SZDTW v Minister for Immigration
[2005] FMCA 1296
•8 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTW v MINISTER FOR IMMIGRATION | [2005] FMCA 1296 |
| MIGRATION – Refugee – impermissible merits review – privative clause decision. |
| Migration Act 1958, ss.91R(1)(b), 91R(2), 474 Federal Magistrates Court Rules 2001, rule 21.02(2)(a) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZDTW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1737 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 September 2005 |
| Date of Last Submission: | 24 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. T. Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $4500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1737 of 2004
| SZDTW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
And
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 7 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 April 2004 and handed down on 18 May 2004 to affirm that the decision of a delegate of the respondent Minister made on 27 June 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a citizen of India who arrived in Australia on 14 April 2003 and applied for a protection visa on 28 April 2003. His claims before the Tribunal are set out in his application for a protection visa at Court Book 1 to CB 24 and in an attached written statement at CB 25 to CB 35. His application to the Tribunal is at CB 51 to CB 54. The applicant also gave oral evidence before the Tribunal on 12 January 2004 and the Tribunal's report of the hearing is at CB 78 to CB 84.
I should note that at CB 58 to CB 65 there is a copy of a letter dated
16 November 2003 from the applicant addressed to the Tribunal, but in the opening paragraphs, it appears to be addressed to the first respondent's delegate and states that he wanted to address the decision and clearly referring to the person who made the decision. In any event, the bulk of the letter is an item by item comment on parts of the delegate’s decision record. In the context of the Tribunal addressing all of the applicant’s claims put before it, while this letter does not specifically appear to be referred to in the Tribunal's decision, it is clear that the substance of all the matters raised by the applicant in that document were before the Tribunal and considered by it.The applicant's claim before the Tribunal to fear persecution in India, appear to be for reason of his political opinion and membership of a particular social group in India (mixed caste). He claimed that politicians would kill him, that he feared for his safety from police, that he had been assaulted on three occasions, and that he had been discriminated against because of his mixed caste family background and status. The Tribunal found:
1)That in relation to the applicant's statement that he had been disadvantaged because of the caste system, there was little beyond general assertion, that is, little specific detail was provided in support of these claims. (CB 85.8)
2)That in respect of the applicant's claim that he would be killed by police, the Tribunal was satisfied on the evidence before it that there was no substance to this claim. (CB 85.9)
3)That the totality of the applicant’s oral evidence as to the nature of the harm he feared and who he specifically feared may harm him in India, was equally unclear and that he did not with any degree of particularity, identify which political groups of politicians he feared and why. (CB 86.2)
4)In relation to the three incidents put forward by the applicant, where he claimed variously to have been attacked and threatened by unknown persons, the Tribunal found that it was not satisfied that the incidents indicate that he was persecuted for reasons of his political opinion, caste or indeed any other Convention reason, and was not satisfied on the evidence before it that the applicant had a well founded fear persecution owing to his political opinion, caste or any other Convention reason now or in the foreseeable future (CB 86.9). The Tribunal gave comprehensive reasons for this finding.
5)That the Tribunal's record of what occurred at the hearing with the applicant, which remains unchallenged before me by any other evidence, notes that the applicant clarified in his oral evidence that his mother and father were of different caste and background.
Further at CB 89.3:
“He also claimed that he was prevented form mixing with those of high caste and those of lower caste feared them. People like him became alienated and lonely in society. The high caste people did not respect them. And the low caste did not respect them for being high caste. They only got disrespect and disgrace. The applicant also referred to being “cross-breed” and being from a mixed marriage.”
The Tribunal found that overall the totality of the applicant's written and oral evidence about his actual experiences of discrimination in India, owing to his caste, to be unconvincing (CB 89.6). It further found that his written claims were expressed in general terms and contained little specific details as to his actual experiences and that in giving his oral evidence the applicant did not impress as a frank or credible witness. The Tribunal found his evidence to be evasive and that he frequently had to be pressed to provide more information which should have been forthcoming. (CB 89.8)
6)The Tribunal also looked at the applicant's circumstances in relation to his caste and the specific assertion that he was given a low status during his time in the Indian Air Force, and to social ostracism, and found he did not provide any details as to the nature and extent of this ostracism or what form it took. (CB 91.9)
7)In relation to the claim that he suffered discrimination amounting to persecution whilst in the air force owing to his caste, the Tribunal was not satisfied on the evidence before it that any of the matters which the applicant complained of during his time in the Air Force comprised serious harm amounting to persecution within the meaning of s.91R(2) of the Migration Act.
8)The Tribunal took the view that his assertions of social ostracism owing to caste do not appear to be consistent or accord with his actual experience in India and did not accept that he had suffered social ostracism or discrimination amounting to persecution owing to his “mixed caste background”. (CB 92.9)
The Tribunal's view was that the totality of the applicant's evidence demonstrated a capacity on his part to believe that many people were conspiring against him, but that his belief that politicians were out to harm him is speculative and not reflected in his evidence as to what actually happened to him and further that the incidents which he put forward as indicative of his claimed difficulties owing to caste did not amount to persecution of him. It was not satisfied that on the evidence before it the difficulties flowing from his caste, which he claimed to have suffered in the Air Force, amounted to persecution within the meaning of s.91R(1)(b) and (c) and as explained by s.91(2) of the Act.
The application to this Court appears to seek review on the facts that the applicant had submitted to the respondent's Department and to the Tribunal. Clearly the Court cannot entertain merits review of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In any event, the applicant filed an amended application on 16 February 2005. While for the most part the amended application also seeks impermissible merits review, the following complaints taken with his submissions at the hearing before me may be discerned:
1)That in dealing with his claims that he suffered employment and other forms of social ostracism and discrimination because of his ancestry, the Tribunal consulted independent country information regarding the caste system in India that was based on obsolete information from British rule in the last century and that further the independent country information was silent about the state of a mixed cast member like the applicant.
While the Tribunal did refer to independent country information relating to the caste system in India at CB 85, the information is contained in the “US Country Report on Human Rights Practices – 2003” released in February 2004 and makes reference to contemporary events. For example, there is a reference to the Indian Constitution and the power that it gives to the President to identify historically disadvantaged castes and to provide relief to them. But in any event, it is very clear that the Tribunal's findings in relation to the claims concerning caste and its ultimate findings were based on the applicant's inability to put before the Tribunal convincing circumstances to show that he had suffered social ostracism arising out of his mixed caste background. It was the applicant's unconvincing evidence and his failure to impress the Tribunal as a frank or credible witness that was the basis for the Tribunal's finding in this regard.
2)That the Tribunal did not deal with his claim that his problems arose out of his mixed caste status.
As set out above, the Tribunal looked at his mixed caste ancestry:
“The applicant stated that his father had belonged to a high caste and his mother belonged to a low caste. He claimed that he was prevented from mixing with those of high caste and those of lower caste feared them. People like him became alienated and lonely in society. The high caste people did not respect them. And the low caste did not respect them for being high caste. They only got disrespect and disgrace. The applicant also referred to being a “cross-breed” and being from a mixed marriage. He added that he had been ostracised by society and that this was why he had joined the air-force. If he had belonged to a high caste he would have had no problem whatsoever.”
It also identified his claims, to the extent that there was any particularity arising from them and found his evidence to be unconvincing (CB 89.7). It ultimately found at CB 92.8:
“I do not accept that the applicant has suffered social ostracism or discrimination amounting to persecution owing to his mixed caste background.”
The Tribunal’s decision record and its ultimate finding clearly encompassed and focussed on his “mixed caste background.”
3)That there were books about the caste system which would support the applicant’s case.
There is no evidence whatsoever before the Court that the applicant sought to put such material before the Tribunal and was prevented from doing so. Further, the Tribunal’s record of what occurred at the hearing before it shows the Tribunal specifically alerted the applicant to the Tribunal’s difficulties with his claims on the basis of caste. The applicant had opportunity at the hearing and subsequently to refer to any “books” that he wanted to put to the Tribunal. There is nothing to show that he did so. Nor can I see any error in the Tribunal proceeding on the material before it. In the absence of anything from the applicant the Tribunal’s findings were open to it on the material before it.
4)The applicant states that the Tribunal discussed three incidents he had put forward in his evidence which were indicative of persecution. He complains that the Tribunal found against him because he could not furnish the identity of the assailants in all three incidents.
It is clear that the Tribunal looked at and considered the three incidents in some detail. Its findings that it was not satisfied that they indicate that he was persecuted for reasons of his political opinion, caste or any other Convention reason, were supported by reasons which were all open to the Tribunal to make on the evidence before it. Further, while accepting that the assaults as claimed did not occur for the reasons that the applicant had indicated, the Tribunal also considered the situation that, even if the attacks which the applicant had described had occurred, it was not satisfied on the evidence before it that they were owing to the applicant's political opinion or caste. This was open to the Tribunal to find on what was put before it, and I can see no error in how the Tribunal has approached this set of claims by the applicant.
5)The applicant also appears to assert now that the police would not assist him in India even if he had gone to them to complain about the three incidents. The applicant appears to explain now that the statement in his application for a protection visa, that he feared for his safety from the police, was in the context of the police not being able to protect him, and that if he had gone to the police seeking aid, they would have notified his whereabouts to his enemies.
The Tribunal dealt with both aspects of this issue. Firstly, at CB 85.8 it found, in respect of the claim that the applicant would be killed by police, that it was not satisfied on the evidence before it that there was any substance to this claim. Secondly, it did not accept the applicant's evidence about the assaults. The Tribunal did not accept that he was assaulted for the reasons that he had indicated or even that there was any Convention related reason (CB 88.9). In these circumstances it is unnecessary for the Tribunal to have gone on and looked at the issue of police protection any further.
6)The applicant also complains that the Tribunal was not satisfied with his employment history. It is clear from the Tribunal's decision record that it looked at the issue of the applicant's employment history in the context of seeking to discern whether the applicant had suffered any difficulties in his employment owing to his political opinion, his caste background or any other Convention reason. The Tribunal found at CB 91.8 that it did not accept that the applicant had suffered any such difficulties in his employment arising out of any Convention reason. This was clearly open to the Tribunal to find on the evidence before it and nor does the applicant now put forward any substantial complaint about what the Tribunal has done.
The applicant appeared before me unrepresented, although relevantly I note that he had access to the Court's Legal Advice Scheme and on
21 September 2004 was sent advice by a lawyer on the panel of that scheme. At the hearing before me the applicant was assisted by an interpreter in the Tamil language, although he addressed the Court in English. The applicant claimed the Tribunal did not deal with his claim that his difficulties arose out of his mixed caste status, but dealt with him as a low caste person. Further, that there were “books” about the caste system which he claimed were relevant to his case.I should also just note the following:
1)Attached to his amended application to the Court, the applicant has put what appears to be an almost identical version of the letter that the applicant sent as addressed to “The officer. Refugee Review Tribunal”, which is reproduced at CB 58 to CB 65. As I noted earlier the Tribunal does not appear to have directly referred to this document in its decision record. But in any event, it appears to be directed to the delegate decision maker and to the extent that it raises issues of relevance that were before the Tribunal the Tribunal dealt with all of the issues and the substance of the issues raised by the applicant. In any event, the applicant was given an opportunity at the hearing before the Tribunal to clarify his claims and the Tribunal clearly dealt with all of the issues as clarified to the extent that they can be said to have been clarified by the applicant.
2)The applicant in his amended application to the Court also appears to challenge the decision of the delegate. I took the view however, that on the material before me, that this was not the operative decision for the purposes of the judicial review now, for the reason that in his application to the Court the applicant specifically refers to the Tribunal decision as the subject of this application, and further note McHugh J. in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80]:
“The issuing of writs under s.75(v) of the Constitution and s.39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s.39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”
I took the view therefore that in any event even if there was some doubt as to what the applicant was seeking before this Court that his application to the Tribunal following the delegate’s decision, his pursuit of the application before the Tribunal and his attendance at the hearing before the Tribunal is conduct which is inconsistent with any application for relief now against the delegate’s decision and would not therefore in the exercise of my discretion grant relief to the applicant in this regard if indeed he was actually to be seeking review of the delegate’s decision.
It is quite apparent that the applicant was unsuccessful because of the view that the Tribunal took as to the applicant's lack of credibility and the vague and generalised nature of his claims. On all the material before me I cannot see any error, let alone jurisdictional error, in the Tribunal’s decision. This is a privative clause decision within the meaning of s.474 of the Migration Act. On the basis that there is no jurisdictional error, the application is dismissed.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 6 September 2005
0
3
2