SZIWN v Minister for Immigration
[2006] FMCA 1862
•20 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1862 |
| MIGRATION – Review of Refugee Review Tribunal decision. |
| Migration Act 1958 (Cth), ss.91X, 424A |
| Antipova v Minister For Immigration & Multicultural & Indigenous Affairs & Anor (2006) 151 FCR 480 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 NAIH of 2002 & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 223 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 150 FCR 214 SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 |
| Applicant: | SZIWN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1494 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1494 of 2006
| SZWIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
The applicant’s application filed on 23 May 2006 seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 27 April 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 18 January 2006 refusing the applicant’s application for a protection visa.
Section 91X of the Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows;
…the applicant is a single man who was born in 1979. He gives no information about family members. He was born and educated in Hyderabad, and has lived there since birth. The applicant was educated until 1997, a period of 15 years. He gives no details about his past employment but gives “supervisor in a hotel” as his occupation before he came to Australia. The applicant travelled to Australia on a passport issued in July 2002 and on a visitor visa granted on 9 November 2005.
The applicant arrived in Australia on 14 November 2005.
The applicant claims to fear persecution in India by reason of his political opinions.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 8 of the Tribunal’s decision, at pages 86 to 90 of the Court Book (“CB”). Relevantly, in summary they are:
a)The applicant had been an active member of the Telugu Desam Party in India.
b)In April 2004 the Telugu Desam Party lost the elections and the Congress Party was elected and started to take revenge on members of the Telugu Desam Party.
c)The applicant said that if he were to return to India he would be attacked by Congress Party members because he had been targeted.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations. In its view:
While politics is violent in the applicant’s home state, violence has largely centred on conflict with Naxalites (page 11). There have been killings of other high profile political personalities, including members of the TDP (see page 11), but the salient fact is that these people have been prominent party activists. The Tribunal has found that the applicant was not a political activist on behalf of the TDP, as he claimed. Given that the applicant is not a political activist and has never suffered serious harm in the past for reasons of his political opinion or for any other reason, the Tribunal is not satisfied that there is a real chance that he will face Convention-based persecution if he returns to India in the foreseeable future. (Court Book (“CB”) page 95)
The Tribunal:
a)found the applicant to be generally unconvincing in relation to his oral evidence at the Tribunal. He was significantly lacking in knowledge about the Telugu Desam Party and, most importantly to the Tribunal, about the outcome for his own constituency of Hyderabad in the national elections in India in 2004;
b)accepted the applicant was a supporter of the Telugu Desam Party but it did not accept that he was politically active on behalf of the party. He was vague when asked to describe his activities and was unable to provide answers to a number of questions to which, the Tribunal believed, a party activist would have been able to respond without difficulty. For instance, he did not know when the party was formed, he did not know who contested his own constituency of Hyderabad nor who won the national election in that constituency although he claimed to have been canvassing for the Party in the election;
c)noted that the applicant did not claim that he had been seriously harmed in India and gave different reasons for this. Early in the Tribunal hearing the applicant said that in the eighteen month period between the election in April-May 2004 and his arrival in Australia in November 2005 he had been living with his parents whereas later in the hearing he said that he had been in hiding;
d)rejected the applicant’s claim of being “underground” on the basis that this claim was extremely vague and lacking in detail and the applicant did not deny that he continued to go to his uncle’s hotel to work up to the time of his departure from India;
e)rejected the applicant’s claim that since his departure from India, members of the Congress Party came to his parents’ house and said that they would kill him. In the Tribunal’s view the applicant was not a political activist and could not have made political enemies as he claimed and, moreover, this claim was vague and unsupported by any convincing detail; and
f)observed that even if the applicant had been an activist, on his own evidence, no one had attempted to make any contact with him until after his departure from India. Moreover, even though he claimed he was in hiding before his departure for Australia he continued to go work on a regular basis, where he could have been found by his political enemies.
For these reasons, the Tribunal was not satisfied that the applicant suffered Convention-based persecution in the past or had a well-founded fear of persecution in India.
Proceedings in this Court
The grounds of the application in these proceedings can be summarised as follows:
a)the Tribunal made an error when it described the visa by which he was admitted to Australia as a visitor’s visa whereas it was a student visa;
b)the Tribunal was wrong to find that he had not been politically active on behalf of the Telugu Desam Party;
c)the applicant was unable to answer the Tribunal’s questions adequately because he was depressed, mentally confused and nervous; and
d)the applicant sought further time to adduce evidence in support of his allegation that he had suffered Convention based persecution in India in the past, had been a political activist and had made political enemies.
Dealing in turn with each of these claims as well as a potential breach of s.424A of the Act which was raised at the hearing by the Minister.
Misdescription of the applicant’s entry visa:
This ground has no relevance to the decision under review. Although the applicant’s entry on a visitor’s visa was referred to on page 4 on the Tribunal’s decision (CB 86) as part of the applicant’s general history, it is not part of the Tribunal’s findings and reasons forming the basis of its decision.
Challenge to finding of fact regarding political activity
The applicant’s complaint is that the Tribunal did not find that he was politically active on behalf of the TDP. However, the finding was open to the Tribunal on the evidence before it.
The application before this Court is one for judicial review of the Tribunal’s findings. In the course of such a review this Court cannot embark on a reconsideration of the facts found by the Tribunal.
The applicant was depressed, confused and nervous at the Tribunal hearing:
In the letter attached to his application to this Court, the applicant states:
Refugee Review Tribunal said I was unable to answer number of questions for which a party activist could have answered without difficulty, but I was very much depressed and mentally confused & nervous with the situation and I even mentioned it in the tribunal that I was nervous and depressed to answer those question.
In its discussion of the applicant’s hearing before it, the Tribunal did record that:
The applicant said that he was very nervous and could not explain himself properly. (CB 90)
Significantly, no evidence has been produced to this Court which would tend to substantiate the assertion that the applicant was depressed, confused and nervous at the Tribunal hearing or to suggest that the applicant’s circumstances at his hearing before the Tribunal were such as to render the s.425 invitation to appear before the Tribunal one which was not a meaningful one: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; Antipova v Minister For Immigration & Multicultural & Indigenous Affairs & Anor (2006) 151 FCR 480.
Request for more time to produce documents
What the applicant seeks is time to adduce additional evidence to address issues which were before the Tribunal. However, the Tribunal has performed its function and cannot reopen its hearing to receive any such evidence. Moreover, the applicant does not assert there was any error committed by the Tribunal which had the consequence that the evidence was not available. This ground merely seeks to lead further evidence following the execution of the Tribunal’s function.
Further, these proceedings before this Court are for judicial review of the Tribunal’s decision; they are not a rehearing of the application at which fresh evidence may be received with a view to arriving at different findings of fact.
This ground does not provide a basis for judicial review of the Tribunal’s decision.
Section 424A of the Act
In submissions, the Minister raised the potential of there having been a breach of s.424A. The applicant had not raised this issue but the Minister did and submitted that the Tribunal had not breached its s.424A obligations.
The Tribunal’s decision makes it clear that it had before it the Department’s file including the protection visa application and the delegate’s decision record (CB 86). The Tribunal recounts the contents of the applicant’s statement submitted with his protection visa application and noted that he submitted no additional claims with his review application to the Tribunal. (CB 87).
The introductory portion of the fourth paragraph of the Tribunal’s findings (CB 94) says:
The applicant did not claim in any of his written or oral evidence that he had been seriously harmed in India.
and this suggests reliance by the Tribunal on information other than that contained in the applicant’s application to the Tribunal, most particularly the statement in support of the protection visa application. However, the Tribunal’s reasons do not then proceed to consider such documentary material which may have been before it but, rather, the Tribunal analyses and considers the oral evidence given by the applicant before it. In this regard, the following passage, which appears in the Tribunal’s recounting of the course of the evidence, should be noted:
He was asked whether he had ever been seriously harmed when he was in India. He said that he had not, but this was because he had been in hiding. (CB 89)
In my view, the basis of the Tribunal’s decision is to be found in its discussion of the applicant’s oral evidence, rather than in any consideration of documents which were not submitted by the applicant to the Tribunal and would attract a section 424A obligation. To quote Branson J in NAIH of 2002 and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 223 at 232 [17].
In my view, the reference by the Tribunal to the earlier written statements is, when seen in the context of the Tribunal’s reasons for decision as a whole, little more than an incidental comment or aside.
However, if the Tribunal’s reference to written evidence is more than an incidental comment or aside, I note that the Minister argues that the protection visa application ought to be considered to have been incorporated into the application to the Tribunal in the fashion discussed by Moore J in SZEEU (2006) 150 FCR 214 at 239-240, [81] and [83]. I do not read either the application to the Tribunal (CB 64-67) or its accompanying letter (CB 68) to have made any, or any sufficient, reference to the protection visa application paperwork such as to conclude that they were being placed by the applicant before the Tribunal for its consideration and thus attract the operation of s.424A(3)(b). It could not be said that the applicant’s letter to the Tribunal, which is reproduced at CB 68 “republishes” the protection visa application in the sense discussed by Rares J in SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435.
However, that is not the end of the matter. In SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359, the Tribunal had regard to information concerning SZHFC’s residence in India which was contained in the protection visa application and was also given in oral evidence at the Tribunal hearing. Allsop J was of the view that this information had been provided orally at the Tribunal hearing:
If the Tribunal, as here, puts an earlier statement or application to the applicant and asks questions about it, it does not seem to me capable of being denied that the answers given to those questions would be information for the purposes of s.424A(3)(b). If the Tribunal then takes the information that is, for want of a better expression, that raw information or data into account, nothing would prevent the operation of s.424A(3)(b). … In other words, if facts are given to the Tribunal in answers, they are information falling within s.424A(3)(b). That section is not limited to volunteered or unprompted information. [24]
The significance of his Honour’s comments is that a response to a question by the Tribunal which goes to the facts contained in a prior document, will amount to information for the purposes of s.424A(3)(b). In this case the applicant’s evidence at the Tribunal hearing contained information which was the same as the information which the Tribunal appears to have gleaned from the documents, namely that the applicant had not been seriously harmed in India. Because this information was given in evidence at the Tribunal hearing, s.424A(3)(b) applies to it with the result that the Tribunal did not breach s.424A.
Conclusion
For the above reasons, the applicant has not demonstrated that the Tribunal has committed a reviewable error and consequently the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 20 December 2006
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