
Member: Thank you very much. (Transcript, pp.41-43)
Mr Silva contends that it is apparent from the above extract that Mr Gill was not vague and that if the Tribunal required more details, it could have asked him.
With respect to ground 1(a), Mr Silva referred to SCAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 237 where corroborating evidence was given no weight and thus caused a jurisdictional error. Justice Finn stated in that case that it was obvious that the applicant’s credit was in issue and his failure to provide a convincing explanation for not referring to his claims during his arrival interview was critical. That applicant was found to be travelling on a genuine passport and, after considering country information, the Tribunal concluded that he was not of adverse interest to Iranian authorities. However, Mr Silva argues that the Tribunal decision in this matter can be distinguished from that in SCAF for the following reasons:
(i)The evidence of Mr Gill directly impacted virtually on all of the applicant’s claims.
(ii)Mr Gill stated that because of the Pala link the Applicant has been tagged as an extremist which evidence if accepted will support the applicant’s claim of continuing interest by the authorities.
Further, this is not a case where the Tribunal was of the view that the applicant’s credit was so damaged that the corroborating evidence could also be rejected.
Mr Silva submits that the failure by the Tribunal to give any weight to Mr Gill’s evidence may have had the effect that the corroborative material was not taken into account in the general assessment of the applicant’s credibility. Mr Silva contends that if the opinion that was formed was reached by not taking into account relevant considerations then it must be held that the opinion required has not been formed and the basis for the exercise of that power is absent. The absence of that exercise would be the same as a circumstance where the opinion made was arbitrary, capricious, irrational, or not bona fide.
Mr Silva referred to Craig v State of South Australia (1995) 184 CLR 163 at [179] per McHugh, Gummow and Hayne JJ; Re Minister for Immigration & Multicultural Affairs; Ex Parte Yusef (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ; Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389. Mr Silva submits that the authorities establish that an administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material, makes an erroneous finding or reaches a conclusion in a way which affects the exercise or purported exercise of its powers.
Mr Silva submits in respect of ground 1(b) that a high level of irrationality in an administrative decision might be sufficient to constitute a jurisdictional error: SZWEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14]-[17] per Tamberlin J; SBMD v Minister for Immigration & Multicultural Affairs [2006] FCA 1344 at [18] per Finn J; NAYO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1161 at [9] per Allsop J. Mr Silva argues that this matter is of the nature considered in the authorities above and that jurisdictional error has occurred.
Ms Sirtes, for the first respondent, submits in written submissions that the authorities on irrational or illogical decisions have not advanced the applicant’s proposition. Ms Sirtes contends that want of logic in the decision of a Tribunal is not a ground of review: VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18] per Kiefel, Marshall and Downes JJ. She submits that an application for judicial review must identify a particular principle or ground of review rather than allege or rely upon illogicality. The applicant has not done so: Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [5] and [9]; SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 361 at [17] per Barnes FM.
Ms Sirtes argues that the second problem with the applicant’s argument is that even if illogicality were an error in and of itself, the further amended application has not established what is said to constitute a “very high level of irrationality”. Nor has the further amended application identified those aspects of the Tribunal decision.
Ms Sirtes submits that the attribution of weight to evidence is within the Tribunal’s jurisdiction. A failure to accord weight to evidence is not a matter which gives rise to jurisdictional error: Abebe v Commonwealth (1999) 197 ALR 510 at [197] per Gummow and Hayne JJ. Justices von Doussa, Moore and Sackville cited in Chand v Minister for Immigration & Ethnic Affairs [1997] FCA 1198 a passage from Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282:
The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.
Ms Sirtes also directed the Court’s attention to SCAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 237 where the requirement to consider evidence was also addressed. She submits that jurisdictional error arises when evidence is not considered.
Ms Sirtes further submits that the applicant’s witnesses gave evidence at the hearing which the Tribunal considered vague. She submits it was not unreasonable for the Tribunal member to think so, especially as Mr Gill had been the applicant’s lawyer.

Conclusion

The Tribunal’s Findings and Reasons clearly state that it accepted some elements of the applicant’s claims, such as his identity and his association with Mr Pala, a Sikh militant. The Tribunal accepted evidence given by two witnesses at the second Tribunal hearing. It also accepted that he had been a bus driver in the Punjab and that members of the Khalistan Commando Force (KCF) had travelled on his bus while carrying ammunition and weapons. However, the Tribunal was not satisfied as to the applicant’s credit in respect of claims he made about events that allegedly occurred after his move to New Delhi. From independent evidence, the Tribunal believed that the violent acts committed by the militant Sikh separatist movement in the Punjab virtually ceased by the end of 1993. The Tribunal was particular focussed on events after 1993. The Tribunal stated that the evidence of Mr Lohara and Mr Gill were either vague or did not respond to questions about the direct impact on the applicant after 1994. The Tribunal also noted that the applicant placed particular emphasis on the death of Mr Pala in an attempt to draw a distinction on an aspect of that incident in support of his claim.
I believe that the argument being promoted by Mr Silva cannot be sustained as part of the evidence of both witnesses was accepted. However, the evidence about events after 1993 was vague or unresponsive. It was for this reason that the evidence was given no weight. I am satisfied that the Tribunal identified elements of the evidence given by the two witnesses and then clearly stated why it gave it no weight. The reasons do not appear in any way irrational. If there is an alternate argument in respect of irrationality, it has not been identified or particularised in the further amended application or the applicant’s submissions. In the circumstances, I am satisfied that this ground of review cannot be sustained and the application should be dismissed with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 21 December 2007