SZIJE v Minister for Immigration
[2007] FMCA 957
•22 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 957 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal provided natural justice – whether the Refugee Review Tribunal considered all of the applicant’s information – whether the Refugee Review Tribunal correctly interpreted the meaning of persecution. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A(1); 424A(3); 425; 430; 430A; 474; pt.7 div.4; pt.8 div.2 |
| Applicant: | SZIJE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG500 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 May 2007 |
| Date of last submission: | 31 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms M. Palmer, Sparke Helmore Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG500 of 2006
| SZIJE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated
16 December 2005 and handed down on 10 January 2006 (“the Tribunal”).
The Applicant was born on 12 December 1969 and claims to be from India (“the Applicant”).
The Applicant arrived in Australia on 28 July 2005 having legally departed from India on a passport issued in his own name and a visa issued on 12 July 2005.
On 8 August 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution in India by political opponents because of his involvement with the Shiromani Akali Dal party (“the SAD”) in Punjab. The Applicant claimed that in 1994 he was arrested by authorities on suspicion of “providing a safe meeting place to the terrorists”, and was charged with “conspiring against the State”, subsequently found guilty and imprisoned for 5 years. The Applicant claimed that in 2003 he was again detained by authorities however his family paid a bribe for his release. The Applicant further claimed that in 2005 the SAD leader was detained and the Applicant learned that he too was to be detained so he went into hiding. The Applicant claimed that if he were to return to India he would be tortured.
On 15 September 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 13 October 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 16 December 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 16 February 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 24 October 2005, the Tribunal invited the Applicant to come to a hearing on 24 November 2005. The Applicant attended that hearing and gave oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims.
The Tribunal found the Applicant not to be a credible witness. The Tribunal was not satisfied that “the applicant presented a truthful account of his circumstances in India” and that “his core claims lack credibility”.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“7. The Tribunal:
(a)Found that the applicant’s claim to have been an active and committed member of the Shironmani Akali Dal (“SAD”) party was undermined by his lack of knowledge regarding the group’s background, the reasons for its rise and decline and the arrest of 60 of its members. The Tribunal found that these matters would have been expected to be within the knowledge of a member of the calibre the applicant claimed to be. Accordingly the Tribunal found that on the available evidence the Tribunal was not satisfied to that the applicant was either a member or a supporter of SAD and that he had fabricated the claim to enhance his protection visa application (CB 58.3 to 58.5).
(b)Consequent upon that finding the Tribunal found that his claims to have been the subject of political motivated cases which had resulted in his imprisonment for 6 years were incredible. Significant to that finding was that the applicant had “no meaningful knowledge” of the cases which had been mounted against him which the Tribunal would also have expected him to possess (CB 58.6 to 58.9). The Tribunal considered the applicant had also fabricated the claims and did not accept them (CB 58.9).
(c)Rejected the related claims that the applicant had been detained and harassed in 2003 following his release, consequent upon its findings as to his membership of SAD (CB 59.1) and that the applicant was at risk of arrest at the time of his departure for Australia (CB 59.6).
(d)Found that in the light of its various credibility findings based on the applicant’s lack of knowledge of SAD and the false cases against him that he would not have been able to bridge that knowledge gap by submitting further documentation to the Tribunal. The Tribunal noted that it was for that reason that it denied the applicant’s requests for an extension to source and submit further documentary material.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied on the grounds identified in his application filed on 16 February 2006 as follows:
“1. The Tribunal breached natural justice and procedural fairness
2. The Tribunal failed to take into consideration all information provided by the applicant in writing
3. The Tribunal interpreted the meaning of persecution wrongly.”
Each of the grounds was interpreted for the Applicant and the Applicant was invited to make submissions in support of the grounds.
This Court pointed out to the Applicant that each of the grounds was unparticularised and that he would need to expand on his claims for the Court to understand his particular complaint. The Applicant said that only a lawyer could make those submissions and sought time to obtain a lawyer.
To the extent that the Applicant was seeking an adjournment of the hearing, that application was refused. The Applicant has had more than 15 months since the filing of his application to obtain any advice or provide any further evidence. Further, the Applicant did not provide to this Court any evidence of any attempt by him to obtain legal advice. Moreover, this Court noted that the Applicant had the opportunity to participate in the panel advice scheme which provided the Applicant with an opportunity for free legal.
Ground 1 – “The Tribunal breached natural justice and procedural fairness”
The Applicant did not make any submission about the manner in which he alleges the Tribunal breached natural justice and procedural fairness.
Section 422B of the Act was in force at the time of the Tribunal hearing and that section has the effect that natural justice is accorded to an applicant by compliance with pt.7 div.4 of the Act.
There was no information to which the Tribunal had regard that enlivened the obligations of s.424A(1) of the Act that was not otherwise excluded by reason of s.424A(3) of the Act. The Tribunal invited the Applicant to come to a hearing in accordance with its obligations under s.425 of the Act. Whilst the Applicant responded to the invitation to come to a hearing, the Applicant did not provide any further documents for consideration by the Tribunal nor did the Applicant identify any witnesses to give evidence on his behalf. The Tribunal made a decision on the review before it in accordance with s.430 of the Act and invited the Applicant to a handing down of that decision in accordance with s.430A of the Act.
During the hearing the Tribunal noted that the Applicant sought further time to provide documents in support of his application. A fair reading of the Tribunal decision does not suggest that the Applicant identified the nature of particular documents that he wished an opportunity to provide, nor does it suggest there was any evidence provided by the Applicant of any attempt to obtain any such documents. No transcript of the hearing was tendered to this Court.
Moreover, the Tribunal’s invitation to the Applicant to come to a hearing dated 24 October 2005 informed the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter went on to invite the Applicant to send any new documents or written arguments that he wished the Tribunal to consider.
As referred to above, the Applicant did not provide any further material nor did he notify the Tribunal that there were documents that he wished to provide to the Tribunal.
It would appear from the Tribunal’s decision that, in response to the Tribunal raising with him its concerns about his lack of knowledge and information of SAD history or current status, including the arrest of party members, the Applicant requested time to provide documents in support of his claims. The Tribunal noted that the Applicant did not provide any reasons regarding his lack of knowledge and simply “repeatedly told the Tribunal he needed time to get documents.” The Tribunal noted that the Applicant responded that he could provide documents to satisfy the Tribunal that his claims were credible.
However, the Tribunal found that the Applicant had fabricated his claims of membership of the SAD. The Tribunal rejected his claims that he was targeted by authorities in the Punjab because of his involvement with the SAD party; that he was arrested in 2003 because of his involvement with the SAD party; that he departed from India because he was at risk of arrest because of his involvement with the SAD party; that false political cases were lodged against him in 1994 because he was involved with the SAD party; and that he was in prison between 1994 and 2000 because of his involvement with the SAD party.
Accordingly, the Tribunal found that any further documents provided by the Applicant in support of his application would not adequately address the Applicant’s lack of knowledge regarding the SAD party and the circumstances of its members. The Tribunal concluded that “if indeed the applicant was involved with the party, and he suffered the difficulties he described, he would be able to discuss these matters, and provide details, without the need of documents. The Tribunal is satisfied no documents could alter the above credibility findings.”
It was in this context that the Tribunal refused the Applicant’s request for any further time to provide documents in support of his application to the Tribunal. That was a decision that was within the discretion of the Tribunal and was open to it on the material and evidence before it and for which it provided reasons.
Accordingly, ground 1 is not made out.
Ground 2 – “The Tribunal failed to take into consideration all information provided by the applicant in writing”
Ground 2 alleges that the Tribunal failed to take into consideration all information provided by the Applicant in writing. At the hearing before this Court, the Applicant was invited to identify what was the information that he alleged was provided by him to the Tribunal and which the Tribunal failed to consider. The Applicant was unable to identify any such information.
The information before the Tribunal was that provided in his protection visa application and his oral evidence. There is no transcript before this Court to suggest that those claims were not properly identified by the Tribunal in its decision. A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered the claims before it, made findings relevant to those claims and which were open to it on the evidence and material before it and for which it gave reasons.
Accordingly, ground 2 is not made out.
Ground 3 – “The Tribunal interpreted the meaning of persecution wrongly”
Ground 3 alleges that the Tribunal interpreted the meaning of persecution wrongly. Again, there are no particulars provided by the Applicant nor any oral submissions made to this Court to identify how it is that the Applicant alleges that the Tribunal misinterpreted the meaning of persecution.
The Tribunal decision sets out the relevant law at the commencement of its decision. There is nothing on the face of the Tribunal’s decision to suggest that it misinterpreted or misapplied any relevant tests in its assessment of whether or not the Applicant has a well-founded fear of persecution for a Convention related reason.
As stated above in these Reasons, the Tribunal rejected the Applicant’s core claim that he was an active member of the SAD party and therefore did not accept that the Applicant had experienced imprisonment due to political motivation.
In the circumstances, there is nothing on the face of the Tribunal’s decision to suggest that it misinterpreted the test for persecution. Otherwise, the Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 16 February 2006, is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 20 June 2007
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