SZIQH v Minister for Immigration
[2006] FMCA 1489
•25 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIQH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1489 |
| 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 claiming fear of persecution by militant group in the Punjab called Babbar Khalsa – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| Applicant NACV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 250 referred to. NACV v Minister for Immigration & Multicultural Affairs [2002] FCA 411 referred to. NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 referred to. Re: Minister for Immigration & Multicultural Affairs; ex parte Applicant S20 of 2002 (2003) 198 CLR 59 referred to. WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1252 referred to. |
| Applicant: | SZIQH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1036 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 September 2006 |
| Date of Last Submission: | 25 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1036 of 2006
| SZIQH |
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 affirming the decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on
28th February and handed down on 21st March 2006. The applicant seeks an order in the nature of certiorari, setting aside the Tribunal decision.
Background
The applicant is a citizen of India who arrived in Australia on
19th July 2005. On 27th September 2005 he applied for a protection (class XA) visa claiming a fear of persecution from a local communist group called Babbar Khalsa. He told the delegate and later the tribunal that threats made by the Babbar Khalsa militants were real and he feared for his safety.
A delegate of the minister refused his application for a visa on
1st December 2005. The applicant then applied to the Refugee Review Tribunal for a review of that decision.
Application for RRT review
The application was lodged at the Registry of the Tribunal on
16th December 2005. The applicant did not lodge any further information at that stage.
The Tribunal wrote to the applicant on 3rd January 2006 inviting him to attend a hearing on Thursday 2nd February. The applicant responded to that hearing invitation and advised that he did wish to attend the hearing and would need an interpreter in the Punjabi language.
The applicant attended the hearing and produced his passport and some medical reports and X-rays.
The applicant gave oral evidence and told the Tribunal that the medical documents related to a time when he had been attacked by members of the Babbar Khalsa. He explained that he had been in business in India and this group had commenced making threats against him in January 2005. He said that the threats became almost a daily occurrence.
He told the Tribunal that on 21st January 2005 he was stopped by four Babbar Khalsa people while travelling home and was beaten. He lost consciousness and the following day he attended hospital where he was told to have three months bed rest.
The Tribunal asked him why the Babbar Khalsa members had not carried out their threat to kill him when he was at home in bed. He said that they may have been waiting for him to come out of his house but at that time he was half dead and remained in bed. The applicant told the Tribunal that he complained to the police but this was of no benefit.
The Tribunal questioned the applicant about his claim and expressed scepticism especially as there is independent country information to the effect that whilst Babbar Khalsa was active in committing terrorist acts in the 1980s it was essentially defeated by 1993. The Tribunal told the applicant that surviving elements of Babbar Khalsa were based in Pakistan and that the Tribunal found it hard to believe that Babbar Khalsa would have targeted him because he employed Muslims and had Muslim customers.
The Tribunal also raised the question of relocation with the applicant. The Tribunal considered a number of sources of independent country information, including ‘Babbar Khalsa International’ (undated), South Asia Terrorism Portal Website, the Immigration and Refugee Board of Canada, IND40173.E – India: Update to IND29756.E of 8 July 1998 on the pressure exerted by terrorists/militants in Punjab on local residents to provide food, money or transportation: the terrorist/militant groups if any, active in Punjab, and their stated aims, 15th October 2002, the Ministry of Law, Justice and Company Affairs of the Government of India 2002 website and BBC News online, “Wanted Sikh held over Delhi bombs” 8th June 2005..
The Tribunal's findings and reasons are set out on pages 86 through to 89 of the Court book. The Tribunal did not find the applicant or his claims to be credible. The Tribunal noted at page 86 that the applicant's oral evidence was often hesitant, vague and lacking in spontaneity. The Tribunal goes on to say that:
The applicant did not give the Tribunal the impression that he was speaking on the basis of actual personal experience.[1]
[1] Court Book at 87
The Tribunal did not find credible the applicant's assertions that he took threats from Babbar Khalsa and what a man called Mr Singh had said lightly or that he thought that they would spare him. The Tribunal noted[2] that the applicant contradicted or modified his oral evidence to overcome adverse conclusions being drawn by the Tribunal.
The Tribunal went on to say that that suggested that rather than being truthful, he was prepared to say what he thought might strengthen his case.
[2] Court Book at 87
The Tribunal noted[3] that the applicant had amended his evidence about whether business people he claimed were killed by Babbar Khalsa employed Muslims. The Tribunal also found the applicant's claims not to be credible in the light of independent country information.
[3] Court Book at 88
Whilst the Tribunal considered that individual matters may not have led the Tribunal to make an adverse credibility finding, taking all those matters into account the Tribunal has concluded without doubt that the applicant and his claims are not credible.
The Tribunal went on to find:
In light of a lack of credibility of the applicant and his claims the Tribunal finds that the applicant was not threatened or assaulted nor was his business burned down by Babbar Khalsa members because he employed Muslims and had Muslim customers.[4]
[4] Court Book at 89
The Tribunal found that the applicant did not have a well-founded fear of convention related persecution in India and 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. The Tribunal affirmed the delegate's decision not to grant a protection visa.
Application for judicial review
The applicant commenced proceedings on 6th April 2006 by means of an application and an affidavit in support. He filed an amended application on 27th June 2006 which is similar to his original application. The applicant sets out four grounds:
i)The Tribunal failed to apply the law.
ii)The Tribunal failed to apply the definition of persecution for the Babbar Khalsa.
iii)
The Tribunal failed to believe that the applicant, who is a Hindu, employed Muslims and had Muslim customers.
And for that reason he was targeted.
iv)That the Tribunal did not consider the medical reports such as X-rays.
The applicant did not file a written outline of submissions. He attended Court, however, and made some oral submissions. When asked to explain why he said that the Tribunal had failed to apply the law, the applicant said that on the one hand the Tribunal admitted that there was terrorism around from Babbar Khalsa but on the other hand did not believe the applicant's account. The applicant invited the Court to consider a passage at page 88 of the Court book where the Tribunal member reported that independent evidence showed that surviving elements of Babbar Khalsa were based in Pakistan and Pakistan's external intelligence agency wanted Babbar Khalsa to revive terrorism in the Punjab. The Tribunal did not consider it plausible that Babbar Khalsa would target the applicant because he employed Muslims and had Muslim customers. The applicant takes issue with that.
The applicant also claimed that the Tribunal did not consider the medical reports such as X-Rays which he had tendered. I have read a detailed outline of submissions prepared by the solicitor for the first respondent, Ms Rose. Apart from setting out the relevant facts and the law, she paraphrases the applicant's grounds of review and noted that no written submissions were filed. She submitted that the applicant essentially sought to challenge the Tribunal's findings about his credibility and about his evidence. Against this she put that the issue of credibility was clearly in the domain of the Tribunal and the Tribunal alone. She referred me to the decision at first instance, NACV v Minister for Immigration & Multicultural Affairs [2002] FCA 411 where Conti J held at [2] that:
So long as credibility findings are open to be found on the evidence placed before the Tribunal there is no reviewable error committed by the Tribunal.
His Honour went on to refer to several full Court authorities that supported that proposition. I am advised that Conti J's first instance decision in NACV was upheld on appeal and I am referred to Applicant NACV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 250.
It was also put to me that in assessing the credibility of the applicant the Tribunal was entitled to make an assessment of his demeanour.
The submission goes that given the applicant's implausible evidence and the Tribunal's impression that he was modifying his evidence to try to say what he thought the RRT wanted to hear, it was open to the Tribunal to find that he was not a witness of truth.
The first respondent submits that the Tribunal did not fail to apply the law properly but correctly applied the definition of persecution to the applicant's claims. The submission points out that despite a claim of failure to apply the law properly, the applicant had failed to identify any particular error with the Tribunal's reasons. The first respondent submits no reviewable error can arise in the way the Tribunal applied and interpreted country information and submitted that it is well established that the choice and application of country information is solely a matter for the Tribunal. I am referred to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
Turning to the applicant's claim that the Tribunal did not consider the X-rays and medical evidence; Ms Rose submitted that the reasons for decision showed that the Tribunal had had regard to the X-rays and the medical documents but gave them little weight as they did not provide direct evidence of who injured the applicant and why. Ms Rose further submits that the Tribunal did not consider the X-rays and medical evidence. The Tribunal had regard to the medical documents but gave them little weight. They did not provide direct evidence to who injured the applicant and the probative value of those documents was made after the Tribunal had already made adverse credibility findings against the applicant. It was open therefore for the Tribunal to discount those documents and accord them little weight after the finding having been made to the applicant's lack of credibility. I am referred to decisions of Re: Minister for Immigration & Multicultural Affairs; ex parte Applicant S20 of 2002 (2003) 198 CLR 59 at [12] and [49] and WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1252 at [45]. The submission goes that the Tribunal's decision is a privative clause decision and no jurisdictional error has been made out.
In my view the principal reason why the Tribunal affirmed the delegate's decision was based on the adverse findings as to the applicant's credibility. It is well established that credibility is a matter for the Tribunal. Findings as to credibility are findings as to fact and so long as there is evidence then a Court on judicial review will not disturb such findings.
The Tribunal referred to independent country information that was in fact adverse to the applicant's claims and preferred that information to the applicant's evidence. The Tribunal, as has been put to me, is entitled to rely on independent country information even when it contradicts what the applicant puts. There is no failure to apply the law, in particular a failure to apply the Migration Act in the Tribunal's findings.
I am satisfied that the Tribunal did consider the applicant's medical evidence but as that evidence did not and could not show who it was who had injured the applicant or why, it's weight was limited.
The Tribunal had already found an adverse view of the applicant's credibility at this stage.
I am mindful of the fact that the applicant is not legally represented. My independent assessment of this case does not show any other jurisdictional error that could be argued. I am satisfied that no jurisdictional error has been made out.
Where the Tribunal's decision is not marred by jurisdictional error it is a privative clause decision as defined by s.474(2) of the Migration Act. Sub-s.474(1) of the Act provides that a privative clause decision is final and conclusive. It must not be challenged, appealed against, reviewed, quashed or called in question in any Court and is not subject to prohibition, mandamus, injunction, declaration or certiorari.
The conclusion therefore that I have reached is that the application must be dismissed.
There is an application for costs on behalf of the first respondent minister against the applicant. Costs usually follow the event and there is no reason why the successful respondent should be deprived of a costs order. The applicant however says he has no funds to meet that order and I accept that that may be the case. That is not a reason not to make an order for costs but it is something to be considered in deciding whether to allow time to pay. I propose to make an order for costs in favour of the first respondent. The sum sought is $3,800.00 which, on my estimation of the work done and the file, appears to be appropriate on a party and party basis. At the same time I am mindful of the applicant's financial situation and I will allow six months to pay.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 October 2006
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