SZJOU v Minister for Immigration
[2009] FMCA 1211
•7 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1211 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424(1); 424(2); 424(3)(a); 424(3)(b); 424A; 424AA; 474; pt.8 div.2 |
| Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 |
| First Applicant: | SZJOU |
| Second Applicant: | SZJOV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1696 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 December 2009 |
| Date of Last Submission: | 7 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2009 |
REPRESENTATION
| In person assisted by a Gujarati interpreter |
| Solicitors for the Respondent: | Ms D. Watson, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1696 of 2009
| SZJOU & SZJOV |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 23 June 2009 and handed down on 24 June 2009.
The first named applicant claims to be a citizen of India and a Hindu Patel from Gujarat and to fear persecution from Muslim fundamentalists (“the Applicant”). The second named applicant is the wife of the first named applicant whose application depends on that of her husband.
The applicants arrived in Australia on 17 February 2006 having departed legally from Bombay on passport issued in their own names. The Applicant entered Australia on a visa issued on 21 January 2006.
On 10 April 2006, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Indigenous Affairs (“the Department”) under the Act.
On 13 June 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 12 July 2006, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 8 September 2006, the Refugee Review Tribunal (“T1”) affirmed decision of the Delegate not to grant protection visas.
The applicants sought judicial review of the decision in this Court and on 18 October 2007 Federal Magistrate Raphael affirmed the decision of T1. The applicants appealed that decision.
On 4 March 2008, by consent, Jessup J allowed the appeal and remitted the matter to the Refugee Review Tribunal to determine the matter according to law.
On 24 June 2008, the Refugee Review Tribunal, differently constituted, (“T2”) affirmed the decision of the Delegate not to grant protection visas.
The applicants sought judicial review of that decision and, on 23 January 2009, Federal Magistrate Raphael remitted the matter to the Refugee Review Tribunal for determination according to law.
On 23 June 2009, the Refugee Review Tribunal, again differently constituted, (“T3”) affirmed the decision of the Delegate not to grant protection visas. This is the decision currently under judicial review.
On 16 July 2009, the Applicant filed an application in this Court seeking judicial review of T3’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
On 10 April 2006, the applicants provided a statement in support of their protection visa application. The applicants stated they feared persecution by Muslim extremists by reason of the Applicant’s previous involvement with the Sangh Parivar (“the SP”) which is “directly involved in violence against Muslims”.
The Applicant claimed that in the 1990s he, as a Hindu priest, spoke about the importance of “Ram Jamna Boomi the Ram Temple issue” which brought him to the attention of Muslim fanatics. He claimed that, on 27 February 2002, an incident occurred in which Muslim fanatics torched a two train compartments of Hindu activists, killing their occupiers, including friends of the Applicant and members of his family. As a result the Applicant claimed that “for a short period of time” he became violent towards Muslims, including joining the militant ranks of the SP.
The Applicant claimed he saw the error of his ways but had already come to the attention of Muslim fanatics who “started planning to harm or even kill [him]” and burnt his business down while he was inside.
The Applicant claimed he sought police protection but they were unwilling or unable to help.
The Applicant claimed he moved to a place 150kms away but a week or so later he and his family were attacked by Muslim fanatics in this new area. He claims he was saved by a moderate Muslim neighbour but forced to move out by his landlord who “was not ready to take any risks”.
Subsequently, with the assistance of the Applicant Wife’s uncle, they obtained visas for Australia and left India.
T3’s review and decision
The applicants provided no further documents to T1 or T2 in support of their review application.
On 23 February 2009, T3 wrote to the applicants informing them that T3 had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 26 March 2009 to give oral evidence and present arguments.
On 26 March 2009, the Applicant attended a hearing before T3 and gave evidence. Shortly after this hearing the Applicant provided three further documents in support of his claims.
On 15 April 2009, T3 again wrote to the applicants informing them that T3 had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a further hearing on 13 May 2009 to give oral evidence and present arguments.
On 13 May 2009, the applicants attended a further hearing before T3. At that hearing, the Applicant’s claims were further explored and various concerns about his evidence put to him by T3. T3 also heard from the Applicant’s witness, Mr Surana, who stated that he had seen the Applicant lecturing in India in 2008.
On 21 May 2009, T3 wrote to the Applicant identifying inconsistent evidence given by the Applicant to the Department, T1, T2 and T3 and which may form part of the reason for affirming the decision under review. On 15 June 2009, the Applicant responded to the T3’s letter.
T3 noted that it had before it the Department’s file relating to the applicants, the tapes of the hearings before T1 and T2 and other materials available to it from a range of sources.
T3 found the Applicant was not a witness of truth.
The decision of T3 is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“In reaching its decision, the Tribunal took into account the applicant's assertion that he was suffering from depression which affected his memory. This was a submission put to T2[1] and to T3.[2] In his response to the s 424A letter, the applicant claimed he suffered from nervousness which made it difficult for him to provide information at the Departmental hearing.[3] The Tribunal also accepted that three years had passed since the applicant first made his claim for protection and accepted that there might be "minor variations in claims" made when recounting events. However the Tribunal noted that it had no medical evidence before it to suggest the applicant suffered from any medical condition, or suffered from nervousness, which would affect his recall of facts or dates.[4]
[1] RD 188 at [76]
[2] RD 196 at [130] and 197 at [136]
[3] RD 176
[4] RD 206
The Tribunal was not satisfied the applicant was a witness of truth and found he had created his claims in order to obtain the visa sought.
The Tribunal found there was no evidence the applicant had attended a Departmental hearing or interview and was not satisfied that he was confused between the Tribunal hearings he attended and a purported Departmental hearing. The Tribunal considered this assertion to be a "late invention" made to overcome inconsistencies in the evidence given to the Department and to T1, T2 and T3.[5] Nor did the Tribunal accept that the applicant would not have given a full account of his claims to the Department.[6]
[5] RD 206 at [168]
[6] RD 206 at [179] and [171]
The matters about which the Tribunal thought the applicant would have given evidence to the Department and/or the previously constituted Tribunals included his activities as a lecturer,[7] his involvement in the Vishwa Hindu Parishad (VHP) or any other political party,[8] and the riots at Devgadj Baria in 2005.[9]
The Tribunal found the applicant's evidence was inconsistent in relation to his lecturing activities and was satisfied the applicant was not a "famous anti-Muslim lecturer" or imputed to be so.[10] In relation to this claim, the Tribunal took into account the evidence given by the applicant's witness, Sanjay Surana, but noted this was not consistent with that given by the applicant and thus placed no weight on this evidence.[11]
As a consequence, the Tribunal was not satisfied the applicant was a person involved in "high profile activities against the Muslims".[12] Nor was the Tribunal satisfied the applicant belong to any political party in India.[13] The Tribunal did not accept there had been riots in Devgadh Baria in November 2005 taking into account the applicant's failure to mention this to the Department or T1, that there was no independent evidence relating to this claimed event and that the applicant's evidence to T2 did not support the applicant's claim.[14]
The Tribunal listened to the evidence given by the wife to T2 noting this corroborated the applicant's membership of the VHP and his activities of lecturing. However, as the Tribunal did not accept the credibility of the applicant's claims, and noting that he and his wife gave inconsistent evidence in relation to the alleged attacks in Devgadh Bari, the Tribunal placed no weight on the wife's evidence.[15]
The Tribunal also noted a number of inconsistencies in the evidence given by the applicant as a result of which it did not accept he had been attacked by Muslims in June or July 2005.[16]
In relation to the first three documents produced by the applicant shortly after the first hearing before the Tribunal, the Tribunal found the contents of the first and second documents to be inconsistent with the applicant's evidence and therefore gave them no weight.[17] With regard to the third document, the Tribunal noted the applicant did not know how this document was obtained, that it did not refer to him and that independent information suggested that it was easy to obtain fraudulent documents in India.[18]
With regard to the three documents produced at the first hearing, the Tribunal placed no weight on the first two as evidence that the applicant joined the BJP or Bajrang Dal in 2002 or 2003 because they were undated. With regard to the third document (a membership card of the BJP Gujarat Committee dated 8 October 2002), having found the applicant's credibility so damaged, the Tribunal gave this document no weight. The Tribunal was satisfied all three documents were "late inventions" made to bolster the applicant's claims.[19]
In summary, the Tribunal did not accept that the applicant was a member of any political party in India, that he did not deliver lectures to anyone and that no adverse political or religious opinion was imputed to him.[20] While accepting the applicant's business was burned down in December 2004, the Tribunal did not accept this occurred because he was an active member of any political party or movement and rejected his claim that he received no protection from the Gujarati police in relation to this incident.[21]
Finally, on the basis of independent information, the Tribunal was not satisfied that the applicant would be unable to obtain state protection in India or Gujarat or that such protection would be denied or withheld from him as an ethnic Hindu from Gujarat.[22]
Accordingly, the Tribunal concluded that the chance of real harm occurring should the applicant return to India to be remote, that in any event the Tribunal was not satisfied the harms complained of gave rise to a real chance of persecution now or in the reasonably foreseeable future.[23]”
[7] RD 206 at [170] and 207 at [173]
[8] RD 108 207 [177]-[181]
[9] RD 109 at [187]-[189]
[10] RD 107 at [176]
[11] RD 207 at [173]
[12] RD 209 at [184]
[13] RD 208 at [179] and [181]
[14] RD 209 at [187]-[190]
[15] RD 212 at [209]
[16] RD 209 at [185]-[186]
[17] RD 210 at [192]-[194]
[18] RD 210 at [196]
[19] RD 211 at [200]-[203]
[20] RD 211 at [205]
[21] RD 212 at [207]
[22] RD 212-213 at [213]-[217]
[23] RD 213 at [271]-[218]
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Gujarati interpreter.
On 19 August 2009, the applicants attended a directions hearing before me and were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion, I explained to the applicants that this Court had no power to interfere with the decision of T3 unless the Court is satisfied that T3’s decision is affected by a mistake going to the T3’s jurisdiction. At the directions hearing, I referred the applicants to the Court’s legal advice scheme for free legal advice. The applicants have participated in the Court’s legal advice scheme and received advice. I also provided to the applicants, headed in their own language, the contact details of legal services providers and interpreting and translation services.
On 30 September 2009, the applicants filed an amended application in the following terms:
“1. The Tribunal failed to comply with s424 of the Migration Act 1958.
a) The invitation was not given in accordance with ss424(3)(a) and 424B of the Migration Act:
i) The invitation did not specify the way in which the additional information may be given.
ii) The invitation did not specify the period within which the information was to be given.
2. The grounds of the application are the Tribunal failed to comply with the mandatory procedure prescribed by the Act, in failing to comply with section 424AA (b)(iv) of the Act.
a. The Tribunal made error in law and jurisdictional error in relation to relief under section 424A of the Migration Act.
b. The tribunal did not consider UNHCR section 4, 5, 9, 10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdictional error.”
The Applicant confirmed that he had not filed any evidence, submissions or any other document in support of his application. The Applicant also confirmed that he no longer relied on any of the grounds contained in his initiating application filed on 16 July 2009. I note that the grounds of the amended application substantially repeat and recast the grounds of the applicant’s initiating application.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The only submission the Applicant continued to repeat in support of all the grounds was that T3 did not believe him and his claims were true. He also stated several times that he had offered to take the T3 Member to India to investigate his claims but the T3 Member refused to go.
To the extent that the Applicant asserts that T3 failed to investigate his claims, such a complaint does not establish jurisdictional error. T3 is under no general duty to enquire. The duty imposed on T3 by the Act is a duty to review. As the High Court of Australia stated in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]:
“…The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. …”
The Applicant’s complaint was unsupported by particulars or evidence. The Applicant did not identify any “critical fact” in respect of which T3 failed to make an “obvious enquiry” and none is apparent on the from the evidence and material before this Court, include T3’s decision record.
The Applicant’s complaint that T3 did not believe his evidence, was again unsupported by particulars, evidence or submissions. It was a general complaint that T3 did not believe the Applicant. Such a complaint invites merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).
A fair reading of T3’s decision record makes clear that T3’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for T3 (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
T3 gave careful, comprehensive and detailed reasons for its rejection of the Applicant’s claims.
Ground 1
Ground 1 asserts that the Tribunal failed to comply with s.424 of the Act in that “the invitation” to give “additional information” was not given in accordance with ss.424(3)(a) and 424(3)(b) of the Act.
Ground 1 was unsupported by particulars, evidence or submissions. The Applicant was unable to identify to the Court the “invitation” about which ground 1 complained. Neither was the Applicant able to identify the “additional information” referred to in ground 1. It may be that the “invitation”[s] referred to in ground 1, were the letters from T3, dated 23 February 2009 and 15 April 2009, inviting the applicants to come to hearings to give evidence and present arguments relating to issues arising in their case. The Applicant attended and gave evidence at both hearings.
As has been made clear recently by the High Court of Australia, in Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 (“SZKTI”), s.424(1) of the Act is a statutory power to obtain information by asking questions from which no adverse consequences flow. Section 424(2) of the Act enables a tribunal to give an invitation in writing to provide additional information in writing from which adverse consequences may flow. However, the procedural restrictions in s.424(2) of the Act to issue an invitation to give additional information do not qualify a tribunal’s general power in s.424(1) of the Act to “get any information that it considers relevant” (SZKTI at [45]-[48]). There was no invitation for additional information given by T3 to any person from which adverse consequences to the applicants were intended to flow.
Moreover, it is now well settled that an invitation to an applicant by a tribunal to come to a hearing, and which also invites an applicant to give any additional information the applicant wishes the tribunal to consider, is not an invitation to give additional information made pursuant to s.424(2) of the Act (Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 at [20]-[21]).
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 makes the bare assertion that T3 failed to comply with ss.424AA and 424A of the Act. Again, this assertion is not supported by particulars, evidence or submissions. I explained to the Applicant the meaning of ss.424AA and 424A of the Act. I explained that it was necessary for the Applicant to be able to identify the information which would give enliven ss.424AA or s.424A of the Act. The Applicant was unable to identify any such information.
T3 explored the Applicant’s claims with him at two hearings and heard from his witness. A fair reading of T3’s decision record makes clear that T3 put to the Applicant matters of concern that it had about his evidence. In particular, T3 put to the Applicant inconsistencies in his claims as well as evidence not given to the Department, T1 or T2, including documents given for the first time following the first hearing of T3. T3 found that the documents were late inventions to bolster the Applicant’s claims.
There was no transcript of any T3 hearing provided to this Court, nor did the applicants provide any evidence to this Court to suggest that T3’s decision record is not accurate. At the directions hearing on 19 August 2009, the applicants were given an opportunity to file a transcript of any tribunal hearing. The applicants were directed to ensure any such transcript was verified by affidavit. The applicants were also directed to give notice if they wished to rely on recordings of any hearing. However, no step was taken by the applicants to rely on any such evidence. In the circumstances, the Court accepts as accurate T3’s summary of the evidence and exchanges it had with the Applicant at both hearings and the evidence of his witness.
Further, T3 put to the Applicant in writing, by letter dated 21 May 2009, all the information before it that it regarded as inconsistent and invited the Applicant to comment. By letter dated 15 June 2009, the Applicant responded to that letter and T3 had regard to those responses. Ultimately, T3 was not satisfied by the explanations given by the Applicant. As stated above, T3’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings.
At the heart of T3’s reasons for affirming the decision under review, was its complete rejection of the Applicant’s claims to have been a member of any political party or group or to be sought by Muslims or persecuted for any Convention-related reason. T3’s findings were based on the Applicant’s own evidence and his unsatisfactory explanations for inconsistencies, including with country information.
In the circumstances, there was no information which formed part of T3’s reason for affirming the decision under review which enlivened any obligation under s.424A(1) of the Act. In those circumstances, any obligation to give evidence in accordance with s.424AA of the Act does not arise.
Ground 2 of the amended application also makes the bare assertion that T3 did not consider “UNHCR section 4, 5, 9, 10”. The assertion, again, was not accompanied by particulars, evidence or submissions. The Applicant was unable to explain this complaint any further, save to say his friend had assisted him in writing his amended application. I accept the submission of the solicitor for the first respondent, Ms Watson, that the UNHCR has not been incorporated into domestic law and therefore has no force at law. The complaint, as asserted in ground 2, is meaningless and is rejected as a proper ground of review.
Accordingly, ground 2 is not made out.
Conclusion
A fair reading of T3’s decision record makes clear that T3 understood the claims being made by the Applicant; explored those claims with the Applicant over two hearings; took evidence from the Applicant’s witness; and, had regard to all material provided in support. T3 put to the Applicant both at the hearings and in writing matters of concern it had about his evidence and noted his oral and written responses. T3 also identified in its decision record independent country information to which it had regard. T3 put to the Applicant country information that it found to be adverse to his claims and evidence. T3 noted the Applicant’s responses. T3 then made findings based on the evidence and material before it. Those findings of fact were open to T3 on the evidence and material before it and for the reasons it gave. A fair reading of T3’s decision record makes clear that T3 reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, T3 complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
T3’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 7 December 2009
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