SZEUG v Minister for Immigration
[2005] FMCA 548
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUG v MINISTER FOR IMMIGRATION | [2005] FMCA 548 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474
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 (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
Thiyagarajah v Minister for Immigration & Multicultural Affairs [1997] FCA 136
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
| Applicant: | SZEUG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1819 of 2004 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 18 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Ms K Morgan |
| Solicitors for the Respondent: | Clayton Utz |
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 |
SYG 1819 OF 2004
| SZEUG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 April 2004 and handed down on 18 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 11 December 2003 to refuse to grant the applicants a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEUG”.
The applicant with his wife and child, claim to be citizens of India and arrived in Australia on 17 November 2003. On 8 December 2003 the applicant lodged an application for a protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-37) (“CB”). The applicant made specific claims under the Refugee Convention and his wife and daughter relied on their membership of his family to receive a visa. On 11 December 2003 the delegate refused to grant a protection visa (CB pp.76-86) and on 6 January 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.87-90).
According to the applicant’s visa application, he was born in February 1972 and is a national of India. The applicant stated he is an Ismaili (or Aga Khani) Shi’a Muslim. He claimed he speaks, reads and writes Hindi and has completed ten years of education. From 1995 to 2003 the applicant stated he worked as a salesman in Hyderabad. The applicant stated he lived at the same address in Secunderabad from 1998 until his departure from India in November 2003 (CB p.104).
The applicant claimed there was no peace and stability in India and communal riots erupted from time to time, inflicting suffering on the Muslim minority. The applicant claimed it had become unsafe for Muslims to live in India as hatred towards Muslims was increasing and Muslims were being attacked, killed and their belongings looted. He claimed that his residential building in Secunderabad was surrounded by Hindu slum dwellers and that in 2003 he was attacked by Hindus on two separate occasions and hospitalised “for weeks”. In August 2003 the applicant claimed his house was set alight and as a consequence most of his belongings were destroyed. He claimed the authorities turned a blind eye towards Muslims and generally supported Hindus (CB pp.17-18).
The Tribunal’s findings and reasons
Ms K Morgan of Counsel, appearing for the respondent, prepared the following summary of the Tribunal’s decision which I have adopted in this decision and reproduce as follows:
a)In the Tribunal’s decision, matters which were discussed at the hearing were outlined as follows:
i)a request to the applicant to expand on the specific claims that he made in his written application in relation to the assaults and the fire at his home;
ii)independent evidence that the Tribunal had before it that the authorities were trying to address the problem of inter-communal violence in Andhra Pradesh (CB p.105); and
iii)the possibility of the applicant’s relocation (CB p.105).
b)The Tribunal set out independent evidence in relation to Religious Freedom and the Situation for Muslims in India (CB pp.106-107), the Bharatiya Janata Party (“the BJP”) and inter-communal violence (CB pp.107-108), communal violence in Hyderabad (CB pp.108-109), the Government of Andhra Pradesh (CB p.109), Shi’a support for Teluga Desam Party (the leading party in Andhra Pradesh) (CB p.110) and relocation (CB p.110).
c)The Tribunal preferred the oral evidence of the applicant (CB pp.110-111) to the extent that it was inconsistent with his written claims and accepted:
i)that the applicant was assaulted on two separate occasions in the course of sporadic inter-communal violence (CB p.111); and
ii)that a burning object was thrown into his flat and caused damage.
d)However, the Tribunal made the following findings:
i)it was not satisfied that the applicant’s chance of facing similar assaults in the reasonably foreseeable future was anything more than remote (CB p.111);
ii)it was not satisfied that the burning object thrown into the applicant’s flat, causing damage to his sofa and table, was a religiously motivated act or related to any other Convention ground (CB p.112);
iii)it found that effective state protection was available to the applicant at a level sufficient to remove any chance of persecution by Hindu extremists (based on the evidence before it) (CB p.112); and
iv)that it is reasonable for the applicant to relocate to a different part of India (CB p.112).
e)The Tribunal concluded that it was satisfied based on the evidence before it that the applicant’s fear of persecution in India for reason of his religion or any other Convention reason was not well-founded.
Application for review of the Tribunal’s decision
On 15 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). An amended application was filed on 7 January 2005 which contained the following grounds:
“(a)that a breach of the rules of natural justice occurred in connection with the making of the decision.
(b)that the decision involved an error of law, whether or not the error appears on the record of the decision.
(c)that procedure that were required by law to be observed in connection with the making of the decision were not observed.
(d)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
(e)that there was no evidence or other material to justify the making of the decision.
(f)further, in finding it would be reasonable for applicant to have to relocate to another part of India the Tribunal by implication accepted that the applicant may well suffer harm if he was to return to his home state.”
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 (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and 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.
Applicant’s submissions
The applicant appeared self represented with the aid of a Hindi interpreter. The applicant attended a directions hearing on
21 September 2004 and consented to Short Minutes of Order at that time which required him to file and serve an amended application and any evidence upon which he proposed to rely at the final hearing. The applicant complied with the order by filing and serving an amended application but did not provide any written submissions prior to the hearing.
When the applicant was invited to make any oral submissions in support of his amended application he indicated that he did not wish to make any submissions. The applicant was advised that this was the substantive hearing in the matter and it was his opportunity to present to the Court his case and any supporting material. Despite the explanation as to the importance of the presentation of his case during the substantive hearing of his matter, the applicant declined the invitation to make any submissions.
Respondent’s submissions
Ms K Morgan of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The application pleaded three unparticularised grounds of review as follows:
i)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which was purported to be made;
ii)the decision involved an error of law whether or not the error was one on the record or the decision; and
iii)the decision was otherwise contrary to law.
b)It was clear from a reading of the Tribunal’s decision that it considered the applicant a credible and truthful witness and accepted his claims of assaults and his claim that a burning object had been thrown into his flat in 2003. Crucially, however, the Tribunal concluded that those events were either unlikely to be repeated in the future or were not religiously motivated.
c)In addition, the Tribunal concluded that there was effective state protection in relation to any possible persecution and that it was reasonable for the applicant to relocate to a different part of India.
Reasons
The applicant in these proceedings was a self represented litigant and made no oral or written submissions but indicated to the Court that he would rely only on his amended application. The grounds in the amended application which are produced in paragraph 7 above, were vague and unparticularised. Where an applicant is self represented, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
The manner in which the grounds have been drafted do not identify any error in the Tribunal’s decision nor any error in the procedures adopted by the Tribunal during its decision making process. This effectively reduces the review process to a reading of the decision to determine whether there is any error identified on the face of the document itself.
There is an obligation on the applicant to make out his own case. The applicant completed the visa application for the Department which was available to the Tribunal together with independent country information. The applicant appeared at the Tribunal hearing and provided the Tribunal with further oral evidence. The Tribunal noted there were a number of discrepancies between the contents of the applicant’s visa application and the details he provided during his oral evidence at the Tribunal hearing. The applicant has not identified or suggested that the treatment of any of the material that the Tribunal had available to it or the method it had adopted in considering this material was not appropriate. It is for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out: Minister for Immigration & Ethnic Affairs v Guo per Kirby J at 596. In this case the applicant had been given the opportunity to attend a hearing and had been invited to furnish additional facts. The applicant availed himself of this opportunity but other than a vague allegation that the Tribunal improperly exercised its power in the decision making process, the applicant did not identify any element that constituted an error. The applicant cannot now complain that any other facts were not taken into account or that he was denied the opportunity to furnish additional facts and ask that they be taken into account in assessing his application.
On a fair reading of the Tribunal’s decision and in the absence of any contrary material, the Tribunal accurately summed up the nature of the applicant’s claim. All of the matters taken into account by the Tribunal in arriving at its conclusion were probative of the issues before it: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs.
The applicant was clearly dissatisfied with the decision of the Tribunal but, in the absence of any specific and particularised error, the only remaining avenue for consideration was whether the Tribunal adequately addressed the underlying claims of the applicant’s fear of persecution. There were effectively two issues; being the violence of the Hindu extremists against the applicant and his family because of their Muslim faith and secondly, the apparent failure of the authorities to protect the applicant and his family when subjected to these acts of violence. The Tribunal, in its decision, clearly referred to both of these issues. The Tribunal had available to it the independent information in regard to religious violence towards minority groups in the city of Hyderabad in the State of Andhra Pradesh and more broadly throughout India. The Tribunal considered and then concluded that there was effective state protection available to religious minorities at a “level sufficient to remove any chance of persecution by Hindu extremists”. The Tribunal also tempered this finding with the qualification that the authorities could not provide absolute protection for an individual and provide that individual with an absolute guarantee against harm: Thiyagarajah v Minister for Immigration & Multicultural Affairs at 179.
The Tribunal considered the alternative of relocation and concluded from the information available to it that the applicant and his family could avail themselves of a better level of protections elsewhere within the country than was available within either the city of Hyderabad or Secunderabad: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs per Black CJ at 440-1.
Conclusion
The applicant in these proceedings has failed to identify any ground for review in the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any error in the decision making process. As there is no evidence of jurisdictional error, the applicant’s claim 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 (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 April 2005
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