SZDUW v Minister for Immigration
[2005] FMCA 488
•8 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUW v MINISTER FOR IMMIGRATION | [2005] FMCA 488 |
| MIGRATION – RRT decision – Indian Sikh with missing fingers – claimed torture by police due to political activities – disbelieved by Tribunal – no error found. |
| Migration Act 1958 (Cth), ss.474(1), 477(1A), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZDUW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1790 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 8 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Spark Helmore |
ORDERS
Objection to competency upheld.
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1790 of 2004
| SZDUW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 16 May 2002 and handed down on 11 June 2002. The Tribunal affirmed a decision of a delegate taken over four years earlier, on 31 March 1998. The applicant had applied for his protection visa with the assistance of an agent soon after his arrival in Australia in December 1997.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In matters such as the present, its jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal's decision unless I am satisfied that it was affected by jurisdictional error.
I do not have power myself to decide whether an applicant's claims for protection should be believed, whether he is a refugee or whether he is entitled to a Protection Visa. These are matters given under the Migration Act to the administrative officers of the Department of Immigration and on review in the Refugee Review Tribunal.
The applicant's application for a protection visa filed on 30 December 1997 attached a brief statement setting out his claims to have been persecuted in India by reason of his political activities as a member of a Sikh separatist movement. In particular, he claimed that, following a raid by police on a marriage function of "my nephew …" on
2 February 1995, his nephew was arrested and tortured and he himself was arrested and brought to the interrogation cell where his nephew was kept. His statement said that, on that occasion:
On our inability to tell about the other person, other militant organisations, the police chopped the palm of my right hand, and I fell unconscious and was later treated by the police hospital. My nephew was also met with the same atrocities of the police. One day when they were shifting us to another place we escaped on the way. We were in police custody for six months, and we knew their attention [sic] was to kill us.
My mother KK was also tortured very badly and she died because of police torture.
Since then, we were living in hiding and in disguise. Finally we managed to escape from the country with the help of an agent.
It is not necessary for me to refer to the reasons given by the Delegate for refusing the application, which he did on 31 March 1998.
The applicant's application for review to the Review Tribunal was prepared by a solicitor, Mr Justin McDonell, who also represented the applicant's nephew in a concurrent application for review. At several points in the subsequent proceedings, Mr McDonell made lengthy submissions and put forward supporting information on behalf of the applicant and his nephew. He also accompanied them at hearings before the Tribunal.
The proceedings before the Tribunal became complicated for several reasons, including the requests of Mr McDonell that the two matters be listed concurrently for decision by one Member. There were also other delays within the Tribunal due to members' terms of appointment expiring and members becoming unavailable. However, on the material before me, the applicant was not at all disadvantaged by these delays nor by the reconstitution of the Tribunal. I consider that the Tribunal as constituted when making the present decision has been assiduous in ensuring that procedural fairness was followed.
In February 2002, the Tribunal informed the applicant that it had accepted the request that the two cases be decided together by the one Member. He was informed that the Member who would now consider the case would conduct a further hearing, and that he had also prepared summaries of the material which had been collected up to that time. The summaries were provided to the applicant for comment.
The applicant at that time employed a new solicitor, Davidson James and Associates. They responded that they were instructed that "the summary appears to be an accurate account of our client's case", although they sought to alter some dates. The Tribunal indicated that it did not accept the request to alter dates, since they were the dates shown in the evidence. The material that the new Member considered included the transcript of a hearing held on 22 November 2000.
On 8 April 2002, the new member conducted a hearing to which the applicant was accompanied by his new solicitor, and by his nephew and two witnesses. In its reasons, the Tribunal carefully records the evidence that was given by each of them, and records the acceptance of their solicitor of the procedure that was followed. At one point in the hearing, the Tribunal summarised the two claims that were made by the applicant and his nephew as follows:
They were both politically active in Punjab state in groups such as the Akali Dal, the KCF, All India Sikh Youth Federation and Babar Khalsa. Because of their activities, the police watched them and harassed them in various ways. The police raided the place where a wedding was being celebrated, that being the wedding of (the nephew). (The nephew’s) wife was raped and he and others were rounded up. He was tortured and forced to disclose (the applicant’s) whereabouts then he too was arrested.
In an attempt to force the disclosure of information about others, police chopped off the fingers of the right hand of each of them, and of a third person. This event took place on 24 November 1996. Although each was injured in the absence of the others, they each attest that none of them was injured before that date and that the injuries were evident on or soon after that date. They were later treated in hospital and were helped to escape from there.
Finally they were able to escape from the country and come to Australia.
The Tribunal indicates that the applicant and his nephew agreed that this summary was a fair one and encompassed all the salient features of their claims.
From the Tribunal's discussion of the material which was presented to it and to the previous Member by the applicant's solicitors, it is apparent that it was concerned about a discrepancy between the case that was put to the Tribunal by the two applicants for protection and the case put in the statements which had been made to the original delegates, in particular as to the date at which they had encountered the police torture. Before the Tribunal they were both adamant that this occurred on 16 November 1996, and that it was in the course of a period of detention separate and later than the occasion on which they were taken into custody after attending a wedding.
At later stages in the hearing, the Tribunal clearly put to the two applicants that there was inconsistency between this dating of the torture and some evidence found on the Department’s file. This was a copy of a page from the passport held by the nephew, shown as being issued in 1995, which stated that he had a visible distinguishing mark being "cut off right hand". This page had been removed from the passport when it was shown to the Tribunal in 1999 and subsequently. The Tribunal clearly put to the applicants that these circumstances made it suspicious about their claims that torture occurred in 1996 as described by them.
The Tribunal also identified other points of inconsistency when comparing the accounts given from time to time by the applicant and his nephew as to their mistreatment by Indian authorities and their politic activity.
The Tribunal's reasons appeared to me to be a very careful examination of the evidence, and properly so, given that both the applicant and his nephew were presenting with visible signs consistent with a claim of torture.
Under the heading “Finding and Reasons”, the Tribunal said that there had been numerous contradictions in the evidence put before the Tribunal by and on behalf of the applicant. It examined these and shows how it had put them to the applicant. It explains how it has considered the explanations put forward by the applicant and his solicitors. The Tribunal was not satisfied that the discrepancies between the applicant’s original statement and his later statements arose because of error by the person who had completed the original application. It noted that some of the conflict also arose in the subsequent oral evidence.
However, as the Tribunal said, it regarded:
the issue of the nephew's passport as being of crucial importance, not only in his own case, but in this, the applicant's case.
It found that the passport had been altered in Australia either by the nephew or the applicant or by somebody acting on their behalf and with their knowledge. It said:
The Tribunal can think of no reason why the last leaf of the passport would have been removed other than to disguise the fact that the injury to the nephew's hand, mentioned on that leaf, was evident at the time the passport was issued. Given this, the Tribunal finds that the nephew's injury was evident in May 1995. It follows that the Tribunal finds the injury was not sustained on 24 November 1996. Given this finding, the Tribunal also finds that the applicant's injury was not sustained on that date.
It continued:
The Tribunal considers that it is significant that the applicant's claims, and those of his nephew, were amended to a great extent after they obtained a translation of a press article which spoke of horrendous torture of three unnamed members of the "Akalidal Gitani party" on 26 November 1996. As noted above, prior to the obtaining of that translation, the applicant's claims, and those of his nephew made no mention of that date, did not mention three people being injured, and did not mention the "Giani" group. The Tribunal finds that the applicant's claims were altered in order to appear to fit with this item of evidence.
The Tribunal concluded:
The Tribunal accepts, on the evidence of (the witness), the applicant's family had "links" with the Akali Dal Party. However, (the witness) left India in 1987, and can have no direct knowledge of the applicant's activities since then. He gave no evidence about any active political involvement of the applicant or his nephew. Given the above findings, and the Tribunal's observations as to the various contradictions in the applicant's evidence, the Tribunal is not prepared to accept the applicant's claims regarding his alleged political activities, beyond having family links to Akali Dal, and does not accept his fears of persecution at the hands of Indian police.
The Tribunal finds that the applicant is not adversely regarded by the Indian authorities. In reaching these conclusions, the Tribunal gives little weight to the evidence of the applicant's nephew and (another witness).
The Tribunal's findings on several of the key issues mentioned above necessarily mean that it has rejected as untrue the evidence of (the nephew) on key issues. It finds that he is not a credible witness. So, too, it has rejected the evidence of (the other witness) to the effect that the applicant's hand was "intact" on
25 February 1996 at his nephew's wedding. In this regard, the Tribunal notes that when he was first nominated as a potential witness in the applicant's case, no claim was made that he was able to testify about the events at the nephew's wedding. Contrary to the applicant's claim in his statutory declaration, the records of those who attended the nephew's earlier hearings do not include the name (of the other witness).
Obviously the applicant has suffered a severe injury to his hand, and his nephew has suffered an even more severe injury of a similar kind. However, the Tribunal has rejected the applicant's claims about how and when these injuries were sustained. It is not up to the Tribunal to explain how these injuries were inflicted. It merely notes that a number of possibilities, which do not imply persecution, are possible, such as industrial or agricultural accidents. In such a large population as India's, events which might have a low probability of occurring in an individual family (such as an uncle and his nephew having similar injuries) might be expected to occur from time to time across the population as a whole.
The Tribunal, having rejected the applicant's key claims, and having found the applicant and his witnesses not to be truthful, is not satisfied that he has a well-founded fear of persecution for a Convention reason.
I have carefully considered the Tribunal's reasoning in this passage and consider that it shows reasoning open to a Tribunal of fact, particularly when assessing the credibility of claims that an applicant for a Protection Visa had suffered persecution. The Tribunal had the advantage of a lengthy hearing where it could assess the applicant’s oral evidence. It performed this assessment in the light of a transcript of a previous hearing and many statements that had been prepared for the applicants with legal assistance. It is not my function to decide whether I would have arrived at the same conclusions. It is enough that I consider that they were open to the Tribunal.
The Tribunal shows that it has been alive to the need to consider the implications of its rejection of the two accounts given by the applicant and his nephew, who had so insistently identified the date and circumstances of their torture as occurring in November 1996, against the evident evidence of their loss of fingers. I consider that the Tribunal has properly asked itself whether it could reach any other conclusion in favour of the applicant, as a result of rejecting their evidence as to the date and circumstances of their loss of fingers.
I think it was open to the Tribunal to consider that it could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
As the Tribunal said:
It is not up to the Tribunal to explain how these injuries were inflicted.
The application in this Court was filed on 10 June 2004 and followed earlier proceedings which had been brought for judicial review on behalf of the applicant. In those proceedings, the applicant employed a solicitor, Mark Clisby, to commence judicial review proceedings following the receipt of the Tribunal decision. The solicitor filed an application for an order nisi in the High Court on 5 September 2002 and this was remitted by Hayne J to the Federal Court on 7 February 2003. The documents revealed no particularised grounds for review, and on 22 April 2003 Mansfield J ordered the filing of an amended application and submissions which would specify precisely the errors upon which the decision under review was challenged. On 13 June 2003, Selway J dismissed the application for an order nisi on the ground that no steps had been taken in accordance with those earlier directions.
One year later, the present application was filed. It contains handwritten assertions in which one ground of review is stated:
The applicant asserts that the Tribunal made a very serious "jurisdictional error" by concluding that "the Tribunal finds that the applicant is not adversely regarded by the Indian authorities. In reaching these conclusions, the Tribunal gives little weight to the evidence of the applicant's nephew and (the other witness)”.
Plainly the applicant was aware that he had to establish a jurisdictional error, but the above statement fails to provide any particulars showing any argument in that respect.
An affidavit was filed at the same time which did not seek to explain the delays in coming to Court the second time, and did not present grounds in support of any jurisdictional error. It made factual contentions which might support the refugee claims made by the applicant.
The application was given a first Court date on 17 September 2004 and on that occasion a solicitor, Mr Chandra Jayawardena, appeared on behalf of the applicant. He consented to directions which provided that the Court Book in the Federal Court proceedings would be the Court Book in this Court, and which made no directions requiring further service of that material on the applicant. The directions did require the applicant to file and serve an amended application giving complete particulars of each ground of review being relied on by the applicant before 29 October 2004. The directions appointed today as the hearing date and directed written submissions.
The Registrar has noted that Mr Jayawardena undertook to file a Notice of Appearance and undertook to notify the applicant of the hearing and to notify the Court in the event that he would not be acting at the hearing.
The Court file contains a copy of a letter filed by Mr Jayawardena on 27 September 2004, which is a letter sent to the applicant at his address for service which clearly notifies him of the Court directions and says:
Please note that it is extremely important for you to adhere to these directions, if not your application will be in jeopardy. Therefore I reiterate that you should communicate with me early if you would require any assistance to prepare the amended applications and obtain the services of a barrister.
There is no evidence before me which would establish that Mr Jayawardena has not complied with his undertakings to the Court in relation to service of that letter on the applicant, and I consider that it is probable that he did.
No compliance with the Court's directions for an amended application has been attempted by the applicant. No amended application has been filed and no written submissions have been filed as directed.
The applicant has appeared today and complained that he did not have the Court Book and asserted that he was not ready for today's hearing. He sought an adjournment of the hearing date. I refused the adjournment because I was not satisfied that he had not been notified of the directions, and because I considered that he had been given more than ample opportunity to prepare arguments showing jurisdictional error on the part of the Tribunal.
The applicant made no submissions to me which raised any arguable jurisdictional error.
I consider that there is merit in the Minister's submission that the conduct of this proceeding, as with the proceedings in the High Court and Federal Court, has been an abuse of the process of the Court with the intention merely of protracting an eligibility to Bridging Visas. However, I do not need to make a finding in that respect and do not do so.
It is enough for me to say that, after a full and careful consideration of the Tribunal's decision and proceedings, I have been unable to find any jurisdictional error affecting the Tribunal's decision.
The consequence of that conclusion is that the Tribunal’s decision is a “privative clause decision” for which relief is barred under s.474(1). The present proceeding is also incompetent by reason of the time limit in s.477(1A).
I must uphold the respondent’s objection to competency and dismiss the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 19 April 2005
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