SZEZS v Minister for Immigration
[2005] FMCA 628
•17 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEZS v MINISTER FOR IMMIGRATION | [2005] FMCA 628 |
| 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, 418(3), 424A(1), 424A(3), 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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
| Applicant: | SZEZS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2810 of 2004 |
| Delivered on: | 17 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 5 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application be 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 2810 of 2004
| SZEZS |
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 13 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 August 2004 and handed down on 30 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 8 April 2004 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 “SZEZS”.
The applicant, who claims to be a citizen of India, arrived in Australia on 21 January 2004. On 2 February 2004 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.1-36) (“CB”). On 8 April 2004 the delegate refused to grant a protection visa (CB pp.39-51) and on 5 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.52-55).
In his visa application, the applicant stated he was born in August 1977 and is an Indian male from Andhra Pradesh. He came to Australia as a visitor in January 2004, travelling on an Indian passport in his own name which was issued in February 2002. The applicant stated that he is a Hindu and speaks, reads and writes Tamil and Telugu. He stated that since he finished school in 1992 he has worked in a mechanical workshop. The applicant claimed he attended Congress Party meetings and his home State in India was ruled by the Telugu Desam Party which is against the Congress Party and misuses its power and government officials, particularly the police force, to suppress the Congress Party. The applicant claimed that in India, government officials co-operate with whichever political party comes to power (CB p.68).
The applicant claimed that the area where he lived was peaceful until March 2002 when a particular person [J R S] came to the area from Hyderabad. He stated that [J R S] was very rich, had many followers and became the Telugu Desam Party leader for that area. The applicant claimed that it was rumoured that after crushing the Congress Party in the area [J R S] was to be rewarded by becoming a Telugu Desam member of parliament. The applicant claimed that [J R S] conducted meetings, rallies and processions to impress the public and to depress the Congress Party members (CB p.69).
The applicant detailed a long list of incidents and conflicts that occurred between [J R S] and the applicant. As a result of these conflicts the applicant claimed he was jailed on two occasions, and on the second occasion he was jailed for three months. After his release the conflicts continued and the applicant moved to Chennai to stay with an uncle who informed him that [J R S] had a powerful network of contacts throughout India. The applicant claimed that his uncle arranged his departure to Australia and he travelled to Australia as a cameraman with a cinema troupe (CB pp.68-69).
The Tribunal’s findings and reasons
Mr A Markus, Solicitor for the respondent, prepared an effective summary of the Tribunal’s decision which formed part of his written submissions filed in these proceedings. I have adopted that summary and it is reproduced in the following paragraphs.
The Tribunal found that applicant was not an entirely satisfactory witness for the following reasons:
a)His varying recollections about certain dates and details suggested that, at least, his recollections could not simply be relied upon without qualification; and
b)He was unable to explain to the satisfaction of the Tribunal what additional factors emerged after he left Andhra Pradesh in August 2003 for Chennai (at which time he said he did not have a fear which impelled him to seek protection outside India) and before his claimed change of heart at the end of that year and departure from India in January 2004.
The Tribunal considered that the applicant’s evidence contained some degree of exaggeration and embellishment, in particular about his own significance and the extent to which the local Telugu Desam leader might be motivated to seek out and target him, even outside their own state.
The Tribunal accepted that the applicant was a local member or active supporter of the Congress Party in his own area in Andhra Pradesh from about 1995 and that, in this context, in 2002 and 2003 he came into conflict with supporters of Telugu Desam. The Tribunal noted that the applicant was present when physical clashes took place between rival supporters on at least two occasions, and that he was arrested, convicted and served short prison terms in relation to those clashes. The Tribunal also accepted that on occasions between late 2002 and August 2003 (the respondent notes that the Tribunal in its decision refers to these dates as 1992 and 1993, this appears to be an error) the applicant was harassed by Telugu Desam supporters (which may have occasioned the loss of his particular employment at that time, in November 2002) and that as a consequence in August 2003 the applicant moved to Chennai. The Tribunal, however, did not accept that the applicant was pursued, identified, targeted or persecuted while he was in Chennai by those with whom he had encountered problems in his own area.
The Tribunal was satisfied that the applicant was able to obtain effective protection within his own country by relocating away from the local area where the difficulties had occurred, to live with his uncle in a large city elsewhere - in a place where, as the applicant himself had stated at the hearing, many people spoke his own language of Telugu.
The Tribunal did not accept that in a country as vast and populous as India, local antagonists would be motivated or able to pursue the applicant throughout the country in general, or in Chennai or Tamil Nadu in particular. The Tribunal noted that the applicant had lived away from his home state for the past two years, he had substantial practical work experience and in his application form he had stated that he speaks, reads and writes both Tamil and Telugu, both of which were widely used in Tamil Nadu as well as his own state.
In any event, the Tribunal found that there had been fundamental changes of circumstance which directly affected the applicant’s situation in his own state. The Tribunal noted that in May 2004 the Congress Party triumphed in both national and state elections, winning a majority of Andhra Pradesh seats both in the state legislature and in the national assembly, and forming governments at both state and national level. The Tribunal also placed weight on the applicant’s own statement that since the problems in 2002/2003 [J R S] had lost influence within his own party and that in India, government officials co-operate with whichever political party comes to power.
On the basis of the above, the Tribunal was satisfied that the applicant could return to his own state without any real chance of persecution by [J R S] or his supporters or associates. The Tribunal was also satisfied that the applicant could access the protection ordinarily available from the authorities in his own state should criminal actions be directed against him. Accordingly, the Tribunal found that the applicant did not face a real chance of persecution for a Convention reason on return to India (CB pp.72-74).
Application for review of the Tribunal’s decision
On 13 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The applicant attended a directions hearing on 24 September 2004 and by consent to Short Minutes of Order agreed to file and serve an amended application giving full particulars of each ground of review together with any affidavit material to be relied upon on or before 19 November 2004. On 19 November 2004 the applicant filed an amended application containing the following grounds:
“1.That the tribunal failed to follow procedural fairness as required under section 424A(1) and section 418(3) of the Migration Act 1958.
2.That a breach of the rules of natural justice occurred in connection with the making of the decision.
3.That taking an irrelevant consideration into account in the exercise of a power and failing to take a relevant consideration into account in the exercise of a power which involved error of law in tribunal’s decision.
Particulars: 1
The tribunal did not provide me particulars of information’s from the Australian embassy reports, which formed the reason of the tribunal’s decision.
Particulars: 2
Refugee Review Tribunal did not consider whether or not the Indian Government was unwilling to offer adequate protection upon my returned.
Particulars: 3
The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs did not comply with s 418(3) of the Migration Act, because he had failed to give the Registrar of the Refugee Review Tribunal part B document’s in his possession or control, which was ‘… a failure by the Secretary to comply with the requirements of s 418(3) of the Act might, in some cases, result in or contribute to jurisdictional error on the part of the Tribunal …’ as per Gaudron J and Gummow J in Muin, Lie Vs Refugee Review Tribunal.” (Errors included)
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 an interpreter. The applicant confirmed that he had filed an amended application but had not been able to prepare written submissions for the final hearing. When the applicant was invited to make any oral submissions in support of his application, he indicated that he did not wish to address any issue. The applicant was asked a number of questions in respect of his amended application and in particular clarification was sought regarding the particulars. I will discuss these in more detail in the following section headed Reasons. However, the applicant gave a clear impression that he did not understand or was not even aware of the content of the amended application. The grounds and the particulars pleaded in support made no direct reference to any aspect of the applicant’s application or the Tribunal’s decision. The individual grounds were no more than a generalised statement of types of errors that may occur in a Tribunal’s decision but contained no relevance to this application.
Respondent’s submissions
Mr A Markus, Solicitor appearing for the respondent, filed written submissions prior to the hearing in response to the applicant’s original application. Mr Markus indicated that he had not received the amended application and was unaware of its existence prior to the commencement of the hearing. Mr Markus indicated that he would make oral submissions in response to the amended application.
Reasons
The applicant participated in the Pilot RRT Legal Advice Scheme (NSW). He attended a conference with the allocated adviser and received written advice. However, I do not believe that the preparation and filing of the amended application had any connection to that advice. The applicant received assistance in the preparation of the amended application from someone with a limited knowledge of aspects of migration litigation. However, as indicated above, the amended application made no reference to nor did it respond to any issue contained in the Tribunal’s decision. The three generalised grounds did not demonstrate any link to the contents of the decision and the three particulars pleaded did not directly link to any of the grounds.
In the first ground the applicant pleaded that the Tribunal failed to follow the procedural fairness as required under s.418(3) of the Act. That section states:
(3)The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
The relevant material was noted at paragraph 5 of the decision record of the delegate (CB p.41). There was no evidence before the Court that this material or any part of it was not forwarded by the Secretary to the Registrar of the Tribunal. The applicant was asked which item of material was not supplied to the Registrar but he was unable to answer. The inability of the applicant to indicate the material to which he was referring in his pleadings demonstrated that he had no real knowledge of what was in the pleadings or the matters being addressed.
The other allegation raised in ground 1 was that the Tribunal failed to comply with s.424A(1) of the Act. Particular 1 of the pleadings may be relevant to this ground as the applicant claimed the Tribunal did not provide him with any of the particulars of the information from the Australian embassy reports but no further particularisation was supplied and no reports were identified. The decision of the Tribunal made two references that it considered in its reasons. The first related to the success of the Congress Party in both the national and state elections which resulted in the Congress Party having an overwhelming control in the state assembly of Andhra Pradesh with the Telugu Desam Party being reduced to 47 seats out of a 294 member assembly. This information was put to the applicant during the Tribunal’s hearing on 5 July 2004 and he was questioned about the significance of that result in respect of his claim. However, this material need not have been disclosed to the applicant because of the exemption under s.424A(3) of the Act. One other piece of information was noted in the Tribunal’s decision which was drawn from the Lonely Planet Publication, India 9th Edition 2001, page 870 and gave the population of an area of the state of Andhra Pradesh. Again, this information fell into the same category as the election result as it was discussed with the applicant at the same time and clearly fell within the exemption under s.424A(3). The applicant was also asked to identify which reports were the subject of his ground 1 pleading but no response was forthcoming.
Ground 2 claimed there was a breach of natural justice in connection with the making of the Tribunal’s decision. I believe the most appropriate way to consider this ground would be to append it to ground 1 in an attempt to give it some relevant context. There was no evidence that the Tribunal did not apply the correct procedures in reaching its decision nor is there any evidence of an error of principle. The applicant may be attempting to express his overall dissatisfaction with the Tribunal’s findings but this was not supported by any evidence that the rules of natural justice were not observed. The ultimate decision of the Tribunal was based on two distinct reasons. The first reason related to the availability of relocation for the applicant and the proper test to determine whether relocation was viable was applied by the Tribunal. The second reason was that due to the changes of the political circumstances in India, and particularly Andhra Pradesh, the population and size of the state provided the applicant with sufficient independence to avoid a personal conflict with his antagonist and his supporters. The Tribunal was satisfied that the applicant could return to his own state without any real chance of persecution by that individual or his associates.
The third ground raised the issue of irrelevant considerations without any indication as to what that terminology was addressing. In the third particular there was a direct reference to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (“Muin/Lie”) and throughout the general pleadings there was an oblique reference to the issues that were raised in that decision. The reference to s.418, the embassy reports and the Part B documents were threads of the Muin/Lie decision. However, the circumstances of the Muin/Lie litigation do not mirror or resemble the features of this current matter. The author of these pleadings appeared to have some limited knowledge of this area of law and may have believed the issues of the Muin/Lie action may have had some relevance in this present matter and may have been utilised in the preparation of the pleadings.
Conclusion
As the grounds and the accompanying particulars in the applicant’s amended application were vague and extremely general in nature,
I have not been able to identify any ground that the Tribunal committed any jurisdictional error and the application should therefore 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-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 May 2005
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