SZISM v Minister for Immigration
[2006] FMCA 1330
•24 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZISM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1330 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of India – fear of persecution for reasons of political opinion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 65, 424A, 474 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 406 |
| Applicant: | SZISM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1142 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 August 2006 |
| Date of Last Submission: | 24 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: Solicitors for the Respondents: | Ms McNaughton Sparke Helmore |
ORDERS
The application for an adjournment is refused.
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 $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1142 of 2006
| SZISM |
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 Refuge Review Tribunal. The decision was signed on 3rd March and handed down on 23rd March 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant seeks three orders from the Court:
i)A declaration that the decision made by the Tribunal is wrong and should be withdrawn.
ii)An order that the Tribunal should return his case to the Department of Immigration with instructions that he meets the definition of a refugee.
iii)That the Department of Immigration should accept his claims as a refugee and the applicant should be given a protection visa.
The orders which would be available to the Court, if I were satisfied that a jurisdictional error had been made out, would be an order in the nature of certiorari quashing the Tribunal's decision and an order in the nature of mandamus returning the applicant's application to the Tribunal for redetermination according to law.
The background to this matter is that the applicant is a citizen of India who arrived in Australia as a temporary business entrant in July 2005. On 12th August 2005 he applied for a protection (class XA) visa.
When that application was refused, he sought a review of that decision from the Refugee Review Tribunal. The Tribunal received his application on 1st December 2005. The applicant did not submit any documentation with his application.
The Tribunal wrote to the applicant on 9th December 2005 advising him that it 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. Accordingly the Tribunal invited the applicant to attend a hearing on Friday, 20th January.
The applicant acknowledged the receipt of that letter and forwarded a response to hearing invitation in which he indicated that he did wish to attend the hearing and needed an interpreter in the Punjabi language. The applicant attended a hearing which eventually took place on
1st March 2006. There was an interpreter in the Punjabi language available for the purpose of the hearing.
The applicant told the Tribunal that he and his father were strong supporters of the Shiromani Akali Dal party, led by one Simranjit Singh Mann and that he had been the youth president of the party in the town of Cheeka. He said that:
Because this was the only party which spoke up for the rights of Sikhs the members of the party were regularly harassed and persecuted by the State and Indian political and police authorities.
The applicant told the Tribunal that he himself had been assaulted by the Haryana police and the Punjab police. The applicant said that he had made speeches and had feared being persecuted because of his political opinions if he returned to India.
The Tribunal asked the applicant a number of questions about his activities. The Tribunal noted at pages 74, 75 and 76 of the Court book that it put information to the applicant which had been taken from independent country information. That information had been provided by the Department of Foreign Affairs and Trade and also by the United States CIS Resource Information Centre.
The applicant replied to those questions and the Tribunal asked the applicant further questions about his case. The Tribunal notes at page 77 of the Court book that the Tribunal member put to the applicant that if he had problems in his local area he could have moved to Delhi where he had lived and worked off and on for three years before he had left India. The applicant replied however that he had not been safe in Delhi. He said that he had known some people there and the police would have found out about him and he would have been arrested there because he delivered a speech when he had been at the rally, together with Mr Mann.
The Tribunal member, at the final stages of the hearing, asked the applicant if there was anything that he wished to add before the hearing closed. The applicant said that his family was still being harassed by the police in India and because of this his grandfather had died.
He said that the police kept coming around to his family home all the time, and that he only needed some more time because the circumstances might change in the near future.
The Tribunal's findings and reasons are set out on pages 77 through to 83 of the Court book. The Tribunal member reviewed the law and said at page 77:
In the present case I did not find the applicant an impressive witness. He was able to repeat what was written in his original application but he struggled when asked further details.
The Tribunal then, in passages that appear at pages 79 and 80 of the Court book refers to matters that the Tribunal had put to the applicant and referred to one answer about whether or not the applicant described himself as a religious Sikh, as an answer that the Tribunal considered as relevant to the applicant's credibility.
The Tribunal noted that it had put to the applicant that in respect of other evidence, the Tribunal had found his evidence difficult to believe and the Tribunal also noted that it had put to the applicant certain matters of country information that did not support the applicant's statements. That country information came, as I said, from the Department of Foreign Affairs and Trade and also from the United States State Department.
The Tribunal sets out a variety of reasons until it says at page 81:
For the reasons given above I do not accept that the applicant is a credible witness. I do not accept that he was a member of the Shiromani Akali Dal (Amritsar) party led by Simranjit Singh Mann as he claims nor that he was youth president of the party in his local area for one and a-half years prior to leaving India.
The Tribunal went on to say:
Since I do not accept that the applicant was a member of the Shiromani Akali Dal (Amritsar) party led by Simranjit Singh Mann it follows that I do not accept that he has a well founded fear of being persecuted for reasons of his membership of that party whether this claim is regarded as falling under the Convention ground of political opinion or membership of a particular social group for the purposes of the Convention.
The Tribunal went on to say at page 82 of the Court book:
Having regard to the view I have formed of the applicant's credibility I do not accept that he genuinely holds political views in favour of an independent State for Sikhs Khalistan.
Turning to the question of relocation, the Tribunal said, at page 83 of the Court book:
I consider that if the applicant had had problems in his local area which for reasons given above I do not accept he could have moved to Delhi where he lived and worked off and on for three years before he left India.
For all of these reasons the Tribunal went on to state:
I do not accept that there is a real chance that he will be persecuted for a Convention reason if he relocates to Delhi.
The Tribunal was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he were to return to 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.
The applicant filed an application on 19th April 2006 in this Court seeking judicial review of a Tribunal's decision. The application came before the Court on 29th May 2006 where I made directions by consent to prepare the matter for hearing and listed the matter for hearing today at 11.30 am.
The applicant was not legally represented and completed a form indicating that he wished to take advantage of the legal advice scheme operated by the Refuge Review Tribunal. The Court documents show that a referral was made to a Mr Stephen Lloyd, Barrister at Law, on
5th June 2006 and that on 21st July 2006 Mr Lloyd reported to the Court Registry that he had prepared legal advice and had given that advice in writing to the applicant because the applicant did not respond to an invitation to attend an interview.
At the hearing today the applicant seeks further time to produce documents or to obtain legal advice. He indicates that shortly after the hearing he left for Griffith to seek work and did not return from Griffith until about three or four days ago. The arrangements that he had made to have mail redirected were less than successful. He had asked a friend to inform him if anything came to let him know. Unfortunately the friend had to leave for India. This is hardly an efficient way to prepare for a case. The applicant said he could not have his mail redirected because he did not have a permanent address.
I considered, but rejected, an application for an adjournment.
The application was opposed by counsel for the Minister on the basis that the applicant had had time to prepare his case. In my view, the applicant was given an opportunity; was given legal advice from an experienced member of the Bar, at no expense to himself. The fact that he chose to absent himself from Sydney for almost the entire time between the first Court date and the hearing date, is a matter entirely within the applicant's control and the arrangements that he made for mail to be directed or for him to be alerted if any official correspondence came in, appear to me to be inefficient and ineffectual. In my view, the applicant has not prepared his case because the applicant has not taken the time to do so. There is no ground for an adjournment.
The applicant's application sets out three grounds: first that the Tribunal was wrong in not accepting his claims and the Tribunal has misinterpreted his statements about geographical matters in Punjab; second that the Tribunal was wrong to say that the applicant could relocate to Delhi; and third that the Tribunal has used a lot of information against him and that the Tribunal did not consider the facts that the Indian Government is torturing the members of the Sikh community and the Tribunal did not show him any material which they considered against him.
Counsel for the first respondent, Ms McNaughton, has prepared written submissions which were filed in this Court on 15th August. In respect to the applicant's first claim, she submits that the Tribunal made adverse findings about a speech that the applicant allegedly made, not because the applicant could not recite a speech verbatim, but rather because of the answers that he gave to the Tribunal, the content of which were described as nothing more than bland generalities.
Her submission is that this finding was open to the Tribunal for the reasons that it gave. I am referred to the decision of McHugh J in
Re: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 406 at [67] where his Honour said:
If the primary decision maker has stated that he or she does not believe a particular witness no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision not the subset of reasons why it accepted or rejected individual pieces of evidence.
As to the second part of the applicant's first ground, counsel for the respondent contends that there is no evidence that the Tribunal misinterpreted the applicant's statement and indeed that part of the ground would appear to be seeking a review on the merits which is not available to the Court.
In respect of the second ground relating to the applicant's claim that it would be unsafe for him to relocate to Delhi, the submission is that the Tribunal set out the reasons for its finding that it would be reasonable in all the circumstances to relocate and applied the correct legal test in doing so. The second ground would appear also to be seeking a review on the merits.
The third ground is the claim that the Tribunal used a lot of information against the applicant's claims and did not consider the facts that the Indian Government is torturing members of the Sikh community.
The applicant complains that the Tribunal did not show him any of the material it used against him.
Counsel for the respondent has referred the Court to the decision of the Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] where the Court said:
There can be no objection in principle to the Tribunal relying on country information. The weight that it gives to such information is a matter for the Tribunal itself as part of its fact finding function.
It is also put to the Court that country information does not need to be put to an applicant for comment as it falls within the exception in
sub-s.424A (3) (a) of the Migration Act.
In considering the applicant's claims, in my view, the first ground is no more than a challenge to the factual findings of the Tribunal, and the factual findings are matters that are purely the province of the Tribunal. So long as there is evidence upon which factual findings can be made, then there is no jurisdictional error.
The second ground relating to the question of relocation appears to me to be no more than merits review. In my view, the Tribunal member correctly applied the principles relating to relocation even though the Tribunal did not accept the credibility of the applicant's evidence that he had a well founded fear of persecution.
As to the third ground the Tribunal is alleged not to have considered the facts that the Indian Government is torturing the members of the Sikh community, the applicant said that he did not put any information to the Tribunal to that effect, but if he had been given more time, he would be able to obtain documents from India. It is for the applicant to make out a case that he complies with the requirements of a visa under s.65 of the Migration Act in general and under sub-s.36(2) of the Act in particular.
The applicant claims that the Tribunal never showed him any of the country information, but it is certainly clear from the Tribunal decision that the Tribunal member specifically put matters from country information to the applicant that did not support his claims and ask for his comments. The Tribunal quite clearly took those comments into account, but as far as the applicant was concerned, unfortunately, did not accept the applicant's answers but preferred the country information.
To my mind, the applicant's case was not successful before the Tribunal, largely because the Tribunal was not satisfied about the credibility of the applicant's evidence. The Tribunal did not consider that he was a credible or a reliable witness. Credibility findings are findings of fact and they remain very much the province of the Tribunal.
I am mindful of the fact that the applicant is not legally represented, although he did have the opportunity to obtain legal advice from a barrister under the Refuge Review Tribunal Scheme.
I have read through the decision myself, in order to ascertain whether the applicant could make an arguable case for jurisdictional error that had not been referred to. There is no jurisdictional error that I can discern. It follows that as there is no jurisdictional error, the Tribunal's decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. As such, no orders by way of certiorari or mandamus can be made. The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim and in my view costs should follow the event. The amount sought $5,000.00 inclusive of counsel fees appears to me to be well within the scale allowed by the Federal Magistrates Court Rules. I propose to order that the applicant should pay the first respondent's costs in the amount claimed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 September 2006
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