SZHUP v Minister for Immigration
[2006] FMCA 1402
•11 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUP v MINISTER FOR IMMIGRATION | [2006] FMCA 1402 |
| MIGRATION – Refugee Review Tribunal affirm decision not to grant applicant a protection visa – applicant a Muslim from Tamil Nadu in India said to fear persecution by Hindu extremists – no jurisdictional error. |
| Migration Act1958 (Cth), ss.424A, 424A(1), 424A(3), 474, 476 |
| Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 Craig v State of South Australia (1995) 184 CLR 163 Muin v Refugee Review Tribunal [2002) 190 ALR 601 NAOC v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCA 1424 NADZ v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCA 118 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZEEU v Minister for Immigration & Multicultural &Indigenous Affairs [2006] FCAFC 2 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 |
| Applicant: | SZHUP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | SYG3638 OF 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 11 September 2006 |
| Date of last submission: | 11 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the Application do stand dismissed.
That the Applicant do pay the Respondent's costs of and incidental to these proceedings fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3638 of 2005
| SZHUP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Before me today is an application pursuant to s.476 of the Migration Act1958 (Cth) seeking orders by way of judicial review.
This is an application pursuant to s.476 of the Migration Act for orders by way of judicial review of a decision of the Refuge Review Tribunal which decision was made on 1 November 2005. The application, as I say, is one made pursuant to s.476 of the Act, so pursuant to that section this Court has the same original jurisdiction in relation to migration decision as the High Court has under paragraph 75(5) of the Constitution of the Commonwealth of Australia.
Sub-section 2 of s.476 does not apply. The decision is not a primary decision, but of course s.474 of the Act does apply and on its face the decision is a privative clause decision and must be regarded as final and conclusive unless the decision can be demonstrated to have been vitiated by jurisdictional error, as that concept was explained in particular, in relation to the provisions of the Migration Act in Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 and more generally as the concept was explained in cases such as Craig v State of South Australia (1995) 184 CLR 163.
The amended application which is before me today was filed on 3 April 2006 and pursuant to orders that were made at earlier stages of these proceedings, written submissions of the applicant and the respondent were also filed and relied upon and in particular, as far as the applicant is concerned, his written submissions of 4 September 2006.
The Refuge Review Tribunal affirmed an earlier decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is a Muslim. He is a business man who conducted his business in the Tamil Nadu province of India. He lived there between January 1994 and May 2004 and he operated his own business in that area between 1998 and 2004.
His business, which involved the sale of coconuts, was conducted near a Hindu temple. He was asked by the persons who attended that temple to make contributions to it. He says he paid them. When he was asked to pay more frequently, on a weekly basis, he says he refused and he was attacked by fanatics associated with Hindu political parties, known as BJB and RSS. Not only was he attacked but his shop was burnt.
He says that the police whilst initially agreeing to investigate the attack, resiled from that and that he was unable, he said, to obtain the appropriate assistance of the police and other authorities in Tamil Nadu in, firstly investigating the offences against him which ultimately constituted two personal attacks and the attack upon the shop; and secondly they were unable to guarantee or provide for his physical safety in Tamil Nadu or, in fact, anywhere throughout India.
As I say shortly after the alleged offence relating to his shop when he was attacked by local Hindu fanatics; he was stabbed in the stomach. He obtained medical treatment for that injury. He subsequently went to Delhi then to Mandras and then to Thailand. And he entered Australia from Thailand and made his application for a protection visa in December of 2004.
He gave evidence at the hearing before the Tribunal and during the course of that hearing and, indeed, following the lodgement of his application with the Tribunal, he provided certain documents to them in support of his application, in particular providing the Tribunal with his passport and a letter from a mosque in the city of Chidambaram, which letter was said to corroborate his assertion that persons associated with a Hindu extremist organisation were searching for him in order to murder him.
The Tribunal rejected his application. It is clear from reading the reasons of the Tribunal that they rejected his application fundamentally on credibility grounds. In particular the Tribunal had a number of concerns which it expressed in its findings as to the inconsistencies of the accounts the applicant had given in his application and his evidence before the Tribunal. Those inconsistencies are set out in particular at CB 100 and 102. The Tribunal finds that there are inconsistencies associated with the history of the conduct of his business within India in the period between 1994 and 2004.
It is said there were inconsistencies - and these are discussed at some detail in the body of the Tribunal's decision when the evidence is discussed – associated with the sequence of events relating to his assault, of which ultimately the applicant contended there were two, his medical treatment and his reports to the police and as to the effluxion of time between those various events.
There were said to be some inconsistency associated with the number of days he spent in hospital. The inconsistency associated with the operation is again one of these temporal matters where it is said that there is an inconsistency between his account as to the sequence of events as between the alleged stabbing, which occasioned the medical treatment, and the burning of his shop.
It was also found by the Tribunal that there were inconsistencies associated with the reasons for and frequency of his travel between India and Thailand and as to the effluxion of time between those journeys and the amount of times spent in Thailand both in aggregate and as to certain specific journeys from India to Thailand and they are set out at CB 102 in the Tribunal's reasons. I have given a somewhat disjointed and summary account of the inconsistencies, but I have read carefully the Tribunal's reasons and the discussion of the matters said to ground the findings as to these inconsistencies.
These findings as to inconsistencies led to other findings in relation to the fundamentals of the applicant's claim for entitlement to a protection visa. In particular – and these are set out at CB 102 – the Tribunal found that the applicant was not assaulted as he claimed; that he did not lose his job in Thailand; that he voluntarily returned from Thailand to India; that he was not in fear of persecution in India, well founded fear or otherwise; and in turn those findings led to the ultimate and determinative finding that the applicant was not a person to whom Australia had obligations, pursuant to the Refugees Convention and Refugees Protocol.
I had to look to both the amended application and to the written submissions to be able to properly understand the applicant's complaints in relation to the decision of the Tribunal and, of course, I have had regard to the submissions he made today. He was assisted by an interpreter both before the Tribunal and before me today.
Turning to the submissions first, I agree with Mr Reilly, who appeared on behalf of the respondent that the ground numbered 1 in the applicant's written submissions appeared to raise an argument in relation to the denial of procedural fairness to him during the course of the Tribunal hearing, such as was discussed by the High Court in the case of Muin v Refuge Review Tribunal [2002] 190 ALR 601.
The written submissions generally, and to a lesser extent this part of the submission particularly, appear to have put forward in a somewhat formulaic fashion and the applicant was unable to, as it were, flesh out the Muin procedural fairness submission, (which is gestured at in paragraph 1 of the applicant's submissions) when given an opportunity by me to do so. In any event, there was altogether missing from anything the applicant put to me, either in his submissions or orally today, which went any way towards identifying the factual stratum said to support the submission.
That need for the identification of the factual stratum was discussed by Hill J in the Federal Court in NAOC v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCA 1424 at [16] where his Honour says as follows:
“What is important and it appears in the judgments in Nguyen itself is that in that case there was a factual substratum firstly that the Tribunal had not read the documents whether or not they had been sent to it and secondly that the applicant had relied upon an assurance by the Tribunal that it had read the documents and accordingly had not put further material before the Tribunal.”
As I say, there was altogether missing from the applicant's presentation in this case, any attempt to identify such a factual substratum or to point to any agreed facts such as Hely J in NADZ v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCA 118, held to be essential in an application of this nature.
That being the way in which the submission is made, that is as it were a bare bones assertion as to error in the Tribunal's conduct of the matter in the Muin fashion, it is unnecessary for me to look at the other questions which are commonly given rise to in applications of that nature, such as materiality, and what is described as the otherwise obvious point. It is difficult for me to discern any arguable entitlement on the part of the applicant in this case to the sort of relief discussed in Muin.
That same paragraph, that is paragraph numbered 1 of the applicant's submission, also goes on to talk about the use of country information in a way which I was not able to understand upon reading it, and which the applicant was not able to assist me with in terms of my understanding, when I asked him to. And I note, in particular, there is a reference to “Amnesty International” country information, which does not appear to play any relevant part in the Tribunal's determination in this case and, once again, gives rise to the suggestion that these submissions are not made in specific response to the Tribunal’s reasons but are rather a formulaic recitation of submissions made in like matters.
Indeed, I have scrutinized carefully the balance of the applicant's submissions and, apart from paragraph 12, there is no matter raised in them which engages in any sensible or meaningful way the question of alleged jurisdictional error in the Tribunal's determinations.
Paragraph 12 is a submission that is specific to this case. The applicant recites certain fundamental features of his factual contentions before the Tribunal. He adds a reference to the death of his brother, on 22 February 2006. Indeed, he annexed to his written submissions a copy of the death certificate, which appears to indicate the death of a person by the name of Hamere Sultan on 22 February 2006, although there is no reference in the certificate itself to the cause of death or as to the circumstances of the person's death.
But in any event, as was made clear to the applicant at the outset of the hearing before me today, it is altogether unrelated to the purposes of a judicial review application such as that is before me, to point to events or occurrences, matters said to have occurred since the Tribunal hearing. My task is limited to scrutiny of the Tribunal's reasons and conduct, with a view to the identification of jurisdictional error.
And for that reason, the reference to such material is irrelevant and forms no part of my considerations.
As to the balance of that paragraph 12, I agree with the submission of Mr Reilly that it is really an attempt to agitate before me matters agitated unsuccessfully by the applicant in relation to the merits of the Tribunal's determination and the authorities referred to in paragraph 4 of Mr Reilly's submissions are apposite to the way in which I propose to deal with the particular written submissions set out in paragraph 12.
It is not for me to take a view as to the merits of the matter, or as to the Tribunal's findings as to inconsistency and credibility. That is the function of the Tribunal. I really interpret paragraph 12 of the written submissions as an invitation extended to me today to take a different view. For the reasons that are discussed in those cases to which I have referred, and Mr Reilly's written submission, that is a submission that must fail.
Turning to the amended application, there are two grounds contended. The second is really as to the same effect as to the matters set out in paragraph 12 of the written submissions and is rejected as a ground for review for the same reasons. But paragraph 1 of the amended application raises the question of the Tribunal's obligations, pursuant to s.424 of the Migration Act. The contention in paragraph 1 of the amended application is that the Tribunal fell into a jurisdictional error by failing to put information upon which it relied in reaching its decision, to the applicant in writing as s.424A requires it to do, especially as that section was interpreted by the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.
Particular reference is made to the use to which the Tribunal put the matters said to arise from examination of the passport of the applicant. And it is certainly true that the examination of the passport and the facts and factual inferences to which such examination gave rise were clearly an important part of the Tribunal's determination, particularly as it related to its ultimate finding as to the applicant not being in fear of persecution in India, but in fact being able to travel at will and frequently for business purposes between India and Thailand.
It is said that the information extracted from the passport in that way was information that should have been put in writing to the applicant. In fact, the submission goes further than that and says it is not just the material that arose from the consideration of the passport itself and the various visa stamps within it, but that the obligation extended to what it is said were assumptions the Tribunal then made about him missing dates. As the particulars of the ground put it:
“They were a kind of information which was a reasonable part of the reasons for affirming the delegate's decision which was specific about the applicant. As a whole it was not given by the applicant for the purpose of the application because the Tribunal made assumptions in respect of some of the key dates and was not non-disclosable information.”
Section 424A(1) of the Act provides that:
Subject to subsection 3 the Tribunal must (a) give to the applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review and (b) ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review and (c) invite the applicant to comment on it.
Subsection 3 provides:
This section does not apply to information
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member or
(b) that the applicant gave for the purpose of the application or
(c) that is non-disclosable information.
and the relevant part of su-bsection.3 as far as these proceedings are concerned is, of course, sub-section (b).
The decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 reaffirms an earlier decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 that the information is relevantly the information that the applicant gives to the Tribunal. So where there is a reference in sub-s.3(b) to the applicant giving information for the purpose of the application, it is not taken to extend to information given to officers of the Department of Immigration at an earlier stage of the determination of a protection visa application, but refers specifically to information given for the purposes of the application before the Tribunal.
The applicant confirmed before me what was plain, in any event, from the Court Book, that the information from the passport was information that was provided during the course of the hearing before the Tribunal, and as such is covered by sub-s.3(b) so that the obligation to provide written notice in terms of sub-s.(1) did not apply.
That leaves what is referred to as the assumptions about key missing dates and more generalised assertions about assumptions the Tribunal made on the strength of the Tribunal's determination as to whether that was information in respect of which the obligation to give the written notice arises. But I agree, again, with the submission of Mr Reilly that such assumptions must be regarded as thought processes and not to be regarded as information within the meaning of s.424A(1).
An instance of consideration by the Full Court of the Federal Court of such a thought process not being information arises in SZEEU itself at paragraph 206 where their Honours say:
“Information does not encompass the Tribunal's subjective appraisals thought processes or determinations.”
Reference is then made to three earlier decisions:
“In this respect, it is relevant to recall the root of the word ‘information’ that of which one has been told or appraised or informed the distinction can become fine.”
There is then a reference to one of those earlier cases and the court then says:
“It is a distinction nevertheless to be maintained.”
And, it seems to me, that the reference to assumptions made – perhaps it might have been better expressed as “inferences drawn from the consideration of the information in the passport” – fall plainly within the description of thought processes and therefore is not to be regarded as information in respect of which the obligation to give reasonable notice arises.
Latent within paragraph 12 of the written submissions and also paragraph 2 of the amended application, and also referred to by the applicant before me today, is the submission that there was some inappropriate use made by the Tribunal of the information given in the form of the letter from the mosque. The translated text of that letter is given at CB 81. Alleged discrepancies between the address given on the letterhead of that letter and the address given at the conclusion on what's described as a “wet stamp impression” are referred to at the bottom of CB 92 of the Tribunal's reasons.
There is a discussion at CB 98 at point 5 by the Tribunal of that letter and of the country information which is said to demonstrate that India is a country from which false documentation can be relatively easily obtained. And also on that page at about point 6, the applicant has disputed the Tribunal's understanding of the wet stamp impression as including a reference to the Friday mosque, which the applicant say should be taken as a reference to a big mosque, is noted. So as I say it is discussed there and it is a matter that is referred to in the Tribunal's reasons.
It seems plain to me, when we go to CB 102 at about point 5 of the page that the Tribunal has made what might be described as unexceptional use of its discussion of the mosque letter. Those matters are noted and ultimately, having regard to all of these matters including the country information, it was a matter that the Tribunal gave little weight to. I was not able to identify, in the Tribunal's determination, any other use to which it put that letter. Accordingly, it again this matter falls into the category of findings as to factual matters upon which the Tribunal was entitled to come to its own conclusions.
And, to the extent that the applicant in his submissions invited me to take a different view of the weight to be given to the mosque letter, that is not an invitation which, given the nature of the application before me, it is appropriate I accede to.
So having regard to my specific findings in relation to the application of the applicant as I have apprehended it in his amended application and in his written submissions, no ground of jurisdictional error having been identified, the application must fail.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lindsay FM.
Associate: Ms K Clarke
Date: 5 October 2006.
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