SZFZQ v Minister for Immigration
[2007] FMCA 991
•19 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFZQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 991 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicants – applicants are citizens of India claiming fear of persecution as the first applicant claimed to have been a member of the Khalistan Liberation Organisation – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 475A |
| First Applicant: | SZFZQ |
| Second Applicant: | SZFZR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 172 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 June 2007 |
| Date of last submission: | 19 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Singh |
| Counsel for the Respondent: | Ms. Sirtes |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,800.00 in addition to the costs order made on 17 May 2007.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 172 of 2007
| SZFZQ |
First Applicant
| SZFZR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 28th November and handed down on 19th December 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the two Applicants Protection (Class XA) visas. The Applicants by means of an application and a supporting affidavit filed on 17th January 2007 seek judicial review of the Tribunal decision.
Background
The background to this matter is that the Applicants are husband and wife. The Tribunal noted that they claimed to be citizens of India, and the Tribunal dealt with their case by assessing their claims against India.
The Applicants arrived in Australia on 16th June 2004 and applied for Protection (Class XA) visas on 13th July in that year. On 23rd October 2004 a delegate of the Minister refused their application for visas, and so the Applicants then sought review of the delegate's decision in the Refugee Review Tribunal.
The Tribunal originally affirmed the delegate's decision on 7th February 2005, and the Applicants sought judicial review of that decision from the Federal Magistrates Court. On 11th May 2006 the Court made orders by consent quashing the decision and directing the Tribunal to determine the matter according to the law.
The Tribunal invited the Applicants to attend a hearing, and the First Applicant attended the hearing which took place on 8th September 2006. The First Applicant produced a copy of his Indian passport. He gave evidence to the Tribunal setting out his fear of persecution should he be required to return to India based on his claim to have been a member of an organisation called the KLO. He told the Tribunal that the police started to harass him because of his activities in the KLO from about 1989.
He told the Tribunal that he left India and went to the Philippines in February 1991. He returned to India in 1997. He told the Tribunal when he returned in 1997 he realised that his name was on a black list and the police was still searching for him and that he had to hide with relatives and friends. The Applicant had obtained permanent resident status in the Philippines.
The Tribunal’s findings and reasons
A copy of the Tribunal's decision record can be found at pages 130 through to 147 of the Court book. The Tribunal's findings and reasons are set out on pages 144 through to 146. The Tribunal noted that on the basis of the First Applicant's passport and the absence of any evidence to the contrary, that the Applicant was a national of India. The Tribunal also accepted that the first named Applicant was a Sikh. However, the Tribunal found the Applicant's evidence about his refugee claims to be vague, evasive, confused and inconsistent.
The Tribunal examined his evidence, and in particular his replies to what the Tribunal described as considerable questioning by the Tribunal, and was not satisfied that the Applicant was a credible witness. The Tribunal did note, and it is set out at page 146 of the Court book, that after the Applicant had obtained permanent residence in the Philippines, which meant that he did not have to return to India, that the First Applicant did precisely that in late 1997.
The Tribunal found that the First Applicant was not a credible witness and that the documents he submitted to the Tribunal in support of the review application were not genuine, and the Tribunal gave them no weight. The Tribunal did not accept that the First Applicant was ever a member of the KLO, let alone the president of the district branch of the KLO, or was involved with the KLO in any way.
The Tribunal did not accept that the Applicant was arrested, harassed, tortured or falsely charged in India, or the Philippines for that matter, because of any involvement with the KLO. The Tribunal found that the First Applicant did not have a well founded fear of Convention related persecution in India.
No specific Convention claims were made by or on behalf of the Second Applicant, who is the First Applicant's wife. The Tribunal noted the fate of her application depended on the outcome of the First Applicant's application.
The Tribunal was not satisfied that the First Applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugees Protocol, and did not satisfy the criterion set out in sub-s.36(2) for a protection visa. As the First Applicant could not be granted a protection visa, the Tribunal noted that it followed that the Second Applicant could not satisfy the alternative criterion set out in sub-s.36(2)(b), and also could not be granted a protection visa.
The Tribunal affirmed the decision not to grant the Applicant's visas.
The application for judicial review
The Applicants commenced proceeding for review by filing an application and an affidavit in support on 17th January this year. The Applicants filed an amended application on 1st June 2007. In that amended application the Applicants through their solicitor seek the following:
a)A declaration that the Tribunal decision is invalid and contrary to law.
b)An order setting aside the decision.
c)An order that the Tribunal give further consideration according to law to all matters to which the decision relates.
d)An injunction restraining the First Respondent Minister and his delegates, officers, servants and agents pending the determination of the proceedings from removing the Applicants from Australia.
e)An order for costs.
The grounds of the application are said to be these:
i)The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection to the making of the decision.
ii)The decision was an improper exercise of the power confirmed by the Act or the Regulations.
The amended application gives no particulars of the second ground, but sets out a number of particulars in respect of the first ground. They are as follows:
That the Tribunal did not act according to substantial justice in the merits of the case in:
· Its treatment of the claims that the Honourable Tribunal member did not consider the statement submitted before the Department of Immigration and Citizenship.
· Its treatment of the claim that the Applicants are devoted Sikhs and cannot go back to India due to the fear of persecution by the India Government and the Indian Authorities.
· Its treatment of the claim that the First Applicant has been an active member of the Khalistan Liberation Organisation (KLO) and has been a president of this KLO organisation at District level in India.
· Its treatment of the claim that the Indian Police chased the applicants’ farmhouse and the Indian Police instigated the First Applicant in false criminal cases and tortured him.
· Its treatment of the claim that the Applicants' parents were really concerned for the Applicants' safety and tried to send the Applicants overseas, and that the First Applicant went to the Philippines where he became a permanent resident and later married in India.
· Its treatment of the claim that the Applicants' only daughter was born in Australia and their daughter will not be able to stay in India in pollution and bad weather.
· Its treatment of the claim that the First Applicant is still in the Police records and his father notified the Applicant not to go back to India until the Applicant's name is removed from the Police records.
· Its treatment of the claim that the Applicants' fear of persecution was well founded and there is a real chance that the Applicants will be subject to Indian Police harassment, and the First Applicant therefore meets the requirements of the Refugee's Convention.
· Its treatment of the claim that the Honourable member of the Tribunal did not follow the rules of natural justice and the merits of the case. The natural justice was not adopted and applied for by the Honourable member of RRT, and all the relevant facts of the case were ignored.
· Its treatment of the claim that the Honourable member of the Tribunal did not adopt the proper legal procedure or did not follow the guidelines and rules while deciding the case.
· Its treatment of the Applicants' claim that the decision was an improper exercise of the powers conferred by the Migration Act and regulation.
· Its treatment of the claim that the Honourable member of the Tribunal took the narrow meaning of the Refugee Convention instead of the broad meaning.
At first blush the particulars of the Applicants' first ground seem to go largely to a challenge to the Tribunal's factual findings, and it is well know that merits review is not available on judicial review. The Applicants' solicitor filed written submissions which included particulars of the various claims.
The Applicant submits that the Tribunal did not observe procedures required by the Migration Act or Regulations to be observed in connection with making the decision, and referred in particular to the Tribunal's treatment of various issues:
a)The claims that the Applicant was an active and important member of the Khalistan Liberation Organisation.
b)The claim that the Applicant's name was in the police records and that the ruling party tried to arrest KLO members by instituting false cases.
c)The Tribunal's treatment of the Applicant's claim that he was really harassed and tortured in India and went to the Philippines for shelter where he became a citizen.
d)The claim that due to computer technology the Applicant's name had been forwarded to all the police headquarters.
e)The Tribunal's rejection of a letter given by a lawyer in India and a letter from the head of the village.
As far as those particulars are concerned, I am satisfied that they relate particularly to a claim for merits review, they are no more than a challenge to the Tribunal's factual findings.
As to the statement that the Applicant became a citizen of the Philippines, there is in fact no evidence of that. Indeed, it contradicts the Tribunal's findings that the Applicant acquired permanent resident status in the Philippines and retained his Indian citizenship. It is noteworthy that the Applicant brought an Indian passport to the Tribunal and has made claims against India. If indeed he is a citizen of the Philippines then he has produced no evidence and made no claims of a well founded fear of persecution in the Philippines.
It was put to me in the course of oral argument by Mr Singh, solicitor, who appeared for the Applicant, there were cases of people having two passports and dual citizenship. However, as there is absolutely no evidence of that, I am not satisfied that that ground has been made out. There is no evidence that the Applicant is a citizen of the Philippines. And if he were a citizen of the Philippines, then the case before me would clearly have to be dismissed.
The Applicants' submissions also referred to a passage that the Tribunal stated or is said to have stated at page 15 of its decision. The paragraph referred to is as follows:
The Department of Immigration has advised that it is very easy to obtain personal documentation in India but that it is almost impossible to make a judgment by looking at any particular document in isolation as to whether or not it is fraudulent (DFAT Cable ND4707, dated 10 May 1995, CX6461). It has advised that proof of identity and educational documents are commonly conducted frauds but that there is little information on the fraudulent reproduction of arrest warrants or Court/Police reports (DFAT Country Information Report No. 417/9, dated 1 June 1999, CX38765).
The paragraph which I have quoted does not appear at page 15 of the Tribunal decision, which is set out on page 144 of the Court book. Indeed, I have not been able to locate that passage anywhere in the Tribunal decision that is under review.
The Applicants in their submissions claim that the Tribunal did not have jurisdiction to make the decision. The particulars of that claim are these:
Insofar as the Tribunal was in breach of the Act in relation to the decision including any failure to follow procedures required by the Act and any error in interpreting or applying the law, the Tribunal thereby acted without or in excess of jurisdiction in relation to the decision.
No submission has been made to me as to how the Tribunal was in breach of the Migration Act, and certainly no particularisation has been given of any particular section of the Act that may have been breached. There does not appear to me to be any breach of s.424A of the Migration Act, and I cannot see that there is any breach of s.425. The Applicants were invited to attend a hearing, and the First Applicant attended and gave evidence. That particular ground therefore must fail.
Similarly, ground 3 states that the decision was not authorised by the Act or the Regulations made on the Act. The particulars of that are a repetition of the earlier particulars and go on to claim that the decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts found by the Tribunal.
That is said to be because the Tribunal erred in failing to consider on their merits the evidence of matters from the Applicant but rejected the Applicants' claim and consequently determined that those evidence were of no weight in relation to the following matters, being its treatment of the claims that the Applicant was a president of the KLO party at district level and his life was in real danger. That is quite clearly a claim for merits review. Again, there is a purported quote from page 15 of the Tribunal decision, as follows:
The Tribunal finds that the applicant cannot be trusted being a president of the KLO District level. The Tribunal finds that he was no harassed, arrested or kidnapped and that false charges were made against him. The finds that he has not suffered past persecution and there is no real chance that he will face persecution by reason of his politics or other Convention ground in the reasonable foreseeable future.
That quote is claimed to be from page 15 of the Tribunal decision. It is not. I cannot find that passage anywhere in the Tribunal decision.
It follows that that ground must fail.
The Applicants' submission also claims that the Tribunal erred in law in interpreting or applying its obligations pursuant to s.430 of the Act, especially concerning those set out in the particulars to grounds of the application. Section 430 of the Migration Act provides in sub-s.(1) the following:
(1)Where the Tribunal makes its decision on a review the Tribunal must prepare a written statement that:
(a) Sets out the decision of the Tribunal on the review, and
(b) Sets out the reasons for the decision, and
(c)Sets out the findings on any material questions of fact, and
(d)Refers to the evidence or any other material on which the findings of fact were based.
Quite clearly the Tribunal has complied with s.430. The Tribunal's decision record is a written decision, it sets out the decision of the Tribunal, it sets out the reasons, it sets out the findings on material questions, and it does indeed refer to the evidence.
That ground therefore must fail.
The Applicants also claim that the Tribunal applied the wrong test in effectively requiring more than a real chance of persecution of the Applicant before being satisfied that he had a well founded fear of persecution. That is supported by a statement from page 17 of the Court book, that says:
The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugee Protocol.
That quote is indeed a quote from the decision and appears in the conclusions at page 146 of the Court book. That said, it is a conclusion based on the evidence before the Tribunal. There is no evidence that the Tribunal applied the wrong test in requiring more than a real chance or persecution.
That ground must fail.
The submission goes on to claim that the Tribunal erred in law by incorrectly applying the real chance test for well founded fear of persecution on the facts as properly found by the Tribunal. There is no evidence of that. The claim is no more than a merits review claim.
The Applicant also submits that there was no evidence or other material to justify the making of the decision. Particulars of that are that the Tribunal based its decision to a significant extent on the following conclusions reached by it without proper evidence or justification:
a)That the Applicant was not high harassed or tortured by Indian Police.
b)That the Tribunal was not satisfied that the Applicant has a well founded fear of persecution for any Convention reason.
c)Assertion by the Applicant that there are in existence warrants for the Applicant's arrest not to be believable.
The ground is no more than a claim for merits review, as I have said before. It is a challenge to the Tribunal's factual findings and the conclusions reached by the Tribunal after a review of the evidence presented by the Applicant.
That ground must fail.
I am not satisfied that any jurisdictional error has been made out. It follows that the application will be dismissed. The application will be dismissed because the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act.
I also consider it appropriate that I should consider the question of costs. I am satisfied that this is an appropriate matter for a costs order, and those costs would include counsel's fees.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 27 June 2007
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