SZEPV v Minister for Immigration
[2007] FMCA 431
•14 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEPV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 431 |
| MIGRATION – Alleged bias – findings of fact not subject to review – claimed transporting of terrorists across the Indian border – weight given to evidence a matter for the Tribunal – no failure to deal with a clearly articulated claim relying on established facts – no misunderstanding of claim – applicant must establish their case. |
| Migration Act 1958, ss.91R, 415 |
| NABE v Minister for Immigration (No. 2) (2004) FCAFC 263 Craig v South Australia (1994) 184 CLR 163 Attorney-General for NSW v Quin (1990) 170 CLR 1 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Re Refugee Review Tribunal & Anor; ex parte H (2001) 179 ALR 425 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 Federal Magistrates Court Rules 2001 rr.44.11, 44.12 |
| Applicant: | SZEPV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3759 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 14 March 2007 |
| Date of Last Submission: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2007 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondents: | Mr James Mitchell |
| Solicitor for the Respondents: | Ms Kimberley Rose of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3759 of 2006
| SZEPV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 15 December 2006 with an amended application filed by leave on 14 March 2007 for an order to show cause seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The first respondent filed a response alleging that no reasonable cause of action is shown and its written submissions ask that the matter be dismissed with costs.
At the first Court date the Court listed the matter for final hearing under rule 44.11 and therefore dispensed with a hearing under rule 44.12. The matter therefore proceeded as a judicial review without a show cause hearing.
The applicant was born on 12 November 1953 and claims to be from and of Indian ethnicity (specifically Punjabi Sikh) and of Sikh faith (“the Applicant”).
The applicant’s wife and son remain in India.
The applicant arrived in Australia on 3 October 1999 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 1 November 1999. In this application he claimed that his religious, social and political involvement in the Khalistani and Sikh movements made him a target of the Indian Hindu government and various “Hindu fascist terrorist groups” (CB 17-21). The applicant claimed that on one occasion he was detained by the police without a warrant and was mentally and physically tortured for a period of 10 days. The applicant also stated that his current work with the International Sikh Youth Federation (ISYF) has placed him in great danger (CB 18).
This application was refused by a delegate of the first respondent on 11 December 1999.
On 10 January 2000 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 8 November 2000, at which time he also claimed that as a truck driver in India he was forced to transport terrorists across the border (CB 81). The applicant also presented the Tribunal with three letters in support of his claims, the contents of which point to his alleged involvement and difficulties in India (CB 82-3).
On 15 August 2001 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa.
The applicant sought judicial review of that decision with this Court, which rejected the application for review on 27 January 2006. The applicant appealed against that decision to the Federal Court, which upheld the appeal and on 24 May 2006 remitted the matter to the Tribunal to be determined according to law (CB 107).
A differently constituted Tribunal reheard the matter on 6 October 2006. On 26 October 2006 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (CB 163). In considering the applicant’s claims, the Tribunal made the following findings (CB 179-181) (emphasis added):
The Tribunal notes and accepts the country information which indicates that in the mid 1980’s and the early 1990’s Sikhs were often subject to detention, surveillance and questioning by the police. On the basis of this information the Tribunal accepts as plausible that in the late 1980’s and the early 1990’s the Applicant may have been viewed with suspicion by the police and subject to questioning and surveillance by the police because he is a Sikh. As such the Tribunal accepts that the Applicant may have been subject to arrest for a period of two days in 1994 by reason of the fact that he is a Sikh.
However the Tribunal does not accept that the Applicant continues to be a person of adverse interest to the Indian authorities by reason of his ethnicity, religion or political opinion such that his name was placed on a wanted list at a state and then national level and that his name remains on this wanted list to this day. The Tribunal does not accept this claim for the following reasons.
The Tribunal does not accept that the Applicant has a political profile imputed or otherwise. At the hearing the Applicant provided unconvincing oral evidence about his political activities. He claimed to be associated with groups promoting Sikh independence such as the Simranjit Singh Mann party. However when asked to describe his activities he provided vague and general detail to the effect that he had delivered messages between members of his party in different states. Thus while the Tribunal accepts that as a Sikh the Applicant may be politically committed to a Sikh independent state the Tribunal does not accept that the Applicant engaged in political activities such that he was or is of ongoing adverse interest to the authorities or of Hindu groups such as Shiv Sena.
The Tribunal does not accept that the Applicant was involved in transporting Khalistan commandos or that he was an accomplice to these commandos. At best the Tribunal finds that the Applicant may have occasionally provided lifts to persons seeking to cross the Indian border. The Tribunal found the Applicant’s oral evidence about the transporting of terrorists to be unconvincing in that he was equivocal and defensive in providing relevant detail about this claim. The Applicant described his transporting of terrorists as random and more akin to picking up a hitch hiker rather than a systematic or orchestrated activity.
In the absence of a transcript of the Tribunal hearing or a tape recording of the hearing, the Court takes that last statement to be a recording of the oral evidence given by the applicant to the Tribunal. The Tribunal continued:
As the Tribunal does not accept that the Applicant was involved in transporting terrorists the Tribunal does not accept that his name was placed on a wanted list for this reason. Furthermore the Tribunal considers the Applicant’s evidence as to how he came to be on a wanted list unconvincing that is that police obtained the Applicant’s name when the (sic) captured and tortured Khalistan commandos whom he had transported across the border.
The Tribunal does not accept that the Applicant was arrested in 1998 for a period of ten days in Haryana state because he was on the national wanted list. The Tribunal does not accept this claim because the Tribunal does not accept, as set out above that the Applicant was on a wanted list or was a person with an adverse political profile.
The Tribunal does not accept that the Applicant faces harm on his return to India from either the authorities of India or from groups such as Shiv Sena by reason of the fact that he is Sikh. As discussed with the Applicant at the hearing the country information indicates that the circumstances of Sikhs in India have improved considerably over the past six years since the Applicant departed India; illustration by the fact that India’s current Prime Minister is Sikh.
On the basis of the country information the Tribunal finds that there exists no more than a remote possibility that the Applicant would face harm on his return to India by reason of his ethnicity, religion and/or political opinion or a combination of these factors.
The Applicant provided support documents to the previous Tribunal (set out above at page 4). When the Tribunal sought to discuss with the Applicant the origin of these documents, particularly given the assessment of them by the previous Member, the Applicant stated that to had obtained these documents from a friend of friend and provided no further elaboration. Given the very uncertain origin of these documents the Tribunal does not place weight on the documents as establishing his claims.
The Applicant claims that the Indian Consulate in Sydney refused to renew his passport because he is on a wanted list. The Applicant provided a receipt from the Consulate as evidence of this claim (see Folio 49 Tribunal file). As discussed with the Applicant at the hearing this document simply indicates that the Applicant did approach the Consulate in October 2004 but does not in anyway indicate that the Applicant was refused a new passport or that he is on a wanted list of any sort.
The applicant submitted to the Court that the Indian authorities declined to issue a passport to him. The applicant said that he had put that information to the Tribunal. The Court finds no error of fact by the Tribunal as to the passport. In any event, findings of fact are not subject to review: Attorney-General for NSW v Quin (1990) 170 CLR 1 at 36.
The applicant then filed an application in this Court on 15 December 2006, seeking judicial review of the Tribunal’s decision of 26 October 2006 pursuant to Migration Act 1958 (Cth). That application seeks an order to show cause. On 1 February 2007 the Court ordered that the matter be listed for a final hearing pursuant to rule 44.11. In so ordering the Court dispensed with the hearing under rule 44.12.
The applicant filed an amended application in Court by leave on
14 March 2007. The applicant also filed his written submissions by leave, on that day.
The application
In his original application, the applicant set out three grounds as follows:
1)That the Tribunal exceeded its jurisdiction due to –
“The Tribunal does not accept that the Applicant has a political profile imputed or otherwise. At the hearing the Applicant provided unconvincing oral evidence about his political activities” (CB 180). The Applicant states that this comment is without basis.
2)That the Tribunal erred in law due to its –
“On the basis of the country information the Tribunal finds that there exists no more than a ‘remote possibility’ that the Applicant would face harm on his return to India by reason…” (See CB 180)
3)That the Tribunal misunderstood the Applicant’s claims due to –
“As discussed with the Applicant at the hearing this document simply indicates that the Applicant did approach the consulate in October 2004 but does not in anyway indicate that the Applicant was refused a new passport or that he is on a wanted list of any sort.” (CB 181)
The Court invited the applicant to make submissions in support of the grounds of review in his application and amended application.
Grounds in the application
Ground 1 seeks to review a finding of fact made by the Tribunal. Nothing has been put to the Court to show an error of law or that the finding was not reasonably open to the Tribunal. The finding of fact is therefore not open to review and that ground is rejected.
Ground 2 again seeks to review a finding of fact by the Tribunal. Nothing has been put t to the Court to show an error of law or that the finding was not reasonably open to the Tribunal. Therefore the finding is not open to review and the ground is rejected.
Ground 3 seeks to review the way the Tribunal interpreted documents produced by the applicant. The meaning given by the Tribunal to letters produced to it is a matter for the Tribunal and is not subject to review. No error of law occurred. This ground is rejected.
Grounds in the amended application
“The Tribunal failed to assess the Applicant’s claims in a Constructive and Articulate manner, because of the findings it made rather than rationalizing the cumulative effect of the claims, both written and oral;
Under this Ground, the Applicant’s main contention is that the Tribunal failed to question the Applicant on his written claims he originally submitted which details were found on the Tribunal’s file. These details were originally submitted by the Applicant in the protection visa application.”
The Court rejects the contention that the Tribunal failed to assess the applicant’s claims in a constructive and articulate manner. The Tribunal made findings of fact which were reasonably open to it, and are not subject to review. It has not been shown that the Tribunal failed to consider relevant material put to it. Failing to ask questions about certain material does not demonstrate that the Tribunal failed to have regard to it.
“The Applicant, in response to a Tribunal’s question, said that he was transporting the terrorists for almost six years until 1992 when he was arrested by the Police. The Tribunal’s finding was to the effect – ‘The Applicant described his transporting of terrorists as random and more akin to picking up a hitch hiker, rather than a systematic or orchestrated activity.’ ”
The Tribunal did not accept the applicant’s evidence that he was involved in transporting commandos or that he was an accomplice to them. The Tribunal found that “at best he may have occasionally provided lifts to persons seeking to cross the Indian border” (CB 180). The Tribunal found the applicant’s oral evidence on this matter to be unconvincing. The Tribunal records that the applicant described “his transporting of terrorists as random and more akin to picking up a hitch hiker” (CB 180.3). The Court has already decided that in the absence of a transcript or a tape recording of the Tribunal hearing, the Court takes that statement to represent oral evidence of the applicant to the Tribunal. In this ground the applicant refers to the claim that he transferred terrorists for almost six years until 1992 when he was arrested by the police. That matter was specifically dealt with by the Tribunal at Court Book 169.2. The Tribunal therefore made a finding of fact based on the oral evidence of the applicant. That finding is not open to review.
“The Applicant submit that the Tribunal did not attach any importance to the Applicant’s evidence and written claims when evaluating the Applicant’s claims that resulted in diminishing the probative value of his claims which undermined the Applicant’s refugee rights. This was a serious unfairness caused to the Applicant by the Tribunal.”
The Court rejects the contention that the Tribunal did not give weight to the applicant’s evidence and written claims. The decision of the Tribunal shows that the Tribunal did not accept much of the applicant’s evidence. The Court has placed emphasis on specific passages from the decision of the Tribunal to indicate where the Tribunal found the applicant’s evidence unconvincing and where it specifically said that it did not accept the evidence of the applicant. Those findings were properly open to the Tribunal.
“The Full Court of Federal Court in NABE v The Minister for Immigration (no. 2) (2004) FCAFC 263 held that – “failure by a Tribunal to make a finding on a substantial, clearly articulated arguments relying upon established facts can amount to a jurisdictional error by failure to carry out the review required by sec.415 of the Migration Act 1958.” Their Honours held – ‘if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the Applicant, its conclusion in whole or in part, upon the claim so misunderstood or misconstrued, its error is tantamount to a failure to consider the claim and on that basis can constitute a jurisdictional error.’ ”
It has not been demonstrated that the Tribunal misunderstood or misconstrued any claim by the applicant. No jurisdictional error has been shown.
“The Applicant’s main contention under this Ground is that the Tribunal contradicted its own position when dealing with the Applicant’s political claims and despite this information was available on the Tribunal file and having accepted in the evidence, the Tribunal was acting in a manner which displayed that it was shutting out that evidence from the final assessment of the refugee claims. The main issue is that the Tribunal point-blankly refused to accept the Applicant’s political affiliation when it concluded – ‘The Tribunal does not accept that the Applicant has a political profile imputed or otherwise.’ ”
The Court rejects the contention that the Tribunal was biased because it did not accept particular evidence by the applicant. It was reasonably open to the Tribunal to make the findings it did about the evidence of the applicant. It has not been established that the findings of the Tribunal were contradictory or that the findings made were not reasonably open to the Tribunal.
“The Applicant contends that the Tribunal did not question the Applicant on his written claims at all. What the Tribunal expected was for the Applicant to keep on saying every bit of information the Tribunal expected to know whereas the Applicant was only answering the questions raised by the Tribunal under the “inquisitorial procedure” adopted by the Tribunal.”
Applicants must establish their case before the Tribunal: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. The applicant contends that the Tribunal “did not question him on his written claims at all.” The decision shows that this is not so.
“Therefore the Applicant submit that despite the Tribunal having known that the Applicant was a member of the Simaranjit Singh Mann’s Party from 1990, it failed to question the Applicant as to the role he played in that party. Therefore the Tribunal’s conclusion that the “has no political profile imputed or otherwise” was a completely wrong notion it formed. This was highly detrimental to the Applicant’s claims and almost equal to a situation that the Tribunal was avoiding those claims deliberately. The Applicant submits that in a situation like this the High Court decision in Craig v South Australia (1994/95) 184 CLR 193 (sic 163), amply demonstrated that there was jurisdictional error because of the avoidance of material information by the Tribunal, from the decision making. The Court held:
If an administrative Tribunal falls into ‘error of law’ which causes it to identify wrong issue, to ask a wrong question, to ignore the relevant material, to rely on the irrelevant material, or at least in some circumstances to make an erroneous finding or to reach a mistaken conclusion and the Tribunal’s exercise or purported exercise of power thereby affected. It exceeds its authority or powers. Such an error is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.”
The application seeks to challenge findings of fact properly open to the Tribunal. The Court finds that the applicant was questioned specifically about his involvement with the Mann Party (CB 169.8). The Tribunal sets out its reasons (CB 180.2) for finding that it “does not accept that the applicant has a political profile imputed or otherwise.” It has not been demonstrated that the Tribunal ignored relevant material or relied on irrelevant material.
“The Applicant submits that the Tribunal was acting in a manner to carve out a exact situation to avoid the material information available on the record with pre-conceived mind to dismiss the Applicant’s claims as not credible.”
This ground alleges that the Tribunal was biased and sought to avoid material information. Nothing has been put to the Court to show that this was so. To establish grounds for a reasonable apprehension of bias, more is needed than merely showing adverse findings of fact. It must be firmly established that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to decide: Re Refugee Review Tribunal & Anor; ex parte H (2001) 179 ALR 425 at 434 [27]; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [90] per Kirby J. This has not been established.
The Court has considered the written submissions provided by the applicant on 12 March 2007 and filed in Court. The submissions claim that certain findings of fact by the Tribunal were incorrect. The decision of the Tribunal shows that it did not accept much of the evidence by the applicant. Such findings are properly open to the Tribunal.
The applicant submits that s.91R of the Migration Act was breached because the Tribunal failed substantially to satisfy itself that “there will be no real chance of facing harm by the applicant in the future.” Section 91R provides that the Refugees Protocol does not apply to persecution mentioned in it “unless the persecution involves serious harm to the person.”
The Tribunal found as a matter of fact that it did not accept that the applicant faces harm when he returns to India (CB 180.7). The Tribunal decided
The Tribunal does not accept that the Applicant faces harm on his return to India from either the authorities of India or from groups such as Shiv Sena by reason of the fact that he is Sikh. (CB 180)
The Court finds no breach of s.91R.
Conclusion
The respondents have shown cause why orders should not be made for the relief claimed. The application and amended application are dismissed. The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances there is no jurisdiction for this Court to interfere.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 28 March 2007
5
1