SZJJC v Minister for Immigration
[2007] FMCA 1986
•5 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJJC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1986 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision –visa – protection visa – refusal – information contained in the applicant’s statement to the first respondent’s department was not “information” for the purposes of s.424A of the Migration Act – the Tribunal’s conclusions were not “information” for the purposes of s.424A – merits review not available in judicial review proceedings. |
| Migration Act 1958, ss.424A, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZJJC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1956 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 November 2007 |
| Date of Last Submission: | 20 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2007 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Mr. H. P. T. Bevan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1956 of 2007
| SZJJC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was a member of the Peoples War Group (“PWG’). He decided to join the PWG and smuggled weapons, ran messages and food for the members of the PWG and he alleges that this subsequently led to him being arrested by the police. Eventually the applicant decided to leave the PWG but he was then tortured and threatened by other members of the PWG. He also alleges that while in India he faced discrimination and threats from Hindus because he is a Muslim. The applicant arrived in Australia on
5 January 2006.
The applicant claims to fear persecution in India because of his former membership of PWG and his Islamic faith.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 5 April 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 21 July 2006 which was quashed by order of this Court (Court Book (“CB”) page 69).
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 9 the Tribunal’s decision (Court Book (“CB”) pages 92 to 97). Relevantly, they are in summary:
Protection visa application
In a statement attached to his protection visa application, the applicant made the following claims:
a)he is a Muslim from Hyderabad;
b)he witnessed communal riots among Muslims and Hindus. Every time this happened he faced big losses in business and in 1984 his shop was burnt down by an angry Hindu mob;
c)the police supported the majority and the applicant was part of the minority. His father was in the public service and was threatened and forced by senior officers to resign his job;
d)the applicant became a member of the All India Revolutionary Student Federation (“AIRSF”) of the Communist Party of India (“CPI”) in 1992;
e)the PWG carried out violent attacks on the government and top extremist politicians. The applicant informed its members about police movements and helped smuggle weapons and food;
f)during 1993 and 2001 the applicant travelled extensively around India to attend PWG meetings, carry documents and messages as well as buying food for the family business;
g)in 2000 the applicant travelled with his mother to Saudi Arabia and whilst there he felt he should settle down peacefully as his actions were dragging him into danger. A close friend, another member of PWG, informed senior members of the applicant’s plan to leave the organisation. The applicant claims that he was locked up for four days and tortured and beaten because of his refusal to help and be part of the organisation;
h)the applicant claims that the PWG hurled a crude bomb at his house injuring his wife. The PWG also informed the police that he was a member so that they could eliminate him if the applicant escaped from the PWG’s clutches;
i)the applicant claims he fears persecution from both the police and the PWG;
j)the applicant kept moving around the country but was chased by PWG agents in all the cities; and
k)on 12 November 2004 the applicant was confronted by the police special task force set up to curb the PWG. He was taken to their offices for questioning and offered an escape if he became their informer.
Application to the first constituted Tribunal
The applicant made the following additional claims in a statement attached to his application to the first constituted Tribunal:
a)the considerable corruption in India made it possible for the applicant to bribe officials in order to obtain a passport;
b)it was not possible for PWG members to relocate within India; and
c)the fact that the applicant was a business owner did not preclude him from being a member of the CPI.
Evidence at first Tribunal hearing
At the hearing before the first constituted Tribunal the applicant also said that he believed he joined the PWG in the middle of 1993 and stayed a member under 2000.
Second constituted Tribunal
In his oral evidence to the second constituted Tribunal hearing, the applicant made the following claims:
a)his business was burnt down in 1992 and 1993 by politically active Hindus;
b)he wanted to join the Congress Party even though it is a mainstream Hindu party because he had heard that the Congress Party looks after everyone;
c)he was threatened by members of the PWG who told him that they would take his life if he attempted to join any other party;
d)he refused to be an informant for the PWG and because of this he was tortured;
e)the Hindus also tortured him because they wanted him to give them information about the PWG; and
f)he also feared harm from the local Hindus who knew that he was a successful businessman.
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 under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was a credible witness;
b)the Tribunal found that the applicant’s knowledge of the PWG was extremely limited and it did not accept that this was consistent with his claim to have been a member of the PWG or to have had an association with the PWG;
c)the Tribunal considered that the applicant’s evidence in his written statement and oral evidence at both Tribunal hearings in relation to:
i)his involvement with the PWG, including whether he joined in 1990 or 1991;
ii)his knowledge of the PWG’s violent activities;
iii)his role within the PWG; and
iv)the reasons for his resignation of the PWG
was extremely inconsistent;
d)the Tribunal did not accept that the applicant was or had been a member of the PWG, or that he had been a member of the AIRSF or a member of the CPI. It did not accept that he had been targeted by police or Hindus or by the PWL because of his alleged involvement with the PWL. Nor did it accept that he was perceived as a member of the PWG, the AIRSF, the CPI or any other political groups, or would have suffered harm as a result of association with such groups;
e)the Tribunal did not accept the applicant’s claims that his shop was burnt down by Hindus at any time or that when this occurred an attempt was made on his life, noting that the applicant’s evidence on these subjects was inconsistent;
f)the Tribunal did not accept that the applicant attempted to join the Congress Party and was harmed by Hindus as a result of this attempt. Nor did it accept that he had sought and been refused police assistance as a result of this claimed harm, noting that the applicant had given evidence concerning his claim to fear harm by reason of his religion which the Tribunal did not accept was credible;
g)the Tribunal did not accept that his business had been targeted or that he had been prevented from operating a successful business by reason of his religion;
h)the Tribunal also did not accept that the applicant had been targeted by Hindus for reasons of his Muslim religion; and
i)the Tribunal did not accept that such involvement in politics as his father may have had resulted in any harm to the applicant.
Proceedings in this Court
The grounds of the application are pleaded as follows:
1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error when the Tribunal did not give the applicant of the information as required by s424A of the Migration Act 1958 (the Act).
2. The Tribunal made a jurisdictional error when the Tribunal did not inform the applicant regarding the inconsistent evidence between his written statement and oral evidence at both Tribunal hearings in relation to his involvement with the PWG and other information …
3. The Tribunal made a jurisdictional error when the Tribunal did not give the applicant the information regarding that the applicant’s fear for harm in India as Muslim and the applicant’s evidence between his statement to the Department and his oral evidence at the second Tribunal hearing was highly inconsistent on this Muslim issue.
4. The Tribunal made a jurisdictional error when the Tribunal did not give the applicant regarding the problematic evidence on joining in the Congress Party issue.
5. The decision of the Tribunal was not fair and just because (a) the Tribunal accepted that the applicant’s business has suffered loss in India and has been forced to close (b) the Tribunal accepted that there are communal violence between Hindus and Muslims in India and that has have occurred in the applicant living place but the Tribunal did not accept that the applicant does not have any fear for harm but the Tribunal did not give any evidence and reason according to s430 of the Act.
Breach of s.424A
The first four grounds pleaded in the application raise alleged breaches of s.424A of the Act.
In relation to the first of these, at the outset it should be noted that it is un-particularised. The applicant has not identified what information relied upon by the Tribunal should have been, but was not, notified to him pursuant to s.424A(1). This is particularly significant given that the Tribunal did write to the applicant on 4 April 2007 putting him on notice of matters in accordance with s.424A(1). In reaching its decision to affirm the delegate’s decision the Tribunal referred to information which the applicant had supplied to the Minister’s department and to information given by the applicant at the Tribunal hearings which had not been included in his statement to the department. However, all of these matters were raised by the Tribunal in its letter of 4 April 2007 and thus, to the extent that the Tribunal had any obligations pursuant to s.424A(1) in respect of such information, they were discharged.
But in the event, SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 shows that the relevant parts of the applicant’s statement to the department were not “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review” (at 1196 [21]).
It may be that the applicant suggests that the conclusions drawn by the Tribunal from the information which was before it amounted to “information” for the purposes of s.424A. That is not the case: SZBYR’s case. Similarly, the applicant might be suggesting that the Tribunal’s reliance upon independent country information generated obligations under the section. However, that information falls within the exception found in s.424A(3)(a) and thus no s.424A obligations did arise in relation to it.
Consequently, no jurisdictional error is demonstrated in respect of the first pleaded ground of review.
The second pleaded ground of review raises no issues of substance different from those raised by the first asserted ground of review except to the extent that it is expressed in more detailed terms. Even so, inconsistencies between the contents of the applicant’s statement and the evidence he gave to the Tribunal were clearly set out in the Tribunal’s letter of 4 April 2007 and thus, on the facts, this ground is not made out. Moreover, the same considerations apply to this ground as to the first ground of review and thus no jurisdictional error is demonstrated in connection with it.
As to the third pleaded ground, the Tribunal’s letter of 4 April 2007 specifically raised the applicant’s claim to fear harm in India because of his religion. For the same reasons as given in respect of the second pleaded ground, this ground is also not made out.
As to the fourth pleaded ground, again, the issue of the applicant’s alleged attempt to join the Congress Party was specifically raised in the letter of 4 April 2007. Consequently, for the reasons given in respect of the second pleaded ground no jurisdictional error is demonstrated in respect of this aspect of the application.
Decision not fair and just and breached s.430
This allegation that the Tribunal’s decision is not “fair and just” is an invitation to the Court to reconsider the merits of the review application which was brought to the Tribunal. However, the Court’s role is only to consider whether the procedures adopted by the Tribunal, including the articulation of its reasons, are procedurally fair. It cannot be concerned with whether the decision of the Tribunal is a fair one. The applicant invites the Court to do something which it cannot do and, even were the Tribunal’s decision not “fair and just” in the sense that term is used in the application, that would not amount to jurisdictional error on its part.
As to the allegation that the Tribunal breached s.430 of the Act, s.430(1) provides:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
A consideration of the Tribunal’s decision in this case demonstrates that it referred to the evidence it relied upon in making findings of fact and it set out its findings on material questions of fact. These findings grounded the reasons expressed to be the basis of its decision. By undertaking a detailed, logical and cogent exposition of the matters which it had to consider and the conclusions which it reached in respect of those matters, the Tribunal has complied with its obligations under s.430 of the Act.
Consequently, the final asserted ground pleaded in the application does not demonstrate jurisdictional error on the part of the Tribunal.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 5 December 2007
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