SZHSE v Minister for Immigration
[2006] FMCA 616
•13 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHSE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 616 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – applicants are citizens of India claiming fear of persecution for reason of political opinion – applicants are a husband and wife and their two children – previous Tribunal hearing – credibility issues. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A
Abebe v Commonwealth (1999) 197 CLR 510
Re Minister for Immigration and Multicultural; Ex parte Durairajasingham (2000) 74 ALJR 405
| First Applicant: | SZHSE |
| Second Applicant: | SZHSF |
| Third Applicant: | SZHSG |
| Fourth Applicant: | SZHSH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3515 of 2005 |
| Delivered on: | 13 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 13 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Chandra Jayawardena |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
I dispense with the requirement for a litigation guardian for the Fourth Applicant
The Application is dismissed.
The First, Second and Third Applicants are to pay the First Respondent's costs in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3515 of 2005
| SZHSE |
First Applicant
| SZHSF |
Second Applicant
| SZHSG |
Third Applicant
| SZHSH |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 11th October 2005 after a hearing took place on 18th August. The Tribunal handed down its decision on 3rd November 2005.
The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa to the Applicants.
Background
The Applicants are citizens of India. They are a husband and wife and their two children. The Third Applicant is an adult, but the Fourth Applicant, the parties' daughter, is still under the age of 18 years.
The Applicants arrived in Australia on 22nd April 2003 and applied for Protection (Class XA) visas on 19th May. After their applications were refused, the Applicants applied to the Refugee Review Tribunal for review of that decision.
The First Applicant attended a hearing of the Tribunal and gave evidence on 8th December 2003. The Tribunal handed down a decision on 23rd December 2003 affirming a delegate's decision.
The Applicants sought judicial review of that decision, and on 9th June 2005 in the Federal Court, Sackville J made orders by consent quashing the Tribunal's decision and remitting the application to the Tribunal to be re-determined. The Applicants attended a further hearing of the Refugee Review Tribunal on 18th August 2005.
On 5th September 2005 the Tribunal wrote to the Applicants' new advisor, Mr Jayawardena, informing the First Applicant of certain matters and seeking his comments. The Tribunal stated that the information would, subject to the Applicant's comments, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The Applicants' advisor sought an extension of time to apply on 28th September, which was refused the same day.
The applicants submitted a submission on 30th September 2005.
The Tribunal handed down its decision on 3rd November 2005 affirming the delegate's decision.
Application for judicial review
The Applicants have sought a review of the Tribunal's decision, and on
7 April 2006 filed an Amended Application. That Amended Application sets out three grounds. First, that the Tribunal committed a serious jurisdictional error by its overt reliance on the factual findings of the previous Tribunal, and thereby failing to perform its review functions as per the powers set out in ss.414 and 415 of the Migration Act (1958).The second ground is that the Tribunal made a further jurisdictional error by its misconceived finding, to the effect that it had found no independent evidence to suggest that a member of the Applicant's political party, or that the members are being harassed, harmed or blacklisted, or that the police act on the instructions of the Congress Party. The Applicant submits that the independent information that also appears at p.184 of the Court Book confirms that the Punjab's Director General of Police received 6261 complaints in the year 2004 from the State Human Rights Commission.
The third ground is that the Tribunal made a jurisdictional error because of its failure to assess in a constructive manner the Applicant's claim that he was a member of the Akali Dal Party, which being a reason that he was hounded by the Congress Party, and finding negatively:
As the Applicant is not a witness of truth, I do not accept that he was a member of the Akali Dal Party or he had any political opinion imputed to him.
The Applicant submitted that the Tribunal failed to explore the Applicant's claim of Akali Dal membership and thereby misunderstood and failed to address the Applicant's case. In support of those grounds, the Applicants through their solicitors have made both written and oral submissions today.
In respect of the first ground, the submission is made that the Tribunal relied on factual matters from the first Tribunal hearing, and this is a jurisdictional error. Against this, the Respondent Minister, Mr Smith of counsel, submits that the Tribunal relied on the evidence given to the first Tribunal hearing, but in doing so this was no more than the Tribunal setting out the facts.
There is an obligation on the Tribunal to consider all of the evidence, including the material before the first Tribunal. There is a difference between relying on evidence given at a previous Tribunal hearing and adopting the earlier Tribunal's assessment of that evidence or the earlier Tribunal's findings in respect of it. The Tribunal's obligation under s.14 of the Migration Act is to review the delegate's decision, but it is the responsibility of the second Tribunal Member to make his or her own assessment of the evidence.
In my view, the submission by counsel for the Respondent is correct. On reading the decision, it is quite clear that the Tribunal did set out the evidence given to the earlier Tribunal, but the Tribunal's findings and reasons in the Tribunal decision which is the subject of this application are the findings made by the second Tribunal Member. This is not a case of the second Tribunal Member slavishly and unthinkingly adopting the first Tribunal's findings and conclusions.
It is a fact that the second Tribunal Member arrived at a similar conclusion as to the Applicant's credit, but I am satisfied from the findings and reasons that this was an independent process and an independent consideration of the evidence. I am satisfied that ground one does not set out a jurisdictional error.
The second ground refers to the Tribunal's findings at p.184 of the Court Book. In the first full paragraph on p.184 the Tribunal finds:
I have found no independent evidence from sources such as US State Department, UK Home Office, Amnesty International, DFAT to suggest that members of Mann's Political Party SAD are harassed, harmed or blacklisted by the Indian authorities, or that members of Congress Party harassed or harmed Akali Dal members or that the police acted on the instructions of Congress Party members.
The second full paragraph states that according to an article in the Tribune of India, the Punjab's Director General of Police received 6261 complaints in 2004 from Punjab State Human Rights Commission, 376 from the National Human Rights Commission (NHRC) and 46 from the National Human Rights Commission for Scheduled Castes and Scheduled Tribes. The Tribunal said:
I accept that various human rights organisations strongly criticised the Punjab police for their misuse of power during the 1980s and early 1990s.
The submission is that the two statements are inconsistent to the extent that the reference to the number of complaints received by the Director General of Police in the Punjab is independent evidence which goes against the Tribunal's finding in the earlier paragraph that the Tribunal had found no independent evidence that members of that particular party are harassed, harmed or blacklisted by Indian authorities. In my view, the reference to the complaints received by the Director General of Police does not go against the Tribunal's findings.
In that second full paragraph, the Tribunal goes on to say:
But the independent evidence indicates that the Sikh militant movement is no longer active in Punjab. I have found no evidence in the independent sources (cited above or in sources such as Amnesty International) to suggest that members of Akali Dal (Mann) suffer harm because of their political opinion from the Punjabi police or the Indian police service.
In my view, bearing in mind the qualification placed on the earlier statement by the statement which I have quoted, it appears to me that the Tribunal Member has considered the number of complaints received by the Director General of Police in Punjab, but discounts that as evidence to show that at the time the review was being conducted that members of the Akali Dal Party, of which the Applicant claimed to be a member, were the victims referred to in those complaints. The reason given is that the independent evidence indicated that the Sikh Militant Movement was no longer active, and the inference therefore is that whilst there may well have been those complaints in 2004 they were from other people.
Whether or not that factual conclusion is correct is not a matter with which the Court conducting judicial review can interfere, making factual conclusions is a function of the administrative decision maker. Whether the evidence relied upon by the decision maker is sufficient to allow a factual conclusion to be made is not a matter that is subject to review, provided that there is evidence. It is not a situation where the Court conducts its own investigation of the facts or assessment of the factual evidence and substitutes its own conclusion as to the weight given to the evidence as far as the facts are concerned. There are many authorities to this nature, particularly Abebe v Commonwealth (1999) 197 CLR 510.
In my view, this is not a case where there was contrary evidence which gave the light of the statement that the Tribunal had found no independent evidence to suggest that the particular party were being harassed, harmed or blacklisted by the Indian authorities. That ground of review fails.
It is also relevant to note that the Tribunal did not accept the Applicant to be a witness of truth, and from pages 184 through to 186 the Tribunal sets out the reasons why the Tribunal makes that finding. The Tribunal did not accept the Applicant as a witness of truth and that involved not accepting that the Applicant had been a member of the Akali Dal Party.
Going on to ground three where the Applicant claims the Tribunal failed in fact to explore the Applicant's membership of the Akali Dal Party. The fact is that the Tribunal was satisfied that the Applicant was not a witness of truth. The Tribunal did not accept that the Applicant was a member of the Akali Dal Party.
The Respondent Minister, Mr Smith refers the Court to a lengthy letter sent to the Applicant's advisor by the Tribunal on 5th September 2005 after the Tribunal hearing. There is a considerable amount of material there and it appears on pp.110 through to 137 of the Court Book. At p.111 the Applicant is informed:
This information is relevant as you were already in Australia in July 2003. It suggests that you are not a witness of truth, and that you have provided documents to the Tribunal that contain false information and/or misleading information.
It is clear that the Tribunal has informed the Applicant and given the Applicant a chance to reply that there is material which the Tribunal has provided in writing which would form part of the reason for affirming the delegate's decision.
What is clear is that the Tribunal had rejected the Applicant's evidence on a credibility basis, and because the Applicant's evidence was rejected on the basis of credibility, that he was not a witness of truth, the Tribunal had rejected the claim that he was a member of the Akali Dal Party. Accordingly it follows that there was no independent obligation on the Tribunal to explore membership of a party which the Tribunal had already found it was not satisfied that the Applicant was a member of it.
In reply, Mr Jayawardena for the applicant referred the Court to ss.65 and 414 of the Migration Act. It had earlier been put to the Court that s.5 of the Act makes it clear that after considering a valid application for a visa if the Minister is satisfied that certain things exist, then the Minister is to grant the visa, or in paragraph 1(b), if not so satisfied is to refuse to grant the visa.
What this means is that there is no need for the Minister or the Tribunal to have evidence to disprove an applicant's claim if the Tribunal, or in this case the Minister, in s.65 is satisfied that certain conditions have been met, there is an obligation to grant the visa. But if not so satisfied, is to refuse to grant the visa.
The Applicant, Mr Jayawardena submits that s.65 is not the section which must be considered in dealing with the Refugee Review Tribunal. His submission is that s.65 applies to the delegate, that s.414 applies to the Refugee Review Tribunal.
Sub-s.414(1) says:
Subject to sub-s.(2), if a valid application is made under s.412 for review of an RRT reviewable decision, the Tribunal must review the decision.
He submits that the Tribunal has fallen into error by not conducting a review of the applicant's claim to have been a member of the Akali Dal Party, notwithstanding the finding by the Tribunal that the Applicant is not a witness of truth and rejecting his membership on that basis.
In my view, the submission that s.65 does not apply to the Tribunal and only s.414 does is not correct. Section 414 certainly requires the Tribunal to review a decision, but it must be read in conjunction with s.415.
Sub-section (1) of s.415 makes it clear:
The Tribunal may for the purposes of the review of an RRT reviewable decision exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
Sub-section (2) goes on to say:
The Tribunal may (a) affirm the decision, or (b) vary the decision, or (c) if the decision relates to a prescribed matter, remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations, or (d) set the decision aside and substitute a new decision.
Sub-section (c) makes it clear that if the Tribunal does vary a decision or sets aside the decision and substitutes a new decision, the decision as varied or substituted is taken to be a decision of the Minister. But to avoid doubt, sub-s.(4) makes it clear that the Tribunal must not by varying a decision or setting a decision aside and substituting a new decision purport to make a decision that is not authorised by the Act or the regulations.
In other words, in exercising its power, if the Tribunal does vary a decision or set aside a decision and make a new decision, the Tribunal acts in the way that the original decision maker does, the delegate of the Minister, and s.65 must apply.
So, in my view, s.415 of the Act brings s.65 into play when the Tribunal is exercising its power of review and its obligation to review under s.414 of the Act.
In my view, the Tribunal did not fall into error when dismissing the Applicant's claim to be a member of the Akali Dal Party on the basis of its unfavourable assessment of the Applicant's credibility.
A finding on credibility is a finding of fact, and factual findings are the province of the decision maker, and I refer to decisions such as Re Minister for Immigration and Multicultural; Ex parte Durairajasingham (2000) 74 ALJR 405. Provided there is evidence upon which a finding of fact can be made, the finding of fact is entirely within the province of the decision maker and a Court conducting judicial review does not have the jurisdiction to intervene.
In my view, there was evidence upon which the Tribunal could make the finding of fact as to the Applicant's credibility. And as there was evidence to do so, that finding as to credibility, which is a factual finding, was entirely the province of the Refugee Review Tribunal, the Tribunal not being satisfied that the Applicant was a member of the Akali Dal Party because the Tribunal was not satisfied that the Applicant was a witness of truth. It is clear that there is no jurisdictional error and the decision is a privative clause decision under s.474 of the Migration Act.
The application must be dismissed.
There are a couple of other matters that I should consider when making final orders. I note that the title of the First Respondent is now Minister for Immigration and Multicultural Affairs. As the Fourth Applicant is a minor, in the circumstances I dispense with the requirement for the appointment of a litigation guardian. I see no need for there to be a litigation guardian in the circumstances.
On the question of costs it is submitted that the Second and Third Applicants should not face any liability for costs in that they played no separate part in the proceedings and their claim was dependent on that of the First Applicant. That is partly true, although it is my understanding that the Second Applicant gave evidence at the Tribunal hearing in a relatively minor way, as did the Third Applicant.
I am not of the view that $5,500.00 is an overly generous amount. It appears to me, bearing in mind the nature of the case that had to be argued, that it is within the range that I would allow. This is the sort of matter where it was appropriate to brief counsel, the Applicants were legally represented, and their legal advisor has provided an Amended Application and extensive written and oral submissions. In my view, the costs are within the range that I would consider reasonable.
I note the title of the First Respondent is Minister for Immigration and Multicultural Affairs. I dispense with the requirement for a litigation guarding for the Fourth Applicant. I will require a transcript of my reasons for this decision and I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 27 April 2006
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