SZDNN v Minister for Immigration
[2005] FMCA 538
•23 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDNN v MINISTER FOR IMMIGRATION | [2005] FMCA 538 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – member of Communist Party – lived in United Arab Emirates – factual findings – merits review – lack of good faith – no error of law – application dismissed. Migration Act 1958 (Cth), ss.422B, 424A Attorney General (NSW) v Quin (1990) 93 ALR 1 |
| Applicant: | SZDNN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1358 of 2004 |
| Delivered on: | 23 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 March 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms Louise Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1358 of 2004
| SZDNN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 23 March 2004, and handed down on 15 April 2004.
The applicant who is a citizen of India arrived in Australia on
6 July 2003. He applied for a protection visa on 31 July 2003, which application was refused by a delegate of the Minister on 14 November 2003. On 15 December 2003 he applied to the Tribunal for a review of this decision.
His written claims to the Tribunal were almost exactly the same as those he put before the delegate. A hearing was held on 19 March 2004 which the applicant attended to give oral evidence. As I have indicated the Tribunal made a decision affirming that of the delegate on 23 March 2004, which it handed down on 15 April 2004.
Claims before the Department and the Tribunal
The applicant comes from Kerala, India, where he says that there are often fights between political parties, sometimes involving terrorist activities. He claims that he was “following the Communist principles”. He was a member of the Communist Party from 1989 to October 1992 and became an active leading member
He alleges that because of his membership and participation in the Communist Party, the Islamic party (PDP), which the applicant called a “Muslim terrorist group”, was against him. The applicant stated that the PDP hated Hindus and would place bombs at Hindu meetings. He said that his role was to find out who placed the bombs and report them to the police. He alleges that he was attacked by the PDP and that he was wounded severely physically and mentally, but “someway I overcomed all”.
In 1993 he went to the United Arab Emirates (UAE) where he lived for ten years. He says that his family was threatened while he was away from them living in UAE. He cannot return now to the UAE as he does not have a job.
He says that when he returned to India to live he was still persecuted and had problems. He had applied for a visa to Australia while he was still residing in the UAE and when he returned to India he decided to come to Australia.
Tribunal consideration and decision
The essential elements in the Tribunal’s decision are accurately summarised in the respondent’s submissions at paragraphs 14 to 20:
14 The Tribunal accepted it was plausible that the applicant had been a member or supporter of the CPI-M and may have been attacked by PDP supporters in 1992 as he had described. However the Tribunal was sceptical that the applicant played any role in reporting PDP activities to the police by informing the police the PDP had been responsible for attacks on Hindu meetings, because the applicant was not able to be specific enough about his claims.
15.The Tribunal was not satisfied that any attack was anything other than a ‘one off’.
16.Importantly the Tribunal observed that from 1992 the applicant ceased to be a member of the CPI-M and did not claim to resume any interest or active involvement in the movement – even during his extended stays in India during the period 1993 - 2000. (The Tribunal noted that the CPI-M held government from 1996 to 2001). The Tribunal was not satisfied that in 2003, 11 years after the 1992 attack, it happened that just as the applicant’s employment in the UAE drew to a close, the applicant’s wife informed him that “these people” had come back and that there was danger –prompting the applicant to obtain a visitor’s visa to enter Australia whilst he was still in the UAE.
17.The Tribunal did not accept that there was any torture or harm caused to the applicant or his family after his return from the UAE to Kerala in 2003.
18.The Tribunal noted that the 1992 attack may have been carried out by persons associated with the local PDP group. The Tribunal concluded that if there was any cause for concern on the applicant’s return to India, it would be confined to ‘personal animosity’ at a local level, and not more generally. The Tribunal found it highly implausible that, on the basis of circumstances in 1992, twelve years later the PDP – at a state or even national level – would now seek to identify, target and harm a person who had not had any political membership or activity for that period.
19.The Tribunal also relied upon country information to observe that:
(a)(contrary to the applicant’s suggestion) the PDP had maintained an active presence in Kerala during the period the applicant was working in the UAE. The Tribunal did not discount the possibility that local persons associated with the PDP may have been absent from the applicant’s own area – but this simply reinforced the fact that any perceived danger to the applicant is from particular persons in the applicant’s own district;
(b)there was no suggestion in the country information nor by the applicant that the applicant would be denied state protection in the event of the applicant experiencing trouble with the PDP. The Tribunal was not satisfied that there had been (nor would there be at the time of the decision) any denial of state protection. Indeed there was evidence to the contrary: namely, that the PDP had been investigated and its leader arrested and remained in prison. In any event, there had been no attempt by the applicant to obtain state protection; and
(c)(even though the question of relocation did not formally arise due to the Tribunal’s pervious findings) the Tribunal found that it was reasonable under the circumstances for the applicant to relocate within India in order to avoid any perceived difficulties in his own district or state.
20.The Tribunal concluded that the applicant is not a person to whom Australia has protection obligations because he does not satisfy the criteria set out in section 36(2) of the Act.
Consideration
The amended application filed on 7 October 2004 purports to set out twelve grounds. The first ten grounds appear to be an attempt by the applicant to have this Court second guess the findings of fact made by the Tribunal. This Court is not empowered to do that. There is a wealth of authority which directs the Court not to engage in merits review. I only need refer to cases such as Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Attorney General (NSW) v Quin (1990) 93 ALR 1 in support of that proposition.
To the extent that the applicant’s grounds question the findings by the Tribunal that certain of the allegations or assertions by the applicant were incorrect or not credible, I can discern no viable ground of review. There is nothing in the first ten grounds which suggests that the Tribunal made a legal error going to jurisdiction. As I have said, the applicant is merely cavilling with the findings of fact made by the Tribunal. This is apparent from passages in the applicant’s amended grounds such as:
2. The Tribunal failed to see that the applicant satisfied the points as stated above and failed to see that the applicant is not willing to return to his country because of this.
3. The Tribunal failed to see that the applicant was attacked by the muslim terrorist groups. …
4 The Tribunal should have seen that the applicant tried to avoid the problems …
5. The Tribunal failed to see that the applicant had fresh problem after he returned to India …
…
8. The Tribunal made a mistake in stating that the applicant can go to other parts of India.
These words all demonstrate that the applicant wants the Court to engage in merits review.
To the extent that ground six calls into question the decision of the delegate, it is important to note that that decision is not subject to review by this Court. The Tribunal did not accept the decision of the delegate as asserted by the applicant. Rather it considered the matter afresh as it was bound to do.
Ground eleven states that the Tribunal “has dismissed the case with one side approach and it has not considered the suffering of the applicant.” This appears to be a complaint that the Tribunal was in some way biased or did not exercise its discretion in good faith. The rules of this Court require that any allegation as serious as this should be particularised in detail. No such particulars have been provided and no evidence has been presented to the Court which would support such an allegation. A careful reading of the decision by the Tribunal comes nowhere near sustaining any allegation of bias, apprehended bias or bad faith.
Ground twelve really sets out the relief that the applicant seeks and is not a ground for review.
I have considered the decision of the Tribunal carefully and I can discern no legal error in it. No suggestion has been made in the amended application that the Tribunal failed to discharge its responsibilities in accordance with the Migration Act 1958 (Cth)
(the Act). For example, the applicant does not complain that the Tribunal failed to adhere to the requirements of s.424A of the Act. To the extent that the Tribunal relied on country information in reaching its conclusions, the exception in s.424A(3)(a) applied. Furthermore, s.422B of the Act negated any obligation to provide procedural fairness at common law in relation to material such as adverse country information.
Conclusion
The amended application is deficient in that it does not identify anything in relation to the decision of the Tribunal or to the proceedings before the Tribunal which would sustain a viable claim that the Tribunal fell into legal error.
I pointed out to the applicant at the hearing that the role of the Court was to ascertain whether the Tribunal made legal error and not to engage in merits review. I asked him to put to the Court anything that might assist me in identifying such a legal error. But apart from reiterating some dispute with the findings of fact made by the Tribunal, he was unable to expand upon his amended application. It is clear that his real dispute is with the findings of fact made by the Tribunal.
Counsel for the Minister has submitted to me the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is apparent the Tribunal reached conclusions on the facts which led to its ultimate conclusion that the applicant would not face a real chance of persecution on return to India by reason of his actual or imputed political opinion or (as he claims in one document) his religion. These findings were reasonably open to the Tribunal on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal was a privative clause decision, having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances, the application must be dismissed.
I certify that the preceding twenty-one paragraphs (21) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 9 May 2005
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