SZISP v Minister for Immigration

Case •

[2007] FMCA 796

•

16 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISP & ORS  v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 796
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 – applicants are nationals of the Republic of India – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 474
SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2006) ALR 471
NBKT v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 195
First Applicant: SZISP
Second Applicant: SZISQ
Third Applicant: SZKGA
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG590 of 2007
Judgment of: Scarlett FM
Hearing date: 16 May 2007
Date of last submission: 16 May 2007
Delivered at: Sydney
Delivered on: 16 May 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Godwin
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. I dispense with the requirement to appoint a litigation guardian for the Third Applicant. 

  2. The Application is dismissed.

  3. The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 590 of 2007

SZISP

First Applicant

SZISQ

Second Applicant

SZKGA

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for the review of a decision of the Refugee Review Tribunal. The Tribunal handed down its decision on 18th January 2007.  The Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicants Protection (Class XA) visas.

  2. The Applicants seek judicial review of that decision, and filed an application and an affidavit on 21st February 2007. I note that the Third Applicant who is the child of the First and Second applicants, is still an infant.  I also note that the Second and Third Applicants' claims rely on their being family members of the First Applicant. Accordingly, I dispense with the requirement to appoint a litigation guardian to the Third Applicant. 

  3. The Applicants seek an order in the nature of certiorari quashing or setting aside the Refugee Review Tribunal decision.  They also seek an order in the nature of mandamus, remitting the application to the Refugee Review Tribunal to be dealt with in accordance with the law.  They further seek injunctive orders restraining the Respondent Minister from acting on the decision of the Tribunal, or serving removal orders pending the determination of this application.

Background

  1. The background of this matter is that the Applicants are citizens of India. The First and Second Applicants arrived in Australia on 13th October 2005, and applied for Protection (Class XA) visas on 22nd November 2005.  They have a dependent child, the Third Applicant, who was born in Griffith on 14th March 2006. The Minister's delegate refused the application for a visa on 13th December 2005, in respect of the First and Second Applicants. 

  2. The First and Second Applicants sought review of the delegate's decision from the Refugee Review Tribunal. On 8th March 2006, the Refugee Review Tribunal differently constituted, affirmed the delegate's decision. The Applicants then sought judicial review of the Tribunal's decision, and on 11th October 2006 the Federal Magistrates Court made orders by consent, setting aside the decision and remitting the matter to the Tribunal for determination according to law. 

  3. The Refugee Review Tribunal wrote to the Applicants, care of their migration adviser on 15th December 2006.  This letter was headed "Invitation to Comment on Information".  The Tribunal in its letter set out information which it said could, subject to any comments that the Applicants might make, they're the reason or part of the reason for deciding that they were not entitled for a protection visa.

  4. The Tribunal set a deadline of 29th December 2006, for comments and further information. The information referred to in the letter of 15th December 2006 referred to the First Applicant's real name and the circumstances that he was travelling to the Philippines illegally in 1990, and information relating to the issue of a new Indian passport by the Indian embassy in Manila.  The letter raised the improbability of the First Applicant being issued with a new Indian passport without the Indian authorities checking their records, and then ensuring his name and other details were the same, there is no evidence or information held on that.  The information also held to a claim by the Applicant in the first hearing that he had returned to India on three separate occasions with his passport, and referred to a claim that was made in the submission on 23rd November 2006, the Applicant left India on a fake passport by making a slight change to his name. 

  5. The letter set out involved certain conclusions that the Tribunal might reach on this information, subject to any comments the Applicant might make, and also pointed out that the information may go to the matter of the credibility of the Applicant's evidence.

  6. The letter referred to in addition independent country information, and referred to the Applicant's claim that whilst they were outside India they did not claim to have applied for refugee status or asylum in the Philippines, or in any other country they visited including Singapore and Hong Kong, or that they sought to go to another country to seek protection, and indeed chose to return to India from the Philippines on three separate occasions. 

  7. The letter set out conclusions that the Tribunal might draw, and referred the Applicant to a number of items of independent country information.  The letter went on to advise the Applicant that if they did not provide the additional information by 29th December 2006 the Tribunal may make a decision on the review of the Applicant's case without further notice. The Applicants did not in fact provide any further information or make any comments. 

  8. The Applicants, or at least the First and Second Applicant attended a Tribunal hearing on 15th December 2006, the same date as the Tribunal's letter, this hearing was conducted by video link.  A copy of the Tribunal's decision can be found at pages 120 through to page 141 of the Court Book.

The Tribunal’s findings and reasons

  1. In the Tribunal's decision, the Tribunal sets out the Applicants' claims and evidence on pages 123 through to 136.  The Tribunal's findings and reasons are found at pages 137 to 141 of the Court Book.  The Tribunal accepted that the Applicants are nationals of the Republic of India. The Tribunal noted that the Applicant has a fear of persecution if he returns to India, being the country of his birth and citizenship, the First Applicant also claims he has a fear of being persecuted if he returns to the Philippines where he had lived since 1990 and had been granted legal permanent residence status there.  The Tribunal noted that the Applicant was making claims against two countries and first considered his claims against India, being his country of birth, nationality and citizenship.  The Tribunal went on to state, however, that if the Tribunal found that he had a well-founded fear of persecution on returning to India, it would then be necessary to consider his claims about having a well-founded fear of persecution in the Philippines.

  2. The Tribunal referred to the Applicant's claims relating to when he was a student in college in the Punjab in India, and was involved in political activity involving the Sikh separatist movement. The Tribunal noted that the Applicant had indicated to it that he was not a high level political activist, but indeed his involvement was extremely limited.  He had claimed to have been arrested it appears by the police in 1984, along with his cousin. 

  3. The Tribunal did not accept that the Applicant had a political profile in India, or was a Sikh activist in the early 1980s.  The Tribunal referred to the letter written to the Applicant on 15th December under the provisions of s.424A of the Migration Act, and did not accept that the Applicant had changed his name, or had left India illegally, but was satisfied that he had left India for the Philippines legally, using his own passport issued in his own name, accepted that he had continued to use an Indian passport legally issued to him in his actual name. The Tribunal referred to extensive independent country information and was satisfied that the Applicant does not have a well-founded fear of serious harm, amounting to persecution for a Conventional reason of India.

The application for judicial review

  1. The Applicants seek review of that decision, and set out two grounds.  First, the Tribunal erred in law in arriving at the decision to affirm the Respondent's decision, i.e. the delegate's decision, not to grant the Applicant a protection visa, because it failed to allow the Applicant proper opportunity to respond to the issue of 1984 arrest and torture. There is an additional ground contained in the particulars there, that the Tribunal failed to address his claim that he was targeted because "They think he has got money". 

  2. The Applicant also claimed the Tribunal's decision involved jurisdictional error, affecting the decision subject to the application and had asked itself the wrong question and applied the wrong test/political profile.  

  3. Dealing first of all with the Applicants' first claim, the Applicant in oral submissions told the Court that usually the police actually arrest people without any warrant, and put them in jail and no one can do anything about it.  He said that that was the point that he tried to explain to the Tribunal.

  4. The Tribunal said that there was no justification or proof or medical evidence that he had in fact been arrested or tortured in 1984. He complained that the Tribunal did not believe his story.  I think it is clear that the Tribunal did not believe his story, and the credibility of the Applicant's account was a major reason in the Tribunal's decision to affirm the delegate's decision. 

  5. The Applicant had submitted that the Tribunal fell into jurisdictional error in failing to provide him an opportunity to comment on information about his claim that he was arrested by the police and abused in 1984, along with his cousin, and that this was a breach of s.424A of the Migration Act. He submitted that this information was part of the reason for the decision, and the decision was in fact in jurisdictional error. The counsel for the Respondent Minister, Mr Godwin, submitted that in my view correctly. As far as the alleged breach of s.424A of the Migration Act is concerned, the absence of information is not information for the purpose of s.424A. He referred the court to SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457, and also VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2006) ALR 471. Mr Godwin also brought to the Court's attention the more recent decision of the full court of the Federal Court constituted by Gyles, Stone and Young JJ, in NBKT v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 195.

  6. In that decision, Young J, with whom Stone J and Giles J agreed, said:

    The concept of information does not extend to identify gaps, defects or lack of details or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: WAGP of 2002, Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 

  7. The fact is also that the Applicant's claim about his arrest and abuse in 1984, becomes largely from the Applicant himself, and indeed whilst the information came partly from paragraph 20 of the Applicant's statement with his protection visa, which can be found at page 33 of the Court Book, it is clear that that information was put by the Applicant in his evidence to the Tribunal, at the Tribunal hearing. 


    At page 129 of the Court Book, the Tribunal describes how the Applicant claimed: 

    He claimed that he still remembers the treatment he received at the hands of the police and their torture, and he has documents that show his real date of birth.

  8. In my view, the Applicant has not shown a breach of s.424A, first because the information to which he refers is information provided to the Tribunal for the purpose of the application for review, and as such comes under the exemption in sub-section 424A(3), it will be. And second, that it was not information in any event but the absence of information as set out in NBKT. There is no breach of s.424A of the Act.

  9. As to the claim that is included in those particulars that the Applicant was targeted because "They think that he has got money", the counsel for the Minister again submitted correctly that this claim appeared to relate to the Applicant's fears on being returned to the Philippines, which was not a matter that the Tribunal was required to address at all because if its findings, that the Applicant did not have a well-founded fear of persecution in India being his country of birth, nationality and citizenship.  In my view that submission is correct, and that second part of the Applicant's first ground fails. 

  10. The Applicant's second ground was subject to criticism by counsel for the First Respondent, and submitted that it was difficult to understand what error the Applicant was alleging.  I will quote the ground in full:

    The Tribunal's decision involved jurisdictional error affecting the decision which is subject to this application in that it asked itself the wrong question, and applied the wrong test/or that the applicant claims a political profile. 

    Particulars

    The Tribunal states at page 18.8 (para.4) of the decision "…The Tribunal does not accept that the Applicant had a political profile in India or was an activist in the early 1980s…. 

    The Applicants submit that the Tribunal is misclassifying the information which is part of the reason for the decision which ought to have been subject to written comment pursuant to s.424A of the Act. 

  11. I am certainly of the view that it is difficult to ascertain the exact error, it is certainly the case that no breach of s.424A of the Migration Act appears in respect of that paragraph. The section of the Tribunal decision to which the Applicant refers, appears at page 137 of the Court Book. In the third paragraph, rather than the fourth on that page, in its findings and reasons, the Tribunal sets out that the Applicant's core claims relate to when he was a student in college in the Punjab in India,

    However the applicant made it clear at both the first and second hearings that he was not a high-level political activist himself (indeed the second hearing he indicated that his involvement was extremely limited and was confined to encouraging students to join the Sikh movement and participating in some protests outside government buildings, as well as assisting his cousin with some very menial tasks).

  12. In the final sentence of that paragraph, the Tribunal said - and I quote in full:

    However, and notwithstanding the Applicant's claims and the arguments put forward by his adviser, the Tribunal does not accept that the Applicant had a political profile in India or was a Sikh activist in the early 1980s. 

  13. Clearly there is no breach of s.424A of the Migration Act, because the information referred to by the Tribunal again comes under the s.424A(3b) of the Act, being information given by the Applicant to the Tribunal for the purpose of the application for review. What happened is that notwithstanding the Applicant's claim, of his having been an activist of some sort, the Tribunal did not accept it. There is nothing to show that the Tribunal asked itself the wrong evidence, or misclassified information. What appears from the decision is that the Applicant made a claim in the course of the Tribunal hearing, and the Tribunal did not accept it, that is a factual finding, and questions of fact are purely matters for the Tribunal.

  14. On judicial review, there is no space to challenge factual findings of the Tribunal, and this claim, if it is anything, appears to be no more than a claim for merits review. I am satisfied that no jurisdictional error has been made out, I am mindful of the fact that the Applicant is not legally represented in these proceedings, my reading of the Tribunal decision, independently of the Applicant's submissions for the First Respondent do not show any arguable case for jurisdictional error. I am satisfied that no jurisdictional error has been made out, the decision is a primitive clause decision as defined in s.474 of the Migration Act, and consequently no orders in the nature of certiorari or mandamus are available. The application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  25 May 2007

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Cases Citing This Decision

1

SZISP & Ors v Minister for Immigration and Citizenship [2007] FCA 2029