SZEJN v Minister for Immigration

[2005] FMCA 961

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEJN v MINISTER FOR IMMIGRATION [2005] FMCA 961

MIGRATION – Refugee – social group – illogicality.

Migration Act 1958, ss.91R, 424A(1), 424A(3), Article 1A(2)

Re: Ruddock Ex parte Applicant S154/2002 (2003) 201 ALR 437
VWST v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 286
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant: SZEJN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2800 of 2004

Judgment of: FM Nicholls

Hearing date: 23 June 2005

Date of Last Submission: 14 June 2005

Delivered at: Sydney

Delivered on: 23 June 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. G. Johnson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $5500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

SYG 2800 of 2004

SZEJN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This judgment is based on an outline of reasons for my decision given to the parties at the completion of the hearing. The applicant’s solicitor preferred written reasons and both parties agreed (although the respondent’s solicitor stated no real preference) that I would provide an outline of reasons orally and then written reasons subsequently.

1. This is an application filed in this Court on 10 September 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 July 2004 and handed down on 19 August 2004 to affirm the decision of a delegate of the respondent Minister made on 8 April 2004 to refuse a protection visa to the applicant. 

2. The applicant is a national of India who has lived and worked in Malaysia. The applicant's claims were summarised by the Tribunal in its decision record at Court Book 93 to CB 94.7. These claims were set out in writing in the applicant's application for a protection visa. In his application to the Tribunal at CB 44 to 47, and more particularly in a statement received by the Tribunal on 22 June 2004 (CB 53) and at the hearing before the Tribunal on 19 July 2004, the applicant made a number of claims fearing harm in both Malaysia and India. There were some discrepancies and inconsistencies between each of the accounts. While the applicant assured the Tribunal that his claims in his protection visa application, review application and supporting statement were true and a complete statement of his claims, the Tribunal noted in its decision record the clarification provided by the applicant at the hearing before it and that in relation to the applicant's claims it preferred the oral evidence given by the applicant to the Tribunal to that given in his protection visa application. (CB 94.9)

3. In relation to each of his claims as clarified at the hearing before it, the Tribunal found that:

   1)In his witness statement to the Tribunal the applicant claimed that members of his caste in India are required to be undertakers, and if they pursue other occupations they will be killed and punished. The Tribunal rejected this, on the basis that there is no independent country information, and nothing submitted by the applicant to support such an assertion. The Tribunal found that indeed the applicant's own experience and that of his uncle, a government teacher and a member of the same caste, did not support this assertion. (CB 95.1)

   2)The Tribunal accepted that the applicant and his friends opened a business in Malaysia in mid-2003 and that they had financial problems and had to borrow money from a moneylender. It further accepted that they could not afford to repay the loan and as a result they were threatened by moneylenders and came to Australia to get away from them. The Tribunal accepted the applicant's claims that he left Malaysia because he and his business partners were unable to repay the moneylenders and the moneylenders threatened them. (CB 95.2) However, the Tribunal found that the applicant is in fact a citizen of India and that his claims of persecution need to be assessed against India. The Tribunal found in this regard that there was no suggestion that his creditors would pursue him to India, and that it was not satisfied that the applicant was outside his country of nationality, being India, as a result of a well founded of persecution on the basis of his problems with his creditors in Malaysia. In any event, the Tribunal found that there is nothing in his evidence to suggest that his fear of moneylenders has any connection with a Convention reason. (CB 95.4)

   3)In relation to his claims in respect of India the Tribunal was not satisfied (CB 95.5) that the applicant had a well founded fear of persecution within the meaning of the Convention if he returns to India. The Tribunal accepted the applicant's claim of being a member of a low caste and that on the occasions when he returned to his home village, the villagers would talk about him and look down upon him. The Tribunal found that although the applicant may have felt uncomfortable and alienated by this attitude it was not satisfied that such treatment is so serious as to amount to persecution within the meaning of the Refugees Convention, and as qualified by s.91R of the Migration Act, nor was the Tribunal able to accept that the applicant would be denied a job because of his low caste and it gave reasons for this. (CB 95.8)

   4)The Tribunal also considered and accepted that the applicant donated a kidney to a cousin in 1998 and that this resulted in a girl refusing to marry the applicant, and that as a result the applicant decided to remain single. The Tribunal found that this is a personal matter and outside the scope of the Refugee Convention. (CB 96.1)

   5)The Tribunal also accepted the applicant's claim that his brother was killed in 1997 in bomb blasts in Kerala (a state in India) and that as a result the applicant feels unsafe in India. But the Tribunal found that persons caught up in civil disturbances does not of itself amount to persecution within the meaning of Refugees Convention and was satisfied that the applicant would not be targeted in a systematic and discriminatory manner for this purpose pursuant to s.91R(1)(c) of the Act. (CB 96.2)

   The Tribunal was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention if he were to return to India. It was for this reason that the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention.

4. In his originating application to this Court the applicant put forward a series of grounds, which are identical to the formulaic claims made in a number of the applications often seen before this Court. No particulars whatsoever were provided. In any event, the applicant filed on 26 November 2004 an amended application which asserts that the Tribunal took into account “a relevant consideration” when it assessed the delegate's decision. I took this in fact to be asserting the opposite, as was the case with the applicant’s further amended application which he filed in Court today (at the hearing). The further amended application added a number of particulars to his earlier document. By way of particulars the following complaints may be discerned, that:

   1)The Tribunal did not properly consider the applicant's claim to persecution on his return to India based on his membership of a particular social group namely a member of “Harijana”.

   2)The Tribunal's reasoning did not provide a rational or logical foundation for its belief that it was not satisfied that the applicant was a refugee.

   3)The Tribunal did not observe the Migration Act, and further particularised as, the Tribunal did not provide particulars of independent information and that the Tribunal did not provide the applicant with the opportunity to respond to the substance of the information.

   4)The Tribunal’s finding that the totality of the country information “does not show that Hindu or religious people or ethnic Indians are persecuted in India or Malaysia.” He claimed to have been persecuted because of his religion and the Tribunal did not consider this.

   5)He had an opportunity to attend the hearing before the Tribunal and provide oral evidence, but the Tribunal did not consider his genuine claims.

   The applicant also stated that he would provide more details in an outline of submission but no written submissions have been provided. The applicant also asserted that he would submit a transcript of the Tribunal “hearing audio cassette”.

5. The applicant appeared before me today unrepresented. He was assisted by an interpreter in the Tamil language. I also note that on 17 December 2004 the applicant was given advice by a lawyer on the panel of the Court’s Legal Advice Scheme, Mr. M. McCauley.

6. At the hearing before me today the applicant made a request for an adjournment of the hearing in order to obtain further documents from India. He said he wanted three months to obtain documents. He did not specify the nature of the documents. I explained to the applicant that if he is intending to obtain further material to show that he is a refugee, that is material that he had wanted to put before the Tribunal, then that would not assist him before this Court, unless he could show that the Tribunal acted in some way to prevent him from so doing. In the absence of any such circumstance and if the documents only went to the issue of whether he was a refugee then there is no real reason for an adjournment of the matter. I indicated to the applicant that the further material could only really assist him now if it shows jurisdictional error on the part of the Tribunal in the making its decision. He was unable to provide any detail or even a general description as to what these documents may be, let alone the circumstances in which these documents may assist him now.

7. The applicant made a further request for an adjournment to provide the tape of the Tribunal hearing to this Court. He claimed that he had never received the audio cassette of the Tribunal’s hearing with him. Mr. Johnson for the respondent relevantly sought to tender two letters sent to the applicant. The first letter was sent to Mr. McCauley and dated 22 November 2004 following the first Court date in this matter. This letter indicates that relevant documents, the “Green Book” (Court Book), and a copy of the tapes of the Tribunal hearing had been requested by the respondent’s Department and would be forwarded to Mr. McCauley as soon as received by the Australian Government Solicitor (the respondent’s solicitors). On 29 November 2004 a second letter was sent to Mr. McCauley, by the respondent, enclosing a copy of the relevant tapes of the hearing. I marked these letters as Respondent’s “Exhibits 1” and “2” (“RE 1 and 2”).

8. Further, the Court file contains a letter dated 18 November 2004 from the District Registrar of the Court, addressed to the applicant, which confirms that he had notice that Mr. McCauley had been nominated as the lawyer to give him advice under the Court’s Legal Advice Scheme. This letter also confirms that the applicant was notified that this lawyer was to contact him after receiving a copy of the “Green Book”, and a tape recording of the Tribunal’s hearing and that he was to contact this lawyer if he had not heard from him within three weeks. From this letter from the Court, and the letters tendered by Mr. Johnson, it is clear that the applicant was aware that Mr. McCauley would have been sent the tapes, and was provided with ample opportunity if he wished to pursue this matter with him. There is nothing before me, nor did the applicant say anything at the hearing before me to explain why he did not pursue this issue with the panel lawyer if it was his intention to obtain the tape of the hearing and present it to the Court. Nor did he explain why he took no other action, for example, to contact the respondent’s solicitors to obtain a copy. The date of the final hearing in this matter, with the applicant present, was set down at the first Court date on 5 October 2004. The applicant has not explained why he has done nothing in this regard in the intervening eight months. Further, the applicant was not able to explain how the tape or a transcript would assist him now. Nor is there anything before me to prompt the Court to hear the tape. In all the circumstances, I am satisfied that the applicant has had the opportunity to access the tape of the hearing before the Tribunal, and I am also satisfied that he has had reasonable opportunities to obtain yet another copy of the tape beyond the one that was provided to his legal adviser. In any event, the applicant has not provided any reasons beyond these circumstances as to how the tape would assist him, and I cannot see any real use in providing any further time for the provision of the tape or for that matter of any transcript of the hearing before the Tribunal. On that basis I refuse the request for adjournment of the matter.

9. At the hearing before me the applicant also sought more time to prepare written submissions. He provided no reason for his failure to do so to date. The applicant filed his application to this Court on 10 September 2004. He attended the first Court date in this matter on 5 October 2004 and with the assistance of an interpreter in the Tamil language knew that his application was listed for final hearing on 23 June 2005 and that written submissions were to be filed 14 days before this date.

   On 26 November 2004 he filed an amended application. On 16 December 2004 he consulted a lawyer on the panel of the Court’s Legal Advice Scheme and was given advice on 17 December 2004. Finally at the hearing he produced a further amended application. There is before me to show why he could not have made submissions in writing in all this time, nor was he able to explain how written submissions could assist his case now. In any event, the applicant subsequently advised he would continue with the hearing and make oral submissions.

10. The applicant's first claim is that the Tribunal did not properly consider the chance of persecution on his return to India based on his membership of a particular social group, that is, that he was a member of “Harijana”. This is the low caste or clan into which the applicant claims to have been born. The Tribunal’s decision record shows that the Tribunal dealt with the two aspects of this claim put forward by the applicant. At CB 95.1 the Tribunal dealt with the applicant's claim in his written statement to the Tribunal that if members of his caste do not do work as undertakers they would be killed and punished. The Tribunal clearly rejected this on that basis that there was no independent country information and nothing submitted by the applicant to support such an assertion and that the applicant’s experience and that of his uncle did not support this assertion. Further, at CB 95.5 the Tribunal looked at the applicant's claim that as a member from a low caste he was looked down upon and would be talked about by villagers in his own village. The Tribunal specifically found that while the applicant may have felt uncomfortable and alienated by this attitude it could not be satisfied that such treatment was so serious as to amount to persecution within the meaning of the Convention and s.91R(a) of the Act. At CB 95.8 the Tribunal dealt with yet another aspect arising from the applicant’s circumstances and that is that he would be denied a job because of his low caste. The Tribunal noted that the applicant at the hearing before it acknowledged that no reason was given for the one failure that he had in obtaining employment in India and that the applicant had also said that he could go to another part of India and earn a living, and that further his uncle, a member of the same caste was employed as a government teacher. The Tribunal also noted that independent country information did not suggest that persons such as the applicant are denied a living for reason of their low caste. It is clear that the Tribunal did deal with the applicant's claim in this regard, and in the various aspects of this claim as put by the applicant. There is nothing before me to show that the applicant claimed any other aspect of this particular claim, not considered by the Tribunal. If there were other aspects to this claim that the applicant feels the Tribunal should have considered there is no evidence before me that the applicant ever put these, or that there were circumstances from which other aspects of his claim could arise. It is of course, as the respondent has submitted, and as explained in Re: Ruddock Ex parte Applicant S154/2002 (2003) 201 ALR 437, that in Tribunal proceedings of this nature it is for the applicant to advance whatever evidence or arguments he wished and for the Tribunal to decide whether the claim had been made out. It is not for the Tribunal to stimulate an elaboration that the applicant chose not to embark on. I can see nothing before me to sustain this claim made by the applicant.

11. The applicant asserts irrational or illogical reasoning on the part of the Tribunal. I note as the respondent has submitted, the Full Federal Court authority in VWST v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 286 at [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error. But, importantly there is nothing before me to show any such illogical or irrational reasoning on the part of the Tribunal. The Tribunal looked at each of the applicant's claims and where necessary, as clarified by the applicant himself, understood each of those claims and as against each of the claims, made findings that were open to it on the material before it and it gave reasons for these findings. This ground does not succeed.

12. The applicant was unable to provide any detail to support his complaint that the Tribunal failed to observe Migration Act procedures. The applicant was given every opportunity to pursue his claim. By letter dated 4 June 2004, copied at CB 50 to CB 51 the Tribunal put the applicant on notice that it had considered the material before it in relation to his application, was unable to make a decision in his favour on this information alone, and therefore invited the applicant to come to a hearing of the Tribunal to give evidence and present arguments in support of his claim. The applicant attended a hearing before the Tribunal. On the only relevant evidence before me, that is the Tribunal's account of the hearing before it, it is clear that it dealt with each of the applicant's claims as put by the applicant, and as clarified by the applicant, and that the applicant was given an opportunity to comment in relation to each of these specific claims and that he did so. The applicant has not put before this Court any evidence to contradict the Tribunal's account of the hearing before it, nor is there anything before me to show that the applicant sought to provide any other information and that an appropriate opportunity was denied to him in this regard. On the material before me I cannot see that any of the Tribunal’s obligations contained in Division 4 of Part 7 of the Act were breached, an for that matter nor can I see any breach of any common law procedural fairness obligations. That applicant knew the case against him and that his claims as put prior to the hearing were not sufficient to satisfy the Tribunal that he met the recently necessary requirements, and was given an opportunity to comment. In relation to:

    1)The claim that the Tribunal did not provide him with adequate particulars of independent information. The Tribunal’s decision record and in particular its “Findings and Reasons” shows that the Tribunal based its decision for the most part on the information as put by the applicant himself at the hearing before it. To the extent that the Tribunal relied on any independent information, it refers at CB 94.5 to a country report, which is reproduced at CB 98 to CB 100. It is clear, as is now well established, as in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 that the information in this report is excluded from the need to be given to the applicant pursuant to s.424A(1) by the operation of s.424A(3)(a), in that this is information that is not about the applicant or another person but is about a class of persons of which the applicant is a member. Further, in a common law procedural fairness context, the Tribunal clearly discussed the subject matter and the report with the applicant at the hearing before it. (CB 94.5) The applicant has not provided any other information that he can point to as not having been put to him.

    2)The complaint that he did have an adequate opportunity to respond to the substance of the information is clearly contradicted by the Tribunal’s decision record. At CB 93.9 to CB 94.8 the Tribunal reports on the matters discussed at the hearing. The applicant clearly had the opportunity to comment on the substance of independent information. If the complaint relates to the Tribunal’s adverse findings or thought processes then to the extent that these were all open to the Tribunal on the material before it and arose largely from matters asserted by the applicant himself, there is no obligation on the Tribunal to provide the applicant with such an opportunity. Nor is the Tribunal obliged to put its thought processes to the applicant in the circumstances of this case.

    3)The third particular in the further amended application does not readily show a complaint. To the extent that it refers to Malaysia, in the context as already explained, this is relevant. What is left is a statement that the Tribunal found that the totality of the country information does not show that the Hindu religious people or “ethnic Indians” are persecuted in India. As best this could be a complaint that the Tribunal could not find information that would show that he would be persecuted for religious or ethnic reasons. There is nothing before me to show that the Tribunal had any necessity, or obligation, to pursue any further investigations in this regard. In all I could not see anything in the material before me to support this claim.

1. The claim that he attended the hearing, and provided oral evidence and the Tribunal did not consider his genuine claims is without any particularity and in the circumstances as set out above, a request for impermissible merits review.

2. It is clear that the Tribunal properly considered the applicant's claims in relation to India, his country of nationality. The applicant had put to the Tribunal that he was a national of India and the Refugees Convention and in particular Article 1A(2), which is at the heart of the Tribunal's consideration, defines a refugee, as a person who amongst other things is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country. It is clear that this country was India and not Malaysia. There is nothing before the Tribunal to suggest he was a national of Malaysia. It is also clear that the Tribunal considered the applicant's claims fully as against the prospect of a well founded fear of persecution should he return to India. The Tribunal’s findings, which variously were, that either the fear of persecution did not fall within the meaning of the Refugees Convention, or that the harm feared was of such seriousness as to amount to persecution within the meaning of s.91R of the Act, were all open to it on the material before it and it clearly gave reasons for its findings. I can see no error on the part of the Tribunal, let alone any jurisdictional error. This application is accordingly dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of FM Nicholls.

Associate:  Wagma Aziza

Date:  14 July 2005