SZCZZ v Minister for Immigration
[2006] FMCA 486
•21 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 486 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – RRT decision based in part on inconsistencies between the applicant’s protection visa claims and what the applicant said at a hearing conducted by the RRT – admitted breach of s.424A of the Migration Act 1958 (Cth) – whether the RRT decision supported by an independent finding that the harm suffered by the applicant had no Convention nexus considered. |
| Migration Act 1958 (Cth), s.424A |
| SZBMI v Minister for Immigration [2005] FMCA 1005 SZEEU v Minister for Immigration [2006] FCAFC 2 VBAP of 2002 v Minister for Immigration [2005] FCA 965 |
| Applicant: | SZCZZ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG740 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 6 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms S Kaur-Bains |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal made on 2 February 2004 and handed down on 24 February 2004.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it, according to law.
There shall be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG740 of 2004
| SZCZZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 24 February 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and arrived from Australia on 17 July 2003. He applied for a protection visa on 26 August 2003 and on 21 October 2003 a delegate of the Minister refused that application. He applied to the RRT for review of that decision on 17 November 2003.
I adopt as additional background, with minor amendments, paragraphs 2 to 11 of the Minister’s submissions filed on 5 April 2006.
The applicant in his written statement accompanying the protection visa application claimed that:
a)he had been targeted and attacked on a number of occasions by the “rowdies” from the opposing Dravida Munnetra Kazhagam Party (“DMK”)[1];
b)he had been subjected to demands for money by the DMK. The applicant claimed that he became a ADMK party member “to save my skin” but he did not participate “much in political activities”[2];
c)his father was also attacked by DMK opponents[3];
d)his pregnant wife was kidnapped by the DMK and forced to terminate her pregnancy[4];
e)he had reported the attacks by the DMK to the police who failed to respond. He was tortured by the police, and falsely charged with trying to kill the local DMK candidate. He was convicted on a false charge and imprisoned for three months.[5]
[1] court book, page 64, 1st paragraph.
[2] court book, page 64, 1st paragraph.
[3]court book, page 64, 2nd paragraph
[4] court book, page 64, 2nd paragraph
[5] court book, page 65, 2nd paragraph
The applicant attended a hearing on 27 January 2004 and gave oral evidence regarding his claim.
At the hearing the RRT asked the applicant why he feared returning to India. The applicant replied that his life would be in danger because DMK politicians will harass him as they had done in the past. The applicant said that for safety and protection he had joined the ADMK party in March 2003. The applicant said that the harassment had begun in 1996. The applicant said that the DMK had gone from house to house asking for contributions and he had not been able to pay the amount they had asked for and so he was harassed. The DMK attacked the applicant. The applicant said that he had offered less but they kept harassing him at home and when he went out. The applicant said that they had refused the money he had offered them.[6]
[6] court book, page 65, last paragraph.
In response to the RRT’s enquiries, the applicant claimed that the DMK had tried to extort the sum of 1000 rupees (about AUS$30) from him, but that he was a poor farmer and so could not afford to pay. The RRT put to the applicant that it would have cost him significantly more to travel to Australia from India, than was being asked by the alleged perpetrators of the attack. The RRT also put to the applicant that there was a criminal motivation for any attacks, rather than persecution for Convention reasons. The applicant responded “it was political as they said they came from the DMK”.[7]
[7] court book, page 68, 1st full paragraph.
The RRT put to the applicant the inconsistencies between the applicant’s evidence at the hearing and his written claims in support of his protection visa application.[8]
[8] court book, page 67, 3rd paragraph.
RRT’s findings and reasons
The RRT disbelieved the applicant’s evidence on the basis that:
a)First, it found the applicant to be a most unsatisfactory witness in that his oral evidence differed in a very marked and significant way from his written claims; and
b)Secondly it found that his oral evidence itself was implausible and unconvincing.[9]
[9] court book, page 71, 1st full paragraph.
The RRT raised with the applicant the fact that there were disparities of several years (eg. 2000 as against 2002) with regard to the events he claimed he experienced, and that there were significant differences in the details of those events. In particular, the RRT raised with the applicant the differences in many years with regard to when events were said to have occurred. The RRT also raised with the applicant the fact that in his written statement, he claimed his wife was kidnapped and forcibly aborted, and this was significantly different to his oral evidence, where he stated she was “pushed in a scuffle and subsequently lost the baby because of this”.[10]
[10] Also see court book, page 66, 1st paragraph, where the applicant’s oral evidence is outlined.
Further, the RRT found as implausible and did not accept that those harassing him would do so for a sum of 1,000 rupees, which he claims he could not afford and that the applicant felt he had to travel to Australia to escape this harassment. The RRT noted that for all of these reasons, the RRT could not be satisfied that the events the applicant claims he had suffered actually occurred and the RRT could not be satisfied that any fears he might have with regard to India were well founded.[11]
[11] CB 71, 2nd full paragraph.
In the alternative, the RRT considered the matter on the basis that it accepted that the events claimed by the applicant occurred. The RRT found that on the basis of the applicant’s own evidence that the essential and significant motivation for the harm the applicant claimed he suffered was criminal extortion rather than any Convention reason and therefore the protection provisions of the Convention would not be engaged.[12]
[12] CB 71, last paragraph.
Further, and in the alternative, the RRT found that in any event, the applicant could relocate to some other part of Tamil Nadu state.[13]
[13] CB 72, 2nd paragraph.
The judicial review application
The applicant relies upon his amended judicial review application filed on 13 September 2004. That purports to set out eight grounds of review. They are in part unintelligible. The applicant was unable to shed any light on the meaning of what is in his application in the trial of this matter on 6 April 2006.
I put to the parties at the trial that no jurisdictional error in terms of the grounds advanced in the application was apparent but that an issue appeared to arise in relation to compliance with s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). Ms Kaur-Bains agreed and conceded that there was a breach of s.424A(1) on the basis of the following statement by the RRT:
The Tribunal found the applicant to be a most unsatisfactory witness in that his oral evidence differed in very marked and significant ways from his written claims and that his oral evidence itself was implausible and unconvincing. The Tribunal raised with the applicant the fact that there were disparities of several years (eg 2000 as against 2002) with regard to the events he claims he experienced, and that there were significant differences in the details of those events. In particular, the Tribunal raised with him the differences in many years with regard to when events were said to have occurred. The Tribunal also raised with him the fact that in his written statement he claims his wife was kidnapped and forcibly aborted, and that this is significantly different to his oral evidence, where he stated that she was “pushed” in a scuffle and subsequently lost the baby because of this. Further, the Tribunal finds as implausible, and does not accept, that those harassing him would do so for a sum of 1000 rupees (some $AUS 30), which he claims he could not afford, and that the applicant felt he had to travel to Australia to escape this harassment. The Tribunal raised with him the fact that the cost of his travel to Australia would be very many times greater than that the sum being demanded of him. In all these cases, the applicant could not provide a satisfactory reply to the Tribunal’s concerns. For all these reasons, the Tribunal cannot be satisfied that the events the applicant claims he has suffered actually occurred and the Tribunal cannot be satisfied that any fears he might have with regard to returning to India are well founded.
The Minister concedes that the information concerning the perceived inconsistency between what the applicant said in his protection visa claims (which were not adopted for the purposes of the review application) and what the applicant said at the hearing conducted by the RRT should have been disclosed, pursuant to s.424A(1). However, the Minister submits that there is an independent basis for the RRT decision as set out in the last paragraph on page 71 of the court book where the presiding member said:
However, even if the events he claims had occurred, the Tribunal finds on the basis of the applicant’s own evidence, that the essential and significant motivation for the harm he claims he had suffered was criminal extortion rather than any Convention reason and therefore the protection provisions of the Convention would not be engaged.
Reasoning
I agree with, and adopt with minor amendments for the purposes of this judgment, paragraphs 13 to 26 and 29 to 36 of the Minister’s written submissions concerning the grounds in the judicial review application.
Ground one
In paragraph 1 of the amended application, the applicant claims that the RRT identified the wrong issue when it stated “the Tribunal finds it implausible and does not accept that those harassing him would do so for a sum of RS1000”. The applicant further contends that the RRT did not take into consideration the fact that the applicant was a man of limited means and that fear of harassment cannot be equated with a monetary figure. It is alleged therefore that there was an insufficient appreciation of a subjective fear of persecution for Convention reasons.
The RRT’s finding on this issue is as follows:
Further, the Tribunal finds as implausible, and does not accept, that those harassing him would do so for a sum of 1000 rupees (some $AUS 30), which he claims he could not afford and that the applicant felt he had to travel to Australia to escape this harassment. The Tribunal raised with him the fact that the cost of his travel to Australia would be very many times greater that the sum being demanded of him. In all these cases, the applicant could not provide a satisfactory reply to the Tribunal’s concerns.[14]
[14] court book, page 71, 2nd full paragraph.
The RRT was clearly aware that the applicant was a man of limited means.[15]
[15] court book, page 66, last paragraph, 5th sentence.
The RRT found that it did not accept that the applicant was in fact harassed for 1,000 rupees. This finding was open to the RRT to make.
The RRT correctly outlined the law in relation to persecution[16] and applied it.
[16] court book, page 62, 3rd paragraph.
No error is disclosed in relation to this ground.
Ground two
At paragraph 2 of the applicant’s amended application, the applicant alleges that at the hearing he was denied the opportunity to explain why it was that the applicant believed that the harm that arose was due to his imputed political affiliation to the ADMK Party. This denial of opportunity was a failure to provide natural justice. The RRT only focussed on a Convention-based reason, which is an alien concept to the applicant.
There is no evidence that the applicant was denied the opportunity to explain why it was that he believed that the harm that arose was due to his imputed political affiliation to the ADMK Party.
The applicant gave oral evidence to the RRT. Further, as noted in the RRT’s reasons, the applicant was specifically asked at the hearing why he feared returning to India. The applicant replied that his life would be in danger because DMK politicians would harass him as they have done in the past. The applicant said that “for safety and protection” he had joined the ADMK Party in March 2003. The applicant said the harassment had begun in 1996.[17] Therefore, the applicant was clearly given the opportunity to explain why it was that the applicant believed that harm would befall him. There was no issue of imputed political affiliation to the ADMK Party as the applicant was alleging that he had joined the ADMK Party.
[17] court book, page 65, last paragraph.
No error is disclosed.
Ground three
At paragraph 3 of the amended application, the applicant also alleges that the RRT failed to give “sufficient importance to the internal flight principle but instead took into account irrelevant matters when making a decision on relocation”.
The RRT on an alternate basis found that the applicant could relocate to some other state of India.[18] It is accepted that the RRT has not considered the practical reality of relocation facing the applicant. Therefore, it has erred in its consideration of whether the applicant could relocate.[19] However, this error does not affect the decision if the RRT’s decision can be upheld upon the RRT’s alternative finding that even if it accepted the events claimed by the applicant had occurred, the RRT found on the basis of the applicant’s own evidence, that the essential and significant motivation for the harm he claims he had suffered was criminal extortion rather than any Convention reason.[20] Therefore, any error in relation to the decision as to relocation does not necessarily affect the ultimate decision of the RRT.
[18] court book, page 13, 2nd paragraph.
[19] The authorities are conveniently referred to in SYLB v. Minister for Immigration [2005] FCA 942 at 17-22.
[20] VBAP of 2002 v. Minister for Immigration [2005] FCA 965.
Ground four
At paragraph 4 of the amended application, the applicant also alleges “the RRT used critical adverse information obtained after the delegate’s decision, which was neither provided to the applicant before the hearing nor put to the applicant during the hearing - MUIN”.
The applicant has provided no particulars of this ground. In the absence of particulars and evidence it cannot succeed.
Ground five
At paragraph 5 of the amended application, the applicant also alleges that “the Tribunal misapplied the test or, alternatively, misinformed the applicant about the test”.
Again the applicant has provided no particulars of this ground. In the absence of particulars no error is disclosed.
Ground six
At paragraph 6 of the amended application, the applicant alleges that the RRT failed to perform the review application at all on the basis that the RRT’s reasons are irrational or illogical.
The decision and reasons of the RRT plainly provide a rational and logical foundation for the decision made. No error is disclosed.
Ground seven
At paragraph 7 of the amended application, the applicant alleges that the RRT member failed to give proper and adequate reasons that he was required by the Act to do and therefore the RRT failed to exercise its jurisdiction.
Again no particulars of this ground are provided and no jurisdictional error is disclosed.
Ground eight
The applicant lastly claimed that the RRT erred in failing to consider all claims and issues put forward by the applicant.
All the claims made by the applicant were considered by the RRT. No error is disclosed.
Despite no jurisdictional error having been disclosed on the basis of the grounds advanced in the amended application, a breach of s.424 having been conceded, relief in the form of constitutional writs should be granted unless the Minister’s submission that there exists an independent and unimpeached basis for the RRT decision is accepted. For the reasons which follow, I reject that submission.
I accept that where a tribunal decision can be wholly supported by a ground which is unimpeached by jurisdictional error, relief can, and should be, refused: VBAP of 2002 v Minister for Immigration [2005] FCA 965, especially at [33]. This was the approach I took in SZBMI v Minister for Immigration [2005] FMCA 1005. However, a majority of the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2, while accepting the principle, rejected its application by me in that case[21]. The reason of their Honours was that the adverse credibility findings made by the RRT in SZBMI pervaded the entire decision and the independent basis for the decision that I discerned was infected by them.
[21] per Weinberg J at [165] and Allsop J at [234]
Each case must be considered on its own facts. In my view, the finding relied upon by the Minister cannot be an independent and unimpeachable basis to support the RRT decision. At first reading, the presiding member’s statement appears to be an assertion that the applicant had conceded that the harm he had suffered was mere criminal extortion rather than harm suffered for any Convention reason. That cannot be correct. On page 68 of the court book the presiding member says:
The Tribunal indicated that what he was facing was criminal extortion rather than a Convention reason and that this would mean his application would not engage the Convention protection obligations. The applicant stated that it was political as they said they came from the DMK.
It follows that the proposition that there was no Convention basis for the harm suffered by the applicant came from the presiding member, not from the applicant’s evidence. Rather, the applicant asserted the reverse. Nevertheless, Ms Kaur-Bains submits that on a fair reading the presiding member’s statement can be interpreted as meaning that, on the basis of the applicant’s own evidence at the hearing, the proper conclusion to be drawn is that there was no Convention basis for the harm. The problem with that is that one is left to guess what that evidence was. If the relevant evidence was the impugned evidence concerning when relevant things happened and/or the impugned evidence that the applicant’s wife was pushed and subsequently lost a baby then the finding is clearly linked to the adverse credibility findings based upon information that should have been disclosed and was not. I do not know what the evidence was that led the presiding member to his conclusion. I do not even know whether it was the evidence the applicant gave at the hearing, or the information supporting his protection visa application.
Ms Kaur-Bains suggests that the finding might have been based upon the evidence at the hearing that the applicant was asked to pay 1,000 rupees. It is a mystery to me why the amount of the extortion attempt would remove the harm asserted from the purview of the Convention. Neither is it apparent why a demand for money would of itself point to an absence of a political motive. In the absence of any reasoning by the presiding member explaining what the evidence was that led him to the view that there was no Convention basis for the harm claimed I am unable to conclude that the finding was open to the RRT on the material before it, because I do not know what material supported the finding.
I find that the decision of the RRT is vitiated by jurisdictional error. I will grant relief in the form of the constitutional writs of mandamus and certiorari.
The applicant has not incurred any legal expenses. I will order that there be no order as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 April 2006
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