SZJOU v Minister for Immigration
[2007] FMCA 1865
•18 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1865 |
| MIGRATION – Review of RRT decision – where Tribunal concluded the applicant’s claims were not credible – whether bias – whether breach of s.424A Migration Act 1958 – whether preliminary findings ought to be put to applicant. |
| Migration Act 1958, s.424A |
| Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 WAKS v Minister for Immigration [2006] FCAFC 32 Applicant M189 of 2002 v Minister for Immigration [2004] FCAFC 131 |
| First Applicant: | SZJOU |
| Second Applicant: | SZJOV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3138 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 October 2007 |
| Date of last submission: | 18 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2007 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
The Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3138 of 2006
| SZJOU |
First Applicant
SZJOV
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 17 February 2006. On 27 March 2006 he applied to the Department of Immigration & Multicultural Affairs for a protection (class XA) visa. The application was refused by a delegate of the Minister on 13 June 2006. On 12 July 2006 the applicant applied to the Refugee Review Tribunal for review of the delegate's decision. The applicant attended a hearing before the Refugee Review Tribunal which took place on 23 August 2006. On 8 September 2006 the Tribunal determined to affirm the decision not to grant the protection visa and that decision was handed down on 3 October 2006.
The grounds upon which the applicant considered that he was a person to whom Australia owed protection obligations were that he became involved in Hindu extremism in his home state of Gujarat following the burning of a train carrying Hindu activists on 27 February 2002. At [CB32]:
“[A] few of my family members and friends were also burnt alive to death in this train. My reaction to this was very violent and full of anger against the Muslim fanatics. I also temporarily joined the militant ranks of the SP and for a short period of time kept on attacking the Muslims and [their] worship places like mosques etc.”
As a result of the applicant's activities, he claimed that he became a target for Muslim extremists and that his situation worsened when, realising the error of his ways, he gave up violence. He then lost such protection as he might have had from the Hindu parties to which he was aligned. Although most of this activity occurred in 2002 and shortly thereafter, the applicant claimed that in December 2004 his business was burned down by Muslim activists. He said that the activists then went to another place where he was staying and attacked the house in which he was living so that his landlord asked him to leave. He did leave the town and went to another one where he obtained a job. Some months later, after obtaining assistance from a relative, he left for Australia together with his wife who was an additional applicant for a protection visa as a family member.
In its findings and reasons the Tribunal expressed the difficulty it had with the applicant's credibility, and in particular, his evidence concerning the attacks upon him by Muslims, which the Tribunal found to be fabricated. The Tribunal based its credibility finding on the inability of the applicant to provide essential details about his attacks and a credible reason as to why he might have been the subject of those attacks, given the time they took place and his eventual admission before the Tribunal that his activism took the form of throwing stones after the railway incident and making public statements in the marketplace that Hindus should be protected. The Tribunal did not accept that his actions were such as to make him a target for Muslim attacks years after these events.
Although the Tribunal did accept both that his uncle had been killed in the train incident and his business premises had been burned down, it did not accept that this latter incident was "other than a random incident of violence". It did not accept "that the applicant was targeted because he had been involved in extremist actions two years previously in 2002". The applicant did not claim that he was personally subject to any harm when his business burned down. At [CB81]-[82] the Tribunal said:
“The Tribunal has found that the applicant has had very little, if any, involvement in Hindu violence against Muslims. It has found that he had no involvement with a political group. He does not currently support any political group in India. The applicant is Hindu, and country information indicates that some 80% of the population of India is Hindu with Muslims constituting only some 13 per cent (page 7). In the aftermath of the train burning in February 2002 there was substantial violence by Hindus against Muslims, who were responsible, in the view of the Hindus, for the deaths of the Hindus in the trains … Even if the applicant had been involve in serious violence against Muslims in Gujarat, the evidence is to the effect that he would not be denied protection by the Indian authorities either in his home state of Gujarat, or any other state in India. As a Hindu, the applicant is part of a very substantial majority in India, and the Tribunal does not accept that he would not be protected by the state or federal authorities if he were threatened with serious harm because of his religion.”
In his grounds of application for review of the decision of the Tribunal the applicant alleges that it made an error of law –
“ … by wrongly applying the [c]redibility factor in my decision as none of the claim that I made were accepted, declaring me as a person with no credibility without any substance to back this statement. The tribunal failed in its duty to deliver the justice to me, but it made a decision to suit itself by rejecting all my claims as the tribunal was not ready to consider my evidences given at the hearing as it had already made up its mind to refuse the application prior to the hearing.”
To the extent that this is an attack upon the Tribunal's credibility findings, it cannot be said that the findings were made without any substance. I have extracted certain findings of the Tribunal and I have paraphrased others. I have indicated that the Tribunal came to its view based upon its assessment of the evidence given by the applicant and a comparison of that evidence with independent country information that is not the subject of the requirement to serve notices under s.424A of the Migration Act 1958 (“the Act”). The assessment of credibility “is the function of the primary decision-maker par excellence”: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
The ground of application quoted above is, in addition to the attack on the Tribunal's credibility finding, also an accusation of bias on the basis that it came to the decision with a closed mind. As the Full Bench said in WAKS v Minister for Immigration [2006] FCAFC 32 at [30]:
“There is a suggestion in one paragraph of the appellant's written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister (2004) 214 CLR 264 at [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT have been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. There is, however, nothing before us or in the decision of the RRT to attract the application of those criteria … it is apparent from the RRT's reasons that it tried to distil the claims made by the appellant and consider them against the requirements of the Migration Act 1958 (Cth) and the Convention.”
It seems to me that the remarks made by their Honours Nicholson, Lander and Siopis JJ apply equally in this case.
The second ground put by the applicant (although more accurately the third) was that the Tribunal failed in its statutory obligation by not informing him of negative information which the Tribunal had a duty to inform him. The applicant has not extended us the benefit of any particulars as to what this information allegedly was. We do know that the Tribunal considered independent country information that was not just about the applicant and was therefore not required to be the subject of the notices under s.424A. If what the applicant is saying is that the Tribunal should have provided him with some forewarning of the likelihood that it intended to come to the conclusion that he was not a credible witness, then this is not a requirement. In Applicant M189 of 2002 v Minister for Immigration [2004] FCAFC 131 the Full Bench said:
“In Commissioner for Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576 at 591-592, the Full Court said:
“[Procedural fairness] also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to exposed his or mental processes or provisional views to comment before making the decision in question."
This passage was quoted with apparent approval by Gleeson CJ, Gummow and Heydon JJ, with whom McHugh J agreed, in Ex parte Palme (2003) 201 ALR 327 at 22 and was cited with approval by Gummow and Heydon JJ, with whom Gleeson CJ agreed, in Ex parte S154/2002 (2003) 201 ALR 437 at [48] and [54]. In S154 at [54] their Honours said:
"The Tribunal member was not obliged to set out every detail of the reasoning process which he eventually applied for the prosecutrix's consideration."”
It is clear from authorities such as this that there is no requirement in this system for preliminary findings to be put to an applicant. While some applicants who come from civil law countries may well have expected this to be the case, it cannot be said that this particular applicant coming from a common law country would have done so.
At the hearing today the applicant told the Court that he was not given a chance to provide some proof. He said that he asked for further time (45 days) and it was not given to him. There is no reference to this in the decision. The applicant offered to provide the Court with the tape recording of the hearing and the Court agreed to listen to it, but was then told by the applicant that he did not have it with him. There being no admissible evidence available, I have rejected this ground.
As Mr Kennett rightly submitted, not giving time is not necessarily a jurisdictional error unless there was something unreasonable about the refusal. I have no evidence whatsoever as to the unreasonableness of the refusal. A reading of the Tribunal's decision would indicate that there was very little that the applicant could have produced that would have assisted him. It is noteworthy that the applicant had from the application made on 10 April 2006 until the Tribunal hearing in late August 2006 to produce documentation. He was advised of the necessity of providing such documentation to the Tribunal in its standard letter of 13 July 2006 [CB55] and over a month passed from the time of the hearing until the handing down. If the applicant had obtained any documents he could have put them to the Tribunal in that period.
I am unable to find any basis upon which the applicant can properly claim that the Tribunal fell into jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4500.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 9 November 2007
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