SZHCK v Minister for Immigration
[2008] FMCA 760
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHCK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 760 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of India who are husband and wife – applicants claiming fear of persecution from wife's father who holds a different political opinion – first applicant claims a previous association with Shiv Sena – first applicant claims to have been threatened by associates of his father in law who supports the Congress Party in India – where applicants claim that the Tribunal failed to consider the real chance that the first applicant's father in law would continue to persecute him for reason of his actual or imputed political opinion – where applicants claim that the Tribunal failed to consider an integer of the applicants' claim – merits review – no reviewable error. |
| Migration Act 1958 (Cth), ss.36, 91X, 474 |
| Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 cited in argument SZLHA v Minister for Immigration & Citizenship [2008] FCA 782 followed Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR followed Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 followed Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 followed |
| First Applicant: | SZHCK |
| Second Applicant: | SZHCL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 581 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 May 2008 |
| Date of Last Submission: | 5 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | First Applicant in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 581 of 2008
| SZHCK |
First Applicant
| SZHCL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicants, who are husband and wife, are citizens of India. They ask the court to set aside a decision of the Refugee Review Tribunal made on 14th February 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants Protection (Class XA) visas.
The applicants, in an amended application filed in court by leave on the day of the hearing, seek the issue of writs of certiorari and mandamus. Curiously, they also seek an order for costs, although they have not been legally represented throughout the proceedings and the Court waived the filing fee on their originating process.
The applicants claim in their amended application that the Tribunal fell into jurisdictional error for two reasons:
(1)The Second Respondent failed to attain, or failed to exercise, jurisdiction, by reason that it failed to properly consider the real chance that the first applicant’s father in law and his associates would continue to persecute him if he returned to India by reason of his actual or imputed political opinion; and
(2)Further or in the alternative, the Second Respondent failed to properly consider an integer or central claim of the Applicants that on their return to India the first applicant’s father in law and his associates would continue to persecute him by reason of his actual or imputed political opinion.
The first respondent, the Minister for Immigration and Citizenship, has filed a response, denying that there is any jurisdictional error in the Tribunal decision.
Background
The applicants arrived in Australia on 16th September 2004.
They applied for Protection (Class XA) visas on 13th October 2004. The second applicant applied as a Part D applicant, in that she applied as a member of the family unit of her husband.
In an undated statement[1] lodged with their applications the first applicant claimed that he and his wife were married secretly against their parents’ wishes. He claimed that the families had involved the police and lodged a false case against them. He went on to state that he was persecuted because of his political involvement with the BJP and was tortured by supporters of the Congress Party. He claimed that he would be tortured and killed if he returned to India.
[1] Set out at pages 31 to 33 of the Court Book
A delegate of the Minister considered that the lack of detail and evidence to substantiate the first applicant’s claims undermined their credibility. The delegate was not satisfied that the first applicant’s fear of Convention based persecution should he return to India was well founded. The delegate was not satisfied that the first applicant’s difficulties over his marriage were Convention related. The delegate did not find a connection between the first applicant’s difficulties in India because of his marriage and any of the five Convention reasons – race, religion, nationality, membership of a particular social group or political opinion.
The delegate also considered the first applicant’s claim to fear harm for reason of his political involvement and found:
Having considered the information provided by the Applicant[2] I find that there are factors which cast doubts on the credibility of the Applicant’s claimed fear of Convention related persecution. The claims are vague and lack detail and no evidence has been provided to substantiate them.[3]
[2] i.e. the first applicant
[3] Court Book at 50
The delegate also went on to consider whether the first applicant would be safe if he were to relocate within India. The delegate noted that the first applicant is a Hindu and that Hindus are in the majority (over 82%) and the dominant religious group in India. The delegate noted from independent country information that there is freedom of movement in India and that Hindus in general can access adequate state protection. The delegate noted that the first applicant is well educated, can speak, read and write Hindi and can read and write in English. The delegate found that relocation within India was a reasonable option for the first applicant.[4]
[4] Court Book at 51
The Minister’s delegate refused to grant Protection (Class XA) visas to the applicants on 12th April 2005.
Application for Review by the Refugee Review Tribunal
The applicants then applied to the Refugee Review Tribunal on
10th May 2005. The Tribunal invited them to attend a hearing on
25th July 2005. The Tribunal affirmed the delegate’s decision on
27th July 2005and handed that decision down on 16th August 2005.
The applicants then sought judicial review of the Tribunal decision and on 14th December 2006 in the Federal Magistrates Court at Sydney, Emmett FM made orders by consent in the nature of certiorari and mandamus, quashing the Tribunal decision and remitting the application to the Tribunal.
The Refugee Review Tribunal invited the applicants to attend another hearing on 1st March 2007. The Tribunal, differently constituted, signed its decision on the April 2007 and handed that decision down on
3rd May 2007, again affirming the delegate’s decision.
The applicants again sought judicial review of the Tribunal decision. On 4th September 2007, in the Federal Magistrates Court in Sydney, Cameron made orders by consent in the nature of certiorari and mandamus, quashing the Tribunal’s decision and remitting the application for review to the Tribunal.
The Tribunal invited the applicants to attend another hearing on
5th November 2007. The first applicant attended the hearing and gave evidence. The Tribunal was differently constituted from before.
The Tribunal signed its decision on 23rd January 2008 and handed down its decision on 14th February. A copy of the Tribunal’s Decision Record can be found in the Court Book at pages 109 to 124.
The Third Refugee Review Tribunal Decision
The Tribunal Decision Record sets out the applicant’s claims and evidence, which includes:
(a)The applicants’ claims to the Department of Immigration and Citizenship when they applied for their protection visas;
(b)A summary of the evidence given by both applicants at the first Tribunal hearing on 25th July 2005;
(c)A summary of the evidence given by the first applicant at the second Tribunal hearing on 30th March 2007; and
(d)A summary of the evidence given by the first applicant at the third Tribunal hearing on 5th November 2007.
The second applicant did not attend the second or third Tribunal hearings.
The Tribunal’s Findings and Reasons
The Tribunal found that the first applicant is a citizen of India.
The applicants had produced copies of their passports to the Tribunal for the purposes of the various hearings.
The Tribunal noted that the applicants’ claims arose from the first applicant’s fear of persecution from his father in law and his associates. The father in law has a different political opinion from the first applicant and is for that reason opposed to the continuation of the marriage. The father in law is a supporter of the Congress party whilst the first applicant claims to have had a previous association with Shiv Sena. The first applicant claimed to have been threatened by his father in law’s associates in the Congress Party and claimed to fear harm from them if he returns to India.
The Tribunal also accepted that another reason for the opposition to the applicants’ marriage was that both families believed in arranged marriages. The Tribunal accepted the evidence that the only member of the applicants’ families who was still opposed to the marriage was the first applicant’s father in law.
The Tribunal did not accept that the first applicant had any involvement with Shiv Sena whilst he lived in India. The Tribunal noted the first applicant’s evidence that he was no longer interested in politics and would not be a supporter of Shiv Sena if he returned to India.
The Tribunal stated:
I consider that his intention to avoid involvement in political parties has arisen out of his personal circumstances and not because he wishes to avoid harm or persecution on return to India.
The Tribunal accepted that the first applicant had been verbally harassed and threatened on two occasions by people associated with his father in law. The first applicant claimed that they were members of the Congress Party. The Tribunal made this finding:
I consider that the threats made by the applicant’s father in law’s associates were made for reasons arising from their friendship with the applicant’s father in law and not for reasons of the applicant’s actual or imputed political opinion. They took place immediately following a secret marriage which was opposed by the applicant’s father in law. I do not consider if the applicant[5] returned to India that those threats would be repeated, continued or carried out given the effluxion of time and the change of circumstances of the applicant and members of his and his wife’s families. The applicant has no political profile and does not intend to become involved in any political party if he returns. He stated that he thought all political parties are corrupt.[6]
[5] i.e. the first applicant
[6] Court Book at 122
The Tribunal did not accept that the first applicant faced any risk of harm from his father in law or his associates if he were to return to India at the time of the hearing or in the foreseeable future.
The Tribunal did not accept that the first applicant faced a real chance of persecution for reasons of political opinion or any other Convention based reason if he were to return to India and was therefore not satisfied that the first applicant had a well founded fear of persecution for any of the reasons set out in the Convention.
The Tribunal found that the first applicant did not satisfy the criterion set out in s 36(2)(a) for a protection visa. The second applicant had not made any specific Convention claims and, as the first applicant did not satisfy the criterion for a protection visa, the Tribunal found that the second applicant could not satisfy the alternative criterion in s 36(2)(b) for a protection visa.
The Tribunal affirmed the decisions not to grant the applicants Protection (Class XA) visas.
Application for Judicial Review
The applicants commenced proceedings by filing an application and an affidavit in support on 11th March 2008. The application contained five grounds of review. They filed a written outline of submissions on
24th April 2008. This written outline referred to only two grounds of review, the first and the third in the application, and the submissions were directed to those grounds only.
The applicants, through the first applicant, then sought to file, and were granted leave to file, an amended application on the day of the hearing. The amended application had been settled by a barrister to whom the applicants had been referred when they indicated that they wished to take part in the Refugee Review Tribunal Legal Advice Scheme.
The amended application contains the two grounds that are set out in paragraph 3 above. The written outline of submissions filed on
24th April does not address either of those grounds.
The first applicant attended court. The second applicant did not attend court, but the first applicant told the court that he would address the court on behalf of his wife and himself. He was not legally represented but made his submissions with the assistance of an interpreter in the Hindi language. He told the court that he feared harm because of his political opinion and faith. He said that the Tribunal had accepted that he had been harassed but it was unfair to say that he had suffered no harm. He claimed that this was an unfair comment by the Tribunal Member. He said that there could not possibly have been an arranged marriage between his wife and himself because of the different political opinions of the respective families.
Counsel for the Minister, Ms Clegg, made an oral submission to the court. The first respondent’s written outline of submissions had been prepared on 29th April and, not surprisingly, addressed the grounds in the original application and in the applicants’ written submissions.
Ms Clegg submitted that the applicants’ grounds in their amended application essentially sought merits review of the Tribunal decision. She referred the court to the decision of the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[7], pointing out that the Tribunal had properly considered that there had been a change of circumstances since the applicants had applied for protection visas.
[7] [2006] HCA 53 at [30] – [50]
In particular, the Tribunal accepted that the only member of the parties’ families who still opposed the marriage was the first applicant’s father in law[8]. The Tribunal also accepted the first applicant’s evidence that he was no longer interested in politics and would not support Shiv Sena if he were to return to India[9].
[8] Court Book at 121
[9] Court Book at 122
Conclusions
The applicants rely on two grounds of review in their amended application. They provide the same particulars for each ground.
Ground 1 claims:
The Second Respondent failed to attain, or failed to exercise, jurisdiction, by reason that it failed to properly consider the real chance that (the first applicant)’s[10]father in law and his associates would continue to persecute him if he returned to India by reason of his actual or imputed political opinion.
[10] The name of the first applicant has been deleted to comply with the requirements of s 91X of the Migration Act
Ground 2 claims:
Further or in the alternative, the Second respondent failed to properly consider an integer or central claim of the Applicants that on their return to India (the first applicant)’s father in law and his associates would continue to persecute him by reason of his actual or imputed political opinion.
The applicants rely on the same particulars for both grounds of review. The Court notes that the amended application states on its face that it was settled by a named barrister, and it is therefore surprising that the particulars are still phrased in terms that would be used by one who learnt to speak English in India rather than Australia. I will set out an edited version of the particulars, deleting the constant repetition of the initials and surname of the first applicant that appear frequently throughout the particulars. Clearly, the intention is to comply with the requirements of s 91X of the Migration Act. References to pages of the Court Book have also been deleted.
The particulars of the two grounds in their edited form are as follows:
The Applicant[11] at each of the three RRT hearings gave evidence that if he returned to India his father in law and associates would continue to harm or threaten him with harm by reason of the conflicting political allegiances of his family and that of his wife despite conceding the possibility (“maybe”) that such harm and threats might dissipate with time.
The tribunal member appears to make a finding that past harm and threats were not made for reasons of the first applicant’s actual or imputed political opinion, despite its findings that:
(a) it accepted that the first applicant and his family may have supported the ideals and policy of the BJP and Shiv Sena;
(b) it was “possible” that one of the reasons the first applicant may not have been regarded by his father in law as a suitable husband was because he and his family had supported the BJP or Shiv Sena in the past;
(c) past harm and threats would not be repeated because the first applicant “does not intend to become involved in any political party of he returns” to India; he now “thought all political parties were corrupt” and now “has no further interest in politics in India”.
Further, the tribunal member expressly stated that the tribunal “is not required to make a finding as to whether the harm feared by the first applicant, if it existed, would be Convention related” despite its findings in (a) –(c) above.
Finally, the tribunal member conflates and misstates the first applicant’s evidence at the second RRT hearing, wherein he conceded the mere possibility that the prior harm and threats might dissipate with time to a certainty that such prior harm and threats “would” and “will” dissipate with time.
[11] i.e. the first applicant
The two grounds in the amended application contain essentially the same complaint, namely that the Tribunal did not “properly consider” the first applicant’s claim that his father in law and his associates would continue to persecute him if he returned to India by reason of his actual or imputed political opinion.
The grounds are in fact no more than an attempt to review the factual merits of the Tribunal decision and must clearly fail. The fact is that the Tribunal did consider that claim, which was central to the applicants’ case. The Tribunal considered the claim, but rejected it, and gave its reasons for rejecting the claim at pages 121 and 122 of the Court Book. It is for the Tribunal to assess the weight it gives to any particular piece of evidence, as long as it considers the evidence, which it clearly did. The evidence was sufficient to allow the Tribunal to form the view that it did, and it is of no relevance whatsoever that the court may, or may not, have come to a different conclusion on that same evidence.
In the recent decision of SZLHA v Minister for Immigration & Citizenship[12], an appeal from this court, Flick J succinctly sets the considerations relevant to impermissible attempts to review the factual merits of a decision reached by the Refugee Review Tribunal or the Migration Review Tribunal:
A court conducting judicial review of an administrative decision 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”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The “weight’ to be given to the evidence or particular pieces of information is for the Tribunal to assess: Abebe v Commonwealth [1999] HCA 14 at [197], 197 CLR 510 at 580…
The task of making findings of fact, including findings of credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 552, 559[13].
[12] [2008] FCA 782
[13] [2008] FCA 782 at [5]
The two grounds, which are essentially the same, must be rejected on the basis that they constitute an impermissible attempt at merits review of the Tribunal’s factual findings.
In the particulars of the two grounds, the applicants complain about one of the Tribunal’s findings set out in the third paragraph on page 123 of the Court Book. The complaint is that, despite:
(a) accepting that the first applicant and his family may have supported the ideals and policies of the BJP and Shiv Sena[14];
(b) finding that it was possible that one of the reasons the first applicant may not have been regarded by his father in law as a suitable husband was because he and his family had supported the BJP or Shiv Sena in the past[15]; and
(c) refusing to accept that the applicant faced any risk of harm from his father in law or his associates if he returned to India because the applicant had stated that he had no further interest in politics;
the Tribunal stated that it was not required to make a finding as to whether the harm feared by the applicant, if it existed, would be Convention related or whether there is reasonable state protection available to the applicant[16].
[14] Court Book at 122
[15] Court Book at 122
[16] Court Book at 123
There is no error in the Tribunal’s finding expressed in this way.
The Tribunal found that the first applicant did not face any risk of harm from his father in law or his associates if he returned to India. Accordingly, the Tribunal was not required to find that the harm that it was satisfied did not exist would be convention related or whether state protection was available for this non-existent harm.
Again, this complaint is no more than an attempt at merits review.
The applicants have not established any jurisdictional error in the Tribunal decision. Whilst they had some assistance from a barrister on the Refugee Review Tribunal Legal Advice Scheme panel in preparing their very late amended application, the applicants were not legally represented in these proceedings. Accordingly, I have given independent consideration to whether any jurisdictional error may appear in the Tribunal decision, and I am unable to discern any.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision. It is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari in this, or any other, court (s 474(1)).
The application will be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 June 2008
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