SZCZZ v Minister for Immigration
[2007] FMCA 389
•26 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 389 |
| MIGRATION – Application for order to show cause – alleged failure to take into account relevant information – alleged over-stringent approach to credibility – finding of credibility is a finding of fact only to be set aside if shown that the Tribunal misused its advantage or acted as evidence inconsistent with facts incontrovertibly established by evidence – weight given to material not open to review unless decision manifestly unreasonable – application does not raise an arguable case – application dismissed. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001, r.44.12 |
| W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ACR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223 |
| Applicant: | SZCZZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3355 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 26 February 2007 |
| Date of last submission: | 26 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2007 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Mr Ben Cramer of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The name of the first respondent is amended to the Minister for Immigration & Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3355 of 2006
| SZCZZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an order to show cause filed on 15 November 2006 seeking an order that the respondents show cause why a remedy should not be granted in respect of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 September 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 25 January 1967 and claims to be from Tamil Nadu, India and of Indian ethnicity and Hindu faith (“the Applicant”).
The applicant arrived in Australia on 17 July 2003 on a temporary business visa, which had been issued in New Delhi on 21 June 2003.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 20 August 2003. In this application he claimed persecution on the basis of his political opinion. The applicant claimed to have suffered persecution by members of the political party called the DMK.
This application was refused by a delegate of the first respondent on
21 October 2003.
On 17 November 2003 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on
27 January 2004, at which time he maintained the claims made in his original protection visa application.
On 24 February 2004 the Tribunal handed down its decision, dated
2 February 2004, affirming the decision of the Minister’s delegate not to grant the applicant a protection visa (CB 60).
The applicant then filed an application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
An order was issued by Federal Magistrate Driver on 21 April 2006 quashing the Tribunal decision of 2 February 2004, and requiring the Tribunal to redetermine the matter according to law (CB 74).
The matter was re-heard by the Tribunal on 21 September 2006. In a decision dated 25 September 2006, and handed down on 17 October 2006, the Tribunal made the following relevant findings (CB 110-2):
The Tribunal finds that the Applicant is a citizen of India, who arrived in Australia on 17 July 2003 and that he remains in Australia as a non-citizen.
The Applicant claims refugee status on the basis of his political opinion. The applicant claims that he and members of his family have experienced harm in the past at the hands of members of the DMK. The applicant claims that should he return to home he fears for his life and fears ongoing harassment at the hands of DMK particularly given that the DMK form the coalition government in Tamil Nadu state. The Tribunal finds as follows.
The Tribunal does not accept the applicant experienced harm in the past at the hands of the DMK or that he faces harm on his return to India by members of the DMK.
The Tribunal accepts that the applicant has been involved in confrontations and conflict which resulted in the applicant coming to the adverse attention of the local authorities. However the Tribunal does not accept that the these events were in any way related to the applicant’s (imputed) political opinion.
In respect to his claimed experiences of past harm when at the hearing the Tribunal sought detail from the applicant about the destruction of his farmhouse, the assault upon him and his subsequent arrest and detention the applicant recounted a series of events that centred around a dispute about his channelling of river water to his farm for irrigation purposes and the access of other persons to the water way. Despite further questions from the Tribunal, the applicant was unable to explain how this series of events related to the applicant’s political opinion or imputed political opinion.
When the Tribunal sought detail from the applicant as to why the DMK would have an (adverse) interest in the applicant the applicant was unable to provide any meaningful detail that would enable the Tribunal to be satisfied that the applicant did face harm from the DMK or that he will face harm from the DMK on his return to India.
The applicant asserted at the hearing that he did not know why the DMK were harassing him and he in fact had asked them why they were but that they did not answer him. However he also asserted at the hearing that he believed the DMK would wish to kill him and were subjecting him and his family to harassment because he refused to contribute financially to the DMK.
The Tribunal accepts that pressure may have been applied to the applicant to contribute financially to political parties but the Tribunal considers it to be implausible that members of the DMK would invest time and energy in ongoing harassment of the applicant and or attempts on his life simply on the basis that the applicant declined to make the requested financial contributions to them.
Accordingly, for all the reasons set out above the Tribunal does not accept that the applicant’s past experiences – that of the destruction of his farmhouse, involvement in physical confrontation, laying charges against him and consequent conviction and imprisonment relate in any way to the applicant’s (imputed) political opinion.
The Tribunal accepts that the applicant and his family may be aligned to ADMK but on the basis of the applicant’s oral evidence the Tribunal considers his allegiance to the party to be minimal. The applicant did not claim to be politically active over and above making financial contributions to political parties. As such the Tribunal does not accept that the applicant is of adverse interest to the DMK.
The Tribunal notes the country information set out above in respect to the political situation in the state of Tamil Nadu and that the DMK form a coalition government in Tamil Nadu following state elections in May of this year. The Tribunal notes and accepts that the two main political parties in Tamil Nadu the DMK and ADMK are at times involved in confrontation most particularly around election time.
However, the Tribunal does not accept that the fact that the DMK currently holds power in Tamil Nadu gives rise to more than a remote possibility that the applicant will face harm at the hands of members of the DMK in the reasonably foreseeable future on his return to India.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason upon return to India.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
The applicant then filed an application for an order to show cause in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application seeks an order for the respondents to show cause why a remedy should not be granted as sought in the application. By rule 44.12 if the applicant shows an arguable case, the Court may either adjourn the proceedings and order the respondents to show cause at a final hearing why an order for the relief claimed should not be made, or make final orders in relation to the claims for relief and grounds in the application without adjourning to a final hearing: rule 44(12)(1)(c).
If the Court is not satisfied that the applicant has raised an arguable case, the Court may dismiss the application pursuant to rule 44.12(1)(a).
The respondents ask that the application be dismissed.
The application
In his application, the applicant set out three grounds as follows:
1)The RRT made decision on 25 September 2006.
2)The RRT has not taken into account all the relevant information when makings its decision, and in doing, has erred in law.
3)The RRT affirmed the decision of the Department of Immigration, not grant protection visa.
The Tribunal’s decision is totally contradictory of Professor Hathaway’s quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details. James Hathaway 1991 “The law of refugee status” Butterworths Canada) contrary to it’s claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that.
The applicant fees that the Tribunal did not give weight to the statements made by him in particular harassment from the politicians. I made an application for 39B Judiciary.
In his affidavit filed on 15 November 2006, the applicant made the following complaint:
The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made he (sic) decision. I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence. I made an application for 39B Judiciary.
Having considered the material in the applicant’s application and affidavit, in the Green Book, in the first respondent’s outline of submissions, and having heard the submissions by the parties, the Court makes the following findings in relation to the grounds in the application.
First, the Court should note that the applicant had not before today received a copy of the Green Book in this matter, but the Court accepts the submission by counsel for the respondent that most of the material was included in the Green Book which was available for the first review of the matter, and that the applicant had a copy of the Tribunal’s decision at the time he filed his affidavit with the Court on
15 November 2006.
The applicant was given every opportunity to put any submissions he wished to put today to the Court and the Court does not find the applicant to have been disadvantaged by not having the Green Book prior to this hearing. The findings of the Court as to the grounds in the application are as follows:
Ground one does no more than state the date of the decision which is sought to be reviewed. That ground does not raise any ground for review and does not, of itself, demonstrate that the application made was an arguable case.
Ground two complains that the Tribunal failed to take into account all relevant information. The applicant stated to the Court today that the Tribunal ignored personal information provided by him to the Tribunal. The Court finds there is nothing to substantiate the ground that the Tribunal failed to take into account all relevant information.
Ground three complains that the Tribunal took an overly stringent approach to questions of credibility, and failed to give weight to the statements by him, in particular, of harassment from politicians. The Court refers to the decision in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ACR 703 at 716:
The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 ; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 ; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
As to the alleged failure to give weight to statements made by the applicant, the Court finds that the weight to be given to material before the Tribunal is a matter for the Tribunal, and is not open to review. The Court refers to the decision in Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at para [54]:
The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal's decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).
The fourth complaint which arises from the material in the affidavit of the applicant is that the Tribuanl erred in incorretly applying the law to the facts as found. Nothing was put to the Court to substantiate this claim.
The applicant alleged also in his affidavit that he was denied procedural fairness because the Tribunal did not believe his submissions and oral evidence. This, in effect, is a complaint about findings of fact as to credibility which are not open to review in these circumstances and is only open to review in the circumstances outlined in the decision quoted by the Court above.
The Court is not satisfied that the application has raised an arguable case and dismisses the application pursuant to rule 44.12(1)(a).
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 22 March 2007
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