SZINM v Minister for Immigration
[2006] FMCA 1524
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZINM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1524 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India – applicant claims to have a fear of persecution for reasons of his political opinion and religion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 422B, 424A, 474 |
| Minister for Immigration & Multicultural Affairs v Lay lat [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1829 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZINM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 820 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 September 2006 |
| Date of Last Submission: | 29 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Wong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 820 of 2006
| SZINM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal that was signed on 31st January and handed down on
23rd February 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The background to this matter is that the applicant is a citizen of India. He arrived in Australia on 5th October 2005. On 27th of that month he applied for a protection (class XA) visa. This was refused on
4th November 2005. On 8th December the applicant then applied to the Refugee Review Tribunal for a review of this decision. The applicant submitted his application for review to the Sydney registry of the Tribunal. He did not lodge any other documentary evidence at that stage.
The Tribunal wrote to the applicant on 22nd December 2005 inviting him to attend a hearing on Monday 23rd January 2006. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Malayalam language.
The applicant, in his application, had indicated that he had a
well-founded fear of persecution on the basis of his religion as a Muslim and his political activities as a member of the Indian Union Muslim League, the IUML. As a result; he claimed he had been the target of harassment and attacks over many years by extremist Hindus. The applicant referred to riots in June 2002, May 2003 and July 2005.
On 20th July 2005 the applicant left India and went to Japan.
He claimed to have been threatened by non-resident Hindus in Tokyo and obtained an Australian tourist visa and thereafter travelled to Australia on 5th October 2005.
The Tribunal asked the applicant a number of questions and the applicant gave oral evidence about having had a business in the Indian state of Kerala which was a hardware shop. He told the Tribunal how he had been a member of the IUML and agreed that it was now part of the ruling coalition in Kerala. The Tribunal asked the applicant why he decided to leave India and he said that he thought that the people who had threatened him would act on their threats. He said that he feared that they would harm him because they had come to his home and his shop in 2005. He was confident that they were only after him and not his family.
The Tribunal asked the applicant about evidence from the United States State Department Country Report on human rights practices in India, about the fact that religious minorities lived in harmony together for most of the time in India and that there were in fact large Muslim communities in various Indian states. The Tribunal asked the applicant why he had not moved house to avoid these locally based harassers and the tribunal records him as responding that he could not do so because the children were at school and everything was convenient in the neighbourhood.
The Tribunal asked the applicant about his trip to Japan and why he had not sought protection in Japan and the applicant replied that he did not know that he could do so. The Tribunal put to the applicant - and it appears on page 75 of the Court Book - that the Tribunal had concerns about the credibility of his account. The applicant said that he wished to have some time to get documentary evidence to put before the Tribunal and asked for about one and a half months. The Tribunal eventually agreed to wait a further seven days for a document to be submitted which was from the Indian Union Muslim League detailing the applicant's involvement. This document duly arrived on
30th January 2006. It was dated 5th January. A copy of that letter appears at page 62 of the Court Book.
The Tribunal considered not only the applicant's evidence but also evidence from other sources, being independent country evidence. This evidence from other sources is set out in some detail on pages 76 through to 82 of the Court Book. The Tribunal's findings and reasons are set out in full on pages 82 through to 84 of the Court Book.
The Tribunal was satisfied that the applicant was a national of India and noted that he had submitted the letter from the IUML after the hearing. The Tribunal considered that letter and commented that despite the applicant's claim to have been a member for over ten years his evidence in relation to his role within the IUML was vague.
The Tribunal expressed scepticism, to say the least, about the letter submitted on 30th January saying at 82:
Given its unknown provenance, the fact that it states, contrary to his oral evidence, that he was involved in all the IUML's political activities and the evidence before me that fraudulent documents are readily obtainable in India, I am unable to accept that it is from the IUML.
The Tribunal was not satisfied and did not accept that the applicant was a member of the IUML.
The Tribunal accepted that there had been conflict between Hindus and Muslims in 2003 but did not accept that the claimed events in 2005 had occurred at all. The Tribunal described the applicant's evidence about those events as:
Vague and internally contradictory.
(see page 83 of the Court book).
The Tribunal went on to find that the Tribunal did not consider the applicant's actions were consistent with a fear of imminent harm in India before his arrival in Australia. The Tribunal set out reasons why the Tribunal formed that view.
The Tribunal did not accept that the applicant left India because he feared convention related harm and was satisfied that he did not have a well-founded fear of harm when he departed. The Tribunal went on to find:
In the absence of evidence that that situation has changed subsequently, I find that he does not have a well-founded fear of convention related persecution in India.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the refugees convention as amended by the refugees protocol and therefore did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The applicant seeks a review of that decision and filed an application on 21st March 2006. He filed an amended application on 29th June.
In that amended application the applicant sets out two grounds claiming that the Tribunal did not give the applicant an opportunity to comment on the letter submitted on 30th January 2006 from the IUML. The applicant claimed this was a denial of procedural fairness and a jurisdictional error.
The applicant also claims in the second ground that there was country information before the Tribunal that in Kerala there are occasional attacks against Muslims and in the light of this country information, even though the Tribunal did not accept the incidents the applicant claimed to have experienced in 2003 and 2005, that the Tribunal failed to consider the question of whether there was a real chance that the applicant would suffer an attack in the reasonably foreseeable future on the basis that he was a Muslim. That too, the applicant claims, is a jurisdictional error.
The applicant filed a written outline of submissions on 15th September in which he sets out a history of the applications for a visa and review of those decisions and sets out three issues. The first issue relates to the letter from the IUML submitted on 30th January and the applicant's claim that the Tribunal did not give him an opportunity to comment on it, leading to a denial of procedural fairness and subsequent jurisdictional error.
The second issue is that the applicant submits four letters from different organisations to show his social activities. Those letters were attached to the submission. They are dated the 18th June, 1st June,
15th June and 20th June 2006. These are documents which were not before the tribunal even though the applicant said that he made reference to them orally in his evidence before the Tribunal. Nevertheless, as the letters were not themselves before the Tribunal and indeed they had not come into existence at the time of the Tribunal hearing, they are inadmissible in evidence and cannot be considered.
The third issue raised by the applicant related to the country information that in Kerala there are occasional attacks against Muslims and the applicant reiterates his claim that the tribunal failed to consider whether there was a real chance that he would suffer an attack in the reasonably foreseeable future on the basis that he was a Muslim, notwithstanding the fact that the Tribunal did not accept that incidents in 2003 and 2005 had occurred.
The applicant made oral submissions to the Court which related to a challenge to the merits of the Tribunal decision saying that he cannot go back to India because of the problems there. He reiterated his claim of involvement over a period of time with the IUML.
For the first respondent minister, Ms Wong of counsel refers to the claim of the denial of procedural fairness and points out that the Tribunal did put to the applicant that it was very easy to obtain fraudulent documentation in India and this appears at page 73 of the Court book and did put the applicant squarely on notice that it would be considering whether or not some documents submitted by the applicant were genuine and the applicant indicated that the Tribunal could check that any documents he submitted were genuine. In any event; Ms Wong submits that s.422B of the Migration Act was in force at the time of the application and s.422B excludes the common law natural justice hearing rule, including any common law obligation on the Tribunal to put matters to the applicant at the hearing. I am referred to the decision of the Full Court of Federal Court in SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 which refers to the decision of the Full Court in Minister for Immigration & Multicultural and Indigenous Affairs & Lay Lat [2006] FCAFC 61.
In respect of the country information claim, it is submitted that the Tribunal's reasons for decision demonstrate that it did consider this issue and carefully and determined that whilst there had been conflict between Hindus and Muslims in 2003 that the applicant himself did not have any significant problems at the time as he did not move house even briefly and could not provide any cogent reasons to the Tribunal for his failure to do so. The Tribunal did not accept the applicant's claims to have been beaten and threatened in 2005 and gave detailed reasons for rejection of that claim and went on to hold that the applicant's actions were not consistent with a fear of imminent harm in India before his arrival in Australia.
Counsel for the respondent submits, and I believe correctly, that the Tribunal fully and completely considered the applicant's claims to have a well-founded fear of persecution on the grounds of his Muslim religion and accepted those claims as inconsistent with the applicant's evidence and the evidence available regarding country conditions in Kerala and India as a whole.
Although the matter had not been raised by the applicant; counsel for the first respondent considered whether there had been any breach of s.424A of the Migration Act in respect to the Tribunal's conclusions concerning the genuineness of the IUML document that the applicant had submitted on 30th January. She submitted that any arguments along that line would fail because:
a)The document was submitted by the applicant and falls with the exception and sub-s.424A(3)(b).
b)The independent country information concerning the ease with which fraudulent documents can be obtained in India falls within the exception in s.424A(3)(a).
c)That any conclusions regarding the genuineness of the document constitute the subjective thought processes of the Tribunal which is not information for the purpose of s.424A(1).
Ms Wong refers the Court to the decision in VAF v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 206 ALR 471.
I have considered the evidence before me. The applicant's oral submissions go to a challenge to the merits of the Tribunal's finding on factual issues. The reality is that the Court has no jurisdiction to reconsider the factual issues. Its concern on judicial review is to consider whether the tribunal applied the law correctly.
Factual decisions are a matter for the tribunal and provided there is evidence upon which those conclusions can be based, it is not appropriate for the Court to intervene.
In my view the argument about procedural fairness raised by counsel for the respondent must succeed. This is a matter which is covered by s.422B of the Migration Act and in my view the decision in SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1829 makes it quite clear that there is no scope for common law natural justice considerations. The common law natural justice hearing rule has been excluded by s.422B.
The Tribunal did, in my view, consider the country information generally about attacks on Muslims and did consider the likelihood of the applicant as a Muslim suffering an attack. That is a matter that has been canvassed by the Tribunal and in the light of the Tribunal's consideration of country information and the Tribunal's credibility findings about the applicant's evidence, in my view no jurisdictional error has been made out. I am not of the view that s.424A of the Migration Act has been breached. In my view the letter said to be from the IUML was submitted by the applicant and as it is a document submitted by the applicant in support of his application to the Tribunal, it falls within the exception in sub-s.424A(3)(b) and therefore there is no breach.
The applicant is not legally represented although I note that he has taken advantage of the legal advice scheme that is available for applicants for review of Refugee Review Tribunal decisions and in fact the Court file shows that a reference was made to a barrister on RRT legal advice panel. Nevertheless, the applicant is not legally represented in the proceedings today.
I have conducted my own independent review of the Tribunal decision in an effort to ascertain whether I can discern any jurisdictional error that has not been raised by the applicant. I am unable to discern any jurisdictional error. In my view, no jurisdictional error has been made out. The Tribunal decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Under the provisions of s.474(1)(c) of the Migration Act the decision is not subject to mandamus, prohibition, certiorari injunction or declaration. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent minister. There is nothing in my view that would show that I should depart from the practice of costs follow the event. I propose to make an order for costs in favour of the minister. The amount sought, $3,500.00 is inclusive of counsel's fees and in my view is a relatively modest amount in the circumstances.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 11 October 2006
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