SZENJ v Minister for Immigration
[2005] FMCA 1612
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENJ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1612 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.91X, 424A(1), 424B, 425, 474, 483A
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
| Applicant: | SZENJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG3005 of 2004 |
| Delivered on: | 22 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 29 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondents: | Ms R A Pepper |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 |
SYG3005 of 2004
| SZENJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
18 August 2004 and handed down on 14 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 16 February 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZENJ”.
The applicant, who claims to be a citizen of India, arrived in Australia on 1 January 2004. On 10 February 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.1-40) (“CB”). On 16 February 2004 the delegate refused to grant a protection visa (CB pp.42-55) and on 10 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.56-59).
In his original protection visa application, the applicant stated he is a single Sikh man, born in May 1977 in Amritsar, India. He indicated he has had thirteen years of education and can speak, read and write Punjabi and read and write English. The applicant claimed he was a farmer in India and this mother and father reside in India. He stated that he had travelled to Botswana and South Africa prior to travelling to Australia on a visa obtained in Harare, Zimbabwe (CB p.83).
In a typed statement attached to his protection visa application, the applicant claimed he left India because he was “unable to bear mistreatment from the police and the India Congress Political Party”. The applicant’s family supported the Akali Dal Party from the 1950’s when the Congress Party was in power. His family did not support any anti-government campaign or rebel group. One such group, led by Paramjit Singh Panjwar, was fighting for a separate Sikh state as part of the Khalistan Movement. This group terrorised farmers and obtained money and food by force. Farmers would concede to the group and their lives were “total misery” (CB pp.83-84).
The applicant stated in March 1994 Paranjit Singh Panjwar came with other terrorists to their place and demanded food and money. The applicant claimed he started arguing with the group and asked why they should be given money. The group stated they were fighting for a separate Sikh state (CB p.84). An argument between the terrorists and the applicant broke out and he claimed that when he went to report the matter the next day to the police, the police did not assist. The applicant stated that the police inspector had implied that the applicant and his family were terrorists and accused them of lying (CB pp.84-85).
The applicant further claimed that the terrorists caught and beat his father and in May 1994 they stole his family’s jewellery and other valuables. The applicant claimed this led to a further altercation with the terrorists which resulted in the applicant’s hospitalisation for two weeks. Whilst in hospital he claimed terrorists again visited his family home and told his family they would kill the applicant. Consequently, the applicant claimed he left home and went to Delhi. While in Delhi he said he received news that the police, under the political pressure of the Congress Party, were harassing his parents and he decided to return home. The applicant then stated that his family’s lives were made wretched by police harassment and constant interrogation so he left the country as he could not hide. The applicant travelled to Botswana on a visitor’s visa where he initially stayed for one year. Upon returning to India he claimed the police were still after him so he returned to Botswana and while in Botswana he visited South Africa on two occasions. On the applicant’s second visit to South Africa he obtained a visitor’s visa to travel to Australia. The applicant stated if he were to return to India the police would continue to harass him (CB pp.85-88).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Ms Pepper and I adopt paragraphs 9-11 for the purpose of this judgment:
At the hearing the applicant stated that the information contained in his application for a protection visa and all his applications, including his reply to the s 424A letters was correct (RD 88.6).
The Tribunal essentially found that the applicant’s claims were not credible given the many inconsistencies in his evidence (see RD 100-101 generally). Accordingly the Tribunal rejected the applicant’s claim that he engaged with Sikh terrorists, reported their activities to the police, was injured or hospitalised, fled to Delhi as a result, was targeted by the Congress Party and/or the police, was a supporter of the Akali Dal Party, was interrogated by the police, was assaulted or harassed by the police or fled from India for the reasons he gave (RD 101.9-102.1).
In reaching its conclusion and making its findings the Tribunal noted the contradictions between the applicant’s original claims and those made to the Tribunal at the hearings, internal contradictions in his evidence to the Tribunal and independent country information (discussed with the applicant: see RD 93) that was inconsistent with the applicant’s assertions. Accordingly, the Tribunal found that it was not satisfied that the applicant was at risk of persecution should he return to India (RD 102.3).
Application for review of the Tribunal’s decision
On 6 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) but that application contained no grounds of review. On 2 December 2004 the applicant filed an amended application which contained the following grounds:
1.The applicant is a citizen of India. If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
2.The Tribunal erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa.
3.The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that:
(a)it asked itself wrong questions and applied the wrong test
Particulars
(i)The Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test.
(ii)The Tribunal erroneously applied information stated to be from ‘The Country Information Services Report’.
(iii)The Tribunal erroneously rejected that there was no real chance that the applicant would be attacked or face further prosecution.
(iv)The Tribunal asked wrong questions in assessing the applicant’s fear.
(v)The Tribunal wrongly assumed that the applicant would not suffer Convention based persecution.
(vi)The Tribunal erroneously assumed that there is no real chance that the applicant would be persecuted.
(b)The applicant was not accorded procedural fairness:
Particulars
i.The applicant was given ambiguous information.
ii.The applicant was not given proper opportunity to present their case.
iii.The Refugee Review Tribunal did not comply with section 424B and 425 of the Migration Act 1958.
iv.The Tribunal proceeded to make the decision without further relevant information.
4.The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act 1958.
(a)The respondents took the following irrelevant considerations into account in the exercise of the power:
Particulars
i.The status of the applicant’s fear;
ii.The general country information without consideration of the facts of this case.
(b)The respondents failed to take into account the following relevant considerations into account in the exercise of the power:
Particulars
i.The political affiliations of the applicant in light of the claims made by him.
ii.The independent information provided by the applicant.
iii.To independently investigate the applicant’s evidence of fear that they would be persecuted.
5.The Tribunal incorrectly applied the internal flight principle and without regard to the evidence.
6.The respondent exercised the power in accordance with a policy without regard to the merits of the applicant’s case:
Particulars
i.The Tribunal followed the policy of accepting country information without having regard to the individual circumstances of the applicant.
7.The Tribunal breached the rules of natural justice in connection with the making of the decision.
Particulars
i.The applicant was given ambiguous information.
ii.The Tribunal proceeded to make the decision without giving the applicant the opportunity to be heard.
iii.The Tribunal proceeded to make the decision without further relevant information.
In support of his application, the applicant filed an affidavit on the same date.
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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.
Submissions
The applicant appeared self represented with the aid of a Punjabi interpreter. The applicant attended a directions hearing on 25 October 2004 and consented to Short Minutes of Order requiring that he file and serve of written submissions in support of his application. However, no submissions were filed by the applicant. When the applicant was invited to make oral submissions in support of his application he indicated he would rely upon his amended application and supporting affidavit. Counsel for the respondent challenged the content of the affidavit which resulted in paragraphs 5 and 7 of that document being struck out.
Ms R A Pepper of Counsel, appearing for the respondent, filed written submissions prior to the hearing which were supported by oral submissions during the hearing.
Reasons
The applicant has pleaded seven grounds in the form of a commonly seen template approach used by self represented litigants seeking judicial review of Tribunal decisions. The grounds were general in nature and although particularised, those particulars are again general in nature and not specific to the applicant’s circumstance or to the decision he is challenging. The first ground was a statement by the applicant which was, in effect, one of the applicant’s claims for refugee status. The second ground was a general statement alleging an error which was neither identified nor particularised. The third ground was again an allegation of an error by the Tribunal but did not identify the error and then, with six particulars, attempted to suggest that the Tribunal applied the wrong test and asked itself the wrong question in assessing the applicant’s fear. The second particular stated the Tribunal erroneously supplied information which it stated to be from the “Country Information Service Reports”. These Reports are identified in the Tribunal decision (CB pp.96-97) which clearly sets out their source. However, the applicant did not indicate what aspect of these Reports was misapplied by the Tribunal. Part (b) of the third ground claimed the applicant was not accorded procedural fairness. The second particular claimed the applicant was not given the proper opportunity to present his case, but again did not identify in what respect this denial took.
By letter dated 13 April 2004, the applicant was invited to attend a Tribunal hearing and provide additional information to the Tribunal (CB pp.65-66). The applicant’s migration agent forwarded two letters, both undated, but received by the Tribunal on 28 April 2004 which contained further information (CB pp.67-69). The applicant attended a hearing of the Tribunal on 26 May 2004. Subsequent to that hearing, the applicant was invited to attend a further hearing of the Tribunal on 11 August 2004 and again he attended that hearing. The applicant did not present any transcript material from either of those hearings to support any submission that the hearings were conducted in a manner which denied the applicant an opportunity to put forward the issues that he wished to raise.
The Tribunal’s decision sets out in detail a number of the issues that were transversed during both Tribunal hearings and in the absence of any of the material, on the face of the Tribunal decision it appears the applicant was accorded the opportunity to present to the Tribunal in support of his visa application. The third particular suggested that the Tribunal failed to comply with ss.424B and 425 of the Act. However, that contention was not supported by the evidence contained in the Court Book which indicated the letter dated 13 April 2004 (CB pp.65-66) complies with the provisions of the Act. The fourth particular, although vague, seemed to suggest that the Tribunal made its decision without fully canvassing the relevant materials. In light of the fact that the applicant was invited to attend a second hearing to clarify issues for the Tribunal, this ground cannot be sustained.
The fourth ground pleaded an improper exercise by the Tribunal of its power, conferred on it by the Act. The two subsections of the pleadings and individual particulars to each of those subsections did not identify the error alleged to have been made by the Tribunal in its decision making process and cannot be sustained. The fifth ground claimed that the Tribunal incorrectly applied the internal flight principle. However, the Tribunal did not refer to this issue in its decision and was certainly not a consideration in its decision to refuse the applicant refugee status. The applicant was asked at stages during the Tribunal hearing as to his movements to various parts of India away from his home village and apart from the time he had spent in Delhi with a relative; his only other visit to another part of India had been for a period of two weeks. The Tribunal did not pursue this issue in its decision as a ground for denying the applicant refugee status. Grounds 6 and 7 appeared to repeat issues raised earlier in other grounds and re-canvassed the issue of country information and the denial of natural justice. The applicant claimed the Tribunal accepted country information obtained from its own sources in preference to the material supplied by the applicant. In light of the Tribunal’s reasoning, these grounds cannot be sustained.
Ms Pepper, Counsel for the respondent, effectively summarised the Tribunal’s findings against the applicant in the following submissions:
The applicant was unsuccessful because of the view the Tribunal took of the facts, in particular, its findings that the applicant was not credible in relation to his claims. Such findings are matters of fact for the Tribunal “par excellence”: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (per McHugh J) at [67]. So long as the Tribunal’s credibility findings were open to it, which they were, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559; W148/00A v MIMA (2001) 185 ALR 703 at [64-69] (per Tamberlin and RD Nicholson JJ). Second, the Tribunal preferred the independent country information to the account of the applicant as to the availability of State protection and the security situation in Punjab, especially insofar as Sikhs were concerned (see MZWQE v MIMIA [2005] FCA 1364 at [9] (per Merkel J)).
I accept the respondent’s submissions and note that in the Tribunal’s “Findings and Reasons” the Tribunal summarised various claims made by the applicant and noted:
“… in this case the applicant has made inconsistent statements in his evidence, both at the hearing and also with his written material, reflecting negatively on his credibility.” (CB p.100)
The Tribunal then considered the applicant’s claims in respect of his movements within India, Botswana and South Africa with the following finding:
“This issue is a fundamental issue in relation to the applicant’s claims and the Tribunal finds that it reflects negatively on his credibility. The Tribunal finds that the applicant is not a credible witness.” (CB p.101)
The Tribunal summarised its findings on the applicant’s understanding of the political structure of the Akali Dal Party, with which he claimed to have been intimately involved both personally and through his family. The Tribunal made the following statement:
“I accordingly find that the applicant has only a rudimentary knowledge of the politics in India, and as a result and also because I have found he has no credibility, I do not accept that he was associated with the Akali Dal Party.” (CB 101).
These are the three areas that the Tribunal examined and considered when it found that it could not accept the applicant’s claims for refugee status.
Counsel for the respondent brought to the Court’s attention a further important issue that was not addressed in the pleadings but was required to be considered. For the purpose of this judgment I adopt the paragraphs 14-17 of the respondent’s submissions:
One other issue potentially exists, however, on the face of the Tribunal’s decision, namely, whether the Tribunal breached s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) by not putting in writing to the applicant material that was contained in the applicant’s protection visa application (this potential breach arising out of the decisions in SAAP and MIEA v Al Shamry (2001) 110 FCR 27). For the reasons given below the first respondent submits that this issue does not ultimately arise.
The first respondent submits that the Tribunal did not fail to comply with s 424A(1) of the Act because either the inconsistencies between the applicant’s oral evidence and the claims in his protection visa were not “information” (VAF v MIMIA (2004) 206 ALR 471 at [24] (per Finn and Stone JJ; WAGP of 2002 v MIMIA (2002) 124 FCR 276 at [26]-[29]; SZDXC v MIMIA [2005] FCA 1306 at [11] (per Hely J); Tin v MIMIA [2000] FCA 1109 at [51]-[54] (per Sackville J)) for the purpose of s 424A(1) or if they were, they did not form the reason or part of the reason for the decision (VAF at [41]; NAIH of 2002 v MIMIA (2002) 124 FCR 223 at [16] (per Branson J)). The applicant’s evidence to the Tribunal was substantially rejected because of an evaluation of what he was telling the Tribunal at the hearing (RD 126.9). That within the hearing process the Tribunal referred to the visa application and its contents does not, in the context of the present case, matter (SZEBX v MIMIA [2005] FCA 1197 at [22] (per Allsop J); SZCGM v MIMIA [2005] FCA 1196 at [21]-[22] (per Allsop J); SZDXC at [12]).
Alternatively, because the applicant orally adopted the statements he made in his earlier protection visa application at the hearing (see above paragraph 8), then it is clear that the information fell within the exception contained in s 424A(3)(b) (VUAV v MIMIA [2005] FCA 1271 at [10]-[13] (per Merkel J); SZFKL v MIMIA [2005] FCA 931 (per Madgwick J) at [7-8]; SZEIE v MIMIA [2005] FCA 987 (per Sackville J) at [40]; SZERV v MIMIA [2005] FCA 1221 (per Dowsett J) at [11]; M55 v MIMIA [2005] FCA 131 at [25] (per Gray J); cf NAZY v MIMIA [2005] FCA 744 (per Jacobson J). Furthermore as Dowsett J stated in SZERV at [11], everything an applicant says in a hearing before the Tribunal falls within s 424A(3)(b).
In any event, as North J stated in VBAP of 2002 v MIMIA [2005] FCA 965 at [33], “SAAP does not stand for the proposition that it there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists other grounds upon which the decision is not or cannot be impeached, the decision nonetheless fails.” The first respondent submits that this is also the case in the present application.
I have re-read the Tribunal’s decision in respect of this submission and I accept that the analysis by the respondent Counsel is correct and there has not been any breach of s.424A(1) of the Act.
Conclusion
The Tribunal’s decision does not contain any jurisdictional error. The Tribunal’s decision is a privative clause decision pursuant to s.474 of the Act and the application for review filed on 6 October 2004 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 twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 November 2005
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