SZJEZ and Minister for Immigration and Anor - [2008] FMCA 914

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEZ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 914

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth) ss.36, 424A, 425

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 94
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZFLL v Minister for Immigration & Citizenship (2007) FCA 355)
SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 1359

Applicant:

SZJEZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3104 of 2007

Judgment of:

Barnes FM

Hearing date:

27 June 2008

Delivered at:

Sydney

Delivered on:

27 June 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3104 of 2007

SZJEZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 20 September 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in August 2004 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal in October 2004.
The Tribunal, as originally constituted, invited the applicant to attend a Tribunal hearing. He did so. The Tribunal affirmed the decision of the delegate. The applicant sought review of the Tribunal decision by this Court. On 18 April 2006 orders were made by consent setting aside the Tribunal decision and remitting the matter for reconsideration.
The Tribunal as reconstituted wrote to the applicant under s.424A of the Migration Act 1958 (Cth) and invited him to attend a second Tribunal hearing, which he did. The Tribunal again affirmed the decision of the delegate not to grant the applicant a protection visa and the applicant sought review of that decision in this Court.
By consent orders made on 7 May 2007 this Court set aside the Tribunal decision and remitted the matter for reconsideration. The third Tribunal (as I will refer to it for convenience) again invited the applicant to attend a hearing, and he did so. It is the decision of the third Tribunal that is the subject of these proceedings.
In its reasons for decision the Tribunal set out the applicant's claims as made at various stages in connection with his protection visa application and at each of the Tribunal hearings. It summarised the claims as set out by the earlier Tribunals. It indicated that it had listened to the tapes of each of the hearings and found the Tribunal descriptions in the earlier decisions to be accurate, with some additions in relation to the first Tribunal hearing. It also summarised the evidence given at the third Tribunal hearing and noted developments and alterations in the applicant's claims.
The applicant claimed to be from Kerala in India. He claimed that he was a Hindu and an executive member of Sri Narayana Dharma Paripalana Yogam (the SNDP). He also claimed that he owned an umbrella shop and that he undercut competing shop owners who were Muslims. The applicant claimed that in November 2003 two Muslim men visited his shop, threatened him, beat him and cut his head. In his initial claims he mentioned that the PDP were powerful in India.

He also claimed to have incurred the displeasure of Hindu extremist movements by championing the case of the SNDP.
The Tribunal recorded that at the first Tribunal hearing the applicant indicated that the main cause of his difficulties was that “Muslims wanted to kill him because he was a Hindu” and he claimed for the first time that a “bomb had been thrown at his house and had killed his dog”. However the applicant also ascribed his troubles partly to political factors. He showed the first Tribunal a card that showed him to be a committee member of the district committee of the SNDP which was part of the governing coalition in Kerala state.
The Tribunal recorded that the hearing tapes of the first Tribunal hearing revealed that the applicant also claimed that the prime motivation for the attack against him was religion, in that he was a Hindu, and that a major factor was that he was a member of a Hindu party, the SNDP.
The Tribunal recorded that at the second hearing the applicant claimed to fear that members of the PDP party would kill him because he was a Hindu, in particular because as an executive member of the SNDP he was a “leader”.
When the second Tribunal discussed with the applicant the situation of Kerala he agreed that the state was majority Hindu. He also clarified that he had never had problems with Hindus and that it was wrong to claim that he had problems with Hindu extremists. Rather it was with Muslims that he claimed to have problems.
It is apparent from the Tribunal account of the third hearing, which is the only evidence before the Court, that the Tribunal endeavoured to clarify with the applicant the basis on which he claimed to fear persecution. Initially the applicant claimed that he had heard that Muslims from the PDP were looking for him. The Tribunal recorded that when it asked the applicant why he was targeted, he said it was because of his membership with the SNDP and that he was being targeted by the PDP Muslims. He clarified that he was an executive member and explained what this role involved. The Tribunal put to the applicant, and he confirmed, that he was claiming that he was targeted by PDP members as he was an executive member of the SNDP.

He subsequently confirmed that he was targeted because he was an executive member of the SNDP and because he owned an umbrella shop that competed with Muslims.
The Tribunal asked the applicant if he did not have the shop whether he would have been, as the Tribunal put it, “fine” and the applicant is recorded as saying that “even by being an executive member that is the problem”. The Tribunal put to the applicant that other executive members of the SNDP could live safely in his hometown and the applicant stated that what made him different was the combination of the problem with the shop and his executive membership of the SNDP and claimed that executive members elsewhere were safe because there was no domination of Muslims.
The Tribunal also put to the applicant that it “could find no independent country information on attacks on SNDP members in Kerala” by persons other than SNDP members. When the applicant claimed that there had been a bomb in his local area recently, the Tribunal reiterated that it could find no information on such attacks on SNDP members, including any attacks on SNDP members by PDP members in Kerala. The Tribunal also confirmed with the applicant that he was claiming to be targeted by Muslims and not by Hindu extremists.
The Tribunal put to the applicant country information in relation to freedom of movement in India, the possibility that he was only attacked in his shop because of commercial reasons and not for a Convention-related reason and its concern that he claimed to fear attack as an SNDP member when other executive members had not been attacked and when there were no reports of attacks on SNDP members by the PDP. The applicant reiterated his claim that it was because of his shop and membership of the SNDP and because his area was dominated by Muslims.
The Tribunal wrote to the applicant under s.424A of the Act putting to him a number of issues of concern, including the absence of country information to support his claims, inconsistencies in his claims and the initial absence of a claim in relation to the bomb. The applicant responded to this letter, reiterating his claims and suggesting that if the Tribunal was unable to find any country information then he should “not be penalised”, that the Tribunal should give him the “benefit of the doubt”, that the Tribunal was wrong in suggesting that the “essential reason for the attack was not for a Convention reason but rather for commercial reasons” and that the “assumptions of the Tribunal were imaginary and not practical”.
In its reasons for decision the Tribunal set out independent country information in relation to matters such as the SNDP, its political activities and the PDP. The Tribunal noted that no independent information was found in relation to attacks on members of the SNDP from 2003 to date or violence by PDP party members against SNDP members in Kerala from 2003 to date.
The Tribunal summarised the applicant's claims to fear persecution because he would be targeted by PDP Muslims as he was an executive member of the SNDP in his home town in Kerala from 2000 to 2004 who owned an umbrella shop which undercut competing shop owners who were Muslim. The Tribunal accepted that the applicant may have been targeted by Muslim shop owners in November 2003 for undercutting other umbrella sellers and also that he may have been an executive member of the SNDP. However it did not accept his claim that he was targeted by the PDP for those two reasons combined. It found his testimony as to who “perpetrated this act and the reasons for it … inconsistent with independent country information, and implausible amounting to a fabrication” for reasons which it set out.

It found that the applicant had not been targeted in India by the PDP for a Convention-related reason, but rather for commercial reasons by Muslim shop owners “for selling umbrellas cheaply”. It also found, having regard to his evidence, that as he had stopped selling umbrellas and sold his shop, other Muslims would not harass him for selling umbrellas in the future.
The Tribunal detailed searches it had made for independent country information and the absence of information of attacks on SNDP members or by PDP members on SNDP members from 2003. It found that there was “no objective evidence” to support the applicant's claims and that it expected that if the applicant had been attacked as claimed because of his membership of the SNDP then that also would have occurred to others, particularly those in higher positions, and there would be some country information on such attacks by the PDP.

It noted that vandalisation of an SNDP office allegedly by supporters of an ousted SNDP union president had been reported and found that it would have expected personal attacks on the SNDP and by the PDP to be reported.
The Tribunal considered the applicant’s reply to the s.424A letter to be general in nature and did not accept his argument that as the Tribunal was unable to find any country information he should be given the benefit of the doubt. In the absence of independent country information to support the claims, the Tribunal did not accept that the applicant was targeted by PDP members in 2003 because he was a member of the SNDP or for undercutting other Muslim umbrella sellers or for a combination of the two. Nor did it accept that his house was bombed by members of the PDP in 2003 or that members of the PDP had threatened him by coming to his home in India or that he would be killed by PDP members if he returned to India.
The Tribunal noted that the applicant claimed at the third Tribunal hearing that there was a bomb in his home town the week before the hearing, but given the lack of evidence of any attacks on the SNDP by the PDP it did not accept that this was evidence to support his claims. It did not accept his claim that his house had been bombed by members of the PDP in 2003 as he had not mentioned this in his statement attached to his protection visa application, but only at the first Tribunal hearing. It found that it would expect that such event would have been recalled in the original statement and that the applicant had not directly commented on this failure in his reply to the s.424A letter which had put this issue to him.
The Tribunal accepted that the applicant was an executive member of the SNDP, but did not accept that he would be targeted by PDP for this reason or that he would face any difficulties if he returned to Kerala for being a member of the SNDP. It found this claim to be inconsistent with the applicant's own evidence that other SNDP executive members were living safely in Kerala and noted the absence of country information on attacks by the PDP on SNDP members in Kerela.
The Tribunal considered the claim in the original application that the applicant was targeted by Hindu extremists. However at the hearing on 19 July 2007 he confirmed that his claim was that he was targeted by Muslim extremists, namely the PDP. It did not accept his initial claim that he had been targeted by Hindu extremists.
The Tribunal also addressed the applicant's claim at the first Tribunal hearing that he was targeted in India because he was Hindu.

It observed that at the second hearing he had said he was targeted as a Hindu because he was a leader and that at the third hearing he had said he was targeted for being an executive member of the Hindu SNDP party.
The Tribunal did not accept that the applicant would face persecution if he returned to India because he was a Hindu. While it accepted that he may have been targeted in the past for undercutting Muslim umbrella sellers and that he was also a Hindu, as he had sold his shop it did not accept that he would be targeted just because he was a Hindu. It had regard to the fact that Hindus constituted the vast majority of the population in India and the majority in his home state and other country information in relation to the situation of Hindus in India.
The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant sought review by application filed in this Court on 8 October 2007. That application contains eight grounds, in the last of which the applicant sought “permission to file additional grounds later if required”. He filed an amended application which also contained eight grounds, the last of those indicating that he wished to rely on the grounds in the amended application in addition to the grounds in the original application. All of the grounds were addressed in the first respondent's written and oral submissions and I considered each of those grounds. There is considerable overlap between them.
Before addressing the grounds in the application, I note that the applicant did not file written submissions. In oral submissions he took issue with the factual findings by the Tribunal and the merits of the Tribunal decision, indicating that for four years he had not been able to get any relief or a favourable Tribunal decision and taking issue with the Tribunal's failure to accept his factual claims. However, as I endeavoured to explain to the applicant, merits review is not available in this Court. The fact that the Tribunal did not accept the applicant's claims does not of itself establish jurisdictional error. Insofar as the applicant continued to reiterate that the Tribunal had erred in its findings in not accepting his claims in relation to what had occurred to him and the situation in India, such claims seek merits review and do not establish jurisdictional error on the part of the Tribunal. The Tribunal reasons for decision indicate that it considered the claims made by the applicant at various times. The fact that it reached an adverse conclusion does not of itself establish that it erred in the manner contended for by the applicant.
The applicant also claimed that his experience with the Tribunal was that it was not looking at his application, but trying to avoid the representations that he made. He claimed that the Tribunal didn't rely on his claims, but rather looked at other information to make its decision. This seems to be a contention that the Tribunal should have accepted the applicant's written and oral claims rather than having regard to independent country information or the absence of supporting independent country information, it was however open to the Tribunal to have regard to independent country information.
It is well established that the weight to be given to items of independent country information is a matter for the Tribunal. It was open to the Tribunal to take the view that there was no objective evidence to support the applicant's claims other than his oral and written claims in the absence of any supporting independent country information. It gave reasons for its expectation that there would have been country information had there been a basis for the applicant’s claims to fear attacks by PDP members as a member of the SNDP.

It also considered the applicant's reply to the s.424A letter in which it put the position in relation to independent country information to him for comment. It is clear that the Tribunal raised its concerns in this respect with the applicant and that he had an opportunity to comment. No jurisdictional error is apparent in the manner in which it dealt with the absence of independent country information and reached its decision in that regard. It did not simply reject his claims in the absence of corroboration. It had regard to the factors described, as well as the inconsistencies in the applicant’s evidence and the absence of a significant aspect of his claims in his initial statement.
Insofar as the applicant claimed that he would have difficulty in relocating within India, relocation was not a basis for the Tribunal decision in issue before the Court in these proceedings. While the applicant contended that his claims were true and that he should have been considered favourably, credibility is a matter for the Tribunal par excellence and the Tribunal findings were open to it for the reasons that it gave on the material before it.
The first two grounds in both the application and the amended application take issue with the fact that the Tribunal failed to find that the applicant met the definition of refugee in the Refugee's Convention. The amended application sets out the elements of the definition of refugee in the Refugee's Convention. These grounds do not identify any particular error in the manner in which the Tribunal approached its task under the Act, except to indicate disagreement with the Tribunal's conclusion. As indicated, such disagreement with the Tribunal conclusion does not establish jurisdictional error and insofar as it seeks merits review, merits review is not available in this Court.

No jurisdictional error is established on this basis. More generally no error of law or factual error giving rise to a jurisdictional error has been established.
The third ground in the original application is that the Tribunal was “wrong in relying on some third party sources and disregarding real things”. This is clarified in the amended application by reference to the Tribunal's discussion of independent information in its reasons for decision and its reliance on what the application describes as “background information instead of relying on the real facts by the applicant”. It is, however, open to the Tribunal to determine what evidence it has regard to including, independent country information as well as the evidence of an applicant and what weight it attributes to material from the applicant and to material from external sources.
No jurisdictional error is established by the Tribunal's reliance on independent country information. I note that this is not a case in which it was suggested that there was contrary independent country information before the Tribunal or available to the Tribunal to which it did not have regard. Rather it is claimed that the Tribunal should have believed the applicant's claims in preference to any other source of material. Insofar as this ground might be seen as taking issue with the Tribunal's reliance on an absence of information in the country information, it was open to the Tribunal to have regard to the absence of such information in light of the reasons which it gave in relation to an expectation that there would be such information in independent country information.

Whether or not the Tribunal was obliged to raise such an issue with the applicants (see MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 94, SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 1359 and SZFLL v Minister for Immigration & Citizenship (2007) FCA 355), in its s.424A letter of 26 July 2007 the Tribunal did raise the absence of independent country information documenting attacks on members of the SNDP in Kerala or by members of the PDP.

The Tribunal also indicated that it put such issues to the applicant at the Tribunal hearing in such a way as to put the applicant on notice of what may be dispositive issues in relation to the review of the decision of the delegate. (See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). No jurisdictional error is established on the basis contended for in ground three of the application or amended application.
Ground four of the original application is that “a reading of the decision of the Tribunal shows that the Tribunal had not applied its mind and had dismissed the matter in haste”. I have considered this ground generally and also as elaborated on in ground five of the amended application in which the applicant took issue with what is said to be the Tribunal's statement that “82% of the population in India were Hindus and therefore Muslims can not attack them”. It was contended that such a finding was “imaginary and not realistic”, that it relied on a “US State country report on India for 2005” and that the applicant was “surprised how the US report on India is used against [him]”.
The Tribunal did not make a finding in precisely the terms suggested by the amended application. Rather it did not accept that “the applicant will be persecuted for just being a Hindu as Hindus constitute the vast majority of the population in India (82%)” and the “majority in his State of Kerala (60%)” in relation to which it cited country information other than the US State Report. It went on to refer to other aspects of the situation in India by reference to the US State Report, in particular that while there was no State religion in India the “majority of citizens are followers of Hinduism, and this at times adversely affected the religious freedom of others rather than Hindus”. and that the “politicized inculcation of Hindu religious and cultural norms to the exclusion of others, influenced some government policies and societal attitudes for Hindus, rather than against them”. The Tribunal's reliance on such a source of independent country information does not establish “haste” or a jurisdictional error.

In particular there is nothing to support a claim that the Tribunal did not apply its mind to the matter or acted in any way that might be seen as amounting to a lack of procedural fairness, bias or apprehended bias.
A contention of bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982) is a serious allegation which needs to be clearly proved. There is no evidence on the material before the Court of predetermination by the Tribunal or that the applicant was not afforded a fair opportunity to present his claims or to establish an apprehension of bias from the perspective of the informed lay observer (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507). He was invited to and attended a hearing. Indeed, he attended three Tribunal hearings all of which were summarised by the Tribunal. Determinative issues were put to the applicant during the hearing as required by SZBEL and s.425 of the Act and also under s.424A of the Act. Neither actual or apprehended bias is apparent on the material before the Court.
Insofar as it is contended that the Tribunal made an error of fact regarding the religious composition of India, mere factual error by the Tribunal would not be grounds for judicial review unless it related to a jurisdictional fact or was a manifestation of some error of law constituting jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323). No such jurisdictional error is made out in this instance.
The fifth ground in the original application is that “the Tribunal is factually wrong in stating that the attack on the applicant was commercial, rather than for political or ethnic or religious reasons”. This ground seeks merits review and does not establish jurisdictional error.
The sixth ground is a contention that the Tribunal “committed error in saying that the applicant could relocate in India”. It was contended that “India is a multicultural country and it is more easier for [the applicant] to adopt the lifestyle here rather than in any other place in India”. However, as indicated, the Tribunal did not reach its decision on the basis that the applicant could relocate in India. This ground does not establish jurisdictional error.
The final substantive ground in the original application is that the Tribunal “failed to see that the applicant” had applied for a protection visa “as he could not get any kind of protection or help from the authorities” in his country. This ground appears to take issue with the availability of State protection. However the Tribunal considered but rejected any argument by the applicant that he would suffer persecution based on the fact that he was a Hindu. Nor did it accept that the applicant would face the prospect of harm as a member of the SNDP from the PDP or otherwise. Hence no issue of the availability of State protection had to be addressed in relation to such harm.
The Tribunal also did not accept that the applicant had been targeted by the PDP for reason of his membership with the SNDP and for undercutting other sellers of umbrellas. While it accepted that he may have been targeted by Muslim shop owners for undercutting other sellers of umbrellas in November 2003, it found that this was for commercial reasons and not for any Convention reason. Moreover in relation to the prospect of a well‑founded fear of future harm the Tribunal found that Muslims would not harass him for selling umbrellas cheaply in the future as on his own evidence he had stopped selling umbrellas and sold his shop. Ground seven is not made out.
Ground four in the amended application has been touched on. It takes issue with the fact that the Tribunal was unable to find country information “documenting attacks on members of the SNDP in Kerala from 2003 to date” and contends that if the Tribunal was unable to find such information “it is not the fault of the applicant” and that the applicant should have been given “the benefit of the doubt” and the application allowed, and that therefore “the applicant had been denied proper natural and fair justice”. However the Tribunal is not obliged to accept at face value the claims made by an applicant. It is entitled to have regard to all of the evidence before it, including an absence of corroborative or supporting evidence, or objective evidence, and is entitled to make findings and draw inferences on the basis of that evidence. Insofar as this ground takes issue with the Tribunal’s factual findings, as indicated fact finding is a matter for the Tribunal.

No jurisdictional error is established on the manner in which the Tribunal went about making its findings of fact.
Ground five reiterates a ground in the original application. There is no ground six.
Ground seven in the amended application is that the Tribunal should have given the applicant “more time and opportunity” and “should not have concluded that he did not satisfy the criteria in s.36(2)(a)” of the Migration Act. There is no evidence before the Court that the applicant sought further time or an opportunity to put further evidence before the Tribunal. The Tribunal decision was made some time after the applicant first sought review in October 2004. There is nothing in the material before the Court to support any claim that he did not have the opportunity to present his claims and give evidence to the Tribunal. The applicant attended three different Tribunal hearings. His evidence at each of those hearings was taken into account by the third Tribunal. I note that although the applicant was not able to produce his SNDP membership card at the last hearing, he had done so at an earlier Tribunal hearing and the Tribunal accepted that he was an executive member of the SNDP.
There is nothing in the material before the Court to suggest that the Tribunal erred in the manner contended for in ground seven of the amended application such as to give rise to a jurisdictional error.
As no jurisdictional error has been established the application must be dismissed.

RECORDED: NOT TRANSCRIBED

The applicant has been unsuccessful and there is nothing in the circumstances before me to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. I consider that the amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 July 2008