SZJQX v Minister for Immigration & Anor
[2007] FMCA 1519
•5 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJQX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1519 |
| MIGRATION – Review of decision of Refugee Review Tribunal – impermissible merits review – Tribunal unable to reach requisite level of satisfaction as to the applicant’s claims – no bias on the part of the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.65, 36, 424A |
| Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 |
| Applicant: | SZJQX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3297 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 September 2007 |
| Date of Last Submission: | 5 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox Lawyers |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application made on 13 November 2006 be dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3297 of 2006
| SZJQX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application made to this Court on 13 November 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 6 October 2006 and notified to the applicant on 26 October 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of India who arrived in Australia on 3 April 2006 and applied for a protection visa on 2 May 2006 (reproduced in the Court Book (“CB”) at CB 1 to CB 36). On 22 June 2006, a delegate of the respondent Minister refused the application (CB 39 to CB 49) and on 18 July 2006, the applicant applied to the Tribunal for review of that decision (CB 50 to CB 53).
The applicant’s claims to protection derive from his claim to have been a practising Catholic in India and that, importantly, he had been involved in religious activities including converting others to Christianity. He further claimed that he had received threats, that he had been attacked and hospitalised as a result of the attacks, that furniture had been burnt in his family’s home, that his father and brother had been attacked and his sister had been raped, and that he had fled to another part of India from his home in Kerala following these events. In all, the applicant claimed to fear returning to India because he feared harm by a number of groups, including the political party, the Bharatiya Janata Party (BJP), the Hindu mafia, Muslims and criminal gangs.
The applicant was invited to appear before the Tribunal, and did appear before the Tribunal, on 4 September 2006 (CB 56 to CB 57, and CB 105.2). The Tribunal’s account of what occurred at that hearing is set out in its decision record, reproduced at CB 106 to CB 110.
In its reasons, the Tribunal plainly set out that it had concerns as to the applicant’s credibility (CB 112.3) and that this derived from a number of factors that were before the Tribunal and from the Tribunal’s account of what occurred at the hearing, which I note, remains unchallenged, that is, unchallenged by any evidence brought before this Court by the applicant. These factors were in essence, inconsistencies in the applicant’s evidence and in his claims (CB 111.2), which were not only discussed at the hearing with the applicant, but which were also the subject of a letter dated 6 September 2006 which the Tribunal sent to the applicant inviting the applicant’s comment in writing (reproduced at CB 62 to CB 65).
Reference was also made in that letter to independent country information which was said to contradict the applicant’s evidence in certain particulars. From the Tribunal’s decision therefore, it appears the applicant did not respond to this information (CB 105.3) and ultimately, the Tribunal found that the applicant was not a credible witness (CB 113.2), that he did not have a high profile as a Christian activist (CB 114.3), and that he did not have any association with the Catholic Church (CB 115.2). The Tribunal also found that neither the applicant nor members of his family had been the subject of violent attacks (CB 115.4, CB 115.7 and CB 116.2).
What needs to be seen and what arises clearly from the material before the Court, is that the Tribunal’s findings in this regard arose from inconsistencies in the applicant’s evidence that he gave at the hearing before the Tribunal, inconsistencies between this evidence, that is, evidence at the hearing, and statements made in his protection visa application. These inconsistencies also arose from what the Tribunal described as “the vague, broad evidence lacking in detail” that he gave at the hearing and from the applicant’s evidence at the hearing before it, which the Tribunal described as “quick to change” in circumstances where he was responding to the Tribunal’s pointing out contradictions and the inconsistencies in his evidence when compared with country information before the Tribunal; information which it ultimately preferred and which was sufficient for the Tribunal to dispose of the applicant’s application. To the extent that the Tribunal noted that the applicant may have had a subjective fear of harm, and I stress that in circumstances the Tribunal found that an objective fear of harm had not been made out, the Tribunal found that it would be reasonable for the applicant to relocate to other areas in India where Christians are a majority.
In any event, it is clear that the Tribunal’s conclusion that it could not be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee Convention, arose and was derived from the Tribunal’s rejection in a number of critical respects of the credibility of the applicant’s claims.
In the application before the Court today there are what are said to be eleven grounds:
“1. The Tribunal made jurisdictional error and factual error in concluding that the applicant is entitled to a protection visa.
2. The Refugee Review Tribunal falied to see that the applicang satisfies all the crieterai that are required for a ‘refugee’ status under the Act and rules.
3. The Tribunal committed factual and legal error in failing to conclude the applicant falls under Article 1A(2) of Conventioi which defines a refugee.
4. The applicant satisfies all the four key elements to Convention definition.
5. The Tribunalfailed to accepted real and correct facts as stated by the applicant in person but has relied on some other facts and stories which are not correct. Therefore the Tribunal hascommitted factual error. By committing such factual error the Tribunal committed jurisdictional error.
6. The Tribunal failed to consider the real facts, but has accepted from an individual. The Tribunal failed to see that such individuals are well placed and protected.
7. The Tribunal is not correct in stating that the applicant did not receive serious harm which will amount to persecution.
8. The Tribunal erred in not accepting the statement of the applicant that he was hunted for religious reason.
9. The Tribunal has erred in stating that no convention reason or reasons for persection have been proved.
10. The Tribunal has not applied its mind properly and has hastily dismissed the case.
11. The Tribunal erred in concluding that the applicant will enjoy protection of Indian Police and other security institutions. The Tribunal has completely overlooked the seriousness of the matter.
The applicant seeks permission to file additional grounds at a later stage, if required.” (Errors in original)
The applicant appeared in person with the assistance of an interpreter in the Malayalam language. Mr G Kennett of Counsel appeared for the first respondent. I also have before me written submissions prepared by Mr Kennett and filed on 29 August 2007.
Before the Court today the applicant sought an adjournment, that is, an adjournment of the hearing of his matter. That application was refused on the basis that, even taking what the applicant stated from the Bar table to be true, that is, that he only received the letter of advice from Mr Justin Smith of Counsel three weeks ago, there was no offer made by Mr Smith to assist the applicant any further and Mr Smith did not appear on the applicant’s behalf today, and that an adjournment would not be granted on the basis that the applicant might further confer with Mr Smith. I should just note that it would appear, from what the applicant stated to the Court, that Mr Smith is not in a position to assist the applicant further. In addition, the applicant stated that Mr Smith’s initial written advice to the applicant had been translated for him. Consequently, the hearing proceeded.
The applicant stated that he had been conducting religious classes in India and that this had irritated the BJP and similar people. He stated that he had been the subject of serious attacks and had been stabbed in the neck on the left side, that indeed his claims before the Tribunal as to the harm suffered by his family and his sister were true and that these matters caused him problems. He described it as a disturbed mental condition and that he forgot matters quite often. The applicant also said that there were a number of discrepancies in the Tribunal’s decision record and this had been ascertained by him with the assistance of a friend who had also read the decision record. The applicant referred to what he said was a mistake by the Tribunal in relation to misunderstanding that he had referred to a Professor A V Thamarakshan and not to Mr A V Thamarakshan, that there had been an issue relating to the distance between the applicant’s college at Kasaragod and his home in Kozhikode, and the Tribunal had recorded a further discrepancy in the way that it dealt with the applicant’s father’s profession insofar as it described the father’s profession as “farmer” and noted that his father had attended a shop in the evenings. Those are all the matters complained of by the applicant.
Grounds one, two, three, four, seven, eight and eleven, take issue with findings made by the Tribunal, or assert in general terms that the Tribunal made a jurisdictional error or factual errors. Subject to the three matters of alleged errors raised by the applicant today, with which I will deal in a moment, none of these grounds, especially in the absence of particulars, rise above what can only be regarded as an impermissible request for merits review (Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Ground five similarly seeks merits review but also appears to assert that the Tribunal relied on some irrelevant considerations. Again, in the absence of particulars and, indeed, on any plain reading of the material that is before the Court, such a complaint is not made out.
Similarly, ground nine appears to seek impermissible merits review, but to the extent that there is a complaint that the Tribunal erred in stating that the applicant had not proved he had been persecuted for a Convention reason, it is clear that there is no obligation on the Tribunal to disprove the applicant’s claims.
The relevant statutory obligation imposed upon the Tribunal in this regard is set out in ss.65 and 36(2) of the Migration Act 1958 (“the Act”). That is, that the Tribunal is required to reach a requisite state of satisfaction that, in effect, the applicant meets the definition of Refugee as set out in Article 1A(2) of the Refugee Convention such that in those circumstances the protection visa must be granted. Simply, in this case, for what are, in my view, very cogent and clear reasons, the Tribunal was unable to reach that requisite level of satisfaction.
In relation to ground ten, I note Mr Kennett’s written submissions, in particular at paragraph six, and I agree with those submissions that if what is meant by what is stated as ground ten is an allegation that the Tribunal failed to direct its mind to the issues that required resolution, then the Tribunal’s analysis of the applicant’s claims indicates that it gave them “careful consideration,” and I would add to that that the Tribunal gave the applicant’s claims comprehensive consideration.
To the extent perhaps that this ground, beyond what Mr Kennett has identified, may also be seeking to complain that the Tribunal did not bring an open mind to these proceedings, that is that it acted with bias or bad faith in the sense that it brought a closed mind to its consideration of the application, then, as has often been said, such allegations are very serious allegations and for such allegations to be made out mere reference to the decision record is insufficient. There is nothing in the decision record and nothing otherwise before the Court to sustain any such allegation.
Ground six is in incomprehensible terms, but again to the extent that it appears to be an assertion that the Tribunal failed to consider the real facts and a complaint that the Tribunal did not deal with the applicant’s claim or an integer of his claim, then such a complaint, on the material before the Court, is plainly not made out. No particulars are provided nor did the applicant assist the Court in this regard today as to what the reference to the Tribunal’s failure to “see that such individuals are well placed and protected,” may constitute error, let alone jurisdictional error, on the part of the Tribunal. At best, therefore, this can only be seen as another request for impermissible merits review.
I will now deal with the three matters raised by the applicant before the Court today that there were mistakes or discrepancies in the Tribunal decision, and the applicant’s complaints in relation to the Tribunal’s references to his father’s occupation and the distance between the applicant’s home and place of study. I thank Mr Kennett for his submissions in relation to these matters.
In relation to the issue of the applicant’s fear of harm at the hand of a “Mr A V Thamarakshan” or from a “Professor A V Thamarakshan” (an issue which, on the Tribunal’s unchallenged account, was discussed with the applicant at the hearing), the applicant had been asked to elaborate on the identity of the leading Hindu figure who had been the principal leader in the attacks against him and his family, a man he identified by the name of “Thamarakshan.” Importantly, as Mr Kennett submitted to the Court, when it came to its reasoning, the Tribunal proceeded on the basis that it did not accept that either a “Professor A V Thamarakshan” or a “Mr A V Thamarakshan” were ever involved in harming the applicant and his family because of the applicant’s claimed religious activities. But further to that, it was open to the Tribunal, on what was before it, to find that the applicant subsequently put forward that he was speaking about someone other than Professor Thamarakshan when it became apparent that the Tribunal had a sound knowledge of the identity of Professor Thamarakshan. Plainly, in the circumstances in which this issue arose at the hearing before the Tribunal, I cannot see error on the part of the Tribunal in the way that it dealt with this issue in its subsequent analysis.
The other two matters concern the applicant’s father’s occupation and the distance between the applicant’s place of study and place where the applicant lived were not only matters that were discussed at the hearing, but indeed were the subject of the letter of 6 September 2006. The applicant was specifically invited to comment in writing on the Tribunal’s view that the information provided by the applicant may indicate that, in the circumstances which the Tribunal set out, he was not telling the truth. The applicant today did nothing more than repeat the issues that were before the Tribunal, but the important issue, as Mr Kennett submitted, was that if the applicant felt that there was some discrepancy or mistake in the Tribunal’s understanding, then he was given the opportunity to comment in writing to the Tribunal and he did not utilise this opportunity, which, of course, is a matter for the applicant.
In all, therefore, I cannot see that the applicant’s stated grounds in the application, or the complaints made to the Court today, reveal jurisdictional error on the part of the Tribunal. On any plain examination of the Tribunal’s decision record, it is clear that the Tribunal simply did not believe the applicant on the basis of the inconsistencies in his claims and in his evidence. It is important to note that these inconsistencies were discussed with the applicant not only during the hearing, but they were also the subject of a letter addressed and sent to the applicant seeking his comment.
As I emphasised for the applicant at the hearing today, complaints about findings made by the Tribunal which were open to the Tribunal to make on what was before it cannot assist the applicant today. As I told the applicant, it is well established that questions of fact including questions as to the applicant’s credibility are a matter for the Tribunal as the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).
The material before the Court reveals that the Tribunal gave careful consideration to the applicant’s claims and each aspect of his claims. The Tribunal simply concluded that the applicant was not a credible witness and did not believe the applicant’s claims in critical aspects. Such a finding was plainly open to the Tribunal on the information that was before it.
I should just note that in relation to the subject of the letter of 6 September 2006, to the extent that it may be said that there were unfulfilled obligations on the part of the Tribunal pursuant to s.424A of the Act, this letter certainly addressed the matters which were said to constitute inconsistencies in the applicant’s evidence and which were ultimately part of the Tribunal’s reasons for affirming the decision under review. I note in this regard that to the extent that the Tribunal relied on country information, that in any event, such information would be caught by the exception in s.424A(3)(a) of the Act from any obligation pursuant to s.424A(1) of the Act. This, of course, does not include the information about Professor A V Thamarakshan. But in any event this issue was specifically one of the issues put in the Tribunal’s letter of 6 September 2006.
Of course, what the applicant told the Tribunal at the hearing falls within the exception contained in s.424A(3)(b) of the Act from any obligation pursuant to s.424A(1) of the Act. Any inconsistencies on which the Tribunal relied which were said to be inconsistencies in part involving statements that the applicant made to the first respondent’s department were also subjects of the letter of 6 September 2006.
But in any event, as Mr Kennett, in my view, correctly submits, in light of the High Court’s decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”), such inconsistencies do not give rise to any obligation pursuant to s.424A(1) of the Act. I note in particular what the High Court said in SZBYR at paragraphs 17 and 18, as to the nature of what constitutes “information” for the purposes of that section and having regard to the High Court’s endorsement of what the Full Court of the Federal Court said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (per Finn and Stone JJ). No jurisdictional error is revealed in this regard in what the Tribunal has done.
Given that the applicant did appear unrepresented before the Court today, I did consider whether the determinative issues in the Tribunal’s decision were raised by the Tribunal with him so that he could comment (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592). I am satisfied from the Tribunal’s account that each one of the factors on which it relied for its adverse credibility finding were discussed at the hearing. No error is revealed in the Tribunal’s decision in this regard.
The applicant before the Court today, despite attempts by the Court to explain the difference in function and role of the Tribunal and the court, pressed that the Court should intervene to assist him on the basis that India was a very large country with large corruption and that the applicant’s experiences of those conditions in India, coupled with his own experiences of physical attack (wounds that he still carries), should lead to a humanitarian response. The applicant maintained that he could not go back to India and that ultimately he wanted his family to join him in Australia. I understood this humanitarian response to be expected from the Court and from the Australian Government.
As I sought to explain to the applicant, the Court’s role is confined to whether the question of jurisdictional error can be discerned in the Tribunal’s decision, and on that basis, I cannot see jurisdictional error either arising from the applicant’s application, his statements to the Court today or, indeed, otherwise. In these circumstances, I dismiss the application to this Court. As to whether the applicant may press the Australian Government in relation to the issue of a humanitarian response, this is plainly a matter in relation to which this Court cannot assist the applicant.
It is appropriate that an order for costs be made. There is nothing before the Court that would argue against such an order, and I am satisfied, with reference both to the Schedule of Costs to the Federal Magistrates Court Rules 2001 and to the amount of work done by the Minister’s legal representatives, that $5,000 is both a reasonable and appropriate amount.
I note that the applicant said that this amount is lot of money and that he does not have the money to pay, but I cannot see that this is a reason such that the order should not be made or indeed that this is a reason to vary the amount of $5,000 that is sought. It is understandable that applicants who are seeking review of a Tribunal’s decision would regard such an amount as a large amount, but one of the consequences of pursuing review of Tribunal decisions before the Courts is that if an applicant is unsuccessful, the Minister is entitled to seek some reimbursement of the legal costs that have been incurred in responding to the application. It is appropriate, therefore, that the order be made in the amount sought, which is a reasonable and appropriate amount in all the circumstances.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 12 September 2007
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