SZJNY v Minister for Immigration

[2007] FMCA 2124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2124

MIGRATION – Review of RRT decision – where Tribunal found treatment of applicant did not amount to persecution – where Tribunal concluded it would be reasonable for applicant to relocate – whether decision affected by actual bias – whether Tribunal failed to consider applicant would suffer serious harm – whether Tribunal applied the wrong test – whether failure to consider an integer of the applicant’s claim – whether failure to carry out review – whether Tribunal correctly applied the ‘real chance’ test.

Migration Act 1958

Applicant A165/2003 v Minister for Immigration  [2002] FCA 877
SCAA v Minister for Immigration [2002] FCA 668
S214/2003 v Refugee Review Tribunal [2006] FCA of C166

Applicant: SZJNY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3041 of 2006

Judgment of: Raphael FM

Hearing date: 17 December 2007

Date of last submission: 17 December 2007

Delivered at: Sydney

Delivered on: 17 December 2007

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Ms S McNaughton

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

3. The name of the First Respondent be amended to Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3041 of 2006

SZJNY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 11 December 2005 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 25 January 2006.  A delegate of the Minister decided to refuse to grant him a visa on 5 May 2006. On 23 May 2006 the applicant applied for review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal which determined, on 30 August 2006 to affirm the decision not to grant him a protection visa. The decision was handed down on 26 September 2006.

2. The applicant's grounds for claiming to be a person to whom Australia owed protection obligations arose out of his political activities in his home state of Tamil Nadu. He appears to have become politically active as early as 1985 when he worked putting up a posters for a party known as the DMK. In 1994 he left the DMK and joined the MDMK and began working for that party, conveying people to meetings and undertaking other duties. The applicant was paid for this work. There was a party opposed to the MDMK in Tamil Nadu known as the AIADMK. It attempted to undermine the MDMK by having its leader, Mr Vaiko, arrested under the Prevention of Terrorism Act in 2002 after Mr Vaiko had met the leader of the LTTE. The applicant claimed that he was placed under severe pressure to abandon his allegiance to the MDMK and join the AIADMK. On the advice of a friend he gave into this pressure but determined to work for the AIADMK only so long as the leader of the MDMK remained in prison. Mr Vaiko was released from prison in 2004. Following this occurrence and the applicant's restoration of his original allegiance he was abused by AIADMK supporters. He did not receive any assistance from the police.

3. The applicant also told of having his home badly damaged and being required to travel into Kerala and then into Bangalore to seek refuge and find work. It would appear that Mr Vaiko himself has joined the AIADMK although that party has now lost power. The applicant told the Tribunal of problems which he had after he returned to his village following the tsunami and the lack of proper disaster relief received by him and his family which he put down to his political allegiance.

4. At [CB 87] the Tribunal makes the following finding:

   “The Tribunal found the applicant to be a credible and truthful witness.  It accepts as reliable his account of his political affiliations and activities over the period from 1985 until 2004.  It accepts that he was considered capable of attracting a large number of votes on his area because of his extensive family network and came under pressure from the AIADMK to join them after the leader of his party, the MDMK was imprisoned under the POTA in 2002.  The Tribunal accepts that for various reasons the applicant altered his political allegiances a number of times and has made himself unpopular particularly with the AIADMK.  The Tribunal accepts that the applicant's life became difficult in his home area as he came under pressure to support the AIADMK.  It accepts that when disaster relief was distributed after the tsunami in December 2004 the applicant did not receive full and timely assistance because he was seen as not being an active supporter of the then ruling AIADMK.  The Tribunal finds that this treatment of the applicant was discriminatory but it is not serious harm which amounts to persecution.

   The applicant states and the Tribunal accepts that the applicant and his family came under intense pressure and faced threats from supporters of the AIADMK in their attempts to secure the applicant's support.  However they were never physically mistreated or harmed.  The Tribunal has already found that the harm suffered by the applicant as a result of the actions of the AIADMK in distributing disaster relief is not serious harm amounting to persecution.  The Tribunal finds that the applicant will not seek to support Vaiko and the MDMK if he returns to India.  It comes to this finding on the basis of his oral evidence before the Tribunal.  In fact the Tribunal accepts the applicant's declaration in that oral evidence that he does not want to be involved in politics at all in India in the future.  Furthermore, it accepts his evidence that the political situation has altered in Tamil Nadu and the AIADMK lost power in the most recent elections.  In this altered political environment the Tribunal considers the chance is remote that the applicant will be targeted for harm by members of the AIADMK for reasons of his previous actions and political affiliations in the reasonably foreseeable future.” 

5. The Tribunal also concluded that the applicant's claim he will be vulnerable to attack from locals was remote and as the grounds for the attack seemed to be tied in with alcohol consumption on the part of those locals any attack would not be for a Convention reason. The Tribunal considered the applicant's claims that he was unable to obtain effective state protection but concluded, now that the political situation had changed, this was no longer a matter of concern. The applicant had made a claim that a friend of his had told him that his name was on a list and that his life was in danger:

   “At the hearing before the Tribunal the applicant was unable to say where any such list was compiled or by whom or how his friend came to have access to any such list.  The Tribunal does not accept that any such list exists or that the applicant has been named as a person of interest.”

6. Finally, the Tribunal came to the conclusion that it would be reasonable for the applicant to locate to another part of Tamil Nadu or another part of India. It noted that he had a skill as a welder and had showed himself able to live and secure work in both Kerala and Bangalore in the past. The Tribunal took into account, when considering the reasonableness of relocation, the applicant's evidence that he had found it difficult to live in those places on the wages that he had received and the suggestion that, in Kerala, people had been threatened from the political party to which he was opposed. The Tribunal dismissed such threats as not being serious:

   “It comes to this finding for the reason that the applicant subsequently returned to his home area for a period before going to Bangalore and again when he returned from Bangalore.  According to the evidence before the Tribunal he did not suffer harm during these periods.  Furthermore, the applicant's wife and children continue to live untroubled by the applicant's former political adversaries up to the present time.”

7. The applicant filed some written submissions with this court on 3 December 2007. Given the fact that his original application appears to relate, at least in part, to sections of the Migration Act 1958 (the “Act”) that were no longer in force I will take the later document as representing his true objection to the findings of the Tribunal. The first ground upon which he claims the Tribunal fell into jurisdictional error is that the decision was induced or affected by actual bias. The applicant argues that the Tribunal rejected his claims without considering his oral evidence in relation to major issues.

8. As Lander J explained in Applicant A165/2003 v Minister for Immigration [2004] FCA 877 at [58]:

   “The principles relating to actual bias arising out of prejudgment were considered by the High Court in Minister for Immigration & Multicultural Affairs v JIA (2001) 178 ALR 421. Gleeson CJ and Gummow J said at [72]:

   "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

   And at [59]:

   “Actual bias is not easily proved.  It requires proof that the decision‑maker was biased and that the decision‑maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision-maker, the decision‑maker's predetermined decision would not vary.”

9. Bias was also considered by von Doussa J in SCAA v Minister for Immigration [2002] FCA 668, where his Honour said at [38]:

   “The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision‑maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.  Even where it is possible to show that the adverse findings, or some of them, are contrary to the evidence, or unreasonable, or that the reasoning process is hopelessly flawed, that, without more, is unlikely to demonstrate that the decision-maker had embarked on the case with a closed mind not open to persuasion.”

10. No attempt in this proceeding has been made to particularise the elements of bias that are alleged. In fact, it would be most difficult to do so in this case because the Tribunal has accepted most of the evidence that the applicant gave to it. It merely finds that this is not enough to establish the serious harm that Australia's legislation requires before it imposes upon itself obligations under the Refugee’s Convention.

11. The second matter raised by the applicant was that the Tribunal failed to consider the test of serious harm. Once again the applicant provides no assistance by way of particulars. It will be seen from the extracts of the Tribunal's decision that are contained in these reasons that the Tribunal did exactly what it was required to do. Having accepted the applicant's evidence it sought to see whether the harm that he complained about qualified as sufficiently serious. A decision as to the seriousness of harm is a matter of fact which is entirely within the remit of the Tribunal and to ask this court to interfere with such a finding will be to require the court to indulge in impermissible merits review.

12. The third matter raised by the applicant is in the following form:

    “The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against M case in the final outcome.  The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa.  The Tribunal was preoccupied and did not have a fresh look.  The Tribunal also failed to consider the Amnesty International country information.”

13. Without wishing to be in any way critical of the applicant, who clearly speaks no English, I have to confess to finding this ground of objection almost totally incomprehensible. I am not really sure whether the Tribunal used any country information at all. It does not refer to any in its decision. It seems to rely entirely on evidence given by the applicant. If the Tribunal did rely on independent country information in its general knowledge then that was something which it was entitled to do. I have no idea at all what the Amnesty International country information was. I hesitated to ask the applicant because I fear that he did not write this document himself and may be unable to respond in any event.

14. The fourth ground suggests that the Tribunal applied the wrong test:

    “4(a) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in effect, placing too high an onus of the proof of the applicant and failing to give the applicant the benefit of the doubt.”

    The difficulty with this objection is that the Tribunal actually accepted the evidence of the applicant. The only area in which the applicant's evidence was not accepted was the claim that his name was on a secret list. In regard to that piece of evidence the Tribunal found that the applicant's inability to particularise the information prevented it from believing him. Once again this is a matter of credibility, entirely within the Tribunal's power.

15. The second part of the wrong‑test claim is:

    “4(b) The Tribunal left out individual elements of the applicant claim and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim, so considered, amounted to persecution.”

    My reading of the Tribunal's decision is that it did consider the applicant's claims as a whole. It accepted his involvement in politics from 1985 and analysed the probabilities facing him should he return to India. Without further particularisation I am unable to make a finding that the Tribunal fell into jurisdictional error in the manner described.

16. The fifth matter raised by the applicant is that the Tribunal did not take into account relevant considerations or "integers" central to his claims. These are not particularised. It would not benefit either the applicant or the respondent for me to try and guess what they might be. The case is simply not made out.

17. The sixth matter raised by the applicant is that the Tribunal failed to carry out its review functions and to exercise its jurisdiction. The first particular given under this heading is that the Tribunal did not consider that the applicant was under extreme pressure from the AIADMK because of his minority background and MDMK membership. The Tribunal did in fact consider the pressure that he was under from the AIADMK. It came to the conclusion that if returned to India he would take no further part in politics because he said he would not. It also came to the conclusion that, as the AIADMK was no longer in power, then, any harm that that organisation might wish impose upon him was unlikely to occur.

18. Particular ground (b) suggests that the Tribunal did not consider the applicant's claim to fear serious harm as a member of the Muslim religion. The applicant's original claims are found at [CB 27-31]. These claims make reference to the political situation and the applicant's membership of the political parties referred to makes mention of the problems that occurred after the tsunami but it makes no mention of any persecution which the applicant may have suffered as a result of his being a Muslim. At [CB 64-65] the applicant writes a response to the delegate of the minister's decision. There is no mention of the Muslim religion being a problem there.

19. As the Full Bench said in S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26], per Allsop, Jacobson and Graham JJ:

    “Proceedings before the Tribunal are inquisitorial rather than adversarial.  A Tribunal member conducting an inquiry is obliged to be fair.   However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant.  In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’), had been made out.  The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon.”

20. The seventh ground referred to by the applicant in his written submissions is that the Tribunal failed to note that he satisfied the definition of a refugee. This is indeed correct, although the Tribunal would put it in a more positive frame stating that the applicant had failed to satisfy it that he was a person who fell within the definition of a refugee. The Tribunal carried out its task, it assessed the applicant's claims, it believed those claims but found them wanting within the definition. The Tribunal acted in accordance with its statutory obligations and, in doing so did not, to my mind, fall into jurisdictional error.

21. Finally, on the last page of the document, the applicant states:

    “Therefore, the applicant submit that the Tribunal failed to analyse properly the "future harm" the applicant may face if he has to return back to India. 

    Hence, due to this failure, the Tribunal has committed a serious jurisdictional error by failing to assess or carry out the "real chance" test before dismissing the applicant's claim.”

22. The Tribunal did consider any future harm that the applicant may suffer. As already discussed it took into account his statement that he would not become involved in politics should he return to India. It took into account the fact that he had the ability to earn a living elsewhere than his hometown and that he had previously been in places other than his hometown, including of course, Australia. It concluded that any harm that the applicant might suffer if he returned to India would be not Convention related. Whilst it is understandable that the applicant disagrees with the views expressed by the Tribunal this does not in itself amount to jurisdictional error.

23. The application of the real‑chance test is something which the Tribunal also took into account when it considered the attacks that the applicant thought might occur from drunken members of the AIADMK. The Tribunal considered that the chance of such attacks was remote. The Tribunal also considered that:

    “The chance is remote that the applicant will be targeted for harm by members of the AIADMK for reasons of his previous actions and political affiliations in the reasonably foreseeable future.”

    Before me today the applicant said that he could not go back to live where he was before. He also suggested that the Tribunal had refused to accept evidence from him about his stay in Kerala and Bangalore. He said that the Tribunal had told him that this was not necessary. It seems that it was not necessary because the Tribunal accepted that he had stayed in Kerala and Bangalore.

24. The applicant has not persuaded me that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.
    I dismiss the application. I order that the applicant pay the First Respondent’s costs assessed in the sum of $4,000.00. The name of the First Respondent be amended to Minister for Immigration & Citizenship.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: