SZDTG v Refugee Review Tribunal

[2005] FMCA 1333

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTG v REFUGEE REVIEW TRIBUNAL & ANOR [2005] FMCA 1333

MIGRATION – Refugee – no Convention based claims – no reviewable error.

Federal Magistrates Court Rules, r.21.02(2)(a)

Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259
Chen v Minister for Immigration and Ethnic Affairs and Anor (1995) 58 FCR 96

Applicant: SZDTG

First Respondent:

Second Respondent:

REFUGEE REVIEW TRIBUNAL

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1698 of 2004

Judgment of: Nicholls FM

Hearing date: 12 September 2005

Date of Last Submission: 8 September 2005

Delivered at: Sydney

Delivered on: 21 September 2005

REPRESENTATION

Counsel for the Applicant: Mr. J. Patel

Solicitors for the Applicant: Harpers Solicitors

Counsel for the Respondent: Ms. S. McNaughton

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant to pay the second respondent’s costs set in the amount of $3700, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1698 of 2004

SZDTG

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 3 June 2004 seeking review of the decision of the first respondent, the Refugee Review Tribunal (“the Tribunal”), made on 8 May 2000 and handed down on 18 May 2000 which affirmed the decision of a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs made on 29 April 1998, and notified to the applicant by letter dated 29 April 1998 to refuse a protection visa to the applicant.

2. The applicant is of Sikh background and a citizen of India. In his application for a protection visa lodged with the second respondent's Department he claimed to fear persecution because of socio-political and religious beliefs and because of his association with the Pro Khalistan movement in India. His claims can be found in his application for a protection visa, copied at Court Book 1 to CB 24 and the protection visa decision record at CB 42 to CB 48.

3. The application to this Court was filed on 3 June 2004. By way of affidavit, affirmed by the applicant on 26 May 2004, the applicant asserts that he was denied natural justice and procedural fairness required to be observed by the Tribunal with respect to its review of the delegate’s decision. By way of amended application filed on
   27 October 2004, drafted with the assistance of solicitors, the applicant asserts:

   “1. The Refugee Review Tribunal (The Tribunal) made a jurisdictional error in that it failed to determine the application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the definition and notion of “persecution” and “well founded fear” for the purposes of article 1A(2) of the 1951 Convention Relating to the Status of Refuges.

   Particulars:

   The Tribunal erred in failing to deal with the claim on the basis on which the claim for protection visa was made by the applicant in his application namely by reason of his religious and political beliefs and his association with the Khalistan struggle (RD 19)

   The Tribunal misunderstood the evidence of the applicant and erred in concluding that the applicant was not pursuing his claim for a protection visa. (The applicant will rely on the transcript of his evidence).

   2. The Tribunal committed jurisdictional error in that the applicant was denied procedural fairness and natural justice.

   Particulars:

   The Tribunal failed to make any specific findings in relation to the claims made by the applicant and give its reasons as required by law. The Tribunal failed to give its reasons for its ultimate finding and conclusion that the Applicant is not a refugee within the terms of the Convention and that he has made no claims that bring him within the terms of the convention.”

4. The Tribunal's decision record is set out at CB 64 to CB 67. The applicant attended a hearing before the Tribunal on 15 March 2000 (CB 59). The Tribunal's account of what relevantly occurred at the hearing is set out at CB 67.2 to CB 67.4. The Tribunal reports:

   “The applicant claims to the Tribunal

   The applicant made no substantial written submission to the Tribunal. After taking on oath on the Sikh holy book the applicant said at the hearing that the content of his application to DIMA was not accurate. He said he went to Malaysia to work. He also came to Australia to work. He said as the eldest male in a poor family it is his responsibility to fiance (sic: finance) his family, especially his younger siblings. He said he came to Australia for the benefit of his family and that if he returned he would not have any serious convention related difficulty but he may have trouble finding employment. The applicant said that he was trying to arrange for his girlfriend to come study in Australia. I suggested that he contact the Immigration Advice Service for advice in immigration matters, as it was clear he did not come within the terms of the Convention on the Status of Refugees."

5. The Tribunal found (at CB 67.5) that it was satisfied that the applicant had given truthful evidence at the hearing before it and accepted this evidence and stated it was satisfied that the applicant was not a refugee within the terms of the Convention on the Status of Refugees because he had made no claims that brought him within the terms of the Convention.

6. At the hearing before me the applicant was represented by Mr. J. M. Patel and the respondents by Ms. S. McNaughton. I should note that I also have before me a Notice of Objection Competency filed by the respondents on 30 June 2004 objecting to the jurisdiction of the Court on the basis that the decision was a privitive clause decision. Ms. McNaughton at the hearing before me advised that the respondents would not seek to press this notice, but sought dismissal on the basis that the claimed jurisdictional error could not be sustained. In his amended application to the Court the applicant makes reference to the fact that he will rely on the transcript of the evidence that he gave before the Tribunal to show that the Tribunal misunderstood his evidence and erred in concluding that the applicant was not pursuing his claim for a protection visa. The applicant, despite the benefit of legal representation, has put nothing before the Court to contradict the Tribunal's account of what occurred at the hearing before it. Mr. Patel confirmed that the applicant was not seeking to bring any such evidence before the Court but was relying on the material before the Court to show error on the part of the Tribunal. Mr. Patel's submission was that the Tribunal's “Findings and Reasons” as set out at CB 67.5 do not meet the requirements under the law because the Tribunal made no findings and failed to give reasons. He argued that a failure to make findings and a failure to give reasons amounted to jurisdictional error as it was a breach of the rules of natural justice. He made reference to a number of authorities to support this submission. Further, he argued that the reasons need to be related to the findings of the Tribunal and that the reasons involve an examination of what the Tribunal is required to determine and then a justification by way of reasons for its findings. In this regard Mr. Patel submitted that the Tribunal should have clarified with the applicant exactly what his claims were and further argued that there was some ambiguity as to whether the applicant had abandoned his previous claims and that the Tribunal should have clarified with the applicant exactly what he meant by the things that he said to the Tribunal at the hearing before it.

7. Ms. McNaughton for the respondents did not take any issue with Mr. Patel in relation to the principles that he outlined. The respondent’s argument was that a Tribunal's decision record should not be relied on in part to understand its meaning but needs to be looked at in the total context. Parts of the Tribunal decision need to be read in context to be understood. On this basis her submission was that the Tribunal did make findings that the applicant was not a refugee and that the reasons for this can be seen when the “Findings and Reasons” are looked at in the context of the claims that the applicant made to the Tribunal at the hearing before it.

8. The applicant made claims in his protection visa application lodged with the second respondent’s Department that he feared persecution in India due to his socio-religious and political beliefs and his association with the “Khalistan struggle”. In his application to the Tribunal dated 29 May 1998 the applicant (at CB 51) complained that the second respondent’s Department had not provided him with an opportunity to present his case at an interview and that the decision of the second respondent’s delegate failed to look at his circumstances which led him to seek Australia's protection. The applicant put nothing further before the Tribunal and on 12 January 2000 (CB 55 to CB 56) the Tribunal wrote to the applicant and notified him that it had looked at all the material relating to his application but was not prepared to make a favourable decision on this information alone and invited the applicant to come to a hearing at the Tribunal to give oral evidence and present arguments in support of his claims. The applicant did come along to a hearing before the Tribunal on 15 March 2000. While the applicant in his amended application does make a reference that he will rely on the transcript of the evidence that he gave before the Tribunal to show that the Tribunal misunderstood the evidence of the applicant and erred in concluding that he was not pursuing his claim for a protection visa.

   
   

   I note that the applicant, with the benefit of legal representation, has put nothing before the Court and Mr. Patel confirmed at the hearing before me, that it was not now the applicant’s intention to put any transcript of the hearing before the Court to contradict the Tribunal's account of what occurred at the hearing before it. In this regard the Court can only proceed on the basis of the Tribunal's account of what occurred at the hearing. The Tribunal noted that the applicant made no substantial written submission to the Tribunal and that after taking an oath on the Sikh holy book the applicant said that the contents of his application to the second respondent’s Department was “not accurate”. Mr. Patel argued that this statement of what the applicant said was attendant with sufficient ambiguity as to have caused the Tribunal to seek to clarify with the applicant exactly what was meant by the term “not accurate”. I except Ms. McNaughton's submission that in the circumstances this phrase is explained with the subsequent sentences attributed by the Tribunal to the applicant. The applicant clearly presented at the hearing before the Tribunal that the reason he went to Malaysia was to work, after having told the second respondent’s Department (CB 20.7) that he left for Malaysia after coming to the attention of police in India and that after one of his close associates was arrested and later disappeared he then left for Malaysia. He also said at the hearing before the Tribunal that he came to Australia to work and he gave the reasons for this as that he had a responsibility as the elder male in a poor family to support his family and clearly said that he came to Australia for the benefit of his family. Critically, the applicant is also reported as saying, at CB 67.3, that if he returned he would not have any serious Convention related difficulty but that he may have difficulty finding employment. The Tribunal records that it advised the applicant that it was clear that he did not come within the terms of the Convention on the Status of Refugees. Clearly the Court cannot assume findings made by the Tribunal that were not in fact made by it, but faced with an applicant who comes to a hearing, and after taking an oath on the Sikh holy book, describes his earlier claims as not accurate and explains this by saying that he left his country of nationality to find work elsewhere and gives a reason for this and critically says that if he returned he would not have any serious Convention related difficulty, then a finding by the Tribunal that it was satisfied that this was truthful evidence, and a finding by the Tribunal that it accepted this evidence, is sufficient to ground a finding that the applicant is not a refugee within the terms of the Convention on the Status of Refugees. The Tribunal is required to consider whether an applicant for a protection visa has a well founded fear of being persecuted for a Convention related reason and is unable to avail himself of the protection of the country of nationality. While claims of past harm may be relevant, the Tribunal's obligation is to determine at the date of making the decision whether there is a well founded fear of persecution should the applicant return to one of the country of nationality in the reasonably foreseeable future. In Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 the High Court at 279 referred with approval to the ‘reasonably foreseeable future test’ that the Tribunal had applied in Chen v Minister for Immigration and Ethnic Affairs and Anor (1995) 58 FCR 96. Further in Wu Shan Liang Kirby J. at 294 said:

   “The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the "real chances" affecting the treatment of the applicant if he or she were to be returned to China.”

   In applying this to the circumstances of the case before me, the Tribunal made clear findings that the applicant gave truthful evidence at the Tribunal hearing and also made a clear finding that the Tribunal accepted this evidence. While the Tribunal's “Findings and Reasons” may have benefited from some repetition of the matters set out in the preceding paragraph, it is clear when read in the context of the preceding paragraph that the truthful evidence given by the applicant at the hearing which Tribunal clearly accepted, included a statement by the applicant that if he were to return, and in the context that is a return to India, he would not have any serious Convention related difficulty but may have trouble finding employment. It is clear that in the circumstances of the case before me the primary facts found by the Tribunal were the truthful nature of the evidence given by the applicant at the hearing before it and its acceptance of this evidence. That is, that the applicant went to Malaysia to work upon leaving India and that he came to Australia to work and that, in any event, if he were to return he would not have any serious Convention related difficulty. In these circumstances it was open to the Tribunal to find that it was not satisfied that the applicant was a refugee within the terms of the Convention on the Status of Refugees. The applicant's statement that the content in the application for a protection visa was not accurate and was clarified by subsequent statements is unchallenged before me. The Tribunal did make a finding as to the state of the applicant's relevant evidence at the hearing before it. It accepted this evidence and given the nature of that evidence it was open to the Tribunal to reach the conclusion that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

9. On the basis of what is before me there is no jurisdictional error in the Tribunal decision. The Tribunal was entitled to proceed on the latest information provided by the applicant at the hearing before it. The account of the applicant's presentation at the hearing is unchallenged before me. In all of these circumstances there is no jurisdictional error in what the Tribunal has done and this application is accordingly dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  21 September 2005