SZJNI v Minister for Immigration
[2007] FMCA 1674
•20 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJNI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1674 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of India claiming fear of persecution for reasons of his political activities – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474(2) |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 followed. SZCBC v Minister for Immigration & Multicultural Affairs [2006] FCA 1535 followed. |
| Applicant: | SZJNI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2971 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 September 2007 |
| Date of Last Submission: | 20 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2971 of 2006
| SZJNI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of India. He asks the Court to make an order in the nature of a writ of certiorari setting aside a decision of the Refugee Review Tribunal that was signed on 30th August 2006 and handed down on 22nd September 2006. That decision refused to grant him a protection visa. The applicant also asks the Court for a writ of mandamus requiring the Tribunal to rehear and redetermine his application for a visa according to the law. The applicant had applied for a visa claiming protection on the basis of a well founded fear of persecution for reason of his political opinion.
The applicant relies on the grounds that:
a)The Tribunal did not measure the amount of fear that he had, or the degree of harm which he faced if he were forced to return to his native India.
b)Whilst the Tribunal gave a verdict that the applicant's case did not fall within refugee law, this was incorrect because under refugee law generally, any person who cannot be given protection in any way can be given protection.
c)The Tribunal did not take into consideration the fact that the applicant was an active member of a political party and was a person of importance in that party as far as acts of violence against him made him concerned.
d)The Tribunal did not make findings in relation to important aspects of his claims, specifically whether the events which the applicant feared may occur in the future, and whether he had a well founded fear of persecution on this basis.
It is for those reasons that the applicant claims that the Tribunal's decision involved jurisdictional error.
Background
The background to this matter is that the applicant arrived in Australia on 28th February 2006. He applied for a protection (Class XA) visa on 24th March 2006 from what was then called the Department of Immigration & Multicultural Affairs. The basis of his application was because of his political activities. He is Sikh from the Punjab. In 1986 he joined the Khalistan Commando Force. Because he was a teenager at the time he was a low profile worker.
After the murder of the Chief Minister of the Punjab in 1993 the applicant claimed to have been arrested by the police and tortured for 17 days. He claimed that in April 1995 he was taken from his home by the police and tortured in a cell for eight days. After that, because the police could not find any evidence against him, he was released.
He claimed that he kept a low profile after that because the police killed thousands of active workers.
Eventually the applicant travelled to a number of South East Asian countries, including Cambodia, Malaysia and Thailand. He claimed to have contacted various people to obtain money by way of donations for the Khalistan Party. He claimed that if he were to return to India he would be arrested and beaten and subject to violence by police.
Application to the Refugee Review Tribunal
A delegate of the Minister refused his application for a visa on
27th April 2006. On 22nd May 2006 the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.
The Tribunal wrote to the applicant on 2nd June 2006 inviting him to attend a hearing to take place on 17th July 2006. The applicant attended that hearing and gave evidence with the assistance of an interpreter. No other witness gave evidence on behalf of the applicant.
The Tribunal Decision
The Tribunal handed down its decision on 22nd September 2006.
A copy of the Tribunal decision record can be found in the Court Book at pages 82 through to 91. In that decision the Tribunal sets out a summary of the relevant law and describes the claims and evidence considered at the hearing under these headings, (a) protection visa application, (b) review by Tribunal, (1) the hearing, (2) country information. The Tribunal's findings and reasons can be found at pages 90 and 91 of the Court Book.
The Tribunal noted the applicant's claims to have left Punjab because of fear of arrest and violence by the police, noted that he spent time in Thailand, Malaysia and Cambodia, and then came to Australia to start a new life. The Tribunal noted the applicant's claim that if he were to return to India he would be taken to the police station and beaten, and that the Punjabi police still have an interest in him.
The applicant does not know why the police would be looking for him now, but they apparently have a record of his former political activity and are looking for him because he used to take part in the party in Khalistan. The Tribunal asked the applicant a number of questions about what he did and asked him why he could not relocate to another part of India if he did not feel safe in the Punjab. The Tribunal noted the applicant's reply as:
The applicant responded that he is uneducated and has already lived in Bombay and he had a language problem. He added that his airfare and business visa to Australia was paid for by his parents. He is living peacefully and has a new life here.[1]
[1] Court Book at 87
The Tribunal also considered country information about the current situation in the Punjab and discussed that information with the applicant. The Tribunal noted that the applicant said that he did not agree that Sikh militancy was virtually no longer active in the Punjab, nor that rank and file members of groups that were at one time targeting, including the All India Sikh Student Federation, are now safe in general terms. The Tribunal noted that the applicant reiterated his earlier evidence that the police in the Punjab still have an interest in him because his name is on the records, and he claimed to have been able to leave India legally on his own passport because of the prevalence of bribery in that country.
The Tribunal in its decision did indeed consider independent country information about the situation in the Punjab, and that is set out in the Court Book at pages 87 through to 90. That information related to the Khalistan movement and dealt with reports from Canada and the United States and the Australian Department of Foreign Affairs & Trade, as well as the United Kingdom Home Office.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 90 and 91 of the Court Book. The Tribunal assessed the applicant's claims against India as the applicant's country of nationality on the basis that he travelled to Australia on a valid Indian passport and indeed claimed to be a national of India. The Tribunal considered the applicant's evidence about his political activity, first in India, and later in other countries, namely Thailand, Malaysia and Cambodia.
The Tribunal did indeed accept the applicant's evidence about the nature and level of his involvement with the Khalistan movement.
It accepted that when he was a teenager he had joined the Khalistan Commando Force as a low profile worker and was attacked in 1986 and arrested and detained and tortured for several days on two occasions in 1993 and 1995. The Tribunal also noted that on the applicant's own evidence he had kept a low profile after his release and was not involved in any other political activity until after he left India in December 2003.
The Tribunal did accept that there was a period of widespread violence in the Punjab from 1984, but noted that country information indicated that the situation had almost returned to normal by 1998, and the human rights situation has greatly improved since that time.
In summary, the Tribunal concluded that the applicant was not of interest to the Indian authorities because of his support for the Khalistan Party at the time of his departure from India in 2003, and found that the applicant did not have a well founded fear of persecution on account of his political profile or for any other convention reason.
The Tribunal then considered the applicant's evidence about his political activity. It noted his claim that he had lived in Thailand, Malaysia and Cambodia.
The Tribunal considered the applicant's evidence that he and other people had lived in Thailand, Malaysia and Cambodia and that during this time they would make plans but did not action them. The Tribunal noted the applicant's claims but found that the applicant had fabricated those claims about his political activity in Thailand, Malaysia and Cambodia.
The Tribunal went on to find:
Having regard to the above finding the Tribunal does not accept that the applicant actively campaigned for a new party aimed at a separatist Sikh state last year. The applicant said that he has not been involved in any political activity since his arrival in Australia. The Tribunal does not accept that he would be of interest to the Indian authorities on account of his political activity overseas. The Tribunal concludes that this evidence was submitted to bolster the applicant's claims. Having regard to the above findings the Tribunal need not reach a concluded view about how the applicant's stay in these countries was financed.[2]
[2] Court Book 90
The Tribunal went on to find that even if the Indian authorities did have a record of his past involvement in the Khalistan movement in India there was no country information to support a finding that this would result in his now being of interest to the authorities. The Tribunal did not accept the applicant's claim that the Punjabi police continued to have an interest in the applicant because he used to be an active supporter of the Khalistan movement or his membership of the AISSF or for any other convention related reason.
Thus the Tribunal found the applicant's fears not to be well founded and formed the view that the chance that the applicant would be persecuted for his political opinion in the reasonably foreseeable future was remote. Accordingly the Tribunal was not satisfied the applicant had a well founded fear of persecution for reasons of his political opinion, race or religion as a Sikh, and affirmed the decision not to grant the applicant a protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings in this Court for judicial review on 13th October 2006 by filing an application and an affidavit in support. On 17th January 2007 he filed an amended application in which he set out three grounds of relief. The grounds are quite lengthy and largely deal with a re-agitation of the applicant's factual claims for refugee status. I have however distilled from those claims what appear to me to be claims of jurisdictional error. I read those out to the applicant and asked him if that was an accurate summary of his claims as to why the Tribunal had fallen into jurisdictional error, and he said that it was.
The grounds therefore that I have distilled from the applicant's amended application are these:
· The amount of the fear and the harm was not measured by the respondents.
· The Refugee Review Tribunal gave the verdict that the case of the applicant does not fall within the refugee law. It is submitted that in the refugee law and in the general laws of the refugee any person who cannot be given protection in any way can be given the protection.
· The RRT did not take into consideration the fact that the applicant was an active member of a political party and is a person of importance as far as the acts of violence against the applicant are concerned.
· The Tribunal did not make findings in relation to these claims, specifically whether the events might occur again and whether the applicant had a well founded fear of persecution on this basis.
· In these circumstances the Tribunal decision involved jurisdictional error.
The applicant did not file any written outline of submissions. He told the Court that the Tribunal had made a wrong decision and had not done the matter properly. He conceded that the Tribunal did ask him questions about his case and he answered those questions and the Tribunal then made a decision. He did not wish to add anything more to his submissions, relying on his written documents, except to say that his life was in danger if he were to return to his country.
I heard oral submission from Mr Johnson, solicitor on behalf of the Minister, and considered the written outline of submissions.
The applicant was offered the opportunity to reply and said that it appeared that whatever he said, no action would be taken. I asked him to explain that point, and he said that he presented his case and told all the facts to the Refugee Review Tribunal, but the Tribunal did not make a decision in his favour.
Conclusions
In dealing with the decision it is clear that the Tribunal based its findings on country information about the current situation in the Punjab. The Tribunal did indeed accept the applicant's evidence about his political activity in India in the 1980s and 1990s as Mr Johnson submitted, but formed the view that the applicant was an activist of low profile, and based on the country information formed the view that he would not longer be of interest to the authorities.
As far as the applicant's activities in Thailand, Malaysia and Cambodia were concerned, the Tribunal did not accept those claims. This was a credibility finding which was open to the Tribunal to make.
As findings on credibility are essentially factual findings and matters for the Tribunal. In my view there was evidence available to the Tribunal that enabled it to make those findings.
On the question of country information, it is of course solely a matter for the Refugee Review Tribunal as to what country information it considers (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). Certainly from the Tribunal decision, at least some of the country information, and indeed the relevant information, appear to have been discussed with the applicant by the Tribunal member, and he was given the opportunity to reply to it. The Tribunal noted his replies but accepted from the country information that the applicant would not have a well founded fear of persecution in India for that basis.
The Tribunal of course accepted as a fabrication the applicant's evidence about what he did in Thailand, Malaysia and Cambodia because it found his evidence to be vague in general, and again that was a finding that was open to the Tribunal. Whilst the Tribunal discussed the question of relocation within in India, at page 87 of the Court book, the Tribunal did not make any relocation finding. It did not need to do so because it was not satisfied that the applicant had a well founded fear of persecution within India. I am referred to the decision of SZCBC v Minister for Immigration & Multicultural Affairs [2006] FCA 1535 where Dowsett J endorsed the conclusion of the Federal Magistrates Court that the Tribunal was not obliged to consider relocation where it found there was no well founded fear of persecution.
The applicant's grounds are largely a reiteration of his factual claims. The ground that the Tribunal did not consider the amount of fear and harm that the applicant faced was no more than cavilling at the Tribunal's factual findings and is an attempt at merits review, which is not available.
As to the claim that under refugee law any person who cannot be given protection in any way can be given protection, that is not a summary of the law as it applies under the Migration Act 1958, and in my view that particular ground is no more than cavilling at the Tribunal's finding that the applicant was not entitled to protection.
As to the applicant's claim that the Tribunal did not take into consideration the fact that he was an active member of a political party and was a person of importance in that party and likely to suffer from acts of violence, the fact is that the Tribunal did accept that the applicant was a member of the Khalistan Commando Force, but was a low profile member. The Tribunal did not accept that as a result of his political membership he had a well founded fear of persecution.
That was a decision open to the Tribunal.
The applicant claimed that the Tribunal did not make findings in respect of the likelihood of persecution in the future, but quite clearly the Tribunal did make a finding in that regard, finding that the chance that the applicant would be persecuted for his political opinion in the reasonably foreseeable future was remote.[3]
[3] Court Book 91
In my view the Tribunal considered the applicant's claim and all aspects of the applicant's claim, and the finding that it made was supported by the evidence. The applicant's claims of jurisdictional error have not been made out, and I am not satisfied that any arguable case for jurisdictional error has been made out. I am mindful of the fact that the applicant is not legally represented. My own reading of the Tribunal decision and supporting material does not indicate any jurisdictional error.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Consequently it is final and conclusive and not subject to orders in the nature of certiorari or mandamus as the applicant seeks.
The application will be dismissed with costs. The applicant is to pay the first respondent's costs fixed in the sum of $3,900.00.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 2 October 2007
0
2
2