SZDRA v Minister for Immigration - [2005] FMCA 14

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDRA v MINISTER FOR IMMIGRATION

[2005] FMCA 14

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

Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481

Applicant:

SZDRA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1567 of 2004

Delivered on:

28 January 2005

Delivered at:

Sydney

Hearing date:

21 December 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondent:

Mr G T Johnson

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1567 of 2004

SZDRA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 April 2004 and handed down on 11 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 November 2003 to refuse to grant the applicant a protection visa.

Background

The applicant who claimed to be a citizen of India arrived in Australia on 15 October 2003. On 14 November 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 28 November 2003 the delegate refused to grant a protection visa and on 18 December 2003 the applicant applied for a review of that decision.
The applicant claimed to have been born in India on 18 May 1979. His ethnicity is Tamil and his religion is Hindu. The applicant claimed that he developed a deep friendship with a Muslim girl (Ayisha Begam) which caused her family “some frustration” because of his religion. He claimed he did not communicate with Ayisha for two months because her brother, Nazeer Ahamed, told her not to speak to the applicant. When Ayisha started talking to him again, Nazeer Ahamed beat her and also warned the applicant not to speak to his sister. The applicant claimed that on 20 January 1997 Ayisha “committed suicide because of Nazeer Ahamed’s torture”. He claimed that he and Nazeer Ahamed had quarrelled at his college and Nazeer Ahamed had shouted that the applicant was the cause of Ayisha’s death and that Nazeer Ahamed would kill him. The applicant claimed Nazeer Ahamed then began hitting him but his friends came to his aid (Court Book pp.64-65) (“CB”).
In a statutory declaration attached to the applicant’s application for a protection visa, he described the assault that took place in October 1997 at the Hindu festival of Vinayakar Chathurthi. The applicant claimed he was the secretary of his local Hindu party called the “RSS”. To attend the offices of that organisation the applicant had to pass Nazeer Ahamed’s house and when passing his house during the festival activities Nazeer Ahamed and a group of followers kidnapped the applicant and took him to a “go down”. There the group started to beat the applicant until he was rescued by other members of the RSS. He claimed he was bleeding profusely and was admitted to hospital. On the same night, Nazeer Ahamed’s followers ransacked the applicant’s house and despite complaints to the local police no action was taken because Nazeer Ahamed had political support (CB pp.28-29).
The statutory declaration then continued to detail a number of skirmishes which occurred between the applicant and Nazeer Ahamed and their respective supporters, including a number of assaults and attacks on property both at the applicant’s home and the offices of the RSS. There was a period when the applicant moved to a different area to attend college but when he returned to his home because of his mother’s illness due to cancer the hostilities broke out again. The applicant claimed that during one of these incidents he was run down by a jeep in which Nazeer Ahamed was a passenger which resulted in further hospitalisation due to injury. Eventually the applicant decided to apply for a visa for entry into Australia to avoid further violence (CB pp.30-32).

The Tribunal’s findings and reasons

The Tribunal’s decision contained a lengthy summary of the applicant’s claims and evidence (CB pp.64-71), reference to country information (CB pp.71-72), a summary of the applicant’s claim (CB pp.72-73) and reference to each claim in detail. The Tribunal dismissed the case based upon the claimed attitude of Nazeer Ahamed to the applicant. In so far as the claim related to the applicant’s relationship with Ayisha Begam, who had committed suicide, the Tribunal accepted that the friendship existed, the girl had committed suicide and this created some animosity between Nazeer Ahamed, but gave a number of alternative reasons for rejecting the claim as a basis for a protection visa. Those findings included:
a)Nazeer Ahamed had had significant opportunities to kill the applicant if he had been so inclined but had not done so;
b)The applicant had not moved from his house or the Coimbatore area to afford him an alternative and better location (the Tribunal expected the applicant would have moved if he truly felt that his life was at risk); and
c)The Tribunal was not satisfied that any animosity was for a Convention reason (for example the applicant being a Hindu).
Indeed the Tribunal was not satisfied, in the view of Nazeer Ahamed, that the death of his sister, Ayisha Begam, was in fact a result of her friendship with the applicant or that Nazeer Ahamed wanted to kill or inflict serious harm upon the applicant, or that the applicant had any well-founded fear of serious harm for a Convention reason on any basis (CB p.73.5-73.8).
With respect to the claim bearing upon Nazeer Ahamed’s reaction to the role of the applicant with respect to Nazeer Ahamed’s brother, the Tribunal was not satisfied that Nazeer Ahamed was activated by any Convention reason as opposed to, for example, revenge (CB p.73.9).
In relation to the claims that the applicant was a member of RSS who on at least one occasion had his home broken into and damaged by a gang led by Nazeer Ahamed (who the applicant claimed was the leader of the local Muslim league), that the applicant and his family were attacked and that the applicant was hit by a motor vehicle in which Nazeer Ahamed was a passenger, the Tribunal reasoned as follows:
a)Having referred to other evidence of the applicant, the Tribunal accepted that the applicant was not only the subject of some violence but that he was also involved in the use of physical violence against Muslims (Nazeer Ahamed and his gang in particular) and had employed his own RSS supporters to provided protection for his family and property.
b)The Tribunal found the cumulative effect of such violence was that the personal animosity between the applicant and Nazeer Ahamed was increasingly bitter and personal and became mutually intense for a range of reasons.
c)The Tribunal was not satisfied, however, that the essential and significant reason for this animosity and violence was a Convention reason (CB p.74.5).
d)The Tribunal was not satisfied that the essential and significant reason for any subjective fear of harm was a Convention reason, as opposed to the consequences of potentially criminal action including possible retaliation (CB p.74.7).
e)The Tribunal found that it was satisfied that this was a matter for the authorities and the courts in India to consider, proceeding to explain that view with findings to the effect that the Tribunal was not satisfied that the applicant had any role in RSS beyond that of an ordinary member (CB pp.74.7-75.1).
f)As a mere member of the RSS, which is what the Tribunal found the applicant to be, the Tribunal was not satisfied that he faced serious harm amounting to persecution because of any Convention reason (CB p.75.2).
With respect to the applicant’s claim that effective protection was not available to him by recourse to the police, the Tribunal was not satisfied that any police inability to prosecute the perpetrators of violent acts against the applicant (being Nazeer Ahamed and his gang) was the result of anything more than a lack of sufficient evidence (CB p.75.7). The Tribunal also found that there was no Convention reason for a lack of police action in this case and it was not satisfied that the inability to prosecute amounted to a failure of State protection.
The Tribunal further noted that the applicant did not claim to have been mistreated by the police because of his own role in the violence or for any Convention reason and that the applicant did not claim to be wanted by the police for any reason or to have been convicted of any offence or crime (CB p.75.7-75.8). The Tribunal further found that the applicant had no difficulty in obtaining a passport in his own name or leaving India (CB p.75.8).
The Tribunal also made other findings to the effect that, as a result of it not accepting that the applicant had a high political profile, it did not accept that the applicant received threatening calls or that he could not change his telephone number without it being known or obtain protection from harassing calls by means of a silent number (CB p.76.3).
The Tribunal was not satisfied the applicant would have lived in the same place for four years prior to coming to Australia if he and his family had been threatened or harmed as claimed (CB p.76.3-76.5). The fact that the applicant did not move and stayed where he was living satisfied the Tribunal that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason (CB p.76.5).
With respect to the applicant’s claim that he had returned to his home in Coimbatore after working in Chennai for a period between June to November 2001, the Tribunal was prepared to accept that the applicant had in Coimbatore a well-founded fear of serious harm amounting to persecution in that place (CB p.76.8). The Tribunal also found that if the applicant had been knocked off his bike as claimed, just after returning to Coimbatore, and had had a well-founded fear of harm, he would have moved either within Coimbatore, or back to Chennai, or to his grandfather’s residence some 30 kilometres away or elsewhere in India (CB pp.76.9-77.1).
The Tribunal simply did not accept, even after considering the applicant’s further evidence (CB p.77.7), that the applicant would choose to return to Coimbatore being a place where he said he was well known to people threatening and allegedly attempting to kill him, if he had a well-founded fear of serious harm amounting to persecution (CB p.77.4).
The Tribunal was not satisfied therefore upon either an individual or a cumulative consideration of the applicant’s claims, that he had a well-founded fear of persecution for a Convention reason or that there was any real chance that he would suffer persecution for a Convention reason if he returned to India now or in the foreseeable future (CB p.77.5).
The Tribunal then considered the alternative position. It found that the applicant could, in any event, avoid any real chance of persecution by relocating within India and that it would be reasonable for the applicant to do so (CB pp.77.5-78.4 and 79.1). Finally, the Tribunal looked at the subject of communal violence that it accepted sometimes erupted in India, but was not satisfied that the applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason as a result of such events (CB p.78.5-78.9).

Application for review of the Tribunal’s decision

On 26 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“RRT made decision on 11/05/2004.
I received RRT file on 14/05/2004.
I made application 39B of Judiciary Act.
ENCLOSED RRT FILE
1.My hearing in RRT they favour to DIMIA.
2.They are not listening to my problems.
3.I need true justice.
4.RRT told me that I am lying in my story.
5.They have not checked Indian country profile.” (Errors in original)
On 2 September 2004 the applicant attended a directions hearing and consented to Short Minutes of Order requiring the applicant to file an amended application giving full particulars of each ground of review relied upon by 29 October 2004. The applicant also agreed to file and serve any written submissions on or before five working days prior to the hearing date. On 29 October 2004 the applicant filed and served a document headed “Application to Amend and to Add New Grounds” which contained the following:
“1.In pages 2 to 4 of the decisions of the Tribunal it is stated about the definition of the ‘Refugee’ and the four key elements to the Convention definition. The first element is that the applicant must be outside his country. The applicant is now outside his country. The second element is that an Applicant must fear persecution. The Applicant has the fear from Muslims and the police are not safeguarding him. The third element is that fear must be for one of the reasons of race, religion, nationality, membership of a particular social group or political opinion. The Applicant has the reasons of religion and political opinion. The fourth element is that there must be well founded fear. The Applicant has a well founded fear.
2.The Tribunal committed an error in stating that the Applicant has embellished in order to enhance his claims for a protection visa. This is factually incorrect. As this is not accepted this goes to the root of the matter.
3.The Tribunal committed a mistake in stating above and further mentioning that this goes to credibility of the Applicant. When the Tribunal doubts the credibility of the Applicant the Applicant will not get any justice. Therefore the Tribunal had approached the matter with one sided and already completed approach.
4.The Tribunal failed to see that the Applicant was attacked twice once when driving and the other was he was in his institute.
5.In taking the decision the Tribunal has unfortunately not given the required weight to the case of the Applicant. The Tribunal should have noted that the applicant was attacked by Muslims twice. The Coimbatore area is well known for Hindu Muslim riots and after the bomb blast, the situation has become worse.
6.The Tribunal committed a mistake in saying that the Applicant should relocate to other part of the country. The Tribunal failed to see that the Applicant will be killed anywhere in India because has big network all over the country. The Applicant will not be safe anywhere and also the Applicant do not know the other languages.
8.The Tribunal while hearing the sad story of the Applicant used that story to attack the Applicant that his claim will not come within the definition of convention.
9.The Tribunal failed to see that the fear of the Applicant is a general one and not individual. The Tribunal observed initially that it doubts the credibility of the Applicant will not be satisfied says anything true.” (Errors in original)

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

The applicant appeared self represented at the hearing. He indicated that he did not need the services of an interpreter and stated that he was fluent in English. When the applicant was invited to make oral submissions in his support of his application, he indicated that the proposal of the Tribunal for him to relocate within India was not practical because each state in India had its own language and associated dialects which made it very difficult for him to communicate. He indicated English was a common language in a large number of Indian states however it was only spoken by well educated people and members of the upper class. The applicant stated that many middle class and others only spoke their local language and that he was unable to communicate with them. He indicated that he had been exposed to some of these communication problems when he spent time in Chennai. When the inquiry was made as to whether he had any further submissions to make in support of his application, the applicant indicated that he had filed additional grounds on 29 October 2004 and that he would rely on both his original application and the additional grounds and that he had no further oral submissions.
Mr G T Johnson of Counsel, appearing for the respondent, filed written submissions prior to the hearing. He submitted that the Tribunal’s decision turned entirely upon the findings of fact within its own domain and questions of credibility were important to the Tribunal’s findings and those were matters for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”) per McHugh at [67].
It was further submitted that there was a rational basis for the Tribunal’s decision and its findings of fact were reasonably open on the evidence before it. It was contended that that was so, with or without regard to the Tribunal’s alternative findings that it would be reasonable for the applicant to relocate and that he could thereby avoid any real chance of serious harm if, contrary to its primary findings, any real chance of persecution for a Convention reason existed where the applicant had lived. Moreover, it was submitted, even if there was no logical basis for the Tribunal’s decision, want of logic in its reasons was not an available ground of review: VWST v Minister for Immigration & Multicultural & Indigenous Affairs (“VWST”) per Keifel, Marshall and Downes JJ at [18], applying NATC v Minister for Immigration & Multicultural & Indigenous Affairs at [25], which in turn approved NACB v Minister for Immigration & Multicultural & Indigenous Affairs and W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [35].

Reasons

The applicant in these proceedings is a self represented litigant who has attempted to prosecute his claim in the absence of legal advice. The grounds in his original application together with the additional amended grounds are vague and unparticularised. The oral submissions from the bar table did not provide any support or substantiation to the pleaded grounds other than to emphasise the applicant’s strong disagreement with the Tribunal’s decision.
In the case of a self represented litigant the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted make it difficult to identify individual issues, ensuring all aspects raised by the applicant are satisfactorily addressed.
I accept the submissions made by Mr Johnson that the Tribunal’s decision turned entirely upon findings of fact. The Tribunal’s analysis and assessment of each of the issues have been detailed. The applicant provided a statutory declaration with his application for a protection visa. That provided a detailed chronology of the events that the applicant claimed befell him in his home town of Coimbatore. The applicant attended the Tribunal hearing and gave oral evidence in support of his application and responded to the enquiries made of him by the Tribunal. Each issue raised by the applicant was addressed by the Tribunal firstly on an individual basis and then the effect of all issues was addressed cumulatively. The Tribunal could not accept that the applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason.
Taking the original application together with the nine new grounds, there is a general observation that the applicant disagreed with a number of the findings of the Tribunal. More specifically, he raised the issue of credibility and the relative weight that the Tribunal placed on the respective issues. The applicant finally disagreed with the Tribunal’s suggestion that he could relocate to an area other than Coimbatore where his antagonist was located.
The applicant’s credibility was an issue for determination by the Tribunal and were findings for the Tribunal par excellence: see Durairajasingham per McHugh J at [67].
The applicant also suggested that the Tribunal applied the wrong weighting to various elements of his application. However, it is not the function of judicial review to reconsider the relative merits of each piece of information and the degree of weight of information to search for an alternate outcome: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at 272:
“… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
Although not expressed clearly in the grounds or supported by any form of evidence, this theme of weighting may also raise the issue of logic applied by the Tribunal in its reasoning. I accept the submissions of the respondent Counsel that want of logic in a Tribunal’s reasons is not an available ground for review: VWST at [18].
The applicant also raised the issue of his relocation within India to avoid conflict with Nazeer Ahamed and his associates, specifically why he could not relocate in Tamil Nadu which has a population of 62 million or the neighbouring state of Andhra Pradesh or even Chennai. The Tribunal acknowledged that the applicant would be limited in relocating to two Tamil speaking states and possibly a small area where he could speak his own dialect of Telugu since it was acknowledged that whilst English was spoken generally in a much greater area the populus are not all fluent in English. The Tribunal also acknowledged that the applicant had completed tertiary education to university degree level in a communication skill discipline which should provide him with opportunity to obtain employment. Again this was a fact finding issue which was a duty of the Tribunal and the arguments set above apply to this issue.

Conclusion

I have not been able to identify any ground that the Tribunal has committed a jurisdictional error. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 28 January 2005