SZDIZ v Minister for Immigration
[2007] FMCA 954
•22 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDIZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 954 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal made its decision with apprehended bias – whether the Refugee Review Tribunal accorded procedural fairness – whether the Refugee Review Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was obliged to consider state protection. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422A(3); 422B; 424A; 424A(1); 424A(3)(a); 474; pt.7 div.4; pt.8 div.2 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 v Minister for Immigration 214 ALR 264 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZDIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2649 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 June 2007 |
| Date of last submission: | 6 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms F. Minzlaff, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2649 of 2006
| SZDIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 11 August 2006 and handed down on 29 August 2006 (“the Tribunal”).
The Applicant was born on 22 October 1960 and claims to be from India and of Hindu faith (“the Applicant”).
On 3 December 2002, the Applicant arrived in Australia, having legally departed from Chhatrapati Shivaji International Airport on a passport issued in his own name and a visa issued on 8 November 2002.
On 14 January 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by members of the Indian Congress Party and Muslims due to his involvement in the Bharatiya Janata Party (“the BJP”) and Shiv Sena and his Hindu faith.
On 31 January 2003, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 28 February 2003, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal in which the Applicant expanded on the claims made in his protection visa.
On 1 March 2004, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought relief from that decision in this Court and on 5 April 2006 Federal Magistrate Scarlett remitted the matter, by consent, to the Refugee Review Tribunal for determining according to law.
On 29 August 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 19 September 2006 the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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.
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.
Australia has protection obligations to a refugee on Australian territory.
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.”
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
The Applicant appeared before the Tribunal on 8 August 2006 and gave oral evidence. The Tribunal noted that it had before it the Department’s file, the previous Tribunal file and the current Tribunal file.
The Tribunal identified the claims made by the Applicant in support of his protection visa application and the claims made at the earlier hearing before a differently constituted Refugee Review Tribunal. The Tribunal noted that no further written submissions were provided to the Tribunal for its consideration.
At the hearing the Applicant provided his passport to the Tribunal. The Applicant claimed that because he was a member of the BJP and the Shiv Sena he feared persecution were he to return to India from members of the Congress party whom he alleged had harassed him in the past. The Applicant also claimed to have a fear of persecution by reason of being a Hindu.
The Applicant claimed that in about October 2002 his shop was attacked as a result of which he closed the shop on 30 October 2002. The Applicant also claimed to be involved in making press releases on behalf of the BJP and that he was asked to “make arguments against the Congress party because they were making arguments against the BJP and his party.” The Applicant stated that he was “in the front line” however was not mentioned in press releases because he did not give his name.
The Tribunal noted the Applicant stated that since he had arrived in Australia he had not really followed political events in India and was not an active member with the BJP.
The Tribunal found that independent country information indicated that, prior to the December 2002 elections in India, there was violence associated with political events. The Tribunal was prepared to accept that the Applicant may have had his shop damaged in some way leading up to the elections. However, the Tribunal noted that the BJP had in fact won the election in December 2002.
The Tribunal noted its discussion with the Applicant about the corruption of police in India and noted the Applicant’s claim that he was locked up for a day after the attack on his shop by police but released the next day at the request of members of his party.
In relation to his claim of a fear of persecution by reason of being a Hindu, the Tribunal noted that the Applicant claimed they were Hindu/Muslim riots going on. The Tribunal noted that independent country information before it disclosed that the state of Gujarat had a population of 90 percent Hindus, although it accepted that there could be outbursts of religious violence. The Tribunal noted that it put to the Applicant that, given he lived in a state where the vast majority were Hindu, it did not seem to the Tribunal that there was a real chance that he would face harm by reason of his religion.
The Tribunal also noted that it put to the Applicant that the independent country information indicated that, as the BJP were in power in the Applicant’s state, the Tribunal had reservations that he would face harm on returning to India by reason of his political opinion or his religion. The Tribunal noted the Applicant’s response that once he had been involved in politics people would continue to harass him.
The Tribunal noted that, at the conclusion of the hearing, it asked the Applicant if there were any other matter he wished to raise and noted that the Applicant stated he had nothing further to say.
The Tribunal identified the country information with particularity to which it had regard.
The Tribunal accepted that the Applicant was associated with the BJP and Shiv Sena but found that he did not have more than a peripheral association with these organisations. In making that finding the Tribunal had regard to its finding that the Applicant had “provided scant detail of his political activities” and that when the Tribunal sought further detail the Applicant’s responses were “ambiguous and ambivalent.”
The Tribunal accepted that the Applicant may have been the subject of political violence in October 2002 prior to the elections and that indeed he may have been detained by police and released without charge following that incident. However, the Tribunal found that those experiences did not amount to serious harm for the purposes of s.91R of the Act.
Further the Tribunal found that neither the Applicant nor his family faced ongoing harassment of threats. The Tribunal also had regard to the vagueness of the Applicant’s responses to elaborate on unconvincing evidence.
The Tribunal found that the Applicant did not have a profile with or involvement in the BJP or Shiv Sena. For that reason, the Tribunal did not accept that the Applicant would be the subject of ongoing threats from members of the Congress party.
The Tribunal noted that the Applicant claimed to have gone to Punjab for a week or two and then to Delhi for a similar length of time prior to coming to Australia and was pursued by police in each of those locations. However, the Tribunal found the Applicant’s evidence in respect of that claim “evasive and noncommittal when the Tribunal sought further information”.
Having regard to the Applicant’s evidence that he had not followed political events in India since his arrival in Australia, the Tribunal did not accept that the Applicant would have more than a peripheral involvement in political activity in India were he to return to India.
The Tribunal concluded that “given the vagueness of the Applicant’s evidence of ongoing threats, the low level of his political activities and commitment and given the political circumstances in his home state the Tribunal does not accept that there exists a real chance that the Applicant will face harm by reason of his political opinion on his return to India.”
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied on an amended application filed on 18 January 2007. The Applicant was invited to say whatever he wished in support of his application, however, declined to say anything at all. The Applicant sought to read an affidavit filed by him on the 18 January 2007 which was accepted by the Court as submissions rather than as evidence of the truth of the facts asserted in that document.
The amended application filed by the Applicant is rambling and difficult to understand. Parts of the amended application are recitations of procedural events, parts are assertions of a general nature and parts include reference to and quotes from various authorities.
The First Respondent sought to distil the grounds of the amended application into 4 broad areas:
i)apprehended bias;
ii)procedural fairness;
iii)a failure to comply with s.424A; and
iv)a failure to deal with a particular claim namely the absence of state protection.
Ground 1 – Apprehended bias
Through his amended application and written submissions the Applicant appears to complain that the Tribunal demonstrated apprehended bias by having regard to material before the earlier constituted Refugee Review Tribunal. Such a complaint is misconceived in that the Tribunal, in concluding that the Applicant did not have a well-founded fear, based its decision on the Applicant’s evidence and made no reference to the reasons given in the decision of the earlier constituted Refugee Review Tribunal. In any event, s.422A(3) of the Act provides that when a Tribunal is reconstituted for the purpose of a review it is entitled to have regard to any record of the review made by the member who previously constituted the tribunal.
The Applicant also appears to complain that the Applicant formed an apprehension that the Tribunal was only conducting the hearing for the sake of conducting a hearing and that a fair minded lay observer may reasonably apprehend that the Tribunal might not have brought an impartial mind to its decision.
As stated by counsel for the First Respondent in his written submissions the only evidence of the manner in which the Tribunal conducted its hearing is the Tribunal’s decision record. The Applicant did not provide a copy of the transcript to this Court, despite following directions made by this Court on 9 November 2006:
“4. The applicant file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 18 January 2007.
5. The first respondent file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 1 February 2007.
6. Other than the Green Book, all evidence relied upon by the parties shall be presented by way of affidavit. Evidence of a Tribunal hearing shall be presented as a transcript verified by affidavit, and a tape recording shall not be received without the leave of the Court obtained prior to the hearing.”
The Tribunal identified with particularity the claims made by the Applicant before it both in writing and orally and the independent country information to which it had regard. Moreover, the Tribunal identified various exchanges that it had with the Applicant in the course of the hearing arising out of various concerns the Tribunal had with the Applicant’s evidence.
At the heart of the Tribunal’s adverse findings was the unsatisfactory nature of the Applicant’s evidence in supporting his claims about an involvement with the BJP and Shiv Sena. The Tribunal also had regard to independent country information disclosing that the BJP were now in power in India and the lack of interest by the Applicant in following political events in India since his arrival in Australia.
The Tribunal’s adverse credibility findings and its conclusion that the Applicant did not have a well-founded fear of persecution for a Convention related reasons were open to it on the evidence and material before it and for which it provided reasons. There is nothing on the face of the Tribunal’s decision to suggest that those findings and conclusions were reached other than with a mind open to persuasion. Indeed, the Tribunal’s decisions appear to have been based substantially, if not, solely, on the oral evidence provided by the Applicant at the hearing. It is also apparent from the decision that the Applicant was asked whether there were any further matters he wished to raise at the conclusion of the hearing.
A fair reading of the decision makes it clear that the Tribunal raised with the Applicant in an open ended manner the concerns it had about various aspects of his evidence and noted the Applicant’s responses.
An allegation is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
There is nothing on the face of the decision to suggest that the Tribunal conducted its review and the making of its decision other than with a mind open to persuasion (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 v Minister for Immigration 214 ALR 264 at [115]
Accordingly, ground 1 is rejected.
Ground 2 – Denial of natural justice
As referred to in consideration of ground 1 above in these Reasons, there is nothing before this Court to suggest that the Tribunal failed to give the Applicant every opportunity to make whatever claims he wished in support of his application or to present arguments in relation to issues arising under the review. The Tribunal told the Applicant of adverse evidence in relation to the Applicant’s claims and provided the Applicant an opportunity to respond to that information.
Section 422B of the Act was in force at the time of the Tribunal hearing and that section has the effect that natural justice is accorded to an applicant by compliance with pt.7 div.4 of the Act. The Tribunal complied with its obligations under this statutory regime in the making of its decision, including the conduct of its review.
Accordingly, ground 2 is rejected.
Ground 3 – s.424A of the Act
The Applicant alleges that the Tribunal failed to comply with its obligations pursuant to s.424A of the Act in that it failed to give to the Applicant independent country information to which it had regard in affirming the decision under review. However, the independent country information to which the Tribunal had regard was information about the general population about the state of Gujarat being 90 percent Hindus. That is information that is not specifically about the Applicant but is about a group of persons of which the Applicant claimed to be a member. In those circumstances, such information is excluded from the requirements of s.424A(1) by reason of s.424A(3)(a) of the Act.
There was no other information to which the Tribunal had regard in affirming the decision under review, other than the information of the Applicant provided to the Tribunal at the hearing.
Accordingly, ground 3 is not made out.
Ground 4 – Failure to deal with state protection
In circumstances where the Tribunal found that the Applicant would not face harm by reason of his association with the BJP or Shiv Sena or by reason of his Hindu religion, and its finding that the Applicant’s profile with the BJP was so low and of such little significance that he would not attract adverse attention were he to return to India. The Tribunal was not obliged to consider whether state protection would be available to the Applicant were he to return to India, nor to consider the Applicant’s willingness to avail himself of any such protection. Essentially, the Tribunal found that the Applicant would not need state protection and for that reason there was no need for the Tribunal to consider whether or not it was available nor consider the Applicant’s willingness to avail himself of any such protection.
Otherwise, the Applicant’s amended application seeks to cavil with various factual findings made by the Tribunal. It is not open to this Court to conduct a merits review of the Applicant’s claims (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Accordingly, ground 4 is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 19 September 2006, is dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 20 June 2007
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