SZDTU v Minister for Immigration & Anor
[2007] FMCA 697
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 697 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Status – refugee status – refusal. MIGRATION – Visa – protection visa. |
| Migration Act 1958, s.91X |
| Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 |
| Applicant: | SZDTU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 10 May 2007 |
| Date of Last Submission: | 10 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. T. McInerney |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,750.
In the Court record, the name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1 of 2007
| SZDTU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 2 January 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 13 November 2006 and which affirmed an earlier decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“Minister”) dated 11 November 2003 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision which was quashed by order of the Federal Court dated
24 April 2006, a copy of which is found on page 61 of the Court Book (“CB”).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant states that he was born in Madras (Chennai), Tamil Nadu state in 1973. His religion is Hindu. He speaks, reads and writes Tamil and Malayalam. In the Form C of his application he states that he lived at a single address in Chennai for the 10 years before his departure. However, he contradicts this in his claims … Similarly, in the Form C he states that his only job was as a clerk in the Kerala Transport Corporation, but this is again contradicted in his claims. In the Form C he states that he has never been convicted of a crime, is not under criminal investigation and has no criminal charges pending. Yet again, this is not sustained in his statement of claims. (CB 99)
The applicant claims to fear persecution in India because of his political activities.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-18 of the Tribunal’s decision (CB 99-113). Relevantly, they are in summary:
a)
the applicant joined the Communist Party and became an executive member of the Annanagar youth wing in 1990.
He attended meetings and gave speeches. In 1991 he was promoted to a Secretary position. In 1992 after finishing school he joined the Kerala Transport Service as a booking clerk;
b)in 1993 lorry drivers held a mass strike to demand wage increases leading to black marketeering by certain people. The applicant and other communists went to a godown, which I am told is a warehouse, operated by a powerful but corrupt ADMK party leader called Karathe Thingarajan, to try to stop the black marketeering. Thingarajan burned down the godown on 22 July 1993. The same day the applicant and his comrades were arrested, detained, beaten and tortured. False charges were filed against them which led to them being sentenced to three months’ imprisonment;
c)on 1 January 1994 the applicant and comrades were attacked and beaten by people sent by Thingarajan. A complaint to the police was made to no effect and on 3 January when conducting a meeting with police permission, policemen supporting Thingarajan dispersed the meeting and took them to court where they were fined and sentenced to fifteen days’ imprisonment.
d)on 10 August 1994 the applicant moved to Nileshwar, Kerala state where he continued his communist labour union activities;
e)there, the applicant proposed to his party that they call a general strike in May 1996 but a person called Krishna Menon, who the applicant describes as a powerful and corrupt labour leader, warned him not to take such actions in the future without first consulting him;
f)Menon warned the applicant to stop the proposed strike but the applicant refused to do so and the next day, the applicant was arrested and charged with murdering a friend of Menon. He was detained and beaten in order to make him confess. The applicant subsequently appeared before a court in Tellicherry;
g)in September 1996 the applicant moved to Bangalore in Karnataka State. But because of language problems he was unable to settle there and in February 1997 he returned to Nileshwar where he was frequently threatened by Menon and the murdered man's relatives. The police took no action in response to his complaints;
h)on 3 May 2006 the applicant was given an ultimatum by Menon to apologise or suffer unpleasant consequences. He refused. The next day he was attacked at home by a mob;
i)the applicant then moved to another location where he started working for a person called Kittu whom he subsequently learned was involved in smuggling with Thingarajan. The applicant was then threatened by Kittu and was thereafter escorted everywhere by two armed thugs who had instructions to kill him if he tried to escape; and
j)on 18 March 2003 the applicant escaped, went into hiding and found his way to Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)
the Tribunal was satisfied that the applicant had repeatedly lied in order to enhance his claims for a protection visa, finding that this went to the credibility both of the applicant and of his claims. Although accepting that the applicant had a very limited involvement in the Communist Party of India (Maoist)
(“CPI (Marxist)”) when at school, the Tribunal had not been able to satisfy itself that the applicant had been subjected to serious harm amounting to persecution on this basis and did not accept this claim;
b)although the Tribunal was willing to give the applicant the benefit of the doubt that he had been involved in some labour transport matters in India, it had not been able to satisfy itself that he could reasonably be regarded as a union or labour leader or that he had a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis and it did not accept this claim;
c)the Tribunal accepted independent country information that India is a democratic country which allows membership of political parties and it does not persecute them and was satisfied that the applicant did not have a well-founded fear of serious harm amounting to persecution for a Convention reason because of his previous involvement with the CPI (Marxist) or as a labour leader or that the police or ruling opposition political parties will kill him because of his political opinion or labour activities;
d)the Tribunal was satisfied that if the applicant had been of any interest whatsoever to the Indian authorities, such as because of the criminal proceedings said to have been brought against him, then he would not have been issued with an Indian passport on 11 June 1996 and allowed to leave India on two separate occasions;
e)the Tribunal did not accept the applicant's claims to have spent months in gaol, to have been convicted on charges and to have been arrested and charged with murdering a friend of Menon or that he was of any interest to the Indian police or other authorities or courts in India for any reason whatsoever or that he is required to report to the court in India;
f)the Tribunal was satisfied that the applicant does not have a well‑founded fear of serious harm amounting to persecution for a Convention reason on the basis of his claims to have been charged and/or imprisoned or that there is a real chance he will be arrested by the police or the courts or will be subjected to serious harm for a Convention reason on this basis;
g)as to the applicant's claims to have fallen foul of Krishna Menon, Kittu and Karathe Thingarajan, the Tribunal observed that the applicant provided no evidence to support these claims or that any subjective fear he has from these individuals and their associates is for a Convention related reason. The Tribunal noted that at the second Tribunal hearing the applicant made it clear that he did not have a Convention related fear in relation to these claims. Further, the Tribunal was not satisfied that the essential and significant reason for any concerns he may have in relation to attending court is Convention related;
h)the Tribunal, being satisfied that there were no outstanding Convention related police or court matters for the applicant in India, was satisfied that if the applicant wished not to return to Nileshwa, Kerala or Chennai then it would be reasonable for him to live elsewhere in India in safety without there being a real chance he would be subject to Convention related persecution; and
i)finally, the Tribunal was satisfied that if for any reason, including because of the cumulative nature of his concerns, he had had a fear of Convention related persecution in India, he would not have been willing to return to India from Malaysia and Singapore in June 2003 which the Tribunal accepted that he did. Consequently, the Tribunal was satisfied that the applicant did not have a well-founded fear of serious harm amounting to persecution for a Convention reason on this or any other basis.
Proceedings in this Court
In his application to the Court, the applicant's grounds are pleaded as follows:
1. To reconsider the decision of RRT on the facts I give to RRT and DIMIA.
2. I strongly feel the decision of RRT does not justice my cause. I grately [sic] disappointed.
3. I have no other GD [which I think is an abbreviation for “ground”] than appealing for the reconsideration of Tribunal decision.
In his oral submissions to the Court at the hearing, the applicant further suggested two additional issues, namely:
That the Tribunal had in their mind to dismiss his claim, that being their motto
which I take to be an allegation of bias and secondly:
That the Tribunal did not consider the points which the applicant raised with it.
Dealing with these grounds in turn:
The grounds in the applicant’s application
As to the grounds set out in the application, these are, in essence, an application by the applicant for a re-hearing of his case or a re-consideration of his application by this Court. However, in proceedings for judicial review such as these the Court is concerned with the procedures adopted and applied by the Tribunal, not with the findings the Tribunal made or the conclusion which it reached. In proceedings for judicial review, the Court is concerned with the process not the outcome.
Unless a factual error is shown to be related to a jurisdictional fact or of some other error which is a manifestation of a jurisdictional error, then such an error will not ground judicial review. In this matter the findings of fact and the conclusions which the Tribunal reached were open to it on the material before it. That being so, no jurisdictional error is demonstrated by reason of the matters set out in the application.
As was said in Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 per Brennan CJ and Toohey, McHugh and Gummow JJ at 272:
In the present context, 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. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do no go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. (footnotes omitted)
Bias
In relation to the applicant's assertion that the Tribunal had as its “motto” the dismissal of his application, this is an allegation of bias in respect of which no evidence has been adduced. In circumstances where the only evidence before the Court in relation to the conduct of the Tribunal hearing and its reasons for decision is what appears in the Tribunal's decision record, the Court has insufficient evidence to arrive at an affirmative finding on such a serious allegation.
In fact, in this case there is nothing in that document or in the Court Book which would indicate actual bias on the part of the Tribunal. There is nothing in the Tribunal's decision which indicates that it approached the applicant's application with a closed mind. Rather, there is evidence that it undertook a conscientious examination of the matters which had been raised by the applicant, weighed them and came to the conclusion which it did. Consequently, to the extent that the applicant alleges actual bias against the Tribunal, it is not made out.
To the extent that the applicant's submission today suggests that bias could be apprehended in the way the Tribunal conducted itself at the hearing, there is no transcript of that hearing before the Court and there is no basis upon which the Court could arrive at such a conclusion.
Consequently, no jurisdictional error has been demonstrated in relation to the applicant's assertion that the Tribunal had in its mind to dismiss the applicant's application.
The Tribunal had not considered the points the applicant raised with it
The other matter, raised at the hearing by the applicant for the first time, was that the Tribunal had not considered the points which he raised with it. A consideration of the Tribunal's decision makes it clear that it was concerned to discuss and consider all the claims raised by the applicant. In his submissions the applicant did not identify what points raised by him had not been considered by the Tribunal and I am not satisfied that the Tribunal failed to consider anything which the applicant raised. Consequently, jurisdictional error on this account is not made out.
Conclusion
Because jurisdictional error on the part of the Tribunal has not been made out, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 5 June 2007
0
1
1