SZJAR v Minister for Immigration

Case •

[2006] FMCA 1675

•

3 November 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1675
MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of India – claim of fear of persecution because he is a Muslim – whether Tribunal showed bias – no evidence of bias – no review able error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61
Applicant: SZJAR
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 1912 of 2006
Judgment of: Scarlett FM
Hearing date: 3 November 2006
Date of last submission: 3 November 2006
Delivered at: Sydney
Delivered on: 3 November 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Watson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,900.00.

  4. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1912 of 2006

SZJAR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 2nd June and handed down on 27th June 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.

  2. By his application the Applicant seeks orders setting aside the Tribunal’s decision and remitting the application to the Refugee Review Tribunal for redetermination according to law. 

Background

  1. The Applicant is a citizen of India who arrived in Australia on 10th October 2005. He applied for a Protection (Class XA) visa on 22nd November 2005. That application was refused on 15th February 2006.  On 3rd March 2006 the Applicant sought a review of that decision from the Refugee Review Tribunal.  He lodged an application for review at the Sydney Registry of the Tribunal. No other documentation was provided at that stage, although the Applicant subsequently provided further material to the Tribunal.

  2. The Tribunal wrote to the Applicant under the provisions of s.425 of the Migration Act on 16th March 2006 inviting him to attend a hearing on 21st April.  The Applicant replied to that letter seeking a postponement of that hearing date, and the Tribunal acceded to that application and postponed the hearing to 1st May.  The Applicant provided some material to the Tribunal when he attended the hearing on 1st May where he gave oral evidence. 

  3. The Applicant described to the Tribunal how he had suffered difficulties when he had established a retail cooking oil business.  He is a Muslim and many of his customers were not Muslims, but were members of the majority communities. The difficulties arose when many of his customers did not pay him, and some indeed threatened him. The problem then arose that the Applicant’s supplier started pressing him for money. Again, threats were made and when the Applicant sought protection from the police he said that he was not correctly treated by the police because he was a Muslim. The Applicant eventually left India and arrived in Australia.

  4. The Tribunal wrote to the Applicant after the hearing on 9th May 2006. This letter was under the provisions of s.424A of the Migration Act and put to the Applicant some matters which would, subject to any comments that he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter set out what that information was and it included raising substantial new claims at the review stage because that might raise doubts about the veracity of those claims and the Applicant’s general credibility.


    The letter also went on to refer to the fact that even though Muslims could well suffer from discrimination and worse in India, that the President of India was a Muslim and it was difficult to see how the Applicant as a Muslim would not be able to receive adequate state protection.

  5. The letter also referred to the fact that the Applicant had indicated that he wanted to provide further documents, and the Tribunal said this at page 141 of the Court Book:

    The Tribunal reiterates that it is possible that the Tribunal may not be satisfied that any documents that you provide contain truthful and/or accurate information.  The Tribunal is of the view that it would not be difficult to obtain fraudulent documents in India. The Tribunal is of the view that document fraud is prevalent in India.

  6. The letter went on to refer to a report from the Danish Immigration Service and Danish Refugee Council about a fact finding mission to Punjab in India dealing with document fraud and its prevalence.

  7. The Applicant replied to that letter on 1st June. That letter is set out on page 143 of the Court Book. The Applicant said in the letter that he could not relocate to any part of India due to the fact that there were Hindu/Muslim problems all over India in relation to discrimination against Muslims.  He then provided some further information that was annexed in 129 annexures.  That material, involving material downloaded from the internet and other material, is set out on pages 142 through to 393 of the Court Book. The Tribunal set out that it took this material into account.

The Tribunal’s Findings and Reasons

  1. The Tribunal’s findings and reasons are set out on pages 409 through to 415 of the Court Book. The Tribunal was satisfied that the Applicant was a citizen of India and that the Applicant is a Muslim. The Tribunal was satisfied that the Applicant had a small cooking oil business and supplied cooking oil to Hindu customers on credit, and those customers may have refused to pay. The Tribunal was not satisfied that those customers gave a religious twist to their dealings. The Tribunal said that it considered the Applicant’s explanations in his s.424A letter to matters raised at the hearing to be unpersuasive, and went on to say at page 412:

    The Tribunal has considered the applicant’s explanations but finds them unpersuasive.  The Tribunal is of the view that making such substantial claims at the review stage raises doubts about the veracity of those claims and the credibility generally.

  2. The Tribunal went on to find that the Applicant had fabricated a claim to support his claim of the inadequacy of state protection.

  3. In summary, the Tribunal was not satisfied that any harm suffered, or that could be suffered, by the Applicant was because of the Applicant’s membership of a particular social group. The Tribunal was not satisfied that in India there was a particular group such as Indian Muslim traders who were owed money, or who owed money to Hindu suppliers. 


    The Tribunal was not satisfied that any harm the Applicant faced was essentially and significantly related to a Convention reason.

  4. The Tribunal, after considering the evidence, was not satisfied that the Applicant had suffered any persecution as contemplated by the Convention, or that there was a real chance that he would suffer that persecution in the reasonably foreseeable future. The Tribunal, whilst acknowledging that the Applicant may have suffered harm from non-state agents, noted that it is established law that the harm feared by an applicant must have an official quality in the sense that it is official or officially tolerated, or uncontrollable by the authorities of the country of nationality.

  5. The Tribunal went on to say that Muslims in India can be ill-treated, and the Applicant had provided various reports evidencing that, but went on to find that independent country information indicated that the Indian constitution provides for freedom of religion and the government of India generally respected that right in practice.  


    The Tribunal was not satisfied that there was a real chance that the Applicant would be persecuted in India in the reasonably foreseeable future on the basis of being Muslim. 

  6. The Tribunal was not satisfied that the Applicant had a well founded fear of persecution as contemplated by the Refugees’ Convention, and affirmed the decision not to grant the Applicant a protection visa.

The Application for Judicial Review

  1. The Applicant sought judicial review of that decision by means of an application filed on 11th July 2006. In that application he sets out ten grounds:

    1)The Refugee Review Tribunal has failed to see that the applicant satisfied the definition of ‘refugee’ in Article 1A(2) of the Convention.

    2)The Refugee Review Tribunal failed to see that the applicant satisfies the four key elements of the Convention definition as stated by the Tribunal in page 3 of its decision.

    3)The Tribunal failed to see that the applicant was nervous at the time of hearing and the Tribunal should have considered the matter on its merits.  The Tribunal should not have stated that the applicant’s responses were very vague.

    4)The Tribunal erred in stating that ‘the Tribunal may not be satisfied that any documents that he intends to provide contain truthful and/or accurate information’. It is unfortunate that the Tribunal had concluded that the documents would not have truthful information, even before they were filed. This shows the closed and predetermined mind of the Tribunal. The applicant respectfully submits that there is no use in filing or giving any evidence to the Tribunal as the Tribunal is one-sided and is not prepared to listen to the woes of the applicant.

    5)In the facts mentioned above it is stated that the applicant has been denied fair and proper trial OR the principles of natural justice that has been denied to him by the Tribunal.

  2. The next ground is again labelled “5” and says:

    5)The Tribunal failed to take seriously about the activities of BJP and RSS. The Tribunal had refused to hear or accept any real happening, but was always looking at ways to dismiss the claim of the applicant.

    6)The Tribunal failed to see that the police refused to take his complaint. The Tribunal failed to see that the applicant sought asylum as he could not get any kind of protection or help from any of the authorities.

    7)The Tribunal erred in stating that the applicant’s explanations are unpersuasive but it does not explain how it is unpersuasive.

    8)The Tribunal is not correct in saying that the applicant has not suffered convention related serious harm as contemplated by the Act.

    9)The Tribunal states (page 16) the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. But the Tribunal has failed to apply this to the applicant’s matter.  The applicant was not allowed by the police to register a case against those who had harmed him.

    10)It is strange that the Tribunal has relied on the report from some other country in the year 2000, rather than the real facts stated by the applicant.  The applicant seeks leave to file additional grounds if required at a later stage.

  3. First of all, the Applicant has not filed any additional grounds.  He did not file an amended application, although there was no compulsion upon him to do so, nor did he file any written submissions. The Applicant attended the hearing and sought to tender some additional documentary evidence. That tender was refused as the Applicant said that none of that material had been before the Tribunal. 

  4. The Applicant told the Court that he had been denied natural justice and that Muslims were a minority in India, right throughout India.  


    He did not believe the Tribunal had gone into his matter seriously. He raised the question that the Tribunal had exhibited some bias towards him as alleged in his claim. He referred to the reference to document fraud, but said his documents were original documents and he did not produce fraudulent documents. He had produced references from members of parliament, and they were people who knew him personally. He pointed out that it was difficult for members of a minority to obtain state protection, and that the police did not consider minority groups. Money changes hands and people such as himself are at a disadvantage accordingly. He reiterated that he was not able to relocate to another part of India due to the language problem. 

  5. I have read through the written submissions prepared by the solicitor for the First Respondent Minister, and I have again considered the oral submissions.

  6. Dealing with the grounds of the application, the first two grounds are in my mind a challenge to the factual findings of the Tribunal. The third ground alleges that the Applicant was nervous at the time and criticises the Tribunal’s decision that the Applicant’s responses were very vague.  Those three grounds do not disclose a ground for review.

  7. The fourth ground is a complaint about the reference by the Tribunal to document fraud and its prevalence in India, which was referred to in the s.424A letter. The Applicant was of the view that this was one element which would indicate that the Tribunal was prejudiced or had a closed mind. It was submitted by the solicitor for the Respondent, and I believe correctly, that the comments about document fraud at the hearing and also in the s.424A letter do not disclose a closed mind; that the issue was being raised with the Applicant in that letter so that he could deal with it in his reply.

  8. There is a claim of a denial of natural justice, but I am not satisfied that any denial of natural justice has been shown and I am mindful also that the operation of s.422B of the Migration Act does not allow the application of the common law natural justice hearing rule. I refer to the decision of SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62, and also Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61.

  9. The second ground 5 contains an allegation that the Tribunal failed to take the activities of the BJP and the RSS seriously, and again whilst that is a complaint about a factual finding the rest of the ground alleges that the Tribunal refused to hear or accept any real happenings, and was always looking at ways to dismiss the claim of the Applicant. Insofar as there is a claim of bias or bad faith raised, I am of the view that that has not been shown. It is well established by the Full Court of the Federal Court in decisions such as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] and [44], bias or bad faith is a serious matter as it alleges personal fault on the part of the decision maker and must be strictly alleged and strictly proved. It is always difficult to establish, especially when all that is relied on is the written reasons of the Tribunal. I am not satisfied that any bias, either apprehended or actual bias, has been made out.

  10. The sixth ground is a challenge to a finding of fact made by the Tribunal.  It is the administrative decision maker that is the fact finder, and the Court does not undertake a merits review, i.e. a challenge to the finding of facts, when conducting judicial review. 

  11. The seventh ground attacks the Tribunal’s finding that the Applicant’s explanations were unpersuasive.  That finding of course led to an adverse credibility finding. But credibility, being a finding of fact, is solely within the province of the administrative decision maker, provided that there is evidence upon which such a finding can be made.  Again, no ground of review has been made out.

  12. The eighth ground alleges that the Tribunal was not correct in saying that the Applicant had not suffered convention related serious harm which is no more than a challenge to a factual finding. 

  13. The ninth ground is an attack on the Tribunal’s finding of the availability of state protection, and is basically again a challenge to a factual finding.

  14. The tenth ground is a comment on the independent country information relied upon by the Tribunal. To the extent that the Tribunal relies upon independent country information, it is well established that that is a matter entirely for the Tribunal. 

  15. The Tribunal was not satisfied upon hearing the Applicant’s evidence, and reading the Applicant’s evidence, that the threats of harm to him made by suppliers or customers were convention related and the Tribunal rejected the Applicant’s claims on the basis of membership of a particular social group or membership of a religious minority.  


    The Tribunal made certain findings adverse to the Applicant’s credibility arising from fresh claims on serious matters having been raised for the first time at the Tribunal. The Tribunal dealt with that by the s.424A letter raising those issues with the Applicant and giving him the opportunity to comment on those issues after the hearing.


    There was no breach of s.424A of the Migration Act. Indeed, it appears to be an appropriate use of that particular section.

  16. In short, I am not satisfied that any jurisdictional error has been made out. I read through the decision myself and I cannot discern any jurisdictional error not raised by the Applicant.  I am mindful of the fact that the Applicant is not legally represented, although he did elect to take part in the Refugee Review Tribunal panel legal advice scheme and although the Applicant confirmed at the hearing that he did not attend the interview with the barrister who had been assigned to provide him with legal advice.  That is regrettable, but that is a matter for the Applicant.

  17. As there is no jurisdictional error I am satisfied that the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. As it is a privative clause decision it is final and conclusive and it is not subject to certiorari or mandamus or any other constitutional writ.

  18. The application will be dismissed. 

  19. There is an application for costs on behalf of the First Respondent Minister.  Costs usually follow the event, and this is a case where I can see no reason to depart from that practice.  The amount of costs has been estimated at $3,900.00, and I am of the view that that is appropriate in the circumstances of this matter.  The Applicant, however, has pointed out that he does not have the funds to meet that amount without a considerable amount of difficulty.  He is a casual labourer and the work that is given to him can vary, but it means that at times his funds are limited.  I accept that, I see no reason to doubt that.  That is a matter to take into account as far as allowing time to pay is concerned, and whilst I propose to make the order for costs, I do propose to allow time to pay.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM.

Associate:  V. Lee

Date:  16 November 2006

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