SZDVZ v Minister for Immigration
[2005] FMCA 655
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDVZ v MINISTER FOR IMMIGRATION | [2005] FMCA 655 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – procedural fairness – alleged failure by Tribunal to perform its duty – privative clause decision – no error of law – application dismissed. |
| Migration Act 1958 (Cth) |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZDVZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1859 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 27 April 2005 |
| Date of Last Submission: | 27 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms K Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1859 of 2004
| SZDVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 27 April 2004 and handed down on
19 May 2004.
The applicant is a citizen of India who arrived in Australia on
28 July 2003. He applied for a protection visa on 26 August 2003, which application was refused by a delegate of the Minister on
17 October 2003.
On 3 November 2003 the applicant lodged an appeal with the Tribunal. A hearing was held on 1 March 2004 at which he gave oral evidence. As I have already indicated the Tribunal affirmed the decision of the Minister’s delegate on 27 April 2004 and handed down its decision on 19 May 2004.
Claims before the Department and Tribunal
The applicant is a Tamil Hindu man from Chennai, India. He belongs to the “Vannia Kula Shathiriar” community, or the “most backward class” (MBC) in India. He says this group is discriminated against in India and consequently the “Vanniar Sangam” society was formed to protest against the discrimination.
The applicant alleges that he joined this society in 1988 and that he was the “Local Block Joint Secretary for 134 Division in Saidapet” in Chennai. His father and uncle were in politics and he was known as the “leader’s son” in his area. His uncle was a member of the DMK Party and later held office as a member of the Tamil Nadu Legislative Assembly as an MLA.
The opposition party to the DMK, the AIDMK, came to power in 1992 and began arresting DMK and PMK members. The PMK was a newly formed political wing of the applicant’s society, “Vanniar Sangam”. The AIDMK blamed both these parties for the assassination of the then Prime Minister Rajiv Ghandi. Several of the applicant’s friends were taken into custody and tortured and interrogated. The applicant feared arrest too so he fled to Korea for a period until the DMK came to power in 1996.
Upon return to India in 1996 he reinvolved himself in political and community work, becoming the joint secretary of the Tamil Nadu Consumer Association in 2001.
He worked for the DMK candidate, MK Stalin, in the 2002 Chennai City Corporation elections. After the elections the AIDMK with the aid of the police had those who had worked for the DMK campaign arrested, tortured and detained on false charges. He says that they did this under the Prevention of Terrorism Act (POTA).
The applicant claims he was assaulted and sustained “cut injuries” and a colleague was murdered by cronies of the AIDMK chief. The applicant says he fears arrest, torture, being framed by false charges, detention under the POTA and even death if he returns to India.
He believes the authorities cannot help him because of the AIDMK’s influence on the government and the police. As he was very vocal against the AIDMK’s human rights abuses and as he avoided police questioning when they were looking for him, he is sure that he will be arrested and tortured on return to India.
The applicant’s evidence is set out in a number of places in the Court Book. His statement to the Department is at pages 25 to 27. This is then reproduced in almost identical terms in his submissions to the Tribunal at Court Book pages 39 to 41. At the hearing the applicant presented further written submissions prepared by his migration agent. These are at Court Book pages 49 to 59. Following this are photos and documents and then at Court Book pages 67 to 74 is a letter prepared by Amnesty International Australia for the applicant.
The applicant’s oral evidence at the hearing is detailed in the Tribunal’s decision at Court Book pages 85 to 91. The Tribunal Member sets out from Court Book page 83 the material to which she had regard in reaching her decision. This includes all the written material submitted by the applicant, plus the oral evidence provided at the hearing on
1 March 2004.
Tribunal consideration
The essential elements of the Tribunal’s consideration are set out at paragraphs 8 to 15 of the respondent’s submissions:
8.The Tribunal outlined the documentary claims made by the applicant in his visa application and his review application and his oral claims at the hearing.
9.The Tribunal also set out the independent country information it had considered: the general background of the state protection issues in India scheduled castes and tribes and exit controls in India.
10. The Tribunal made the following preliminary findings:
(a)it is accepted that the applicant did not receive a full education and that he was not able to read and write competently in Tamil or any other language;
(b)it accepted that the applicant is a member of a Most Backward Caste and that he belonged to an organisation which promoted the interest of the lower and backward caste and this organisation evolved into a political party known as PNK [PMK];
(c)it accepted that the applicant was a supporter of the PNK [PMK] and that from 1996 he operated as a “rowdy” to provide support to campaign politicians in election campaigns and that this work often involved confrontation between members of opposing political parties;
(d)it did not accept the that applicant was a secretary or office bearer of a branch of the PMK because he did not have the necessary skills of literacy to hold the position of office bearer in the political party which requires certain skills of communication; and
(e)the Tribunal accepted that after the elections of 2002 the applicant did not have any further political involvement.
11.The Tribunal did not accept that the applicant was at any risk of harm from his political opponents or the police for the reason of his political activities or political opinion because:
(a)He did not claim he had been harmed or mistreated by his political opponents or by members of the police force;
(b)He did not claim that he has been threatened by political opponents or by members of the police force;
(c)he left India legally and without restriction and this is not consistent with the claim that he is at risk of harm or adverse interests to state authorities;
(d)he was not able to explain why some years after his involvement in political activities he would now be targeted by opponents or the police.
12.Further, the Tribunal did not accept the claim that he would feel compelled to fight for the rights of his caste and involve himself in politics if he returned to Tamil Nadu because his evidence was, which was accepted, that he had withdrawn from active involvement in 2002 and had not resumed any political activity since that date.
13.The Tribunal went on to consider the situation of the applicant as a supporter of the PMK political party but accepted that there was no evidence that the members were being targeted.
14.The Tribunal also accepted that India had an independent judiciary with a fair and accessible judicial system with significant legal rights. The Tribunal therefore:
(a)did not accept that if the applicant returned to Tamil Nadu or any other party of India he would face any real chance of persecution for reasons of his political opinion; and
(b)if he were threatened with harm by political opponents he would be able to access reasonable and effective state protection.
15.The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for reasons of political opinion or any Convention related reason.
Consideration
The amended application filed on 29 November 2004 in effect pleads two grounds of review:
·failure to accord procedural fairness.
·failure on the Tribunal’s part to perform its duty as imposed by the Migration Act 1958 (Cth) (the Act) to decide the case on the material put to it and by conducting an appropriate inquiry thereon.
Procedural fairness
The procedural fairness ground provides three particulars. The first particular alleges that the delegate of the Minister made a decision without granting the applicant an interview or calling him for any explanation for any of his claims.
It is sufficient to note that the decision under review is not that of the decision of the delegate but rather that of the Tribunal. Any failure of the delegate to grant an interview is not relevant to the claims before this Court.
The applicant did attend a hearing before the Tribunal on 1 March 2004 at which he was provided with a full opportunity to present his claims. The decision of the Tribunal is not tainted by any such procedural unfairness even if it were accepted that the delegate had such an obligation.
The second particular just states that the decision made by the Tribunal did not grant the applicant a protection visa. It does not point to any error.
The third particular alleges that the Tribunal member failed to make the applicant aware of and give the applicant an opportunity to respond to adverse material in the possession of the Tribunal. The particular refers to a number of documents and pieces of information including the evidence before the delegate in Part B of the delegate’s decision. This issue was also raised by the applicant before me at the hearing.
When I pointed out to the applicant at the hearing that “Part B documents” only referred to his Departmental file and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, the applicant seemed somewhat surprised. He said that he had not seen the UNHCR Handbook and indicated that the submissions to the Court had been prepared by a friend.
The other documents referred to in the particulars are the official DFAT cables and reports and:
other Country Information materials obtained from the CISSNET electronic database.
It is clear that all the documents to which the applicant has directed the Court are covered by the exclusion in s.424A(3)(a) of the Act, and thus the Tribunal did not need to put them to the applicant for comment. The information that the applicant refers to is not specifically about the applicant or another person but is just about a class of persons of which the applicant or other person may be members (see the Full Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).
Furthermore natural justice or common law procedural fairness does not apply because of the application of s.422B of the Act.The applicant’s concerns relate specifically to matters dealt with in Division 4 of Part 7 of the Act.
In any event as the respondent has pointed out the Tribunal did refer the applicant to adverse country information. This is made clear in the Tribunal’s reasons.
It became apparent at the hearing before me that the applicant’s real concern is that the Tribunal placed greater weight on the material in the independent country information than on the material provided by the applicant. As the applicant said at the hearing the Tribunal failed to take points favourable to him but took points favourable to them.
The weight that the Tribunal places on particular pieces of evidence is clearly a matter for the Tribunal and is not something with which this Court will interfere. Indeed the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 has said that the weight that is to be attached to evidence is a matter quintessentially for the Tribunal. .
Furthermore the applicant said that the Tribunal relied on Indian Government information. This is quite incorrect as a reading of the Tribunal’s decision illustrates. The Tribunal had regard to a range of sources, including the UK Home Office, the US Department of State, Human Rights Watch, DFAT information and the Danish Immigration Service.
Nothing that the applicant has put to me suggests that the Tribunal failed to accord him procedural fairness under the Act.
Did the Tribunal fail to perform its duty under the Act
The second ground of review asserts that the Tribunal failed to perform its duty under the Act to decide on the material put to it and to conduct an appropriate inquiry on that evidence.
None of the particulars provided by the applicant which are set out in seven paragraphs support this ground. Rather they repeat some of the claims made by the applicant before the Department and the Tribunal. They are clearly an attempt by the applicant to have this Court engage in merits review, something which I pointed out to the applicant at the hearing this Court has no power to do.
The applicant has not put anything before the Court which identifies a matter which the Tribunal failed to consider in its decision or which could have affected the outcome of the Tribunal review. He has not been able to support his claim that the Tribunal member “failed to have regard to the information before her”.
It cannot be said on the material before the Court that the Tribunal failed to perform the duty imposed on it under the Act. There is nothing to suggest that the Tribunal constructively failed to exercise its jurisdiction.
Conclusion
At the hearing I pointed out to the applicant the limited role of this Court and invited him to put to me anything that might assist me in identifying a legal error. But apart from the matters that I have already considered above he simply reiterated his dispute with findings of fact made by the Tribunal.
Counsel for the respondent Minister submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is clear that the Tribunal did not accept that the applicant was at any risk of harm from his political opponents or the police were he to return to India. He would also be able to access reasonable and effective state protection.
These findings were reasonably open to the Tribunal on the material before it. I am not satisfied that the Tribunal made any legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal is a privative clause decision, having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances I must dismiss the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 28 June 2005
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