SZDEM v Minister for Immigration - [2006] FMCA 763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDEM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 763

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

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426, 483A

Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v SZGLB (2004) 207 ALR 12
NAAH v Minister for Immigration [2002] FCAFC 354
NARE v Minister for Immigration [2004] FCA 554
SAAP v Minister for Immigration [2005] HCA 24
SZDFO v Minister for Immigration [2004] FCA 1192
WAEE v Minister for Immigration [2003] FCAFC 184

First Applicant:

SZDEM

Second Applicant:

SZDEN

Third Applicant:

SZDEO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2403 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

12 April 2006

Delivered at:

Sydney

Delivered on:

2 June 2006

REPRESENTATION

Advocate for the Applicants:

The applicants appeared in person with the assistance of a Hindi interpreter

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2403 of 2005

SZDEM

First Applicant

SZDEN

Second Applicant

SZDEO

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court of Australia on 29 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 19 February 2004 and handed down on 11 March 2004, affirming a decision of the delegate of the first respondent made on 26 August 2003, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZDEM” (applicant husband), “SZDEN” (applicant wife) and “SZDEO” (applicant daughter).
The applicants have not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
The first respondent’s solicitors filed an affidavit of Laura Gazi, affirmed on 16 February 2006 (“affidavit of Ms Gazi”).

Background

The Tribunal decision of Margaret O’Brien, reference N03/47399 contains the following background information. The applicants are a married couple with a daughter. They claim to be citizens of India. They arrived in Australia on 14 July 2003. On 12 August 2003, they lodged an application under the Act with the Department of Immigration for a Protection (Class XA) visa. On 26 August 2003, a delegate of the Minister refused to grant the protection visa. On

22 September 2003, the applicants applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 115)
Only the applicant husband made specific claims under the Refugee Convention while his wife and daughter relied on their membership of his family. The applicant husband is a Hindu from the Jalandhar area of Punjab, India. He obtained a tertiary qualification in 1992 and worked as a pharmaceutical sales representative from 1984 to 1989. No further employment information was provided. He claims that prior to arriving in Australia, he remained a medical sales representative and was also in partnership in an audio cassette retail operation.
The applicant husband claims his grandfather was a Sikh living in a village known for terrorists near the border of Pakistan. His father, also a Hindu, moved to Amritsar just after the applicant husband’s birth, to avoid confrontation with the terrorists. However, they continued to be threatened. The family moved to Jalandhar in 1971. The applicant husband claims his father was threatened by Sikh organisations and attacked many times because of his Hindu religion. The applicant husband claims that when he grew up he received the same threats and although it was very difficult for him to survive, he graduated from a Hindu college in Jalandhar.(CB 117)
The applicant husband claims that his father had suffered harassment and survived an attempt on his life, all a result of being born Sikh but converting to Hinduism. The applicant husband’s main claim was that he and his family had been attacked by Sikh terrorists because he refused to use his audio cassette business to help disseminate the terrorists’ message.(CB 119) A car load of terrorists attacked his family and his two year old daughter had died later in hospital.(CB 117, 119) His father was later been kidnapped and he himself had been attacked and hospitalised in May 2003. The applicant also claimed that he had been targeted because he was a Hindu both while he was in Jammu and Kashmir on business, and in his home state by people who thought he ought to be a Sikh.(CB 120-121)

Tribunal’s findings and reasons

A convenient summary of the Tribunal’s findings and reasons are contained in the first respondent’s written submissions prepared by

Mr Kennett and I adopt paragraph 7 of those submissions:
(a)The Applicant’s main claims were not true. The Tribunal referred to various aspects of these claims which it found implausible.
(b)If the Applicant’s main claims were accepted, the reason he had suffered (and feared) harm was simply that he had refused to perform a service for the terrorists, which was not a Convention reason.
(c)Further, if the Applicant’s main claims were accepted, he would not be denied adequate State protection in the event of future attacks on him. This finding was made by reference to country information on the efforts of the Indian authorities to crack down on Sikh militancy.
(d)The Applicant had not been “targeted” because he was a Hindu and/or because his father was a Sikh. This finding was based on the Applicant’s own evidence and on country information showing that Hindus were the dominant religious group in India.
(e)The Applicant could avoid harm at the hands of the terrorists by relocating to a different part of India; and, given his education and experience, it was reasonable for him to do so.

Previous litigation history

The affidavit of Laura Gazi sets out the details of previous litigation history of the applicants:
2.On 2 April 2004, an application under s.483A of the Migration Act 1958 (Cth) was filed on behalf of the applicants in the Sydney Registry of the Federal Magistrates Court of Australia, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 April 2004.
3.On at directions hearing on 8 June 2004, orders were made requiring the applicants to file and serve an amended application setting out in full the grounds relied upon by 20 July 2004.
4.As the applicants had not filed an amended application by 20 July 2004, I caused the matter to be placed in a non-compliance list before the Federal Magistrate.
5.On the day of hearing of the non-compliance listing, the applicants handed up an amended application.
6.At the conclusion of the listing, Federal Magistrate Raphael made the following orders:-
(i) the applicants must file a further amended application by 19 November 2004 containing at least one asserted jurisdictional error and complete particulars of any jurisdictional error asserted.
(ii) if no further amended application is filed, the respondent may apply to chambers to have the matter dismissed without further reference to the applicants.
Federal Magistrate Raphael also made an order for costs in favour of the first respondent.
7.As no amended application had been filed by 19 November 2004, the first respondent sought an order in chambers on 1 December 2004 that the proceedings be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (“the Rules”), together with an order for costs.
8.On 13 December 2004, Federal Magistrate Raphael made orders dismissing the application pursuant to Rule 13.03(2)(b) of the Rules.
9.On 16 December 2004, I caused to be sent to the applicants a letter advising them of the orders made by Federal Magistrate Raphael.
10.On 10 January 2005, the applicants filed an application for leave to appeal from the decision of Federal Magistrate Raphael.
11.That application was dismissed with costs by Justice Stone on 3 March 2005.
12.On 29 March 2005, the applicants filed an application for special leave to appeal in the High Court of Australia.
13.The application for special leave to appeal was dismissed by Justices Gummow and Kirby on 1 August 2005.

Application for review of the tribunal’s decision

On 29 August 2005, the applicants filed an application for review under s.39B of the Judiciary Act. On 13 December 2005, the applicants filed an amended application which contains the following:
1.I am not satisfied with the decision of the RRT & herewith submitting following to support my judicial review of application.
2.That on page 12 of decision on the top line that militancy in Punjab effectively ended some years ago is not correct and Punjab is still declared a disturb state by the Government of India and still getting special assistance from Govt. of India like extra parliamentary forces as well as extra finances.
3.That in decision it is written “at the incident his daughter was killed sustained physical injuries yet his oral evidence was only that his father was hit”{ is a wrong because at the hearing I said that other sustained minor injuries my father has got major injury and my daughter was killed & I have no idea why the member have written in my oral evidence that the father was only hit.
4.That the tribunal accepts “the information provided in a anonymous letter supports the tribunal view of the applicants claims about his daughter death which has already been formed before the anonymous letter was received. It clearly shows that the decision made was preconceived & biased on the irrelevant facts taken in consideration which was against the justice of law.
5.That I never stated that chandni was my illegitimate child and I am surprised how the member has written in the decision “that the applicant father stated only the applicant illegitimate child died of a chest injury on 30^th December 2000”. IT clearly shows that the member of tribunal was biased and has not considered the facts carefully and decision made was preconceived and hurt my feelings by the word illegitimate. I strongly believe that the member has misunderstood the facts of my case and formed an opinion on the basis of illegitimate child and incorrectly assessed my review application.
6.That main reason for my not accepting the demand of Sikh and JKLF militants to record and distribute audio cassettes under my company name for their speeches and lectures was to diffuse their mission to work and fight Hindu against Hindus and above all it was anti Govt. material which was against law. The member of tribunal has considered one side of the statement which suits her and other part which was the main reason for my refusal because they wanted makes fights between Hindus.
7.That as I was born as a Sikh and converted to Hindu religion and I am the victim of systematic torture.
8.The tribunal member has incorrectly interpreted the term refugee as defined under the UN convention and failed to find my claims fallen under one of the criterion and wrongly decided that I am not a person to whom protection visa shall be granted on convention reasons.
9.That the member of tribunal at one stage has given a possible consideration to my claim about my being targeted by terrorist is true. On the other hand the member of tribunal is refusing to accept by stating that adequate state protection is available which is not true. There is no protection for those persons who are on the hit list of the militants and still getting killed and tortured by the members of militant organization.
10.The tribunal did not use the country information as specific however the general information gathered by the tribunal considered to weigh against my case in the final outcome. The tribunal used all the information for the matter of reasoning and evaluation of my case for the protection visa. The tribunal did not consider the independent country information like AMNESTY International report. Moreover tribunal country information was absolutely incorrect which changes time by time.
11.That the tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong questions regarding my persecution and didn’t take into consideration of oral evidences that was given on RRT hearing.
12.That the tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied the applicants procedural fairness that the tribunal failed to ask relevant questions and investigate my evidences. I have requested the tribunal to produce some oral witnesses in person but I was not allowed to do so.
13.That the member of tribunal misunderstood in interpreting my claims and incorrectly separated the crucial issue of my belonging to Hindu religion and my grandfather Sikh background from my audio cassette recording distribution business. The truth was that the purpose of Sikh militants to force me doing cassette work was a part of their mission to harass me, terrorise and upon refusal to execute me. But in reality my Sikh back ground and then Hindu was the main reason for their demand. Hence my race and religion which are satisfying one of criterion of term refugee should have been considered and deciding my review application which was the grass root of the problem.
14.That the terrorist are everywhere and determined to accomplish their mission to execute me and my family anywhere in India upon my return to India. They have already executed top persons like Mrs. Indra Gandhi and General Vaidya the chief of army staff which was on their hit list and there is no chance to escape. (copied without alteration or correction)

Reasons

The applicant husband in these proceedings is a self-represented litigant and appeared with the assistance of a Hindi interpreter. The applicant husband is trilingual and competent in English. He was able to address the Court and only required limited assistance from the interpreter. The applicant husband confirmed that he had filed an amended application, but no written submissions. In effect, the amended application are written submissions which do not formally identify grounds of review but address where the applicant husband believes that the Tribunal did not meet its obligations or made errors in its review. The applicant husband indicated to the Court that he wished to make oral submissions in support of his application. He then took the Court to various passages within the Tribunal decision, identifying what he believed were errors made by the Tribunal member in considering his case.
To a substantial degree, the argument that the applicant husband relied upon was that the Tribunal had made factual mistakes. The first issue the applicant husband raised was the continuing presence of militants in the Punjab and other areas of India, which in some cases were far from Punjab. Mr Kennett submits that factual mistakes in themselves do not amount to a failure by the Tribunal to perform its statutory duty. Mr Kennett further submits that the misunderstandings which were alleged at paragraphs 3 and 5 of the amended application are not misunderstandings of a case argued, but rather misunderstandings of the supporting evidence. The applicant husband disagreed with the Tribunal about what he did and did not say at the hearing. The only evidence before this Court is what appears in the Tribunal’s reasons. There is no evidence in the form of an affidavit or transcript of the Tribunal hearing which indicates that what is recorded in the decision is substantially different from what was said during the actual hearing. In the absence of such evidence, it is not possible to find that the Tribunal misconstrued or wrongly stated the evidence given by the applicant husband and, in particular, the incident of his younger daughter’s death.
The Tribunal does seem to have misunderstood a piece of evidence by understanding that the child that had been killed was born out of wedlock. The applicant identified that statement as being clearly wrong. Mr Kennett submits that the Tribunal may well have misconstrued the evidence from the applicant husband when it understood him to say that his daughter that had died in 2000 was illegitimate. That misunderstanding may have added somewhat to the impression of inconsistency regarding the applicants’ claims. Mr Kennett submits, however, that at most this was an error of fact and did not go to jurisdiction. The Tribunal’s finding that the applicant husband had an illegitimate child was not held against him. It can be accepted that the Tribunal had read the applicant husband’s affidavit and made a mistake about a particular aspect of the evidence. However, there is an important distinction to be made between failing to deal with evidence as opposed to failing to deal with a claim. The fundamental distinction is made in WAEE v Minister for Immigration [2003] FCAFC 184 at [41] to [47] per French, Sackville and Hely JJ.
Mr Kennett submits that if the Tribunal misunderstands the basis upon which somebody claims to be a refugee, for example, the particular social group to which he or she claims to belong, or the source of motivation for the harm he or she claims to fear, then it can be accepted that the Tribunal has failed to deal with the claim and failed to conduct a review as the statute requires it to. That error is quite different from when the Tribunal understands correctly the basis of a claim, but fails to deal with it or misunderstands a particular piece of supporting evidence. That would, at most, result in a factual error. The Tribunal was performing its statutory task and any such complaint is a complaint about the merits of the decision.
Another ground of complaint contained in the applicants’ amended application is the Tribunal’s failure to make enquiries and call witnesses. The applicant husband drew the Court’s attention to the relevant letters contained in the Court Book which made reference to the production of witnesses. The applicant husband referred the Court to the Tribunal letter dated 21 October 2003, which was an invitation to the Tribunal hearing, and which contains the following statement:
You can also ask the Tribunal to obtain oral evidence from another person or persons.
Further on in the letter reads:
Please…complete the “Witnesses” part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name…

In response, when asked: “Do you want the Tribunal to take oral evidence from any witnesses?” the applicants ticked against the answer “No”. When the Tribunal received an anonymous letter making certain allegations about the death of the couple’s child, the applicant husband forwarded a letter to the Tribunal together with a statutory declaration. These stated that he could produce witnesses who would verify that his daughter was killed by terrorists and that he wished to have those witnesses give evidence under oath to the Tribunal.
Mr Kennett submits that it is well-settled law that the Tribunal is under no duty to institute its own enquiries: Minister for Immigration v SZGLB (2004) 207 ALR 12 at [21]–[22] and [43]. Mr Kennett also submits that as to the calling of witnesses, the applicant husband informed the Tribunal in writing that he did not wish to take oral evidence from any witness. If at that stage he had asked the Tribunal to obtain oral evidence from an identified person or persons, the Tribunal would be obligated to have regard to his wishes, but would not have been obliged to hear from the person he nominated: s.426(2) of the Act.
The material before the Court does not indicate that any person whom the applicant husband sought to call as a witness was present at the Tribunal hearing. It does appear that the applicant husband did tell the Tribunal that he could find witnesses to give evidence about his daughter’s death. If that was a request for the Tribunal to adjourn its hearing so that a witness could be heard, the Tribunal was obliged, at most, to give consideration to that request. It was not obliged to accede to it. It is evident that the Tribunal did consider that the calling of the witnesses proposed by the applicant husband would assist his claim. The Act makes limited provisions for the calling of witnesses. The Tribunal is certainly empowered to summon people and take oral evidence of witnesses, however the only provision for the summons of witnesses at the instigation of an applicant is s.426 of the Act. Section 426(2) gives the applicant seven days after notification of the Tribunal hearing, to write to the Tribunal about the calling of witnesses. Section 426(3) says that if the applicant does so, the Tribunal may have regard to his/her wishes, but is not required to accede to them. The statutory opportunity provided by s.426 was extended by the letter of 21 October 2003 (CB 72) and declined by the applicant husband when he sent the response form found (CB 74). There is no provision equivalent to s.426 providing for an applicant to ask for a witness at later stages in the process. This suggests that if the applicant does at some later stage ask the Tribunal to summon or hear evidence from a witness, the Tribunal is not under any statutory duty to even consider that request. The Tribunal did give consideration to the applicant husband’s suggestion in his statutory declaration and that is recorded in its decision.(CB 125)
The Tribunal considered the applicant husband’s response that he had witnesses to provide the Tribunal with evidence concerning his daughter’s death. However, the Tribunal went on to indicate why it thought that those witnesses would not assist.(CB 125) The applicant husband might disagree with the analysis of the Tribunal. However, the Tribunal did give consideration to the applicant husband’s suggestion and consequently fulfilled its statutory obligation.
In paragraph 4 of the applicants’ amended application, they raise the issue of bias and the Tribunal’s handling of the anonymous letter regarding the death of the couple’s daughter. The applicant husband suggests that the Tribunal was influenced by the information contained in that letter. Also that the letter served as confirmation for the views that the Tribunal had formed. Therefore, the decision was preconceived and biased. Mr Kennett submits that the Tribunal’s observation that the anonymous letter supported a view which it had already formed about the applicant husband’s credibility, does not indicate any prejudgment of the matter. Further that it is apparent from where the letter is mentioned in the reasons, that the anonymous letter was received after the Tribunal hearing and therefore after the Tribunal had considered most of the material. Mr Kennett also submits that it is unlikely that the Tribunal would have developed a view about the applicant husband’s credibility before it had seen him at the hearing.
The Tribunal’s observations about the applicant husband are consistent over the course of its review. Even if the Tribunal had formed a relatively firm view at an early stage, it does not follow that it was biased in the relevant sense: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [71] per Gleeson CJ and Gummow J.
The amended application contends that the Tribunal failed to take into account the reason why the applicant husband refused to distribute audio cassettes to the terrorists through his company. The applicant husband did not raise this claim in his oral submissions. However in his amended application he states that the first reason he refused their demands was to defuse their mission: to cause Hindus to fight Hindus. Secondly, he refused because he was asked to distribute anti-government material. The applicant husband claims that the Tribunal member considered one side of the statement, which suited her, while ignoring the fact that the main reason for his refusal was that it encouraged fighting between Hindus.
Mr Kennett submits that in order for the Tribunal to accept the applicant husband’s claim, it would have to consider whether the harm inflicted upon him for refusing to co-operate with the terrorists, was harm inflicted for a Convention reason. The argument that the harm was inflicted by reason of his political opinion may have developed because what led the applicant husband to refuse the terrorists was his belief in an adherence to the law. Mr Kennett submits that the Tribunal did not accept the applicant husband’s claims about what had occurred. An assessment of whether his claims involved the infliction of harm for a Convention reason or not, was therefore unnecessary.
Mr Kennett submits there were two further reasons as to why it was unnecessary for the Tribunal to make that assessment. The Tribunal concluded that the applicant husband could obtain adequate State protection for future attacks against him by terrorists. The Tribunal also concluded that if the applicant husband faced harm in his home state, he could avoid that harm by relocating to a different part of India. Neither of these findings requires an assessment of the reasons why he might have suffered harm. Each was, in itself, sufficient to dispose of the matter before the Tribunal.
The remaining substantial claim from the applicant husband’s amended application was that the Tribunal misunderstood his claims. It did so by treating his claim of persecution because of his Hindu religion and Sikh background, as a separate issue from his refusal to distribute the terrorists’ cassettes through his company. Mr Kennett submits that applicants’ initial visa application did not attribute a reason for the attacks on the family. The only exception was a letter from the terrorists asserting that “he was not following our instructions.”(CB 2) That initial claim also asserts that he had been “targeted” as a Hindu while he had been staying in Jammu for business purposes.
At the Tribunal hearing, it appears that the applicant husband explained the attacks and threats against him by the terrorists as stemming from his avoidance and refusal to participate in the distribution of the terrorists’ cassettes. At that stage, there was no suggestion in any of the material filed with the Tribunal or in any of his oral submissions, that there was an underlying animosity arising because of his Sikh background, or his practice of the Hindu religion. It was not until the end of the hearing that the applicant husband made the general suggestion that he was targeted because he was a Hindu and his Grandfather had been a Sikh. Mr Kennett submits that the way in which the Tribunal analysed the claim was therefore completely consistent with the way in which the applicant husband had presented it.
The Tribunal found that the applicant husband was unlikely to suffer any persecution in India as a result of being a Hindu. This included persecution from the Sikh militants who he claimed to fear.

Mr Kennett submits that the Tribunal firmly rejected the claim that the applicant husband and his family had been attacked by terrorists. It therefore did not go into the reasons why such attacks might have occurred. The Tribunal also made the finding that the State provided adequate protection. However, in the circumstances where that protection fails, the applicants would be able to relocate to another part of India. The Tribunal found the applicant husband’s ability to relocate was enhanced by his being trilingual and tertiary educated, providing him with far greater mobility than the rest of the population.
Mr Kennett submits the issue of State protection and relocation in themselves would be sufficient for the Tribunal to find that the applicants were not owed protection by Australia for a Convention based reason because there was adequate protection provided in his country of origin. The applicants were in a position to avail themselves of that protection.

Conclusion

The applicants in these proceedings are self-represented litigants which places an obligation on the Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Counsel for the respondents assisted with written submissions, which were supplemented by comprehensive oral submissions in respect of the amended application filed by the applicants. The applicant husband made detailed oral submissions, taking the Court to the relevant evidence in the Court Book, which he relied. Unfortunately, all of the issues that the applicant husband identified in his oral submissions were inviting the Court to conduct a rehearing on the merits of the case. The Court cannot engage in a merits review and it is not part of its task to do so. This has been explained on numerous occasions, in particular by His Honour Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192; NARE v Minister for Immigration [2004] FCA 554 and by the Full Federal Court in NAAH v Minister for Immigration [2002] FCAFC 354.
I am satisfied that none of the grounds identified in the applicants’ amended application, or in the applicant husband’s oral submissions, can be sustained. Neither is it apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

As the third applicant is a child, I order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 1 June 2006