SZEGW v Minister for Immigration
[2005] FMCA 562
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGW v MINISTER FOR IMMIGRATION | [2005] FMCA 562 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 91X, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Cam v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 84 FCR 14
Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
| Applicant: | SZEGW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2649 of 2004 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 20 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Hindi interpreter.
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2649 of 2004
| SZEGW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 July 2004 and handed down on 2 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 March 2004 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEGW”.
The applicant, who claims to be a citizen of India, arrived in Australia on 29 February 2004. On 22 March 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-34) (“CB”). On 30 March 2004 the delegate refused to grant a protection visa (CB pp.45-51) and on 10 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.52-55).
The applicant is an Indian national, born in June 1967 of Indian ethnicity. He claims he is a Hindu and speaks Tamil and English. The applicant stated he was born in the village of Naduhatly in the Indian state of Tamil Nadu. He is married and his wife and children continue to live in Tamil Nadu. The applicant gave no description of his occupation in his application although in his written statement he stated he was involved in the tea industry. He claimed to hold a Bachelor of Science (Statistics) Degree from a university in Coimbatore. The applicant travelled to Australia on an Indian passport and entered on a temporary business visa issued in Mumbai on 3 February 2004 (CB p.72).
In his written statement the applicant stated that he was attracted to the Congress Party whilst a student at college. He claimed that when he left college he worked in the tea business as his home was surrounded by tea estates. The applicant stated that his work required him to travel between tea estates, however, he continued to attend Congress Party meetings and help Party candidates in his constituency (CB p.73).
The applicant claimed that while involved in Congress Party activities he came to the attention of a prominent member of the Bharatiya Janata Party (“BJP”), Mr Nangan, who, with the assistance of armed supporters, disrupted Congress Party meetings. The applicant claimed he was kidnapped and threatened by Mr Nangan and his supporters. He stated there were a number of incidents of conflict between the village people and Mr Nangan and his supporters, including a fire at Mr Nangan’s house, which resulted in the applicant being accused of arson. Because of the escalating violence between the applicant and the BJP followers, the applicant claimed he was required to move a number of times but was tracked down by Mr Nangan’s supporters. In January 2004 the applicant claimed that whilst out shopping he was discovered by two men, one of whom attacked the applicant with a knife. The applicant stated that he then decided to leave India and contacted an agent who arranged his visa for Australia (CB pp.73-74).
The Tribunal’s findings and reasons
Ms L Clegg of Counsel, appearing for the respondent, prepared a summary of the Tribunal’s findings and reasons which I have adopted as follows:
a)At the Tribunal hearing the applicant made an additional claim that he was persecuted in India because he was a newspaper editor/journalist who, through his family’s commercial printing business, published articles criticising the BJP politicians as corrupt. The applicant produced a number of magazines and newspapers to support his claim (CB pp.34, 74). The Tribunal asked the applicant a number of detailed questions regarding his written statement and his additional claim (CB pp.76-80).
b)The Tribunal relied upon independent country information regarding the Congress Party, the BJP, the political climate in Tamil Nadu and the freedom of the press and of movement in India (CB pp.81-84). The Tribunal put the adverse country information to the applicant (CB pp.58, 80-81).
c)In the Tribunal’s decision, it was accepted that:
i)the applicant originated from Tamil Nadu and was a supporter of the Congress Party;
ii)the applicant had been engaged in conflict with Mr Nangan, a supporter or official of the BJP;
iii)in 1999 there were hostilities between the applicant and Mr Nangan;
iv)Mr Nangan tried to persuade the applicant to support the BJP; and
v)Mr Nangan threatened the applicant with harm if he did not cease supporting the Congress Party.
d)However, the Tribunal:
i)found nothing came of the threats and they did not amount to persecution;
ii)did not accept the applicant suffered any mistreatment or harm from Mr Nangan, his associates or members of the BJP or Rashtriya Swayamsewak Sangh (“RSS”);
iii)observed that none of the hostilities affected his or his family’s continued residence in the area;
iv)did not accept the local police acted to harm the applicant or that they failed to protect him from harm; and
v)did not accept the applicant was attacked and threatened by his political opponents in Chennai in January 2004.
e)The Tribunal concluded that the applicant did not have a real chance of persecution by Mr Nangan, his supporters, the RSS or members of the BJP for reasons of his support of the local Congress Party.
f)The Tribunal also dealt with the applicant’s claim that he feared persecution by reason of his involvement in the publication of articles critical of local BJP politicians in newspapers and magazines. In doing so the Tribunal accepted the applicant was named as the publisher or editor of those magazines and newspapers but did not accept that the applicant played any part in writing the articles (CB p.87). The Tribunal noted that India’s constitution enshrines freedom of expression and that media outlets regularly publish articles critical of the government and opposition parties. The Tribunal noted there was nothing exceptional contained in the articles. The Tribunal observed that the claimed fear of persecution on this ground appeared to be “entirely speculative”.
g)The Tribunal concluded that the applicant did not face a real chance of persecution from local BJP politicians or their supporters by reason of the applicant’s involvement in publishing the newspapers and/or magazines and any imputed political opinion (CB p.88).
h)The Tribunal considered the applicant’s position if he were to return to India as a supporter of the Congress Party and, on the basis of country information, concluded that the applicant faced no risk of harm from his political opponents in the BJP. The Tribunal also observed that the applicant would not be at risk of persecution by state authorities for reasons of political opinion expressed in the newspapers and magazines in which he has been involved. If he was to be threatened by any person aggrieved by the comments made in those publications, he would be able to avail himself of reasonable and effective state protection (CB p.89).
i)The Tribunal concluded that the applicant is not a person to whom Australia has protection obligations because he does not satisfy the criteria set out in s.36(2) of the Act.
Application for review of the Tribunal’s decision
On 25 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“I am disagree with the decision of the RRT.
The RRT made decision without giving any importance to my evidence.
I asked denied NATURAL JUSTICE RRT favorable to DIMIA.”
(Errors in original)
On 22 September 2004 the applicant attended a directions hearing and consented to Short Minutes of Order requiring him to file and serve an amended application giving full particulars of each ground to be relied upon by 17 November 2004. The applicant complied with the order and filed a document headed “Application to Amend” on 17 November 2004 which contained the following grounds:
“1.In pages 3 and 4 of the decision of the Tribunal it is stated about definition of ‘Refugee’ and about the four key elements to the Convention definition.
The first element is that the applicant must be outside his country. The applicant is now outside his country.
The second element is that an applicant must fear persecution. The applicant has the fear of persecution from the other political group namely BJP.
The third element is that the fear must be for one of the reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicant has the fear as he belongs to a particular political group and for his political opinion.
The fourth element is that there must be a well founded fear. The applicant has a well founded fear.
2.The Tribunal is not correct in saying that the applicant has no threat which amounted to persecution. The reason given by the Tribunal is that the applicant continued to live [in] that area. The Tribunal failed to understand the mental problem the applicant faced every day till he came to Australia. The Tribunal factually erred in this conclusion.
3.The Tribunal says again that the behaviour is not consistent with a genuine fear of persecution. The applicant states that the Tribunal would have accepted anything in favour of the applicant only if he had been killed by the other group. If such findings of the Tribunal are accepted then the applicant will have no guarantee for his life.
4.The Tribunal has simply rejected all claims of the applicant. The Tribunal committed a factual error by completely refusing the statement of the applicant.
5.The Tribunal should have acted based on the applicant’s claim. But the Tribunal ha[s] relied on foreign sources to negative the claim of the applicant. The Tribunal has relied on some reports of US and UK and has not given enough base on the applicant’s first hand problems.
6.The Tribunal failed to note that the police did not protect the applicant from Nangan and his political supporters like RSS and BJP.
7.The Tribunal having accepted that the applicant had a newspaper and was highlighting the corruption of local politicians should have accepted that this caused problem with the other group for the applicant.
8.The Tribunal committed a mistake in saying that the applicant had made a false claim to get protection visa.
9.In any case the Tribunal should have passed an order in favour of the applicant.” (Errors in original)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
The applicant appeared self represented with the aid of a Hindi interpreter. When invited to make any oral submissions in support of his application, the applicant indicated he wished to rely upon the grounds pleaded in his original application and amended application. The applicant made some comments about obtaining additional documentation from India to support his claim but there would be delays in obtaining this documentation. It was explained to the applicant that it was the substantive hearing in this matter and any submissions to the Court should be presented during the hearing.
Respondent’s submissions
Ms L Clegg of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The grounds in the amended application were nothing more than an attempt to seek to re-agitate the facts of the applicant’s claim. The applicant appeared to suggest that insufficient weight had been placed on his evidence and that the Tribunal should have accepted his version of events. It was apparent that the applicant was inviting the Court to engage in impermissible merits review.
b)It is for the Tribunal to determine what weight should be attached to particular evidence and the Court cannot review the Tribunal’s conduct in that regard: Cam v Minister for Immigration & Multicultural & Indigenous Affairs at 32. Further, it was clear that the Tribunal carefully considered all of the evidence. There was nothing to suggest the Tribunal took into account any evidence which it should not have taken into account or that it failed to take into account any evidence which it should have.
c)Whilst it is acknowledged a denial of procedural fairness can amount to jurisdictional error, there was no suggestion that the applicant in this case was denied procedural fairness. The applicant was given ample opportunity to present his claims and to respond to or explain inconsistencies and contradictions in his claims (CB pp.76-80). The Tribunal went to considerable lengths to explore with the applicant its views about his claims and was clearly given a fair hearing.
d)The Tribunal relied in part on country information to arrive at its conclusion concerning the plausibility of the applicant’s claims. Insofar as the Tribunal was required to provide the applicant with country information, it was only required to adhere to the provisions of s.424A of the Act. The Tribunal clearly put adverse country information to the applicant both before and during the hearing (CB pp.58, 80-81).
Reasons
The applicant was a self represented litigant who appeared with the assistance of a Hindi interpreter. At the hearing he indicated to the Court that he wished to rely upon the grounds that had been filed and did not wish to make any oral submissions other than to make a number of brief statements regarding his situation in India and the perils he would face if he were to return. The pleadings in the original application and the amended application were vague and unparticularised and did not identify grounds of review. However, where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
Ms Clegg assisted the Court by distilling from the general statements contained in the pleadings the issues of merits review, the weighting of the evidence and procedural fairness and I accepted her submissions. In the absence of any grounds that identified jurisdictional error and with no particularisation in respect of adverse claims, the only avenue left to the Court was to consider the Tribunal’s decision on a fair reading and determine for itself whether any errors could be detected. The Tribunal member indicated that the applicant’s original written claim and the evidence given at the oral hearing before the Tribunal differed in some respects and it was the view of the member that the information supplied at the oral hearing were a more accurate reflection of the applicant’s true claims. The Tribunal member noted discrepancies between the application and the oral submissions. However, in most cases the Tribunal did not place great significance on these differences.
The Tribunal member accepted there had been a level of violence associated with the political activities as claimed by the applicant. However, the Tribunal noted there were a number of inconsistencies in aspects of the applicant’s behaviour, such as remaining in his home throughout the incidents together with the occasions he sought shelter elsewhere but remained in close proximity to his home. The Tribunal noted that during this time the applicant continued with his normal work practices in the family printing business. Similar doubts were expressed in relation to the behaviour of the police and the motivation of the knife attack in Chennai. All of these issues were discussed with the applicant during the oral hearing and he was provided with an opportunity to respond to each issue. The Tribunal demonstrated that it had complied with all the requirements of the Act to accord the applicant procedural fairness.
An issue that only became apparent during the oral hearing was that the applicant had been involved in a family publishing business and produced publications with a substantial political content, criticism and opinion and may attract adverse attention because of the publishing content. Having taken this matter into account with all of the other issues raised by the applicant, the Tribunal came to the conclusion that the applicant was not a person to whom Australia owed protection for Convention reasons. The decision making process adopted by the Tribunal, on its face, did not disclose any errors that could be categorised as jurisdictional error. Although, it was not the decision desired by the applicant, the Tribunal’s decision and the process were not infected by jurisdictional error.
Conclusion
On the material before me, I have not been able to identify any ground that the Tribunal committed any jurisdictional error and the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 April 2005
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