SZDCF v Minister for Immigration

[2006] FMCA 244

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 244

MIGRATION – Review of decision by Refugee Review Tribunal – applicant claims persecution because of Sikh religion and political affiliation

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91S, 425, 474, 483

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZDCF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG840 of 2004

Judgment of: Emmett FM

Hearing date: 9 February 2006

Date of Last Submission: 9 February 2006

Delivered at: Sydney

Delivered on: 22 February 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Ms N. Johnson, Sparke Helmore

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. That the application before this Court is dismissed.

4. That the Applicant pay the First Respondent’s costs in an amount of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 840 of 2004

SZDCF

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 the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the 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 41 year old man who claims to be a citizen of India and of Sikh ethnicity and Sikh faith.

3. The Applicant claims that, prior to arriving in Australia, he worked as a driver.

4. The Applicant has a wife and three sons born 1996, 1998 and 2001 who were residing in India when the Applicant left India.

5. On 17 September 2003, the Applicant arrived in Australia, having legally departed from Mumbai on a sub class 456 exit permit and Indian passport.

6. On 17 October 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.

7. The Applicant claimed that he feared persecution by security officials in India because of his Sikh religion and political affiliation.

8. On 14 November 2003, the Delegate refused the Applicant’s applications 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.

9. On 26 November 2003, the Applicant filed an application for review before the Tribunal.

10. On 12 February 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

11. On 22 March 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

12. Pursuant to orders made, by consent, on 4 May 2004, the Applicant filed an amended application on 7 June 2004 (“the Amended Application”) seeking review on 7 grounds.

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.

The Tribunal proceeding

1. The Applicant gave oral evidence to the Tribunal on 19 January 2004.

2. The Tribunal accepted that the Applicant is a citizen of India who arrived in Australia on 17 September 2003.

3. The Applicant claimed to fear persecution by reason of his ethnicity and political opinion in India. The Applicant claimed to be a Sikh and a supporter of the Akali Dal (AD) Party. The Applicant claimed to have been harassed by police in the Haryana province and called a terrorist.

4. The Applicant claimed that he was beaten by police in 1998 after being unable to pay a bribe and threatened with false charges of weapons smuggling in 2003.

5. The Tribunal found that the Applicant had not been assaulted in 1998 and rejected the Applicant’s claim of having been threatened with false charges in 2003.

6. The Tribunal noted that the Applicant claimed that he moved to New Delhi in 1995 to remove himself from harassment resulting from being branded a “terrorist”. However, the Tribunal found that the real reason for the Applicant’s move to Delhi was to start a new trucking business, rather than an attempt to escape persistent harassment.

7. The Tribunal accepted that the Applicant was an AD supporter and may have experienced some police harassment. However, the Tribunal rejected the Applicant’s claim that the police, in seeking bribes, were motivated by any Convention reason.

8. The Tribunal noted that the Applicant’s encounters with police arose in connection with his occupation as a truck driver and because he was a potential source of bribes. The Tribunal acknowledged that, because the Applicant was a Sikh, he may have been the object of racist language in these instances, but that his ethnicity was not the essential and significant reason for any police harassment. The Tribunal found that mere use of abusive language does not constitute serious harm for the purposes of s.91R of the Act.

9. The Tribunal noted that it had regard to independent country information that confirmed that corruption is widespread amongst officials, but that Sikhs do not claim to be subject to official harassment in the states relevant to the Applicant’s case.

10. Although expressing scepticism, the Tribunal accepted that the Applicant was detained for a brief period in September 1998 by the Haryana police. However, it was not satisfied that the detention led to the serious harm claimed because there was no record of the Applicant’s visit to a solicitor, or other “tangible or documentary evidence”, produced to indicate rehabilitation or current or past references to the existence of a steel rod in his leg. In the circumstances, the Tribunal was not satisfied that the Applicant suffered harm for the essential and significant reason of his Sikh identity. Nor was the Tribunal satisfied that the detention of the Applicant in 1998 resulted in the serious harm claimed.

11. Further, the Tribunal did not accept that the Applicant fled from India because police contacted him in June 2003, threatening to lay charges of weapons smuggling against him. In rejecting that claim, the Tribunal noted that the alleged incident was said to occur five years after the 1998 incident, during which period the Applicant was able to establish and successfully run a new business and continue living in the same neighbourhood. The Tribunal noted that it seemed curious that the police would wish to lay charges against the Applicant, thereby exhausting “what appeared to be a modest ongoing source of bribes.”

12. The Tribunal concluded that it was not satisfied that any adverse treatment suffered by the Applicant at the hands of the police is for the essential and significant reason of his Sikh identity and associated imputed political opinion.

13. The Tribunal considered whether it was reasonable for the Applicant to return to New Delhi, Haryana or another Indian state where he could live freely as a Sikh and support the AD party. The Tribunal found that the Applicant has the language skills, business acumen and personal attributes to re-establish himself in India, including in another location. The Tribunal concluded that it was reasonable in the circumstances and that, if indeed the Applicant was asked for bribes from the police in the future, it would not be for a Convention reason.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of an interpreter.

2. Before this Court, the Applicant stated that the Tribunal should have investigated his claims and made enquiries in India.

3. The Applicant stated that the Tribunal listened to him, closed the file and made its decision and that to do so was illegal. The Applicant said that he wanted the Tribunal to consider the facts of his case carefully and give a decision because he will die if he goes back to India.

4. Whilst the Applicant did not seek an adjournment in terms, to the extent that such an application was implicit, it was refused for the following reasons. The Applicant said that he had documents in support of his claims. However, he was unable to identify the nature and content of any particular document, nor its location, nor did he proffer any evidence as to when such documents may be available.

5. The Applicant relied on the Amended Application, set out as follows:

   “…The grounds in this amended application are that:

   1. The Tribunal erred in law amounting to jurisdictional error determining its decision not taking any steps to investigate the matters I have claimed in favour of my protection visa application. The Tribunal did not give to the documents I have submitted as proof of my persecution any weight. The Tribunal has made the decision on the general information of DFAT cable and US Bureau of democracy and Human Rights and Labor report on India. The decision would be different if the Tribunal would investigate the genuineness of my claim and take into consideration of the supporting documents before the decision is made.

   2. The Tribunal erred in law amounting to jurisdictional error in finding that the Tribunal can not be satisfied that I do not have a real chance of persecution for a convention reason in India for my membership with Akali Dal and is therefore not satisfied that my fear of persecution for a Convention reasons is well founded. The Tribunal has failed to consider the persecution the applicant (me) will experience on my return back to India.

   3. The Tribunal failed to make due enquiry into:

   a) the obligation to act according to substantial justice;

   b) My persecution for my religious belief though I provided specific details and substantiated with adequate documents.

   4. The Tribunal failed to accord procedural fairness in that:

   
   

   The Tribunal did not give me any opportunity to respond to any adverse material that it possess.

   5. The Tribunal’s erred to find that the Tribunal is not satisfied that there is a real chance of the applicant (me) being selected or targeted for persecution for any convention reason and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary opinion does not exist;

   6. The Tribunal constructively failed to exercise its jurisdiction in arriving at its decision.

   7. The Tribunal exceeded its jurisdiction by:

   ● not permitting me to give evidence in accordance with s425 of the Act;

   ● failing to take into consideration the threat of my life and/or liberty and the significant discrimination that I would face if I have to return to India;

   ● The Tribunal has not also considered the well founded fear of persecution I shall experience on my return back for my religious belief;

   ● The Tribunal has failed to consider the amount of persecution other peer members of Sikh religion have been experiencing prior to my arrival in Australia and the same persecution that put my life in jeopardy.

   Under the above circumstances the Tribunal made errors of jurisdiction as I was not accorded procedural fairness. The decision has failed to achieve natural justice.

   a) The RRT was set up as an independent body for review and the hearing of an application for review to be conducted in a non adversary manner i.e. the Respondent, Minister for Immigration and Multicultural and Indigenous Affairs or his representative is not permitted to be present or argue against the applicant’s claims.

   b) The tribunal had taken isolated incidents and facts out of context which were misleading and failed to take into account of the cumulative effect of my experience.

   c) The RRT Member failed to make proper attempts with an open mind to clarify the alleged inconsistencies and to resolve any contradiction in a further hearing or granting an opportunity to me to give the explanation. The Tribunal failed to take into consideration of the threat to my life and/or liberty and the significant discrimination that I will face on my return back to India.

   The Tribunal failed to discharge the imperative duties or to observe inviolable limitations or restraints hence the said decision dated 12 February 2004 and is not a “decision made under the Migration Act within the meaning o(sic) s.474(2)” and thus is not a “private clause decision” as described in s474(2) and (3) of the said Act. The Tribunal did not permit me to give evidence in accordance with Section 425 of the Migration Act of 1958.

   The Tribunal erred in affirming the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs was not a bona fide attempt to act in the course of the Tribunal’s authority. Therefore, the “Privative Clause” in the Migration Act does not validate the said decision of the Tribunal Member.”

6. The Amended Application does not, on the face of it, appear to be directed to the particular circumstances of the Applicant. For example, in Ground 1, it is stated that the Tribunal did not give weight to documents submitted by the Applicant. However, no documents were submitted by the Applicant. Further, Ground 1 states that the Tribunal made its decision on the general information of “DFAT cable and US Bureau of Democracy and, Human Rights and Labour report on India.” However, the decision makes no mention of these documents.

7. Grounds 1 and 3 related to complaints by the Applicant that the Tribunal failed to “make due enquiry” into his claims. However, it is not for the Tribunal to conduct an investigation of the Applicant’s claims in order to make those claims out. (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).

8. Accordingly, those Grounds are rejected.

9. Ground 4 claims that the Tribunal did not give the Applicant procedural fairness in that they did not give him an opportunity to respond to any adverse material that it possesses. However the Tribunal decision did not turn on “adverse material”. Rather, the Tribunal expressed scepticism about the specific nature of the Applicant’s claims as not Convention related. There was no material about the Applicant in the possession of the Tribunal that was the reason or part of the reason for affirming the decision under review and which would have required compliance with s.424A.

10. In relation to independent country information that is a matter for the Tribunal. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]). The Tribunal put to the Applicant that the independent country information did not support the Applicant’s claims and noted his responses.

11. Accordingly, this ground is rejected.

12. Grounds 2, 5, 6, 7b and 7c relate to complaints by the Applicant about findings of fact by the Tribunal. These grounds essentially seek merits review and cavil with the findings of fact made by the Tribunal. Those findings of fact were open to the Tribunal on the material and evidence before it. This Court has no jurisdiction to interfere with those findings. This Court cannot review the merits of the Tribunal decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

13. There is a further claim, following the particulars of Ground 7 in the Amended Application, that the Tribunal exceeded its jurisdiction by not permitting the Applicant to give evidence in accordance with s.425 of the Act. This ground is misconceived in that the Applicant was invited to attend a hearing at the Tribunal, which he did and at which he gave oral evidence.

14. Accordingly, those grounds are rejected.

15. Ground 7a discloses no reviewable error.

Conclusion

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

2. The application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  22 February 2006