SZJMT & Anor v Minister for Immigration & Anor
[2007] FMCA 1615
•19 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1615 |
| MIGRATION – Visa – Protection Visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming a decision not to grant a protection visa – citizens of India claiming fear of persecution for reasons of religion and political opinion – no reviewable error. |
| Migration Act 1958 (Cth) ss.36, 65, 91R, 91S, 424A, 425, 474 |
| Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 |
| First Applicant: | SZJMT |
| Second Applicant: | SZJMV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2943 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 September 2007 |
| Date of last submission: | 19 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicants are to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2943 of 2006
| SZJMT |
First Applicant
| SZJMV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants are citizens of India. They ask the Court to make orders quashing or setting aside the decision of the Refugee Review Tribunal that was signed on 29th August and handed down on 21st September 2006 affirming a decision of a Delegate of the Minister not to grant them protection visas. They had sought protection for the reason that the First Applicant, who is the husband of the Second Applicant, fears persecution in India for expressing his views about the slaughtering of cows.
The First Applicant also claimed to fear harm arising from his political activities. He further claimed that he was old and there was no one to take care of him in Gujarat in India.
The Applicants also ask the Court to make a declaration that the decision of the Refugee Review Tribunal was null and void and of no effect. They ask for an order in the nature of mandamus remitting their application for protection visas to the Tribunal for re-hearing and presumably re-determination in accordance with law.
They further ask for a writ of prohibition restraining the First Respondent, now the Minister for Immigration & Citizenship, from acting on the decision of the Second Respondent, the Refugee Review Tribunal. In the alternative they ask for an order restraining the Minister from serving removal orders upon them pending the determination of their application.
The Applicants rely on two grounds. First, that the Tribunal erred in making findings as to whether or not the First Applicant had a well founded fear of persecution and second they claim that the Tribunal fell into error by failing to provide procedural fairness.
Background
The background to this matter is that the Applicants arrived in Australia on 19th March 2006. I understand that the decision wrongly identifies their date of arrival in Australia and their date of application for a protection visa as 2005. However, they arrived on 19th March 2006 and applied for Protection (Class XA) visas on 3rd May 2006.
A Delegate of the Minister, then the Minister for Immigration & Multicultural Affairs, refused their application for visas on 22nd June 2006. The Applicants then, on 11th July in that year, applied to the Tribunal for a review of that decision. The Tribunal wrote to the Applicants on 27th July and invited them to attend a hearing on 28th August 2006. The Applicants attended the hearing and the First Applicant, the husband, gave evidence.
The Tribunal had previously written to the Applicants under the provisions of s.424A of the Migration Act on 24th July 2006. That letter was headed, "Invitation to Comment on Invitation" and told the Applicants that the Tribunal had information that would, subject to any comments they made, be the reason or part of the reason for deciding that they were not entitled to a protection visa.
The information was set out in a two page attachment and invited the Applicants to comment on that information. The letter also told the Applicants that the information was relevant because, for the reasons in the document and subject to their responses, the Tribunal may make adverse findings about the protection visa application. The Applicants replied to that letter and provided written comments on 14th August 2006 in a two page letter.[1]
[1] Court Book 68-69
The letter told the Tribunal that the Applicant was an old aged person and, in passing, I note that he attained the age of 56 on 1st June this year, who did not believe in non-slaughtering or eating meat of a cow, which is regarded as very sacred in the Hindu religion. The mere fact that the Applicant ate cow's meat was enough to infuriate his Hindu relatives and neighbours and he claimed to have been beaten up a couple of times by Hindu fundamentalists for his anti-Hindu views.
He also claimed that his small diamond business was destroyed and he was seriously injured in 2005. The Applicant went on to complain that the Delegate of the Minister failed to understand that the relocation of the Applicant was not possible to any part of India, first because the Applicant was “an old aged person” who can only speak Gujarati and his relocation to other states or parts of India would create economic hardship for the First Applicant and his family.
The comments provided by the First Applicant indicated that he would also be submitting evidence to the Tribunal proving that he feared serious harm as soon as he got that material from India. On the day of the hearing the First Applicant gave evidence. The Second Applicant, his wife, was present and even though the Tribunal informed her that she may assist her husband in providing evidence the Tribunal records that she declined that invitation although she could be quite clearly heard speaking with the Applicant throughout the hearing.[2]
[2] Court Book 86
The Tribunal signed its decision on 29th August and handed that decision down on 21st September 2006. A copy of the Tribunal decision record can be found in the Court Book at pages 81 through to 91. In the decision the Tribunal sets out the relevant law referring to sub-section 65(1) of the Act, sub-section 36(2) of the Act in which a criterion for a Protection (Class XA) Visa is set out and refers to the definition of refugee and refers to s.91R and s.91S of the Migration Act.
The Tribunal set out the Applicant's claims and evidence on pages 84 and 85 of the Court Book. The Tribunal noted that the Applicant applied for a protection visa claiming to fear persecution in India for reasons of:
Politico, social and particularly religious beliefs.[3]
He claimed that he did not consider the slaughtering of a cow to be prohibited which infuriated a number of religious leaders and also infuriated a local member of parliament.
[3] Court Book 84
He claimed that the local people in particular and Hindus in general, were out to physically harm and kill him and his diamond business was destroyed for that reason. He claimed to have been physically harmed by Hindu fundamentalists and threatened for going against the Hindu sacred religious value. He claimed he would not be able to support himself and his family because his diamond business was destroyed.
He claimed to fear harm from Hindu Pandits or priests and from the BJP and even from common Hindu people. He did not believe that the Indian authorities would be willing or able to protect him if he were to return to India. The Tribunal referred to the letter that it wrote to the Applicant on 24th July 2006 under the provisions of s.424A of the Migration Act and set out a summary of the Applicant's comments in reply from his letter of 14th August 2006.[4]
[4] Court Book 85
The Tribunal noted the Applicant's claim in that document, that he would submit evidence to the Tribunal proving that he feared serious harm as soon as he got that material from India and noted that at the Tribunal hearing the Applicant again claimed that he wished to provide further evidence. However, the Tribunal would not grant an adjournment for that purpose for these reasons:
That said, given the applicant had originally submitted his protection visa application on 3 May 2006 I am satisfied he has had reasonable opportunity to submit his evidence. Secondly, after discussing it with him at the Tribunal hearing I was not satisfied the evidence was sufficiently relevant to his case to warrant further delay. The Tribunal therefore does not intend to delay drafting and finalising its findings and reasons.[5]
[5] Court Book 85
The Tribunal's findings and reasons are set out at pages 87 through to 91 of the Court Book. The Tribunal accepted that the Applicants were nationals of India having seen photocopies of their passports. The Tribunal then set out its findings and reasons under these headings:
a. Credibility;
b. The killing or eating of Cows in India;
c. The Applicant’s other political activities in India; and
d. Other matters.
Dealing first of all with credibility the Tribunal noted at 86 that:
The applicant claimed to have suffered an injury in January 2005 which may have caused him to forget matters relevant to his case. He provided a doctor's report claiming the applicant was under a doctor's observation for five days in August 2005 for reason of a head injury.
The Tribunal went on to note that:
No other relevant evidence was provided, notwithstanding the applicant had initially lodged his protection visa application on 3 May 2006.
The Tribunal referred, however, to some difficulties that the Applicant seemed to exhibit at the hearing:
At the Tribunal hearing I would also state that the applicant did not always appear able to immediately respond to questions put to him, however, as his wife was in attendance with him at the Tribunal hearing I advised her she may assist her husband (the applicant) in providing evidence. I would also state that though the applicant wife declined this invitation she could be quite clearly heard speaking with the applicant throughout the hearing. (I state here the hearing was conducted by video link to Griffith).
The Tribunal noted that it had put its concerns to the Applicant about his evidence by way of a s.424A letter and noted that:
It was not satisfied with the applicant's inconsistent evidence provided in the course of the Tribunal hearing should necessarily be attributed to his alleged had injury.
The Tribunal in fact found that the Applicant appeared to be able to provide evidence but some of his inconsistencies appeared to have been provided, at times it may be thought the new evidence was more opportune to his case. The Tribunal said:
That is, the present Tribunal member was satisfied the applicant was prepared to embellish, if not fabricate, his claims in order to support his claim to invoke refugee protection obligations to Australia.[6]
[6] Court Book 86
The Tribunal was not satisfied that the Applicant husband was a witness of truth. It went on to find that none of the Applicant's material claims to invoke protection obligations were true. Dealing with the killing and eating of cows in India the Tribunal noted the Applicant's claim in this regard and noted that at the hearing when the Applicant was asked why he feared returning to India one of the Applicant's claims at hearing was that he feared persecution for expressing his views about the slaughter of cows.
However the Tribunal said that it proved difficult to elicit his relevant claims. The Tribunal noted that the Applicant made no claim to have discussed those claims outside his home or in any other way that would satisfy the Tribunal that he had a real chance of being subjected to persecution for his expressed views in India. The Tribunal found:
Notwithstanding the applicant's assertions to the contrary, the Tribunal was not satisfied he has a real chance of persecution in India for having discussed the slaughter of cows in his own home.
The Tribunal recorded its difficulties in obtaining a satisfactory answer from the Applicant about certain matters, including where he had lived in India and for how long. Noting that the Applicant claimed to have gone into hiding the Tribunal found:
I am therefore satisfied the applicant submitted the claim to have gone into hiding between the alleged incident of January 2005 and his departure from India in March 2006 for the sole purpose of enhancing his claim to invoke refugee protection. I therefore am satisfied this claim was false. This is also a further reason I ultimately concluded the applicant was not a witness of truth.[7]
[7] Court Book 88
The Tribunal noted the Applicant's claims that the political, religious Hindu fundamentalists had physically harmed him in the past and socially isolated him. He claimed to have operated or owned a diamond factory in Gujarat which factory was attacked by 10 to 15 people whom the Applicant did not know.
The Tribunal asked the Applicant who had attacked his family and the Applicant said he did not know them. The Tribunal then put to the Applicant certain items from Country Information about a purported conflict between Muslims and Hindus in Gujarat state. The Tribunal noted the Applicant's claim to have been physically harmed two or three times but also noted:
However, when questioned about this at the Tribunal hearing he changed this claim and confirmed he had only been physically harmed on one occasion.
The Tribunal believed that this was a further example of the Applicant's willingness to embellish or fabricate his claims. The Tribunal did not accept the Applicant had a real chance of being subject to persecution from Hindus, Pandits or from the BJP or other people. The Tribunal was satisfied that whatever harm to which the Applicant was allegedly subject was not sufficiently serious to constitute persecution for the purposes of the Refugee's Convention.
Turning to the Applicant's other political activities the Tribunal noted that the Applicant claimed to fear harm arising from these activities and the Applicant agreed that he had not made the claim previously[8]. He claimed to fear opposing political parties in Gujarat and claimed to have been associated with the Congress Party. The Tribunal, on analysing his evidence, was not satisfied the Applicant would even be known by opposing political parties or groups anywhere in India. The Tribunal also noted:
The applicant claimed that after the January 2005 incident at which time he claimed to have suffered a head injury, he was not able to remember all his relevant claims. In the circumstances of this case I have decided to reject this claim as sufficiently explaining his alleged inability to put his case.[9]
[8] Court Book 89
[9] Court Book 89
The Tribunal then gave reasons. The Tribunal then turned to the Applicant's advice that he could provide more evidence abut his political activities after the hearing. The Tribunal had this to say:
Again it proved difficult to elicit his relevant claims. It appears to the Tribunal the applicant on one occasion wished to provide further evidence, later agreed he did not wish to provide further evidence and apparently kept changing his mind. Be that as it may, the Tribunal discussed this claim with him at the Tribunal hearing and the evidence he allegedly sought to provide with the above mentioned hospital report and the municipal council report. As set out at the end of the above claims in evidence, the Tribunal is not satisfied it is necessary to provide more time to submit this evidence.[10]
[10] Court Book 89-90
The Tribunal did not accept that the Applicant had a real chance of persecution for reasons of his other political activities.
The third heading was "Other Matters" which included the Applicant's claim to be old and that there is no one to take care of him in Gujarat. The Tribunal understood this to mean that his daughters, with whom he claimed to have lived for some time, were not able to take care of him. However, the Tribunal was not satisfied that this claim invoked refugee protection obligations in Australia.
The Tribunal stated that it had considered the Applicant's claims cumulatively and remained not satisfied that he invokes refugee protection obligations in Australia. All in all the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol but affirmed the decision not to grant the Applicants Protection (Class XA) visas.
Application for Judicial Review
The Applicant in his amended application relies on two grounds. First that the Tribunal erred in making findings of well founded fear. One, it failed to apply the real chance test and instead offered him the balance of probability test. Two, in adopting an unduly harsh approach to the well founded fear. Three, the Tribunal failed to assess the harm from the prospective of the persecutor instead of assessing the harm from the prospective of putative persecutor. Particulars of this rather cryptic claim are that:
The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persectuee asking why he would be harmed rather than addressing as to the motive that the Tribunal member may have in harming the applicant.
It is difficult to understand this claim in that it does not seem to be alleged that the Tribunal Member would have any motive for harming the Applicant.
The fourth part of the claim is that the Tribunal identified wrong issues, asked itself the wrong questions, failed to consider relevant material and relied on irrelevant material. The particulars of that are that the Tribunal erred in asking questions and relying on the material from the prospective of the putative persecutee.
The second ground is a procedural unfairness ground in which the Applicant claims:
Apart from the common law procedural fairness, the Tribunal has failed to consider in accordance with the substantial justice and fairness.
The Applicant claimed that the Tribunal and the Delegate of the Minister for that matter, failed to accord procedural fairness when it (or they) did not give the opportunity to provide further information related to the Applicant's claim. The Applicant presented to the Tribunal a copy of a medical reference letter of his medical problems related to his head injury but the Tribunal discarded this evidence and did not count it as reliable evidence.
In making the decision the Applicant claimed that the Tribunal Member totally relied on the information prepared by the Respondent and did not give weight to any evidence presented by the Applicants. The Applicant made an oral submission to the Court saying that he would like to return to India due to his age, but because of circumstances he was not able to do so.
The First Applicant sought to tender some photographs taken of his diamond factory. Those photographs have been taken since the Tribunal decision was handed down and I indicated that I could not consider fresh evidence and refused the tender.
It appears clear that the Tribunal rejected the Applicant's claims due to its finding that the First Applicant's evidence was not credible and was not a credible witness. The findings as to credibility are findings of fact and provided that the Tribunal was open to it on the evidence before the Tribunal, there is no error. I am satisfied that the Tribunal's findings were open on the evidence before it. The Court cannot review the merits of the Tribunal's decision and there is no error of law let alone a jurisdictional error as counsel for the Respondent Minister submits in the Tribunal making a wrong finding of fact.
As to the Applicant's specific claims, first of all in the claim that the Tribunal failed to apply the real chance test but opted for the balance of probability test, there is no evidence of this. It does not appear anywhere in the Tribunal's reasons. The Tribunal in fact set out the real chance test at page 83 of the Court Book. The Applicant's claim that the Tribunal adopted an unduly harsh approach is, to my mind no more than a challenge to the Tribunal's factual findings and of course the Tribunal is the finder of fact and the one to make judgments based on those findings of fact.
Counsel for the Minister, Mr Reilly, in referring to ground 1(iii) of the Applicant's claim that the Tribunal failed to assess the harm from the prospective of the persecutor instead of assessing the harm from the prospective of the putative persecutee, submitted that it was impossible to understand the complaint in the absence of particularisation and specific reference to the Tribunal decision.
I am similarly in a position where I am unable to understand that claim and the particulars provided, which I have previously quoted, do not provide any assistance. The Applicant claims that the Tribunal identified the wrong issue, asked itself the wrong question, failed to consider relevant material and relied on irrelevant material but provides no particulars of that whatsoever. Again there is a particularisation claiming that the Tribunal relied on material from the perspective of the putative persectuee but it is difficult to understand what this means and the Applicant was not able to enlighten the Court.
There was also the complaint that the Tribunal did not provide the Applicant with procedural fairness. There is a reference to common law procedural fairness but it is well established by decisions such as Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 that common law procedural fairness is not a matter that the Tribunal needs to consider. Procedural fairness under the Migration Act is the matter that the Tribunal must consider.
The Applicant claims that the Tribunal did not give him the opportunity to provide further information about his claim. The Tribunal considered that request but set out at page 86 of the Court Book why it was unwilling to agree to it and why it did not consider that that was necessary. Of course it would have been open to the Applicant to make a post hearing submission in any event but this was not done and there was no further material for the Tribunal to consider.
The claim that the Tribunal relied on information prepared by the Respondent Minister did not take into account any evidence presented by the Applicant. It is not particularised, it is of course a matter for the Tribunal to decide what weight it will give to evidence. The Applicant claimed to have suffered a head injury. The Tribunal was not satisfied that this head injury accounted for the unsatisfactory nature of his oral evidence.
In my view, the Applicant's grounds alleging jurisdictional error have not been made out.
I am mindful of the fact that the Applicants are not legally represented. They were given the opportunity to obtain legal advice from a lawyer on the RRT legal advice panel and I note from the Court file that an advice was prepared and given to the Applicants. Nevertheless, they were not represented at the proceedings today and indeed the Second Applicant did not attend. The First Applicant said that he would speak on her behalf.
I have read through the Tribunal decision and supporting material myself, independently of either the Applicants' or the Respondent's case in order to ascertain whether any arguable case for jurisdictional error has been made out. I am unable to discern any jurisdictional error in the Tribunal's decision. I am of a view that the Tribunal addressed the totality of the Applicant's case, did not fail to comply with the requirements of s.424A of the Migration Act and that it wrote to the Applicants, put certain material to them for their comments and considered the comments.
The Tribunal invited the Applicants to attend the hearing and provided them with an interpreter. The Tribunal's findings were not unexpected. The Tribunal, in effect, just did not believe the Applicants' claims. There is no breach of s.425 of the Migration Act. All in all I am satisfied that no jurisdictional error has been made out. I will make formal order amending the title of the First Respondent to Minister for Immigration & Citizenship.
I am of the view that as no jurisdictional error has been made out the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Accordingly it is final and conclusive and not subject to any orders in the nature of certiorari or mandamus or prohibition or a declaration that the Applicants seek. The application will be dismissed.
I am satisfied that this as an appropriate matter for costs in favour of the Minister who has been successful. The Applicants have not been successful in their claim. The amount sought is $5,000.00 inclusive of counsel's fees which accords with the Federal Magistrates Court scale. I propose to make the order for costs as sought.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 24 September 2007
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