SZEUB v Minister for Immigration

[2005] FMCA 1064

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUB v MINISTER FOR IMMIGRATION [2005] FMCA 1064

MIGRATION – Refugee – taking into account relevant considerations – social group – irrational and illogical reasoning.

Migration Act 1958, ss.91R, 65, 36(2), 422B, 424A(3)
Federal Magistrates Court Rules 2001, Rule 21.02(2)(a)

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
VWST v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 286
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant: SZEUB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1797 of 2004

Judgment of: Nicholls FM

Hearing date: 11 April 2005

Date of Last Submission: 29 April 2005

Delivered at: Sydney

Delivered on: 2 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. A. McInerney

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $4250 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1797 of 2004

SZEUB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 10 June 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 April 2004 and handed down on 13 May 2004 to affirm the decision of a delegate of the respondent Minister made on 11 November 2003 to refuse a protection visa to the applicant.

2. The applicant is a national of India who claimed to be a member of the “All India Shiyah Group”, to have attracted the adverse attention of BJP loyalists and to have been ill treated by the majority Sunni Muslims in his home area. He claimed to have suffered physical harm and to have been the subject of attempted murder.

3. In his application to the Court the applicant made various claims, which were of the usual formulaic type sometimes seen in this Court and totally devoid of any particularity. In any event the applicant subsequently filed an amended application on 18 November 2004. The ground asserted was:

   “That the RRT decision was effected to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa”.

   He gave as particulars:

   “1.The Tribunal to consider in assessing the chance of the applicant being persecuted on his return to India based on the fact he was associate with All India Muslim Shiyah Group in India and also as a minority Muslim as member of a particular social group in India.

   2. The Tribunal’s satisfaction that the applicant is a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

   3. I repeat the particulars to ground in my judicial review application.”

   In relation to the latter point however, I note that no particulars were provided in the original judicial review application. The applicant also stated in his amended application:

   “I will provide more particulars after discuss with the pilot scheme solicitor Mr. M. Jones.”

4. The applicant did access the Court's Legal Advice Scheme and consulted a panel lawyer on 24 November 2004 and was given advice on that date. On 4 April 2005 the applicant wrote to the Court seeking an adjournment for 4 weeks of the hearing date, which had been set down for 11 April 2005, on the basis that he claimed to have been robbed at his residence and lost all of his Court documents. The applicant appeared at the hearing before me unrepresented and was assisted by an interpreter in the Hindi language. The applicant pressed his request for an adjournment and provided a written statement to the Court dated 11 April 2005. It was clear from the statement, and what the applicant said at the hearing before me, that his concern was that he had been working on a written submission with the assistance of friends and that this submission along with other material was taken from his home in the robbery. Quite understandably the applicant felt to be under some stress as a result of losing the submission so close to the hearing. The critical issue for him was that he had discussed what had been in his original draft submission with two or three friends but that he had been in so much stress since the burglary that he could not remember the material sufficiently to redraft the submission. In these circumstances, I indicated to the applicant that it was appropriate to give him a further reasonable period to prepare, file and serve his written submissions and that the hearing could continue on that basis. He indicated that this course of action was suitable to him. The applicant subsequently filed written submissions and I will deal with those below.

5. In written submissions filed by the respondent on 6 April 2004, Counsel for the respondent, Mr. McInerney, sets out a list of findings made by the Tribunal. These are set out at paragraph 16, items “a) to n)”. I adopt this paragraph for the purposes of my judgement:

   “The Tribunal made the following findings:

   a)It accepted that the applicant was of Indian nationality. (CB 79)

   b)It accepted that the applicant was a Shiyah Muslim. (CB 79.7)

   c)It accepted that the applicant was a member of the “All India Muslim Shiyah Group”.

   d)As to the alleged physical attack on the applicant by BJP agents in December 2002, the Tribunal concluded that that attack did not occur at all. (CB 80.5)

   e)It could not be satisfied that the applicant suffered any harm from the BJP while in Ratnagiri. (CB 82.1)

   f)It was satisfied that the alleged attack on the All India Muslim Shiyah Group’s office in February 2003 did not take place. (CB 82.3 to CB 82.8)

   g)It was not satisfied that BJP agents took any other adverse action against the applicant. (CB 82.8)

   h)It gave the applicant the benefit of the doubt and accepted that he was subjected to some abuse in Ratnagiri as a Shiyah Muslim but was not satisfied that abuse resulted in serious harm within the meaning of s.91R of the Act. (CB 83.4)

   i)It was not satisfied the applicant had a real chance of being subjected to persecution in the reasonably foreseeable future for the reason that he was a Shiyah Muslim in India. (CB 83.5)

   j)It was satisfied that there was adequate and effective protection in India for any harm that might befall the applicant in the future and that such fears as he may have were not well founded. (CB 83.3)

   k)It found that the applicant did not face prospective prosecution if he were to return to India. (CB 84.2)

   l)It was satisfied that the applicant’s actions indicated an orderly departure from India including resignation from his job and farewell from his relatives in his home town, with a view to securing longer-term residency in Australia for the applicant and his family. (CB 84.5)

   m)It accepted that the applicant had been subjected to some discriminatory treatment in his home town on the basis of his religion but did not accept that he ever suffered such harm as to constitute persecution anywhere in India at the hands of either the BJP or Sunni Muslims, or that he had ever been denied adequate and effective protection from any harm by the police. (CB 84.7)

   n)It was satisfied that the applicant did not have a well founded fear of persecution in the reasonably foreseeable future anywhere in India (CB 84.8).”

6. The applicant’s claims were set out in his protection visa application to the respondent's Department and in the applicant's application for review to the Tribunal supported by a statutory declaration copied at CB 46 to CB 47. The Tribunal’s summary of these claims is set out in its decision record copied at CB 73.4 to CB 74. The applicant also attended the hearing before the Tribunal on 19 February 2004 and the Tribunal's account of that hearing is set out at CB 75 to CB 78.1. The Tribunal clearly had significant problems with some of the applicant's claims. Its decision record at CB 77.8 shows that the Tribunal outlined its concerns about a number of aspects of the applicant's claims with the applicant at the hearing before it, and in particular the key proposition that he was being pursued by the BJP. The Tribunal also reports that it pointed out to the applicant that his claims were contrary to the tenor of independent information concerning communal and political relations in Mumbai and contained a number of anomalies. The Tribunal records the applicant's explanation for some incorrect information that was contained in his protection visa application. The Tribunal saw the applicant's claims to have suffered past persecution, being the physical attack and attempted murder at the hands of BJP agents, as being put on the grounds of his religion and imputed political opinion and that he suffered persecution as a Shiyah Muslim from Sunni Muslims. The Tribunal found that claims of physical attack because of his membership and involvement with the All India Muslim Shiyah Group had not, in fact, occurred. The Tribunal had doubts about the applicant's credibility arising from the cumulative affect of the vagueness of some of his claims, the circumstances attending the claimed attacks, the complete absence of corroborating evidence and his unsubstantiated assertions. While the Tribunal gave the applicant the benefit of the doubt and accepted he was subject to some abuse in his home area, it found that he had not suffered such harm as to constitute persecution at the hands of either the BJP or Sunni Muslims (CB 83.5). It further found that he had not been denied adequate protection by the police. At CB 83.8 the Tribunal records its finding that it was satisfied that there is adequate and effective protection in India for any harm that might befall the applicant in the future and that such fears as he may have are therefore not well founded. The Tribunal's summary is at CB 84.5 and shows that the Tribunal accepted that the applicant had been subject to some discriminatory treatment in his hometown on the basis of his religion, but it did not accept that he had ever suffered such harm as to constitute persecution anywhere in India at the hands of either the BJP or Sunni Muslims or that he had been denied adequate and effective protection from any harm by police. On that basis, and as it was not aware of any additional factors which might give rise to potential claims of persecution in the future, the Tribunal was satisfied that he did not have a well founded fear of persecution in the reasonably foreseeable future anywhere in India. He was therefore determined, by the Tribunal, not to be a refugee. 

7. The applicant's complaints from what he has put to the Court appear to be:

   1)That the Tribunal did not take into account relevant considerations in assessing the chance of the applicant being persecuted on his return to India, on the basis that he was associated with the All India Muslim Shiyah Group and as a minority Muslim and a member of a particular social group in India.

   2)Bias on the part of the Tribunal.

   3)That the Tribunal's decision was not based upon reasoning which provided a rational or logical foundation for its not being satisfied that the applicant was a refugee.

   4)That his case was similar to the case before the High Court in Muin & Lie and that the Tribunal erred in his case in the same way that the Tribunal had erred in the Muin matter.

8. The applicant has not put forward any material, nor is it apparent on the material before me, to show failure on the part of the Tribunal to take into account a relevant consideration. The applicant appears to be saying that the Tribunal's failure to consider the chance of his persecution upon return to India, based on the fact that he was associated with the All India Muslim Shiyah Group and that he was a “minority Muslim”, is evidence of the failure to take into account a relevant consideration. It is clear however, that the Tribunal did look at all aspects of the applicant's claims, and that the applicant's assertions in this regard are factually incorrect. The Tribunal's decision record shows that it summarised all of the applicant's claims. It dealt with his involvement with the All India Muslim Shiyah Group (CB 79.9). It found that he did not suffer harm from BJP (political opponents), (see CB 82.1) with his being a member of a minority Muslim group which was subject to discrimination and attack (CB 82.9 to CB 83.5). While the applicant is understandably aggrieved that the Tribunal did not make a positive finding on his application for review, in the circumstances of the material before me, it is difficult to see this complaint as anything more than a request for impermissible merits review.

9. The applicant's claim in the amended application that the Tribunal failed to consider, in its assessment, the relevant evidence put forward by the applicant, is picked up in a limited way in the applicant’s submission of 11 April 2005, where the applicant asserts that the Tribunal's ignoring of relevant evidence and its finding in the face of contradictory independent evidence indicates actual bias on the part of the Tribunal. The submissions assert that the Tribunal failed to investigate his claims, specifically the grounds of persecution in India, and that therefore the Tribunal's decision was affected by actual bias constituting jurisdictional error. The test for actual bias is that an applicant would need to establish that the Tribunal had a state of mind so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently. The question as set out in Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 is whether the mind of the decision maker is open to persuasion. The applicant's assertion in the absence of anything else that that the Tribunal failed to investigate his claims in relation to persecution in India does not go anywhere near to establishing the necessary element involved in this test. On the material before me the Tribunal clearly investigated all of the applicant's claims and the applicant has brought nothing before me to show that the Tribunal ignored his relevant evidence. It rejected some of his claims, but this does not amount to ignoring them. In the circumstances, it is clear that what the applicant asserts by use of the word “ignore” is that it did not believe the applicant or that what was before the Tribunal should have been sufficient to satisfy it as to the applicant's risk of harm should he return to India. The material before me does not indicate that this is what the Tribunal has done, in any event. Clearly the allegation of actual bias cannot be made out.

10. The applicant also asserts that the Tribunal's finding that he was not a refugee was not based on any rational or logical foundation. No particulars, or real argument whatsoever, are provided. While some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. The Court said, at [29] and [30]:

    “In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error.  Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

    [30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT.  However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional.  There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning.  Moreover, there are several bases upon which that reasoning can, in any event, be supported.  Accordingly, on the present state of the authorities, there is no reviewable error.”

    In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore, J held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53] to [54] the Court stated that:

    “[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.  This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act.  If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351 to 352 per McHugh, Gummow and Hayne JJ).  An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …”

    “[54] Error of law may occur within jurisdiction – S20/2002 at 72 [57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s. 85(v) or the exercise by this Court of its analogous statutory jurisdiction under s. 39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error is likely to be quite limited.”

    I note also that there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error.

11. The Tribunal’s decision record shows that the Tribunal looked at each of the applicant's claims, and where necessary as clarified by the applicant himself, it 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 gave reasons for these findings. No illogical or irrational foundation is apparent in this case. The Tribunal looked at all of the applicant's claims as put by the applicant, and had before it independent information, which it also considered, but essentially the Tribunal in making adverse findings had concerns with the applicant's claims as put. It put these concerns to him and gave him an opportunity to respond. In critical areas it did not find his claims credible or where it did find them credible, not of sufficient character as to cause it to be satisfied in the way provided for by s.65 of the Migration Act and in relation specifically to s.36(2) of the Migration Act. The Tribunal's findings were all open to it on the material before it and the Tribunal provided reasons. The applicant, in the circumstances, has not put anything forward beyond mere assertion to establish that the Tribunal has acted without a proper foundation to its reasoning.

1. The applicant's written submissions, filed subsequent to the hearing, argue that the applicant's case is similar to the situation found by the High Court in the case of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. The applicant refers to the letter inviting him to the hearing before the Tribunal reproduced at CB 51. The applicant asserts that this is a letter similar to the one sent to the applicant in the case of Muin and that this letter provided by the Tribunal is misleading because the Tribunal had not read the “Part B” documents thoroughly upon which the original decision maker in the respondent’s Department had relied. In particular he claims these are documents providing country information and various materials relating to establishing the applicant's claims as a refugee. The documents listed in “Part B” of the application are at CB 7. The first two documents listed (with the third crossed out) are “Form number 866B” and “Form number 866C”. These forms are in fact part of the applicant's application for a protection visa. The other two items include a photograph and “Certified Passport Copies”. The photograph is presumably a reference to the photograph appearing at CB 11 and “Certified Passport Copies” would include the photocopy of the front pages of the applicant's passport reproduced at CB 26. There is nothing before me to show that these documents were not before the Tribunal when it sent its letter of invitation of 22 December 2003 to the applicant inviting him to a hearing before it. Further, I note that at CB 73, in its decision, record the Tribunal made specific reference to the fact that it had before it the Department's file which included the protection visa application. To the extent that copies of the applicant's passport pages reproduced at CB 58 to CB 65 were given to the Tribunal at the hearing before it on 19 February 2004, the applicant has brought nothing before me to show that these were the documents referred to at CB 7. The applicant also lists at CB 8 of his protection visa application 6 other documents which he says he will provide later. There is nothing before me to show that any of these documents were subsequently provided to the respondent’s Department. In any event, I note that in relation to one document described as police evidence, the respondent’s delegate at CB 40.8 being part of the delegate’s “Findings and Reasons”, makes specific reference that no police reports have been provided as evidence. Further, I note in particular that while the applicant provided a statutory declaration to the Tribunal (see CB 46 to CB 47) there is nothing before me to show that this or any other statutory declaration was provided to the respondent’s Department. While relying on the case of Muin, the applicant in the case before me does not show how he had been misled by the Tribunal in relation to documents, which he thought may have been before it, but were not. In relation to the documents that he did provide to the respondent’s Department, even if the certified passport copies had not been before the Tribunal clearly he was given the opportunity to provide these certified passport copies to the Tribunal before it made a decision, and indeed he did do so at the hearing before the Tribunal. In relation to the remainder of these documents, which were before the delegate, they were clearly before the Tribunal prior to the making of its decision. Further, the applicant has brought nothing before this Court to show that the documents listed at CB 8 were ever provided subsequently to the delegate, let alone that they became the subject of some failure to transmit these documents to the Tribunal and then led the Tribunal into misleading the applicant. There are no agreed facts in the case before me as relevantly existed in the case of Muin that can assist the applicant.

2. The applicant also complains that the Tribunal had taken into account some relevant information but not all, and says that the Tribunal did not read all of the documents listed in “Part C” (CB 37) of the decision record of the respondent’s delegate. Again, the applicant has produced no evidence whatsoever to support this assertion, nor again are there any relevant agreed facts in this regard. If what the applicant seeks to assert however, is that he was misled into thinking that the Tribunal had read all the material listed at CB 37 but in fact had not done so, then the Tribunal clearly says at CB 73:

   “The Tribunal also has had regard to the material referred to in the delegate’s decision.”

   The applicant has brought no evidence whatsoever to dispute that statement by the Tribunal. This ground also cannot be made out.

3. To the extent that the applicant’s complaint may also be a claim that the Tribunal relied on independent evidence and did not put this to the applicant for comment, the Tribunal did have regard to other material (other than that put by the applicant) as referred to at CB 78.2 to CB 79.5 in its decision record. This information is reproduced at CB 86 to CB 130. It is clear that this information was not specifically about the applicant and falls within the exclusion set out in s.424A(3)(a) of the Act. I note the application to the Tribunal was made on 11 December 2003 and s.422B operates in this case.

4. The Tribunal clearly looked at all of the claims put by the applicant. The applicant was given the opportunity to support his claims at a hearing before the Tribunal. The Tribunal accepted some aspects of the applicant's claims but had difficulties with the credibility of other aspects of the applicant’s claims. Critically, while finding that it gave the applicant the benefit of the doubt and accepted he was subject to some abuse, the Tribunal was not satisfied that this was serious harm within the meaning of s.91R of the Act and in any event, the Tribunal found that the Tribunal could not accept the applicant’s alleged instances of the police failure to provide protection as evidence that he had not been afforded adequate and effective state protection in the past, or that he would not be afforded such protection in the future. All these findings, including the findings on credibility, were open to the Tribunal to make on the material before it and it gave reasons. I can see no jurisdictional error in what the Tribunal has done and for these reasons this application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  2 August 2005