SZEBY v Minister for Immigration

[2005] FMCA 884

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEBY v MINISTER FOR IMMIGRATION [2005] FMCA 884

MIGRATION – Refugee – bad faith – Migration Act not observed properly – Tribunal failed to investigate the documentary evidence – persecution.

Migration Act 1958, ss.427, 91R
Federal Magistrates Court Rules 2001, 21.02(2)(a)

NANQ v Minister for Immigration [2003] FMCA 553
Minister for Immigration and Multicultural Affairs v Sarazolla (1999) 95 FCR 517
Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 431
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142

Applicant: SZEBY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2390 of 2004

Judgment of: Nicholls FM

Hearing date: 29 November 2004

Date of Last Submission: 24 November 2004

Delivered at: Sydney

Delivered on: 13 July 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. R. Francois

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $4500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2390 of 2004

SZEBY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 28 July 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 8 June 2004 and handed down on 30 June 2004, to affirm the decision of a delegate of the respondent Minister made on 8 July 2002 to refuse a protection visa to the applicant.

2. The applicant is a citizen of India of Tamil ethnicity and Muslim religion.  He arrived in Australia on 31 March 2002, and lodged an application for a protection visa on 15 April 2002. The applicant claimed to have a well-founded fear of persecution in India on the basis of his religious belief and imputed political opinion that is being thought of by the authorities to be associated with radical Muslim organisations.

3. On 9 July 2002 the applicant lodged an application with the Tribunal for a review of the delegate’s decision. On 3 April 2003 the Tribunal, differently constituted, handed down its decision affirming the decision of the delegate (Court Book 104 to CB 122). On 23 December 2003 Federal Magistrate Driver quashed this Tribunal decision and remitted the matter back to the Tribunal for reconsideration (NANQ v Minister for Immigration [2003] FMCA 553 – copy at CB 123 to CB 136). Federal Magistrate Driver found that the Tribunal had fallen into jurisdictional error in that it had failed to inquire into the applicant’s claim of Post Traumatic Stress Disorder and his capacity to participate during the hearing before the Tribunal. On 30 June 2004 a differently constituted Tribunal handed down its decision again affirming the decision of the delegate to refuse a protection visa. This is the decision which is the subject of the application before this Court now.

4. In his original application to this Court the grounds on which the applicant relies are:

   “1.RRT took decision in bad faith.

   2.Migration Act 1958 was not observed properly.

   3.The Tribunal did not investigate the documentary evidence properly.

   4.The Tribunal erred [in] law to fail to determine the problem, [what] I faced amounted to persecution.

   5.The Tribunal failed to investigate my claims under s.427 of the Migration Act 1958.

   6.I will provide more grounds later.”

5. The applicant filed an amended application on 2 November 2004, which only raised one ground. This was supported by written submissions prepared by Counsel, Mr. J. Smith, acting in a limited capacity under the Court’s Legal Advice Scheme. The submissions contend that the Tribunal’s decision was affected by jurisdictional error in that it misconstrued the definition of a “refugee” within Article 1A(2) of the Refugees Convention.

6. At the hearing before me the applicant was unrepresented and appeared with the assistance of an interpreter in the Tamil language. At the outset of the hearing the applicant claimed he had not been served with the respondent’s submissions. Ms. Francois for the respondent submitted that the applicant had been served with the submissions on 24 November 2004. She tendered a copy of a letter sent to the applicant, by the respondent’s solicitors by courier, which indicated that the submissions had been sent to the applicant’s address, as provided by the applicant. This letter was marked as Respondent’s Exhibit 1 “RE 1”. The applicant claimed to have changed address, but agreed that he was not able to provide a valid reason as to why he did not notify the Court or respondent of his change of address. Subsequently, it appeared that the change of address was to another room at the same street address which he had provided. In any event, I granted a short adjournment so that the interpreter could translate the submission to him. On resumption the applicant stated that he was now willing to continue with the hearing.

7. At the hearing before me the applicant was unable to add anything to the grounds asserted in the amended application or the submission prepared on his behalf by Mr. Smith. Further, I gave the applicant the opportunity to address any of the matters raised in the original application and he was unable to add anything of any substance. The applicant’s complaint as put by the applicant himself was that he did not have any family members here in Australia, that he was alone and that he was not in a good state of mind because he had been separated from his family. He claimed that this situation was the reason that he was unable to get any documents to support his case before the Tribunal. The applicant was unable to add anything beyond that to his claims despite the specific opportunities that I provided to him to do so.

8. However, as a consequence of what he said two possible issues arise. The first is the issue of the applicant’s capacity to give evidence at the hearing before the Tribunal, and second the applicant’s claim that he was not able to provide documents to support his application. In relation to the first issue Ms. François referred me to CB 168 being the first page of the Tribunal's “Findings and Reasons” in its decision record. It is clear that the Tribunal was very mindful of the reason that the Court had quashed the decision of the first Tribunal and focused on the applicant's state of mental health, and importantly on the applicant's capacity to put his case to the Tribunal at the hearing before it. At CB 168.2 the Tribunal notes that it accepted medical advice that the applicant suffers from Post Traumatic Stress Disorder and as a result spent a reasonable amount of time at the beginning of the hearing talking to the applicant about how he was feeling. The Tribunal records that it offered to adjourn the hearing as the applicant's adviser had taken ill and was not present at the hearing, but also records that the applicant clearly wanted to proceed. Further, the Tribunal noted that during the hearing, even though the applicant at times appeared anxious, it formed the view that he was “not unusually anxious”, and for most of the hearing appeared calm and related well to the Tribunal. The Tribunal concluded that there was nothing before it to show that the applicant's clinical condition adversely affected his ability to adequately put his case before the Tribunal. There is no evidence before this Court to dispute these findings made by the Tribunal and nor has the applicant made any claims now to dispute the Tribunal record in this regard.

9. This issue also may be possibly linked to the applicant's claim in his original application that the Tribunal failed to investigate his claims under s.427 of the Migration Act. To the extent that this may be connected to s.427(1)(d) and any failure by the Tribunal to arrange an investigation or medical examination in relation to the applicant, the applicant made no claim at the hearing before me that his medical condition prevented his adequately giving evidence before the Tribunal. In fact his complaint was focused on his medical condition preventing him from obtaining documents to support his case. He specifically said that he was not able to get any documents to support his case because of his mental condition. On what is before me it is clear that the Tribunal approached this issue in a sensitive way as shown by its offer of an adjournment in circumstances where the applicant found himself without his adviser. There is nothing before me to show that the Tribunal should have arranged for any examination as contemplated by s.427(1)(d), particularly as it accepted that the applicant did suffer from Post Traumatic Stress Disorder. On what is before me this ground [Ground 5] in the original application cannot be made out.

10. The applicant's second issue could be seen as an assertion that he was not given an opportunity to properly provide his documentary evidence to support his claims. This in part could be seen to be linked to Ground 3 in the original application that the Tribunal did not investigate the documentary evidence properly. It is clear that the applicant had the benefit of assistance from a registered migration agent throughout most of the period of the review of his application by the Tribunal. Relevantly, and specifically however, he appointed a new representative to assist him on 5 April 2004, and in this regard see CB 144 to CB 146. At CB 165.4 the Tribunal records that it specifically gave the applicant, and his adviser, a further period following the hearing to make any submissions that they may wish to make. The Tribunal also records that it advised the applicant to obtain a copy of the hearing tape of the hearing before it and to give it to his adviser. The Tribunal also records that some documents were received after the date of the hearing. There is nothing before me to show that the applicant or his adviser sought any further time from the Tribunal to obtain any other documents, nor at any time was there any reference to any specific documents that the applicant was hoping to obtain or any reference to any specific documents that he claimed his medical condition was preventing him from obtaining. To the extent that this complaint is that the Tribunal did not provide an opportunity for documents to be submitted it cannot be made out. To the extent that Ground 3 in the original application is a complaint that the Tribunal did not properly look at the applicants documentary evidence, the applicant has provided nothing in the way of any particularity and nor is any such failure on the part of the Tribunal evident on the material before me.  

11. The one ground put forward by Mr. Smith on the applicant's behalf, and supported by written submissions, is that the Tribunal misconstrued the meaning of “refugee” in the Refugees Convention by failing to recognise that a person may be motivated to persecute another person for more than one reason. Mr. Smith submits that this error appears in the following extract from the Tribunal’s “Findings and Reasons” at CB 169.9:

    “The applicant has claimed that his wife, some friends and relatives were arrested in Adivrampattinam in 2001 following the eruption of communal violence in 2001 (Dalit’s Colony incident). He claimed that they had been beaten and tortured. The Tribunal accepts as being plausible that the applicant’s wife, some friends and relatives were so arrested. However, on the basis of the available information, the Tribunal cannot be satisfied that the arrest was simply due to their religion. More importantly, the Tribunal cannot be satisfied that they had been beaten and tortured. The Tribunal asked the applicant how he knew that this happened. The applicant essentially said that because it was “normal”. The Tribunal is not persuaded by this explanation. The Tribunal is satisfied that this incident does not give rise to a well-founded fear of persecution.”

    Mr. Smith concedes that in its statement of reasons the Tribunal sets out, in unexceptional form, the law relating to motivation, that is, on the part of those who persecute, as modified by s.91R(1) of the Migration Act, but contends that despite that it did not apply that understanding in any way to its findings in respect of the applicant's claims that his wife, friends and relatives were arrested in 2001. Specifically Mr. Smith points to the use of the word ‘simply’ in the passage quoted above as indicating that the Tribunal, “failed to recognise that one person may be motivated to persecute another for more than one reason. Minister for Immigration and Multicultural Affairs v Sarazolla (1999) 95 FCR 517 at 521-522.” The argument is that this particular claim was important to the applicant's case because, apart from a number of other factors, it went to the heart of the applicant's fear as being an example of the harsh treatment that he could expect on return, because the police suspected that he may be a Muslim activist. Ms. Francois’ response was that such a reading subjects the Tribunal's decision to impermissible overzealous scrutiny and relies on Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271-2 as authority in support.

12. It is clear that in trying to ascertain meaning in the Tribunal's decision record that regard should be had to the whole of the context of what the Tribunal was seeking to address and what it said, rather than just focusing on one word in isolation. Ms. Francois submitted that the starting point for understanding of what the Tribunal was really saying in this passage is to look at the relevant part of the Tribunal’s record of the evidence given at the hearing before it. At CB 163.8 the Tribunal made specific reference to the evidence given by the applicant before it, that after the eruption of communal violence in 2001 his wife, some friends and relatives were arrested. The Tribunal noted that they were subsequently released on conditional bail and that the matter was pending, presumably before the Courts. The Tribunal records that it asked the applicant if he knew why they had been arrested, and his response was because they were suspected of being involved in a particular incident of community violence in 2001 (the Dalit’s Colony incident). Relevantly the applicant is reported as saying that this suspicion, presumably by the authorities, was:

    “By virtue of the fact that they were Muslims."

    The Tribunal’s record continues and shows that it asked the applicant about his claim that these people had been tortured. (CB 163.9) The applicant responded that they had been beaten and when asked how he knew this the applicant replied at first that people told him that it was normal to be beaten, but later said that no one told him that those people had been beaten, but he thought this would have happened to them because it was “normal” for this to happen. The applicant (nor Mr. Smith) has put nothing before me to dispute the Tribunal’s account of the hearing it had with the applicant.

13. It is quite clear when looking at the structure and sequence of the Tribunal's setting out of its “Findings and Reasons” at CB 168 to CB 171, that this mirrors and follows in a logical and a reasonable sequence, the structure and sequence of its record of the evidence given by the applicant at the hearing before it. As Ms. Francois submitted, the Tribunal's assertion that it could not be satisfied that their arrest was “simply” or only due to their religion was quite clearly in response to what the applicant himself had put to the Tribunal. Importantly, it was not a characterisation of the applicant's claims formed by the Tribunal out of a larger number of claims. The applicant himself said that they were suspected of being involved in the incident because of the fact that they were Muslims. There is nothing before me to show that the applicant put forward any other reason, nor that any additional reasons were also evident in what the applicant had put to the Tribunal in the face of what he actually said. The finding by the Tribunal was clearly in direct response to the applicant's statement that they were arrested by virtue of the fact that they were Muslim.

14. This can, as Ms Francois submitted, be further seen when in the succeeding parts of its decision record the Tribunal continues to repeat the applicant's evidence and then states that it was not persuaded by his explanations. The respondent also argues that this view of what the Tribunal has done is further reinforced by how the Tribunal has dealt with the other arrests raised by the applicant in his claims:

    1)The Tribunal considered the police arrest of the applicant's brother-in-law after an incident in 1993 (the destruction of the building housing the Hindu Munani (Front)) (CB 168.7).

    2)The Tribunal at CB 168.8 accepted as plausible that the police may wish to speak to him but said it could not be satisfied that the police considered the applicant a suspect.

    3)At CB 169.6 the Tribunal then dealt with the applicant's arrest in 1992 during a protest and noted that he was arrested for obstructing traffic and considered again that this was a legitimate reason for the police conduct and did not give rise to a well-founded fear of persecution.

15. When viewed in this way, even on a plain a reading of the Tribunal's decision record, it is clear that the Tribunal in its “Findings and Reasons” dealt with each issue as it arose at the hearing before it, and that this is recorded in a logical sequence in the section dealing with the reporting of the hearing and then mirrored in the section headed “Findings and Reasons”. It must be remembered, as conceded by Mr. Smith, that the Tribunal set out its understanding, in an unexceptional form, of the law relating to motivation as modified by s.91R(1)(a) of the Act. When the Tribunal said that it could not be satisfied that the wife’s friend’s and relative’s arrest was “simply” due to their religion, it is quite clear that it was not intending to convey the limitation as warned against in “Sarazolla”. The Tribunal was addressing the one specific reason given by the applicant as to why his relatives and friends were arrested and were suspected of being involved in a violent incident, that is, they were Muslims. It dealt with this claim in the same way, and in the same pattern that it dealt with the applicant’s other claims, its discussion with him of those claims, his subsequent explanations to issues raised, and the Tribunal’s findings in relation to each claim and subsequent explanation. This ground does not succeed.

16. The applicant also asserted a number of other grounds in his original application.

    i)Ground 1 was that the Tribunal took the decision in bad faith. The applicant has provided absolutely no evidence to support this claim nor were any other assertions or submissions made by the applicant on this point to me at the hearing before me. There is nothing before me to show that any of the propositions set out in the Full Federal Court decision in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 as expanded by the Full Court in SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 431 and Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 can be made out.

    ii)Grounds 2 and 3 lack any particularity. There is nothing before me to show any failure on the part of the Tribunal to observe the relevant statutory requirements and the applicant has not said, even with the opportunity afforded by Mr. Smith’s limited involvement, as to what documentary evidence beyond that submitted by him in relation to his medical condition (CB 149 to CB 151) that he refers to in Ground 3.

    iii)The remaining ground, 4 in the original application, that the Tribunal erred in law in that it failed to recognise that the problems that he faced amounted to persecution, in the circumstances of what is before me, appears to amount to nothing more than a claim to impermissible merits review, in so far as it is seeking to assert anything further than that raised by Mr. Smith on the applicant's behalf.

1. The Tribunal's summary finding was that it could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason and concluded that the applicant was not a person to whom Australia owed protection under the Refugee Convention. The applicant was offered, and took up the opportunity of presenting his claims at a hearing before the Tribunal. The Tribunal addressed the significant threshold issue of the applicant's capacity to present his evidence, and provided the applicant's adviser with an opportunity to make submissions after the hearing, and found that as against each of the applicant's claims:

   1)That while the Tribunal was satisfied that the applicant worked away from home between 1978 and 2001 and that it was plausible that he and his brother-in-law had been attacked in 1993 by a Hindu group it could not be satisfied that the police considered the applicant as a suspect in an attack arising out of an incident of communal violence, and the Tribunal gave reasons for this (CB 168.8).

   2)The Tribunal was satisfied on the basis of the evidence as a whole that the applicant was not of particular interest to the police as a result of the incident in 1993 (CB 169.4).

   3)While the Tribunal accepted that his wife, some friends and relatives were arrested in 2001 following the eruption of communal violence it could not be satisfied that the arrest was motivated for the Convention reason provided by the applicant, nor that they had been tortured as claimed by the applicant being that it was “normal” for the authorities to do so (CB 169.8 to CB 170 .1).

   4)Did not accept that the applicant's political activities were such as to give the applicant a political profile, nor on basis of this involvement that this would mean that there would be a real chance of persecution if the applicant were to return to India (CB 170.3).

   5)Did not accept that he had to resort to bribery to obtain his travel documents, and the Tribunal gave reasons for this (CB 170.5).

2. While reaching its conclusion the Tribunal had regard to independent country information regarding the incidence of ill-treatment of Muslims in India. The Tribunal could not be satisfied that the applicant had suffered any such treatment and noted that although the applicant claimed that he had a genuine fear of persecution since 1993 that he waited until 2001 to obtain a passport to enable him to leave the country (CB 170.8).

   In all, these findings were open to the Tribunal to make on the material before it. The Tribunal gave reasons for each of its findings. There is nothing before me to show the Tribunal misunderstood the relevant law to be applied,  or that it misapplied this understanding. I can see no jurisdictional error in the away the Tribunal has approached its task or made its decision. The application is therefore dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  8 July 2005