SZEWG v Minister for Immigration
[2005] FMCA 1037
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEWG v MINISTER FOR IMMIGRATION | [2005] FMCA 1037 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 474
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
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
| Applicant: | SZEWG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2111 of 2004 |
| Delivered on: | 29 July 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 July 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 |
SYG2111 of 2004
| SZEWG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 May 2004 and handed down on 16 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
16 December 2003 to refuse to grant the applicant a protection (Class XA) 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 “SZEWG”.
The applicant, who claims to be a national of India, arrived in Australia on 12 November 2003. On 11 December 2003 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.1-34) (“CB”). On 16 December 2003 the delegate refused to grant a protection visa (CB pp.35-48) and on
6 January 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.49-52).
The applicant attended a hearing before the Tribunal on 4 May 2004. The hearing was conducted with the services of an interpreter in the Malayalam-English medium. The applicant was represented by an adviser who did not attend the hearing. The applicant brought forward no witnesses.
The applicant claimed to fear persecution in India for Convention related reasons of “religion”. His claims also related to imputed “political opinion”. The applicant’s claims were contained in writing in his protection visa application and in oral evidence provided at the hearing to the Tribunal. In summary, the applicant’s claims were:
a)by offering refuge to the victims of a violent attack, the applicant became involved in violent clashes between Hindu and Muslim extremist groups and was identified as a witness; he was threatened by various groups in relation to his evidence (CB pp.27-30) and a false charge was laid against him;
b)to escape prosecution he planned to leave Bombay but when the Muslim extremist group heard he was trying to have his case in relation to the false charge transferred, they raided his house, smashing his furniture and they burnt down the applicant’s factory (CB p.32.2);
c)when the applicant reported this event to the police, the police filed another false charge against him saying his brewing of illicit liquor led to the fire (CB p.32.4);
d)the applicant had to leave Bombay which meant leaving his “hard earned money from foreign countries and invested in Bombay” behind (CB pp.31-32);
e)when the applicant left Bombay for his home town of Kerala, his family received anonymous telephone calls threatening the applicant’s life (CB p.32.8);
f)in Kerala, assassins attempted to enter his house and he called the police but the police arrested him for leaving Bombay without permission (CB p.33.4);
g)the applicant had to bribe the police to release him and tell the Bombay police they had not yet found him (CB p.33.9);
h)the applicant left India and came to Australia to save his life; the applicant feared Hindu and Muslim extremists and the police.
The Tribunal’s findings and reasons
The Tribunal made the following relevant findings:
a)it found that the applicant’s travel prior to coming to Australia formed a pattern with the applicant’s business and career interests (CB p.86.3);
b)it concluded that the applicant’s position that he came to Australia for Convention-related reasons was undermined by “implausibility and inconsistency” (CB p.86.4);
c)it did not accept that the applicant’s claims were “factual”, specifically it did not accept that the applicant offered refuge to activists fleeing a Muslim gang or any of the facts that flowed from that (CB p.86.5); and
d)it concluded in any event, even if the applicant had established that the various groups were after him, they were not after him for a Convention-related reason, but because he would not help them convict the other group, “not because he represents any religion in their eyes” (CB p.86.9).
The Tribunal’s reasons for these findings included:
a)the inconsistencies in the applicant’s evidence; and
b)the ability of the applicant to leave India.
Application for review of the Tribunal’s decision
On 9 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) which did not contain any readily identifiable grounds of review but rather a brief summary of the circumstances leading to his departure from India. On 14 December 2004 the applicant filed an amended application which contained the following grounds:
1.In page 3 of the decisions the Refugee Review Tribunal has stated that there are four key elements to the convention definition. The applicant states he satisfies all the four key elements. The Tribunal failed to appreciate that.
2.The Tribunal failed to see the applicant’s ‘convention-related’ claims are not factual.
3.The Tribunal erred in not accepting that the applicant offered refuge to RSS activists fleeing a Muslim gang.
4.The Tribunal completely erred in not accepting any thing pursuant to the ground number 3 stated above.
5.The Tribunal is not correct in saying that the entire matter is imaginary. The Tribunal has not given the necessary importance to the facts and circumstances.
6.The Tribunal is pre determined about the applicant’s matter. The Tribunal committed a mistake in saying that the applicant’s evidence is inconsistent.
7.The mere fact that the applicant left the Indian airport does not mean that the applicant is safe in India. The Tribunal failed to see that the it is not hard to leave India through airports.
8.The Tribunal failed to see that Muslim-Hindu conflict is a serious matter.
9.The Tribunal erred in stating that the applicant has not wanted for Convention-related reasons.
10.The Tribunal should have accepted the situation that each party wanted him to be a witness in criminal cases.
11.The applicant was a witness to a murder and if he gives evidence he will be killed by the other group. If he does not give evidence he will be harassed by the police officials. (Errors in original)
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 assistance of a Malayalam interpreter. The applicant attended a directions hearing on 12 October 2004 and consented to Short Minutes of Order at that time requiring him to file and serve an amended application and any evidence upon which he proposed to rely at the hearing. The applicant filed an amended application which contained eleven grounds, none of which were particularised. No other evidence was filed in support of the applicant’s claims. Also contained within the orders made at the directions hearing was a requirement that the applicant file written submissions to be relied upon at the hearing. This order was not complied with.
When the applicant was invited to make oral submissions at the hearing in support of his application he declined to do so and indicated that he would rely on his written submissions, which in effect was limited to the eleven grounds contained in his amended application. At the directions hearing the applicant had been offered an opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) which the applicant accepted. The applicant was allocated an adviser and the Court file indicated that a conference was held and advice was given by the appointed adviser. This conference took place after the filing of the applicant’s amended application and the Court file does not indicate that there had been any application or request to file a further amended application.
Ms K Morgan of Counsel, appearing for the respondent, filed written submissions prior to the hearing which provided the Court with a helpful summary of the applicant’s claim, the Tribunal hearing and decision, together with submissions in respect of the applicant’s eleven pleaded grounds. The submissions in respect of the grounds are as follows:
a)Grounds 1-5 were claims for a merits review and it was not open to the Court to consider the merits of the Tribunal’s decision. These grounds of review should be rejected.
b)Ground 6 was an allegation of actual bias. No particulars of bias were provided. There was no proper evidence to support an assertion that the Tribunal acted in bad faith or was biased in this case. This ground of review should be rejected.
c)Ground 7 was an allegation that the Tribunal “failed to see that it is not hard to leave India through airports”. This was not an accurate description of the Tribunal’s finding. The Tribunal did not accept the applicant’s claims because they were implausible and inconsistent. The Tribunal also indicated that the fact the applicant was able to leave India “is strong evidence that they do not have relevant concerns about him” (CB p.86.8). The Tribunal was not making a global finding that it was “hard to leave India through airports”. This ground of review should be rejected.
d)Ground 8 asserted that the Tribunal “failed to see that Muslim-Hindu conflict is a serious matter”. To the contrary, the Tribunal recognised that “there is Muslim-Hindu inter-religious conflict in India” (CB pp.86.9, 83) but concluded that the applicant had failed to show that the reason the various groups were after him was for a Convention reason (CB p.86.10).
e)Grounds 9-11 challenged various findings of fact made by the Tribunal. Specifically:
i)that the Tribunal should not have found that the persecution the applicant asserted was not for a Convention reason as it was not because of his religion he was persecuted but because each group wanted him to give evidence against the other group (Ground 9);
ii)that the Tribunal should have accepted the situation that each party wanted him to be a witness in criminal cases (Ground 10); and
iii)that the Tribunal should have found the applicant was a witness to a murder and if he gave evidence he would be killed by the other group. If he did not give evidence he would be harassed by the police officials (Ground 11).
f)The Tribunal’s findings of fact were based on its assessment of the applicant’s claims and evidence, including its evaluation of his credibility.
g)The finding in Ground 9 “accepted” the claims made by the applicant for the purpose of evaluating whether the harm was for a Convention reason. The application did not identify what the Convention-related reason may be. It was open to the Tribunal, on the facts provided by the applicant to conclude there was no Convention-related reason for the two conflicting religious/political groups wanting him to give evidence against the other. This ground should be rejected.
h)The findings challenged in Grounds 10 and 11 relied on the Tribunal’s finding on credibility, which is the function of the decision-maker par excellence: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”) per McHugh J at [67]. As such these grounds of review should be rejected.
Reasons
Grounds 1-5 contained in the amended application raised issues in respect of the Tribunal’s findings of fact. Each of these grounds were expressed in very general terms and were not particularised. Grounds 1 and 2 addressed the same issue as does Grounds 3 and 4 and are, in effect, not separate grounds. The five grounds which, in effect, addressed three issues that question the Tribunal’s fact finding function, question the merits of those three decisions. For the Court to accept that approach would require the Court to enter into a merits review. Clearly a merits review is not available to this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
“…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision-maker was authorised to do what he did under the prevailing law not whether the actual decision was the best decision which could be made in the circumstances. A merits review provides a complete rehearsal of all of the issues relevant to the application.
Ground 6 of the amended application was an allegation of actual bias. Again this was unparticularised and there was no proper evidence to support the assertion that the Tribunal acted in bad faith or was biased in this case. A party asserting actual bias on the part of the decision-maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127].
In the absence of any evidence submitted by the applicant which, in this case, included a transcript of the Tribunal hearing, the authorities are clear that one cannot extrapolate bias from the existence of an adverse finding alone. This was confirmed by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs at [38]:
“In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
Ground 7 of the amended application related to the departure of the applicant from India and in particular his departure through the Indian International Airport. The Tribunal referred to the applicant’s leaving India in its decision under the heading of “Claims and Evidence” in the following brief statement:
“He has spent much of his adult life working in countries outside India. He travelled in February 2002 to Germany on business. Before that, in 1997, he travelled to the USA for employment. He did the same in Singapore in 1992 and Kuwait in 1990. His current passport shows a pattern of travel for what he claims were the genuine purposes of commerce to Malaysia.
The applicant came to Australia on a business visa. He claims this was only a pretext for seeking asylum in Australia from the authorities in India, in particular in Mumbai. The Indian authorities nevertheless sighted his passport and authorised him to depart India on 11 November 2003.
The applicant’s business visa was issued in New Delhi on 13 October 2003. He waited a month before using it to travel to Australia. (CB pp.82-83)
Then, in its “Findings and Reason”, the Tribunal made the following comment:
“The fact that the authorities let the applicant depart India is strong evidence that they do not have relevant concerns about him.” (CB p.86)
The inference drawn by the applicant in Ground 7 that the Tribunal “failed to see that it is not hard to leave India through airports”, was not what the Tribunal was contemplating. Rather, if the applicant was of interest to the police in respect of his false bootlegging charges and his pivotal role as a key witness in a murder investigation, then the Indian police would have been particularly interested in his departure from India for an overseas destination. The Tribunal made this reference to highlight the implausibility and inconsistency in the applicant’s story as he was treated as a person of no interest to the authorities on his departure. References to the ease or otherwise of the applicant’s departure from the Indian International Airport was not being considered by the Tribunal as a reason regarding the applicant’s safety within India. No correlation in respect of these issues was being made or suggested by the Tribunal. The issue was being raised simply to highlight the implausibility of the applicant’s overall story in respect of his circumstances which he was inviting the Tribunal to believe. This ground was misconceived and cannot be sustained.
Ground 8 of the amended application asserted the Tribunal failed to see “Muslim-Hindu conflict is a serious matter”. In the Tribunal’s “Findings and Reasons”, the Tribunal made two observations in respect of Muslim-Hindu conflict. Firstly, the Tribunal stated:
“The applicant’s position about having come here for other reasons, the reasons that he claims are Convention-related, are undermined by implausibility and inconsistency, irrespective of the degree of hostility between Muslims and Hindus in Bal Thackeray’s home town of Mumbai. The Tribunal does not accept that the applicant’s ‘Convention-related’ claims are factual. The Tribunal does not accept that the applicant offered refuge to RSS activists fleeing a Muslim gang, or any of the facts that follow from it.” (CB p.86)
Secondly, the Tribunal stated:
“In any event, whilst there is Muslim-Hindu inter-religious conflict in India, of which some has probably been fermented in Mumbai by Mr Thackeray, the applicant has failed to show that he is wanted for Convention-relation reasons.” (CB p.86)
The applicant’s pleading that the Tribunal failed to see the Muslim-Hindu conflict as serious was contrary to the Tribunal’s findings and cannot be sustained as a valid ground.
Ground 9 of the amended application alleged that the Tribunal was in error in its statement that the applicant was not wanted for Convention-related reasons. The applicant claimed he was a witness to a murder and was wanted by both sides as a witness, which put him at odds with the party that he does not side with and if he rejected both sides, he would be pursued by the police for failing to give evidence. After the Tribunal considered the applicant’s claims, it concluded that the persecution by either of these groups who may be ultimately frustrated by the applicant’s refusal to give evidence did not result in a Convention-related reason for the possible persecution. The applicant did not suggest that the persecution was for a reason of race, religion, nationality, membership of a particular social group or political opinion.
It would be difficult to characterise the situation experienced by the applicant as persecution by reason of actual or imputed political opinion. It would be more accurate to describe the motivation for the alleged threatened harm to be inflicted on the applicant by the respective parties to be the result of common criminal activity and therefore outside the Convention. The High Court held in Minister for Immigration & Multicultural Affairs v Singh where an act of revenge or retribution is derived from or arises out of a political act or campaign, then the act of revenge or retribution may be a political act. However, in this case, the claim of the applicant was that he observed an act of criminal violence resulting in a person’s murder. The applicant’s own claim was that he was a witness to the event but was not personally involved in the dispute between the parties. The applicant made no claim that he was a member of either group involved in the dispute which would have established a possible nexus for his involvement to take on the characteristic of a political act. This ground cannot be sustained.
Grounds 10 and 11 of the amended application both addressed the issue of the credibility of the applicant’s claim. The Tribunal’s finding on credibility is a function of the decision-maker par excellence: Durairajasingham per McHugh J at [67]:
“… a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”
I am satisfied that the Tribunal’s findings in this respect were open to it on rational grounds on the material before it and that no error was disclosed in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs at 552 and 559. The Tribunal detailed the vagueness, inconsistency and implausibility of the applicant’s evidence in a number of respects. The Tribunal’s reasons for decision, which was the only evidence before the Court in relation to the conduct of the Tribunal hearing, indicated the Tribunal’s concerns in relation to aspects of the applicant’s evidence were raised with him in the course of the hearing on 4 May 2004. These grounds cannot be sustained.
Conclusion
As the grounds in the application are general and without particularisation, I have not been able to identify any ground that the Tribunal has committed 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-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 July 2005
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