SZHUH v Minister for Immigration - [2008] FMCA 589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHUH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 589

MIGRATION – Application to review decision of Refugee Review Tribunal – no point of principle.

Migration Act 1958 (Cth) ss.91R, 422B, 424A

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:

SZHUH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3626 of 2005

Judgment of:

Barnes FM

Hearing date:

22 April 2008

Delivered at:

Sydney

Delivered on:

22 April 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3626 of 2005

SZHUH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 15 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in February 2005. He applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. The applicant's claims were set out in a statement accompanying his protection visa application and elaborated on in a Tribunal hearing.
The applicant claimed that he was instrumental in arranging his brother-in-law’s marriage but that the relationship broke down due to confessions made by the wife on the wedding night. In 1998 the wife filed a complaint against the applicant and his brother-in-law. The case was settled on the basis that an amount was paid and the complaint withdrawn. The applicant claimed that on leaving the court he and his brother-in-law were attacked by youths from the RSS Party because the settlement was less than the wife had expected. Her family were members of the RSS. The applicant also claimed that he and his brother-in-law had been active members of the Communist Party of India for 20 years and that the RSS members decided to use the incident as a weapon against them and that they had tried to murder him and his brother-in-law on several occasions.
He claimed that “after some days or some months they (the RSS members) came back again calling names”, and that in November 2003 “RSS people” surrounded his house where his brother-in-law was and that the brother-in-law committed suicide. He also claimed that in June 2004, as he was returning from work he was attacked by RSS members wielding hockey sticks and knives. He was injured but when people heard his cries and rushed to the spot, his attackers fled.
In its reasons for decision the Tribunal accepted that the applicant and his brother-in-law were active members of the Communist Party of India and that the brother-in-law's ex-wife and her family were members of a rival political group, the RSS. It also accepted that the applicant was involved in incidents with RSS members on four occasions as summarised above and that the applicant received injuries to his left arm as a result of the last attack.
The Tribunal referred to the fact that at the hearing the applicant had stated that RSS members had come to his place two or three times prior to 1998 but that he had not claimed any harm had occurred on these occasions. The Tribunal found that no serious harm was suffered by the applicant and that those actions did not amount to persecution.
The Tribunal accepted that the incidents from 1998 onwards all involved members of the RSS. However it continued:
At the hearing the applicant stated that the initial incident in 1998 was due to the settlement, which the applicant stated his side had won, and "they wanted us to lose." The applicant agreed at the hearing that the reason the RSS wanted to kill him and [his brother-in-law] was because of the settlement. He confirmed this, agreeing that the attacks were as a result of the settlement outcome. On a further occasion at the hearing the Tribunal asked the applicant, “So are you saying that the attacks in 2003 and 2004 were connected to the settlement?” The applicant replied “Yes, connected to that only.” The Tribunal asked, “Did something flare up for them (the RSS) to attack you in 2003 and 2004?” The applicant responded, “No, only that, no other reasons.”
The Tribunal recorded that at the hearing it had put to the applicant its concern that the family matter relating to the settlement rather than a political motivation was the essential and significant reason for the confrontation with the RSS. It recorded the applicant's response that the RSS would not have attacked him except for the fact that he was a Marxist. However the Tribunal did not accept this explanation. It had regard to the fact that the RSS had the opportunity to attack the applicant prior to 1998, but that as the applicant had stated at the hearing, this did not occur. It found that the matter that initiated the series of confrontations commencing in December 1998 was the court settlement which was not related to the applicant's political opinion in any way. It found no other Refugee Convention nexus. On that basis the Tribunal found that a Convention reason or reasons did not constitute an essential and significant motivation for the persecution feared as required by s.91R(1)(a) of the Migration Act 1958.
Nonetheless the Tribunal also went on to consider whether in the event of further attacks on the applicant, he could obtain adequate state protection. It had regard to country information in relation to the situation in India and found on the basis of that information that the applicant would have the same level of protection as all other Indian citizens, would enjoy the meaningful protection of state institutions and that the protection within India met international standards and basic norms.
The Tribunal found no evidence that the applicant would face a real chance of persecution in the future for Convention purposes. Hence, it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal decision by application filed in this Court on 9 December 2005. He filed an amended application on 12 April 2006 which was said to contain additional grounds. He filed written submissions on 1 November 2007 which raised other grounds. I have considered the matters raised in those documents.
In the hearing today the applicant took issue with the merits of the Tribunal decision. As I explained to the applicant, merits review is not available in this Court.
Insofar as the applicant claimed generally that the Tribunal may not have understood or considered all of his claims, that is not established on the material before the Court. The applicant's reiteration of his claims about what happened to him in India does not establish that the Tribunal fell into jurisdictional error, but rather that he disagrees with its factual conclusions.
In oral submissions in reply the applicant raised, for the first time, a suggestion that he did not know whether the Tribunal had understood what he said because he did not speak English. There is no evidentiary basis for such a claim insofar as it relates to the conduct of the Tribunal hearing. It is apparent from the documents before the Court that the applicant had the assistance of a Malayalam interpreter during that hearing. The applicant’s claims in the statement accompanying his protection visa application were addressed by the Tribunal.
The grounds in the application of 9 December 2005 in essence take issue with the merits of the Tribunal decision and its factual findings. Insofar as they do so, they do not establish a jurisdictional error. It is contended generally that the Tribunal made a jurisdictional error and factual error and failed to see that the applicant met the criteria for a refugee falling within article 1A(2) of the Convention and satisfying the elements of the Convention definition. These generally expressed grounds do not establish jurisdictional error. It has not been established that the Tribunal failed to understand or to apply the law correctly, insofar as that is intended to be contended.
The applicant also took issue with the fact that the Tribunal relied on allegedly incorrect independent country information and failed to accept what is described as "the real and correct facts stated by the applicant" in preference to such information. The independent country information relied on by the Tribunal related to the issue of state protection in India. The weight to be given to items of independent country information is a matter for the Tribunal. The applicant's general contention that the Tribunal failed to accept what he said in preference to independent country information does not establish jurisdictional error. I also note that there is no transcript of the Tribunal hearing before the Court and nothing to indicate that the applicant took issue with the country information that the Tribunal relied on in relation to state protection in India.
The next ground in the application is that the Tribunal failed to consider the fact that there were several attacks on the applicant. In fact the Tribunal accepted that there were four attacks in which he was involved, one of them being what occurred to his brother-in-law after December 1998.
The application continues: that the Tribunal “having accepted that the applicant was involved in incidents with RSS members in December 1998 strangely refused to accept other contentions of the applicant”. Insofar as this takes issue with the Tribunal's consideration of whether or not there was a Convention nexus for the harm complained of, the Tribunal addressed such issue. It considered the applicant's claim that the RSS would not have attacked him accept for his being a Marxist, but for reasons that it gave, which had regard to the applicant's own evidence about the motivation for the attacks and also the fact that the RSS had not taken previous opportunities to attack the applicant, the Tribunal did not accept that explanation. Such findings were open to the Tribunal on the material before it for the reasons that it gave.
Insofar as the contention that such reasoning was “strange” raises a suggestion of illogicality or lack of reasonableness amounting to jurisdictional error that is not established on the material before the Court. As indicated, the Tribunal accepted the applicant's claims about what occurred, but was not satisfied that there was a Convention nexus. Its lack of satisfaction in that respect is not illogicality of the kind discussed in cases such as Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. It has not been demonstrated that it involved a want of logicality or unreasonableness, let alone unreasonableness constituting or giving rise to a jurisdictional error. This is not a case in which there could be said to be no evidence for the decision reached by the Tribunal in relation to a lack of Convention nexus. Nor is there any lack of logic pointing to an underlying error of law. It has not been established that the exercise of power by the Tribunal in this case was so unreasonable as to result in a decision that was not authorised by the Migration Act 1958 (Cth).
The next ground in the application is that the Tribunal “failed drastically in stating that the applicant did not receive serious harm which will amount to persecution”. The Tribunal's finding in that respect related to the applicant's claims about events prior to 1998. It made that finding on the basis that there was no claim of harm made by the applicant as a result of the visits by the RSS at that time. No jurisdictional error is established in relation to that finding. The Tribunal did accept that the applicant received injuries as a result of the last attack by the RSS. Its findings were, however, that there was no Convention nexus for such harm.
It is contended that the Tribunal erred in not accepting the applicant's statement that the RSS would not attack him except for his being a Marxist. Again no jurisdictional error is established on this basis. Merits review is not available in this Court. The Tribunal considered this issue and its finding was open to it on the material before it for the reason that it gave. Similarly, the generally expressed ground that the Tribunal erred in stating that there was no Convention reason does not establish jurisdictional error.
The next ground is that the Tribunal did not apply its mind properly and hastily dismissed the case. It appears from subsequent written submissions that this may be intended to raise an allegation of actual or possibly apprehended bias. I have considered that contention in relation to this and other aspects of the material before the Court. However, on the material before the Court, neither actual nor apprehended bias is established having regard to the applicable principles in relation to actual bias in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 72 and in relation to apprehended bias in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982.
A claim of actual bias is a serious allegation that ought to be clearly pleaded and established. As von Doussa J stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]:
…it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.
His Honour continued:
… The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.
There is nothing in the material before the Court to indicate that the Tribunal did not bring an impartial mind to the question to be decided or that from the perspective of the appropriately informed lay observer there would be an apprehension of bias. Such a claim is not made out on the material before the Court.
The last ground in the original application is that the Tribunal erred in concluding that the applicant would enjoy the protection of the Indian police and other security institutions and that it overlooked the seriousness of the matter. This claim seeks merits review and does not establish jurisdictional error.
The amended application seeks to add additional grounds, although in fact some of them reiterate matters raised in the original application. The first ground is a contention that the Tribunal failed to see that the applicant satisfied the criteria in the Refugees Convention. The next claim is that the Tribunal failed to see that the applicant satisfied the criteria to be a refugee. No such error of law has been demonstrated in the Tribunal reasons for decision.
The third ground is that the Tribunal committed a factual and legal error in failing to conclude that the applicant was within a Convention definition of refugee. However the amended application then repeats grounds in the original application which are considered above and which are not made out.
A further ground is that the Tribunal “had gone far beyond by stating that the applicant will enjoy meaningful protection of Indian police and other security institutions. The Tribunal sitting in Australia had relied on third party sources and ignored real things”. This ground takes issue with the Tribunal's reliance on independent country information. It is, however, open to the Tribunal to rely on independent country information. The fact that the Tribunal is in Australia and sought to rely on independent country information in relation to the situation in India does not of itself establish jurisdictional error.
I note in any event that the primary reason for the Tribunal decision was that there was no Convention nexus for the harm complained of by the applicant. In that respect, while the Tribunal accepted that certain events, including attacks on the applicant, had occurred, it cannot be said that it overlooked the seriousness of the applicant's claims as contended.
Nor can it be said that the Tribunal in some way ignored “real things” in a manner constituting jurisdictional error. There is no material before the Court to indicate that any contrary view of the situation in India was put to the Tribunal, such that it was required to consider.
In written submissions filed on 1 November 2007 the applicant raised a number of grounds. First (albeit there is a reference to former s.476(1) of the Migration Act) is a contention of actual bias on the basis that the Tribunal rejected the applicant's claims without considering his oral evidence in relation to major issues. However as is apparent from the Tribunal reasons for decision, it did have regard to the applicant's oral evidence. Indeed his oral evidence about the motivation of RSS members was a significant reason for the Tribunal's finding that there was no political motivation for the confrontations. As set out above, actual bias is not established on the material before the Court. Nor is apprehended bias.
It is claimed that the Tribunal “failed to consider properly the test whether the applicant would suffer serious harm under s.91R(2)(a) of the Migration Act”. The Tribunal was not satisfied that a Convention reason or reasons constituted an essential and significant motivation for the persecution feared, as required under s.91R(1)(a). In those circumstances it was not necessary for the Tribunal to go on to consider whether the claimed persecution involved serious harm as required under s.91R(1)(b) and in light of s.91R(2). In relation to the events prior to December 1998 the Tribunal had regard to the absence of any claimed serious harm. No error is established in this respect.
There is a further complaint about the Tribunal's use of country information for reasoning and evaluation of the applicant's case. It is claimed that the Tribunal was preoccupied and did not have a fresh look and failed to consider Amnesty International country information. The applicant was given the opportunity to elaborate on his written submissions in oral submissions. He did not explain this ground further.
No jurisdictional error is established in relation to the Tribunal's use of independent country information. The Tribunal did consider the aspects of the applicant's claims. It is not clear what is meant by the suggestion that the Tribunal failed to consider Amnesty International country information. In any event, the weight to be given to items of independent country information is a matter for the Tribunal. It is not apparent that the applicant put further country information before the Tribunal. Indeed, the Tribunal requested further information pursuant to s.424 of the Act and provided additional time for the applicant to provide such information, although by letter of 19 October 2005 it indicated that a request for further extension of time was not granted.
It is then contended that the Tribunal applied the wrong test. First, it is said that the Tribunal required independent evidence of a fact before it would accept a claim and that it was placing too high an onus of proof on the applicant. This is not established on the material before the Court. The applicant failed on the basis of the evidence before the Tribunal, in particular the evidence that he himself provided at the Tribunal hearing. It did not require independent evidence of facts before it would accept claims. The Tribunal accepted the applicant's claims about what occurred to him from December 1998 onwards, but not that there was a Convention nexus.

Nor is it established that, as claimed, the Tribunal “left out individual elements of the claims” or tested them individually rather than looking at the claims as a whole to determine whether they amounted to persecution. It was open to the Tribunal to deal separately with the incidents prior to 1998 on the basis that no serious harm had been suffered by the applicant. It was not necessary to consider the issue of whether the harm the applicant suffered from December 1998 onward constituted serious harm as it was not satisfied that there was a Convention nexus. It has not been established that it applied the wrong test as contended.
It is then contended that the Tribunal acted illogically in concluding that there was no evidence the applicant would face a real chance of persecution in the future for a Convention reason and hence that he did not have a well-founded fear of persecution. The finding was that the applicant did not have a well-founded fear of persecution “for a Convention reason” and no illogicality has been established in that conclusion.
Insofar as the applicant claims that the Tribunal failed to weigh properly the effect of his claims to be a member of the Communist Party who was threatened and attacked by RSS members and that his family had suffered, the Tribunal did address these claims in the context of reaching its decision that there was not a Convention nexus for the harm feared. No illogicality, let alone illogicality demonstrating a jurisdictional error has been established in the manner contended.
There is then a contention that the Tribunal failed to accord procedural fairness under “s.424” of the Act in relying on independent country information. Section 424 of the Act provides that in conducting a review the Tribunal may get any information it considers relevant. If it does so, it must have regard to it. The Tribunal sought information from the applicant under s.424 including country information. The applicant sought additional time on the basis that material was in India. He was allowed additional time, but not having produced such material by the time of the Tribunal hearing, the Tribunal recorded that it had not granted a further extension of time. This is not a case in which it has been established that there was any failure to comply with s.424 of the Act. Insofar as the Tribunal relied on independent country information that approach was open to it as discussed above.
It is next contended that the Tribunal was under an obligation under s.424A of the Act to put independent country information to the applicant. Such information is, however, within the exception to the obligation in s.424A(1) in sub-s.(3)(a) and no failure to comply with s.424A is established on the material before the Court in the manner contended by the applicant. The applicant’s written submissions appear to acknowledge that no s.424A issue arose out of the Tribunal's reliance on what the applicant claimed in the statement accompanying his protection visa application, as he provided it to the Tribunal.
The next part of the written submissions reiterates that the Tribunal failed to find that the applicant satisfied the definition of "refugee" in the Refugees Convention. However the Tribunal considered the definition within the Refugees Convention in light of the provisions in the Migration Act insofar as necessary in finding that there was no Convention nexus to the applicant's claims, in the sense that a Convention reason or reasons did not constitute an essential and significant motivation for the persecution feared.
There is then a claim that there was a lack of procedural fairness as in Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966 in that the applicant was misled to believe that the Tribunal had read some information in Part B documents and had not drawn to his attention some material adverse to his claim. Insofar as this elaborates on the 424A contention, that is not established. Nor is this a case in which there is an agreed statement of facts equivalent to what was before the Court in Muin. Nor is there any transcript of the Tribunal hearing before the Court to support or in any way establish the claims that the applicant makes, either in this respect or otherwise in relation to a claimed lack of procedural fairness and having regard to the provisions of s.425 of the Migration Act. I note also the operation of s.422B.
The Tribunal's summary of what occurred in the Tribunal hearing indicates, contrary to the applicant's contentions, that in fact it raised the critical issues with him, in particular in relation to the Convention nexus.
The submissions refer to s.91R(2) and the meaning of "serious harm", a matter which I have discussed above. The applicant's contention that the Tribunal failed to analyse the possibility of future harm the applicant may face does not establish jurisdictional error in light of its finding in relation to the absence of the necessary Convention nexus.
As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the first respondent seeks that he meet the first respondent's costs of these proceedings in an amount of $4,500. The applicant took issue with this amount as being a little high and reiterated his claims to entitlement to a protection visa.
I have had regard to the amount provided for in the Schedule to the Rules of the Federal Magistrates Court. This matter had to be adjourned on the last occasion, however that was because of the absence of a Malayalam interpreter. No counsel has been involved in these proceedings. In light of the nature of this and other similar matters and the complexity of the issues raised, I consider that an appropriate amount is the sum of $4,000.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 9 May 2008