SZEQC v Minister for Immigration
[2006] FMCA 785
•24 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 785 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India claiming fear of persecution by police – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| Applicant: | SZEQC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 125 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 May 2006 |
| Date of last submission: | 24 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2006 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor for the Respondent: | Ms Nanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $4,000.00.
I allow eight (8) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 125 of 2006
| SZEQC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 13th December 2005. The decision was handed down on 5th January 2006. The Tribunal affirmed the decision of a delegate of the Minister, not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of India. He has been in Australia since 26th March 1998. He applied for a protection visa on 21st January 2000, but this was refused. He originally applied to the Refugee Review Tribunal for a review of that decision, and the Tribunal affirmed the decision of the Minister's delegate on 21st May 2001.
The Applicant sought a review of that decision by this court, and on 24th October 2005 the Court remitted the decision to the Refugee Review Tribunal.
The Tribunal, differently constituted, invited the Applicant to attend a hearing, which he did, on 25th November 2005. The Applicant gave oral evidence to the Tribunal, stating that he was a Sikh and a follower of the Sikh religion.
He claimed a fear of persecution by the police because of the activities of his uncle, who had been a member of the armed Khalistan commando group. The uncle was in hiding, but the Applicant told the Tribunal that all members of his family had been persecuted by the authorities as a result of the uncle's activities.
The Tribunal wrote to the Applicant after the hearing, in a letter dated that same day, 25th November 2005. The Tribunal, in that letter, put to the Applicant certain propositions arising out of information given in his primary application, which appeared to be contradictory to information given by the Applicant at the Tribunal hearing on 25th November.
The Tribunal informed the Applicant, and I quote:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
After setting out the invitation in two separate paragraphs, the Tribunal said:
This information is relevant because these contradictory accounts may be the reason or part of the reason for the Tribunal to discredit your evidence and affirm the delegate’s decision.
The letter invited the Applicant to comment in writing on that information, and asked for the comments to be received by
20th December 2005.
The Applicant did comment in writing. He forwarded a typed, two‑paged letter, dated 8th December 2005, and the letter appears to have been received that same day.
Annexed to that letter were a number of print‑outs of reports from various news publications in India, relating to persecution of various citizens by members of the police. The Applicant also provided a copy of his Indian passport.
The Tribunal quoted from parts of the Applicant's comments on page 99 of the Court Book. The Tribunal also referred to a considerable amount of independent country information, which is reproduced on pages 100‑117 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal set out its findings and reasons, which appear on pages 117‑119 of the court book.
The Tribunal accepted that the Applicant was a citizen of India. I note that there appears in the Court Book, copies of the Applicant's Indian passport, and it appears to me that the passport was evidence which entitled the Tribunal to find that the Applicant was a citizen of India, and entitled the Tribunal to assess his claims for a protection visa against that country.
The Tribunal went on, however, to say that it did not accept the rest of the Applicant's claims. The Tribunal said that the Applicant's reply to the letter forwarded to him after the hearing did not resolve the conflict between his oral evidence and his original compliance.
The Tribunal also said that the Applicant's account was inconsistent with independent country information, which the Tribunal accepted. The Tribunal accepted, at page 118 of the Court Book, that the Punjab went through what the Tribunal described as:
A ghastly period from 1980 to 1985.
The Tribunal accepted that it was possible that members of the Applicant's family were affected by the events of that period in some way.
Against this the Tribunal noted that the Applicant did not leave India until almost three years after the violence stopped, and referred to country information about activities of the police, and about the fact that the Indian judicial system functions, and that people wrongly accused of being Punjabi militants can get a fair trial.
The Tribunal relied heavily on the most recent country information, and considered the country information that the Applicant had submitted. It was the Tribunal's view, however, that the information submitted by the Applicant did not contradict the conclusions that the Tribunal had reached, and not only did it not differ from the information that the Tribunal had quoted, but in some respects confirmed it.
The Tribunal's view was that the reports of misbehaviour by the police fell into the category of abuse of power and corruption, rather than persecution of a particular group in society.
The Tribunal referred to evidence by a witness for the Applicant, but the Tribunal did not accept that person's evidence.
In short, at page 119 of the Court Book, the Tribunal found that the Applicant did not have a well‑founded fear of persecution in India for a Convention reason, because the Tribunal did not accept that there was a real chance that the Applicant, suffering harm amounting to persecution in India, for reason off his ethnicity, religion, political opinion or any other convention reason.
The application for judicial review
The Applicant has sought a review of that decision from the court. He has filed an Amended Application dated 5th May 2006, and a short Outline of Submissions on 22nd May. The Applicant also made an oral submission to the court which consisted of a reiteration of his claims on the merits of the Tribunal decision.
I have also read the Written Outline of Submissions prepared by the solicitor for the Minister, Ms Nanson.
The Applicant's Amended Application sets out nine paragraphs, setting out matters that the Applicant claims. Annexed to the Amended Application were a number of print‑outs from news reports about matters of bad behaviour by the police, including deaths of a number of people in police custody.
Whilst those newspaper reports contained graphic accounts of violence, corruption and abuse of power by members of the police, I informed the Applicant that a court conducting judicial review does not embark on a merits review of an applicant's claim and, as a result, the Court cannot consider fresh evidence. The Court cannot also reconsider the merits of factual information provided to the Tribunal.
The Applicant's nine grounds, to my mind, set out challenges to the factual findings made by the Tribunal, and fall into the area of merits review. They do not allege jurisdictional error, and I am unable to discern any jurisdictional error.
The Applicant in his oral submissions reiterated to the Court his claim that he had been tortured in India and reiterated his fear that because of the activities of his uncle, who was, I gather, still in hiding, the Applicant would be persecuted if he had to return to India.
The Applicant has not established any jurisdictional error on the part of the Tribunal, and as his claims are all factually based, has not alleged any jurisdictional error. I am mindful of the fact that the Applicant is not legally represented in these proceedings, and I have considered the decision independently, but I am unable to discern any other jurisdictional error not referred to the court by either of the parties.
As there is no jurisdictional error, the decision is a primitive clause decision which attracts the protection of s.474 of the Migration Act. In my view, there is no breach of s.424A of the Migration Act, and the actions taken by the Tribunal in writing to the Applicant on
25th November 2005, and seeking comments on certain matters, seems to me to be an appropriate method of dealing with any obligation under s.424A that may have arisen.
There is no jurisdictional error, and the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 31 May 2006
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