SZIVQ v Minister for Immigration
[2007] FMCA 92
•9 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 92 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 476 |
| SZFNK v Minister for Immigration [2006] FCA 1601 |
| Applicant: | SZIVQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1397 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Punjabi interpreter |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Ms E Warner Knight of Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 12 May 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1397 of 2006
| SZIVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 12 May 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 31 March 2006, affirming a decision of the delegate of the first respondent made on 10 October 2005, refusing to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of Constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIVQ”.
The solicitors for the respondents filed a Court Book (“CB”) on 28 June 2006. I have marked this as “Exhibit A” in these proceedings.
Background
The decision of Tribunal member, Ms Louise Nicholls, reference number N05/52496, provides the following background information. The applicant, who claims to be a citizen of India, last arrived in Australia on 16 October 1999. On 26 September 2005, he lodged an application for a protection (class XA) visa with the Department of Immigration under the Act. On 10 October 2005, a delegate of the Minister refused to grant a protection visa and on 17 October 2005, the applicant applied to the Tribunal for review of the delegate’s decision.(CB 193)
The applicant lodged an application for refugee status in September 1991. It was considered by a delegate of the Minister and refused in November 1995. The applicant sought review of that decision and attended a hearing on 9 December 1997. The Tribunal refused the application on 10 February 1998. Departmental movement records indicate that the applicant departed Australia on 31 July 1999 and returned on 16 October 1999. The applicant was detained on
25 August 2004. He applied for a protection visa on 26 September 2005 whilst in detention.(CB 195-6)
The applicant’s 2005 visa application indicated that he was 61 years of age and claimed to be a citizen of India, born and educated in Bashasharpur, India. He is of Sikh background. He has had a variety of occupations in India, Australia and elsewhere. It further stated that the applicant was divorced and has three children who are living in India. Prior to his departure from India in 1987 he had lived in Dubai, Iraq, Saudi Arabia, Belgium and Argentina.
The applicant’s claims
I rely on the written submissions prepared by Ms Wong, which briefly sets out the applicant’s claims and reproduce paragraph 13 of those submissions:
13.The applicant claims to have a well-founded fear of persecution arising from his membership of the Sikh Students Federation (the “SSF”) and the Akhali Dal (the “AD”): CB 51. The applicant made the following specific claims in a statement annexed to his second application for a protection visa (CB 33-36):
(a) the applicant, of Sikh faith, became involved in the SSF and AD in 1983, which opposed Indian Government’s “barbarianism” and “atrocities”, including the killing and mistreatment of many Sikhs;
(b) The applicant became an active member of the SSF and AD, which included assisting in printing slogans and recruiting new members;
(c) On 5 June 1984, the applicant was present at and escaped death from an Indian Army’s slaughter of hundreds of Sikh believers at a meeting of the Golden Temple;
(d) Subsequent to the attack on the Golden Temple, the Indian Police declared that the Sikh activists present at that meeting were wanted criminals and published photos of some of those activists in three newspapers. The applicant’s photo was one of those published;
(e) As the applicant feared that his life was at stake, the SSF and AD organised for him to leave the country; and
(f) Upon the applicant’s return to India in 1999, the Indian police were informed of the applicant’s presence in India and his membership of the SSF and AD. The applicant was informed that he was in danger and he was smuggled out of India to Australia.
Tribunal’s findings and reasons
Again I rely upon the written submissions of Ms Wong in respect to the Tribunal’s findings and reasons and adopt paragraphs 14 to 21 of those submissions:
14.The [Tribunal] commenced its reasons for decisions by stating the background of the proceedings: CB 193. The [Tribunal] then summarised the legal principles applicable to determining the Applicant’s claims, and referred to the claims and evidence presented by the Applicant, including newspaper articles and letters written by the Applicant in Punjabi: CB193-215.
15. The [Tribunal] determined that it was unable to place any evidentiary weight on the documents provided by the Applicant to the [Tribunal]: CB 216. In particular, the [Tribunal] determined that it could not rely upon documents in Punjabi, as they were a collection of documents which were either irrelevant, unintelligible, incomplete, or which contradicted a number of the Applicant’s claims: CB 216.
16. With respect to the documents submitted in English, the [Tribunal] determined that these documents contained many inconsistencies, leading the [Tribunal] to a conclusion that they could not be regarded as reliable evidence: CB 217.
17. The [Tribunal] held that the Applicant lacked credibility, and that his evidence was wholly unreliable: CB 217. The [Tribunal] further held that the Applicant did not display even a basic knowledge of the SSF and the AD, and was not satisfied that he had any current connections with any of the parties he claimed: CB 218.
18. The [Tribunal] found that evidence given by the Applicant in 1997 regarding the murder of two police officers, and detention by police in 1984 was a fabrication, which further supported the [Tribunal’s] findings that the Applicant was a wholly unreliable witness and was prepared to fabricate evidence to support his application for a protection visa: CB 220.
19. The [Tribunal] did not accept the applicant’s claim that he was ever detained or mistreated by police following the 1984 Golden Temple incident or in relation to any Sikh activist activities: CB 221. The [Tribunal] found that the Applicant’s conduct in 1999 in returning to and temporarily residing in India and his home village in Punjab was not consistent with a genuine fear of persecution: CB 221.
20. In any event, the [Tribunal] found that the previous conflict between the Punjabi police the security services and the Sikh separatists had abated and that the situation in the Punjab was now relatively peaceful: CB 222.
21. The [Tribunal] affirmed the decision of the Minister of the delegate not to grant the Applicant a protection visa: CB 223.
Application for review of the Tribunal’s decision
On 12 May 2006, the applicant filed an application for judicial review under s.39B of the Judiciary Act 1903 setting out the following grounds:
1. RRT failed to apply correct test and principles of relevant law arriving at this decision and it fails by taking irrelevant matters into consideration in accounts.
2.While all the documents were produced before the Tribunal, instead of considering as evidence. It says wholly unreliable the decision makes failed to make a beneficial attempt to exercise its power. (copied without correction or amendment)
The applicant’s grounds of review can be conveniently summarised as follows:
a)The Tribunal took into account irrelevant considerations; and
b)The Tribunal failed to take account of documents submitted by the applicant in support of his claim.
Submissions and reasons
The applicant appeared as a self-represented litigant with the assistance of a Punjabi interpreter. The applicant appeared before me at the First Court Date directions hearing on 13 June 2006. At that time, the applicant indicated that he wished to participate in the Court sponsored Legal Advice Scheme. The Court file indicates that the applicant was subsequently allocated a panel adviser who visited him in Villawood Detention Centre and provided him with legal advice. The matter was again listed for directions on 31 August 2006 when a final court hearing date of 25 October 2006 was allocated. Orders were made in respect to the filing of submissions for that hearing.
The applicant wrote to the Court Registry on 7 October 2006 seeking an extension of time in order to seek legal assistance from the pro bono referral system sponsored by the Law Society of New South Wales. The final hearing was transferred to mid-December to permit this avenue to be explored.
At the final hearing the applicant remained unrepresented, had not filed an amended application, or any written submissions for the hearing. The applicant indicated that during his detention he had mislaid all of his documentation including the Court Book. The applicant was provided with a copy of the respondent’s submissions and a Court Book prior to the hearing commencing. When the applicant was invited to make any oral submissions in support of his application, this was limited to a series of statements concerning the loss of his court documents and his inability to locate a member of the legal profession to represent him at the hearing.
Ms Wong submits that the brief grounds that were stated in the application for review do not particularise any jurisdictional error on the part of the Tribunal. Those pleaded grounds are addressed in the written submissions filed in these proceedings and referred to below. Ms Wong submits that what the applicant appears to be complaining about was that there were documents produced to the Tribunal, which it said were wholly unreliable and did not take them into account properly in its deliberation of the claims. It is submitted by Ms Wong and I agree, that the Tribunal in its decision record under the heading ‘Findings and Reasons’, considers each and every one of those documents carefully and forms the view they are unreliable.(CB 215-217) Further, the Tribunal summarises each of the documents and states the contents of each one.(CB 205-208) Ms Wong submits and I accept the argument, that in these circumstances the applicant’s complaint has no foundation.
Ms Wong in her written submissions with respect to ground one, addressed the claims that irrelevant matters were taken into consideration by the Tribunal. It is submitted that the applicant has failed to provide particulars of any evidence which was taken into account by the Tribunal which was irrelevant to its determination that the applicant was not entitled to a protection visa. It is submitted that the applicant has also failed to demonstrate any basis for his allegation that the Tribunal “failed to apply correct test and principles of relevant law”. It is submitted that a review of the Tribunal’s decision shows that the Tribunal focused its attention on the issues raised by the applicant and properly performed its statutory obligation. I accept the submission that no jurisdictional error is demonstrated by this ground.
Ms Wong in her written submissions with respect of ground two, addresses the applicant’s claims that the Tribunal failed to take into account documents submitted by the applicant. It is submitted that the Tribunal carefully summarised the documents submitted by the applicant, and considered each of those documents in detail before determining that they were not of any assistance to it in considering whether or not the applicant had a well-founded fear of persecution for a Convention reason.(CB 205-208, 216-217) I accept the submission that no error can be found in the approach taken by the Tribunal towards assessing the relevance of these documents to the applicant’s claims.
Ms Wong submitted that in accordance with the Minister’s obligation as a model litigant, she wished to draw the Court’s attention to a possible breach of s.424A of the Act which occurs in the following passage:
… I also take into account the significant inconsistencies in his evidence regarding the date of his departure from India. In his statement of 26 September 2005 the applicant claimed that he left India in approximately 1986-1987. In evidence given at the previous hearing of the Tribunal in 1997 he claimed he had lived outside India between 1983 and 1985 and had only returned to India for a 15 day holiday. Later in that hearing he claimed that he lived in India until 1989 but had arrived and departed India several times prior to his final departure. At the hearing before me the applicant told me he could not remember when he left India however he claimed that he worked in Dubai for 3-4 years, Iraq for 2-3 years and then Saudi Arabia from some time before he arrived in Australia in 1991.(emphasis added)(CB 219.2)
The applicant gave oral evidence at a hearing before the Tribunal on 20 December 2005. He was assisted at that hearing by an interpreter of the Punjabi language and accompanied by his migration adviser, Mr Parastou Hatami of Legal Aid Commission New South Wales. On
6 January 2006, the Tribunal forwarded a s.424A letter to Mr Parastou Hatami of Legal Aid Commission New South Wales.(CB 81-83) The letter set out the inconsistencies, which are referred to in the passage above, and made the following comment:
The information set out in the summary of evidence given to the Tribunal on 10 February 1998 is inconsistent, contradictory and may indicate that you have not given truthful evidence to the Tribunal in the past. It may lead the Tribunal to find that the evidence you have given to the Tribunal in the hearing held on 20 December 2005 is not truthful. If the Tribunal finds that you are not a truthful witness it may decide that your current claims for refugee status are not credible and have been fabricated to support your claims for refugee status.(CB 82.5)
The applicant was invited to comment on this information and reply to the Tribunal by 13 January 2006. The Legal Aid Commission responded to the Tribunal on 11 January 2006 setting out a response to the s.424A letter.(CB 84-85) Also included in that correspondence was a number of newspaper articles provided by the applicant. A further letter to the Tribunal was forwarded by Legal Aid on 8 February 2006 detailing the attachments in appropriate English translations.(CB 104-105) A number of further letters were exchanged addressing each documents and the relevant translations. I accept Ms Wong’s submission that the s.424A letter forwarded by the Tribunal on
8 January 2006 complies with the provisions required under s.424A.
Ms Wong correctly points out that there is no express reference to the precise dates of the various moves by the applicant in the three pages of that letter. However, there are numerous references to the general topic which is under discussion. That being when the applicant was in India and when he was living in other countries during the relevant time period between 1983 and 1999. In particular, it refers to information given by the applicant on 26 September 2005 and states that that information suggests he was living in India between 1983 and 1985.(CB 82.7) This is the same proposition as to when he departed from India as when he was living in other countries during the same period. I accept Ms Wong’s contention that the applicant was put on notice of the general issue and that s.424A of the Act was complied with in this case by the sending of the s.424A letter.
Ms Wong submits that there is another basis upon which this decision can be maintained and referred the Court to the Tribunal’s ‘Findings and Reasons’ where it states:
I have considered the situation for the applicant if he returns to India as a person of Sikh background and a person who may have been a supporter of the Sikh Student’s Federation and Akali Dal or one of their various factions in the 1980’s. I accept that during the 1980’s and early 1990’s that there was significant political conflict in the Punjab involving demands for Sikh autonomy. That conflict also generated harsh and inhumane actions by members of the Punjab police and security services in response to those who were perceived to be Sikh separatists during that period of time. I also find that this period of conflict has abated and the situation in the Punjab is now relatively peaceful.(CB 222.5)
In other words, even if the applicant was a supporter of those two political parties as claimed, he would no longer hold a well-founded fear of persecution due to the changing circumstances in the Punjab during the intervening years. I accept the submission that this provides a separate and independent basis for sustaining the Tribunal’s decision.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, with the assistance of a Punjabi interpreter. Despite appearing in this Court before me on previous occasions when the function of the Court was explained, the assistance of the Court sponsored legal advice was provided and orders were made to file a fully particularised amended application, the applicant has not complied with those orders. A previous request for an adjournment to obtain further legal advice was granted, but the applicant submitted that he was unable to obtain any free assistance and was not in the position to pay the requested fee for representation. Despite these submissions the applicant sought a further adjournment to seek advice and representation.
I am acutely aware of the recent decision of His Honour Madgwick J in SZFNK v Minister for Immigration [2006] FCA 1601. I also thank Ms Wong, appearing for the Minister, for assisting the Court with written and oral submissions in response to the limited material filed by the applicant. Ms Wong brought the Court’s attention to a number of issues that needed to be addressed, but were not identified or raised by the applicant. Although there is no obligation on this Court to independently consider whether any argument based on the material could have been made out, I have reviewed the Court Book and the Tribunal decision. It is not apparent on the face of those documents that any other ground of review exists, which would suggest that the Tribunal made a jurisdictional error in its decision making process. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 9 February 2007
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