SZFBU v Minister for Immigration - [2006] FMCA 23

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 23

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class AZ) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 424A, 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 State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170
Syan v Refugee Review Tribunal & Anor (1995) 61 FCR 284
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:

SZFBU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG3416 of 2004

Delivered on:

25 January 2006

Delivered at:

Sydney

Hearing date:

30 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Advocate for the Respondent:

Ms K McNamara

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3416 of 2004

SZFBU

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second 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 22 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 September 2004 and handed down on

26 October 2004, affirming the decision of the delegate of the first respondent (“the delegate”) made on 11 June 2004 to refuse to grant the applicant a protection (Class AZ) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
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 “SZFBU”.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.

Background

The applicant, who claims to be a citizen of India, arrived in Australia on 2 March 2004. On 12 March 2004 he lodged an application for a protection (Class AZ) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-29) (“CB”). On 11 June 2004 the delegate refused to grant a protection visa (CB pp.34-40) and on 30 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.41-58).
The applicant stated he was born in Dachepalli, India in February 1982. He completed 19 years of education in 2003 and subsequently worked in “his own business”. The applicant entered Australia on a business visa issued in Mumbai on 26 February 2004 which was valid for a two week stay from the date of arrival (CB p.71).
In support of the applicant’s claim for refugee status, he stated he was not protected in India after he was attacked “many times” by his paternal uncle. He stated his uncle had killed his father in 1986 for political reasons. The applicant stated that his father was a political leader in Dachepalli representing the Congress Party. He claimed his uncle belonged to the Telugu Desam Party (TDP) and that “due to some political clashes” his father was killed by his uncle (CB pp.71-72).
The applicant claimed that his mother “filed a case” against the uncle which led to the applicant inheriting property belonging to his father. He stated that he was able to access the property when he became an adult in 2000. The applicant stated that when he returned to Dachepalli to sell the property his uncle attacked him and he fled Dachepalli before he could sell the property. The applicant stated that his uncle subsequently forced him to sign the property over to his uncle and also attacked him many times. In April 2002 the applicant claimed he was seriously injured when he was stabbed with a knife and admitted to hospital. He stated “they” were trying to kill him (CB p.72).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons was contained in the first respondent’s written submissions prepared by Mr Lenny Leerdham, Solicitor and I adopt paragraphs 7-9 of those submissions for the purpose of this judgment:
[7]The RRT accepted that the applicant’s uncle forcibly took property from the applicant. It accepted that he was attacked by his uncle’s associates for unknown reasons (CB p.75).
[8]The RRT made adverse credibility findings against the applicant in relation to a number of his claims (CB pp.75-77):
[8.1]It did not accept that the reason for the attacks was because of the applicant’s involvement with the BJP. When the RRT discussed this claim with the applicant at the hearing, it became apparent that he had introduced this claim after he realised that he needed to identify a Convention reason. His evidence at the hearing about why he was attacked was inconsistent, at one point saying that he did not know why he was attacked.
[8.2]The medical documents supported the applicant’s claim that he was attacked by his uncle’s associates. It found that the documents were unrelated to any of the applicant’s protection visa claims. The dates and injuries on the documents did not match the dates and injuries claimed by the applicant.
[8.3]The RRT found that the applicant fabricated his claims about his uncle’s associates in the Congress Party in response to its questions about relocation.
[8.4]The RRT did not accept that the applicant would be denied state protection throughout India because of his uncle’s position. The applicant had stated that his uncle was being investigated by the authorities.
[9]As a result of these findings, the RRT found that (CB p.78):
[9.1]The essential and significant reason for the applicant’s difficulties was not a Convention reason. He had not been targeted for political reasons.
[9.2]It considered whether any failure by the state to protect the applicant from his uncle was for a Convention reason, but found that he would have state protection available to him in the future.
[9.3]It found that the applicant could reasonably relocate within India to escape the harm he anticipated, noting that he had the skills and knowledge and ability to relocate, as demonstrated by his previous relocation to Kerala.

Application for review of the Tribunal’s decision

On 22 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 22 February 2005 the applicant filed an amended application which contained the following grounds:
“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.
Particulars
The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a political party BJP in India. I was persecuted because my active role in BJP in India. I was persecuted by the authority & my uncle is a prominent Congress party leader I am the target of him. I was attack by Congress Party in India. Now Congress party is in the power they are torturing my party leader. If I persecuted by the authority it is not possible for me relocate any other place in India. I will be persecute if I return back to India because of my political opinion. It is a convention base persecution. I provided documentary evidences to established my persecution. But tribunal did not properly consider my evidences with the Migration Act 1958.
I was persecuted because of my politics. I refer CB pages 1-2. It is true I did not collect more relevant documentary evidences to prove my persecution. Because I have no one to help me to collect documents.
The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail consider my evidences with the proper way which the Migration Act 1958 provided in my claims.
I will provide more details to support my judicial review application in my outline of submission.
Particulars
The Tribunal did not provide me adequate particulars of the independent information.
The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
The Tribunal finding that the totality of the country information does not show that BJP politicians are not persecuted in India.
I attend the Tribunal hearing & I provided oral evidence to support my claims. Only the credibility reason the tribunal did not consider my genuine claims.
Without the proper consideration of my statement and oral evidence if the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgement plaintiff S157 v Commonwealth of Australia (4 February 2002).
I repeat the claims as relief which I provided in my application under Judiciary Act 1903.
I will provide the transcript of my RRT hearing audio cassette to establish my judicial review application. At present I have no fund to prepare the transcript of the tribunal hearing.
As I mentioned earlier in my oral and written in my hearing that

I was harassed by my uncle couple of times. As tribunal said that I have not given the reason for the later attacks done on me by my uncle and his associates, but they have done due to political reasons and before that they have done due to the property disputes. At that time I was the President of political ruling party i.e. Bharatiya Janatha party and was growing towards the leading role in the party, That’s the reason he thought that

I could harm him in future after getting influential person, as a revenge of my property dispute.
Apart from that he attack not even in my local place i.e. Hyderabad and in also in Kerala when I relocated for the sake of safety. And I would like tribunal let know that still I am facing problems with my health.
As far as my family is concern I am worried about my mother because I am the only son to my mother. Before coming here

I left my mother with my relative who can take care of her in my absence. But she is not secure over there from my uncle and his associates.
So I will be thankful to the higher commission to have a close look to my case and kindly give the decision. (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 (“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 State of South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Reasons

The format of the applicant’s amended application set out a single ground of review with three pages of particulars. However, the content of the particulars were, in effect, individual grounds of review even though they were not identified as such. Also, part of the particulars contained references to written submissions and a transcript of the Tribunal’s hearing. Neither of these documents was subsequently filed by the applicant and this was confirmed by him at the commencement of the proceedings. A further feature of the material identified as particulars contained some repetition of the same issue although it was not set out in a sequential pattern with common issues marshalled in any manner.
I have adopted the submissions made by the first respondent who has identified six grounds of review and I believe this is a convenient manner to address the application in a systematic manner. The grounds alleged are:
a)Ground 1 – the Tribunal did not properly consider the evidence provided by the applicant.
b)Ground 2 – there was no rational basis for the Tribunal’s decision.
c)Ground 3 – the Tribunal did not observe the requirements of the Migration Act 1958 (Cth).
d)Ground 4 – no particulars of the country information relied upon by the Tribunal were provided to the applicant.
e)Ground 5 – the applicant was not given an adequate opportunity to respond to the Tribunal.
f)Ground 6 – the applicant made a general objection to the credibility findings made by the Tribunal.
In respect of Ground 1, there is nothing in the Tribunal’s decision to suggest that it did not consider all of the applicant’s evidence and claims. The Tribunal carefully analysed the documents provided by the applicant, as well as the claims he made at the hearing. The fact that the Tribunal made a different decision than the applicant would have preferred does not mean that it did not adequately consider all of the evidence. This ground cannot be sustained.
In respect of Ground 2, the Tribunal’s decision appeared to be founded on an eminently rational basis. It considered the applicant’s claims and evidence, noted that a number of the claims were not credible, and found that the remaining claims were not sufficient for him to meet the protection visa criteria. The findings made by the Tribunal were open to it on the evidence before it. This ground cannot be sustained.
In respect of Ground 3, there were no particulars as to which part of the Act the Tribunal had failed to comply with. There is nothing in the decision to suggest that the Tribunal has not followed the procedural and substantial requirements under the Act.
In respect of Ground 4, the only use made by the Tribunal of country information was in its finding that the applicant would have effective protection from Indian authorities in the future. The country information was general and was not specifically about the applicant. For this reason, the Tribunal did not need to notify the applicant under s.424A (by reason of sub.s.424A(3)(a)). The information was discussed with the applicant at the hearing. This ground cannot be sustained.
In respect of Ground 5, this ground was not particularised by the applicant. The Tribunal’s summary of the hearing suggests the Tribunal questioned the applicant regarding all of the issues about which it was concerned, and gave him the opportunity to respond to its questions. The fact that the applicant was apparently unable in many cases to give an adequate explanation or meaningful response does not mean that the Tribunal did not give the applicant the opportunity to respond to its concerns.
In Ground 6 the issue is merits related. The Tribunal’s finding of adverse credibility, where such findings are reasonably open on the evidence before it, is properly the function of the decision-maker and generally not susceptible to judicial review by the Court. The Tribunal’s findings of adverse credibility were open to it on the evidence before it and an allegation of jurisdictional error cannot be sustained.
The first respondent submitted that there was nothing over and above the grounds alleged by the applicant to suggest that the Tribunal made a jurisdictional error. The Tribunal considered all of the applicant’s claims, and found that the harm he feared was not for a Convention reason. It considered whether the applicant would be refused state protection from the harm he feared for a Convention reason, but found that this was not the case. The Tribunal also found that the applicant could reasonably relocate within India to escape from the harm he feared. The first respondent submitted there was no error in the Tribunal’s approach.
It was submitted by the first respondent that where the Tribunal makes a finding that it is reasonable for an applicant to relocate within their country of nationality, an applicant will not be entitled to a protection visa even if a well founded fear of persecution in relation to a particular area can be established. The respondent submitted that it was well established that a finding on relocation provides a separate and independent basis for the Tribunal to affirm the refusal to grant a protection visa: Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [18]. The first respondent further submitted that in Syan v Refugee Review Tribunal & Anor, the Tribunal did not even look at the substance of the applicant’s claims regarding persecution. The Tribunal decided the case on the basis that the applicant (a Sikh who had lived in the Punjab for most of his life) could reasonably be expected to relocate to Bombay. The Federal Court upheld this approach.
Following the decision in SAAP strict compliance with s.424A is required and information contained in the applicant’s original application to the Department is not excluded or exempt from these strict compliance requirements under s.424A: Minister for Immigration & Multicultural Affairs v Al Shamry. In the applicant’s application for review by the Tribunal under Section D (CB p.43), the applicant stated: “Please find the details in the attached sheet and the explanation already given to the ‘DIMIA’.”
In VUAV v Minister for Immigration & Multicultural & Indigenous Affairs, his Honour Merkel J addressed a similar circumstance and made the following observations at [9]-[11]:
In the circumstances of the present case, s 424A(1) required the RRT to give notice to the appellant, and invite his comment upon, the information in his visa application form provided that it was not given by the appellant for the purpose of his application for review: see s 424A(3)(b) and Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27.
However, as was pointed out by Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], if an applicant for review in, or as part of, the application for review relies upon information provided by the applicant in, or as part of, the application for a visa, the applicant will be taken to have given that information for the purpose of the application for review. As is apparent from the decisions in SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 and NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, views may differ on whether that criterion has been satisfied in a particular case.
In the present case the criterion has been satisfied. In the appellant’s application for review, in giving his reasons for making the application, the appellant stated, inter alia:
‘PLEASE REFER TO MY PREVIOUS STATEMENT FOR FURTHER INFORMATION.’

In the Tribunal’s decision under the heading “Claims and Evidence”, the Tribunal recorded that the applicant provided medical reports to the Tribunal to verify his claim that his uncle had attacked him. The Tribunal discussed in detail with the applicant the contents of these reports and questioned the applicant on the discrepancies between the contents of the reports and the claim previously made. The decision indicates that these documents were not previously held by the Tribunal or sourced from the Department or the delegate and therefore coming within the regime contemplated by s.424A of the Act. The medical report prepared by “Yashoda Hospital” was submitted to the Tribunal on the same day the application for review of the delegate’s decision was lodged, being 30 June 2004.

Conclusion

The grounds pleaded in the application are general in nature with the distinction between the grounds and particularisation confused. However, 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.

I have adopted the approach suggested by the first respondent and considered the six grounds of review that appear to be claimed by the applicant. I do not believe any of these grounds can be sustained as none of them identify any jurisdictional error in the procedure or the decision of the Tribunal. The applicant’s claim 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 first 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: 25 January 2006