SZJSU v Minister for Immigration

[2007] FMCA 1393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1393

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal – applicant has no onus of proof but Tribunal must be satisfied that applicant meets criteria for protection visa – bias by prejudgment not proven – Tribunal has no duty to inquire – Court cannot inquire into the merits of the applicant’s claim – no common law duty on the Tribunal to give reasons – bad faith not proven – consideration of “serious harm” under s.91R arises only after persecution has been found – likelihood of future harm informed by findings on past events.

Migration Act 1958, ss.91R, 91X, 422B, 424, 424A, 430, 439, 440, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SBBSv Minister for Immigration & Multicultural Affairs (2002) 194 ALR 749
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant: SZJSU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3439 of 2006

Judgment of: Cameron FM

Hearing date: 26 July 2007

Date of Last Submission: 26 July 2007

Delivered at: Sydney

Delivered on: 26 July 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms L. Clegg

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application be dismissed.

2. The applicant to pay the first respondent's costs fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3439 of 2006

SZJSU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By amended application dated 18 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 9 October 2006 and which affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 2 August 2006 refusing the applicant’s application for a protection visa.

2. Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.

Background facts

1. The Tribunal described the applicant as follows:

   … the applicant is a male born on 10 June 1960 in Biyyam, Kerala, India. He is of Hindu religion and Eihava ethnic group. Following completion of secondary studies, he completed studies towards a Bachelor degree. The applicant stated that he speaks, reads and writes Malayalam and he reads and writes English. He described his occupation between 1989 and 2006 as a business owner.  (Court Book (“CB”) 89).

2. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (CB 89 – 95). What the applicant alleged in his application for a protection visa was that he was an active member of the Communist Party of India-Marxist (“CPIM”) although in his oral evidence at the Tribunal hearing he stated that he was not an active member.  Clashes occurred between the CPIM and the Muslim League and because the applicant had a certain standing in the party he was targeted and he said that opponents sought revenge against him.

3. During the 2001 assembly elections there was civil disturbance and a Muslim named Saleem was attacked by members of the applicant's party.  This person died and his party decided to seek revenge against the applicant and the applicant's party.  During the election period the applicant was attacked, beaten and warned to leave.  Although complaints were made to the police they took no action. 

4. The applicant received information subsequently that people were looking to kill him and one of his party co-workers was stabbed to death.  The applicant ultimately sought refuge in Australia.  The applicant claims to fear persecution in India because of his political views and because he witnessed a murder. 

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).  The Tribunal’s decision was based on the following findings and reasons:

   a)based on the applicant’s concession to this effect, the Tribunal found that the applicant did not have a fear of persecution arising from his involvement in the VHP or the SFI or for any activities he performed for these organisations or any views that were imputed to him as a result of his involvement in these two organisations;

   b)noting that there were significant inconsistencies between the applicant's written evidence and his oral evidence and given that he had received assistance in completing his forms when lodging his application for a protection visa and that he was unfamiliar with the content of the application the Tribunal preferred the applicant's oral evidence as more accurately reflecting his claims;

   c)the Tribunal did not accept that the applicant was actively involved in the activities of the CPIM or that his opinion was sought when the party was seeking candidates on the basis that he had a good standing within the party because:

   i)the Tribunal preferred the applicant's oral evidence that he was not an active participant in the party and that he was only involved when asked by party leaders;

   ii)the applicant had extremely limited knowledge about the CPIM;

   iii)the applicant was unable to provide basic information about the party's formation or history;

   iv)the Tribunal considered that if the applicant had been actively involved in the political activities of the CPIM as he claimed then it would be reasonable for him to have displayed a greater knowledge about the party;

   v)the Tribunal accepted that the applicant did not hold any position within the party; and

   vi)it accepted that the applicant may have performed some work for the party but found that such work would have been insignificant, such as helping with the decoration of halls and participating in rallies with thousands of others; 

   d)the applicant's minor involvement with the CPIM would not have rendered him a target due to his political involvement or opinion. There was no real chance that the applicant would be persecuted for the reason of his political opinion arising out of his membership of, or minor involvement with, the CPIM;

   e)the applicant's claim that he feared persecution on the basis that he witnessed the murder of his friend was not credible because:

   i)the Tribunal did not accept that the applicant witnessed his friend's murder, and it did not accept that the applicant became a target as a result of him witnessing the murder;

   ii)as the applicant changed his evidence in the course of the hearing, the Tribunal found that the applicant was not truthful in his evidence; and

   iii)the claim to have witnessed his friend’s murder appeared to have been given prominence by the applicant because the CPIM had won the recent elections following the applicant's departure from India; 

   f)the Tribunal did not attach much weight to the newspaper articles provided to it by the applicant because although they referred to damage done to the theatre in which the applicant was one of the partners and to the fact that the applicant's dog died, they did not identify who perpetrated these acts, that the applicant was the target of them or the reasons for them.

Proceedings in this Court

1. In his amended application and in his subsequent written submissions the applicant raises a number of grounds on which he seeks review of the Tribunal's decision.  The claims are not properly particularised, most have no obvious relevance to the claim in question and some are clearly irrelevant.  However, I deal with them in turn.

2. In relation to para.1 of the amended application the applicant says that the Tribunal applied the wrong test.  Para.(a) of this ground states as follows:

   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 proof on the applicant and failing to give the applicant the benefit of the doubt. 

3. The Tribunal did not require independent evidence before it would accept the applicant's claims. What was required was for the applicant to put evidence before the Tribunal such that it could reach the level of satisfaction required by the Act, that satisfaction being that the applicant met the criteria for a protection visa.

4. The reference to there being too high an onus of proof misunderstands the processes of the Tribunal.  The fact that the applicant has to put material before the Tribunal so it can consider whether it is satisfied that the applicant meets the relevant test does not amount to an onus of proof.   The use of terms appropriate to civil litigation is inappropriate to administrative Tribunals such as the Refugee Review Tribunal, as was said by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

5. The Tribunal disbelieved the applicant in relation to his claim to have witnessed the murder of a friend.  In relation to his political involvement the Tribunal concluded that it was of such a minor nature that it would not attract political persecution to him.  In light of its disbelief of his claim to have witnessed the murder and its factual findings concerning the applicant's political status the issue of giving the applicant the benefit of the doubt did not arise.  This was not a question where some latitude was necessary in the circumstances of this claim and thus the benefit of the doubt was not an appropriate matter for consideration.   

6. The next paragraph of this ground:

   The Tribunal left out individual elements of the applicant's 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. 

   When I asked the applicant today which individual elements of his claim had been omitted he stated that the Tribunal had been hasty in its decision making and it did not attempt to verify information.

7. The claim that the Tribunal was hasty implies that it was either biased against him and had already made its decision at the time of the hearing or that it gave no consideration to the matters which the applicant put before it.  If this is an allegation of bias it is a very serious allegation to make.  No evidence has been put before the Court to suggest the Tribunal's mind was closed to persuasion or that it had prejudged the applicant's review application. 

8. Further, nothing has been adduced which suggests that the Tribunal's conduct at the hearing would have led a reasonable person to apprehend that the Tribunal was biased.  A consideration of the Tribunal's decision record indicates the contrary.  On the evidence before me I find that bias on the part of the Tribunal has not been proved. 

9. To the extent that this ground suggests that the Tribunal did not consider the evidence and the arguments put before it by the applicant, again the Tribunal's decision record reveals a sufficiently thoroughly exposition of the material which had been put before it and a sufficiently detailed consideration of that information to reveal that the matters requiring consideration were given that consideration.

10. In relation to the allegation that the Tribunal did not attempt to verify facts, the Tribunal does not have an obligation to enquire.  That is to say, it is for the applicant to put information before the Tribunal and although the Tribunal has power to seek further information it is not obliged to do so and no jurisdictional error is demonstrated by the fact that it may not have sought to verify certain facts which the applicant would have preferred that it did verify. 

11. Paragraph 1(c) of the amended application states:

    The Tribunal failed to internalise the circumstantial ground of the review application and in weighing both the subjective and objective facts of the review application and in reviewing the huge supporting facts and documents and [as] such breached s.424, s.430, s.439, s.440 of the Act.

12. This ground may be inviting the Court to reopen the Tribunal's investigation of the merits of the applicant's claim.  The Court may not do so in judicial review proceeding such as these.  Findings of fact within jurisdiction are solely the province of the Tribunal and it is not suggested that there has been a jurisdictional fact associated with this asserted ground of review. 

13. In relation to the sections which the applicant cites, s.424 empowers the Tribunal to seek additional information; s.430 sets out the requirements of the Tribunal's decision record; s.439 relates to the disclosure of confidential information by the Tribunal and s.440 provides that the Tribunal may restrict publication or disclosure of certain matters. None of those sections has been breached by the Tribunal in its conduct of this review. Consequently this asserted ground of review is not made out.

14. Paragraph 2 of the amended application provides as follows:

    The Tribunal in its decision of 9 October 2006 failed in its written statement [such] that a breach of the rules of natural justice [occurred], therefore it rises [sic] the ground under s.476 of the Migration Act.

15. In relation to the conduct of the Tribunal hearing, s.422B has codified the natural justice hearing rule and it is not apparent that any breach of any of the relevant sections has been committed by the Tribunal. However, this asserted ground of review appears to assert that there were some natural justice rights in relation to the articulation of the Tribunal's decision. The common law does not require an administrative decision maker to give reasons and thus there can be no common law natural justice rights in relation to the way the Tribunal expressed its decision. The rights which the applicant has in relation to the Tribunal's reasons are set out in s.430 of the Act.

16. To the extent that the applicant relies on s.476 of the Act, this appears to relate to a previous version of that section which now provides this Court with jurisdiction to entertain review applications in respect of migration matters. Consequently, the reference to s.476 has no relevance to this asserted ground of review.

17. Paragraph 3 of the amended application asserts that the decision maker acted in bad faith.  The criteria for finding that a decision-maker acted in bad faith are discussed by the Full Court of the Federal Court in SBBSv Minister for Immigration & Multicultural Affairs (2002) 194 ALR 749 at 756. Applying the principles discussed there by their Honours, I find that the Tribunal did not act in bad faith.

18. In para.1 of his written submissions the applicant again raises the issue of bias saying that the findings of the Tribunal member demonstrated actual bias.  For the reasons already given, this ground is not made out.  

19. In the second paragraph of the written submissions the applicant says that the Tribunal failed to take into consideration the threat to his life and liberty and the disappearance of a family member. 

20. The threat to the applicant's life or liberty was expressly considered by the Tribunal as this was the essence of the matter which it had to consider. At page 3 of its decision record when discussing s.91R of the Act the Tribunal discusses the expression "serious harm" and makes reference to it including a threat to life or liberty. The Tribunal also considered the evidence put before it by the applicant but concluded that his political profile was not sufficient to justify a well-founded fear of persecution for a Convention reason and his claim to having witnessed a murder was rejected as not being truthful. Consequently I am satisfied that the Tribunal did properly consider the threat to life or liberty which the applicant claimed to fear.

21. In relation to the disappearance of a family member, no such issue was before the Tribunal and no error is disclosed by the Tribunal in not considering a matter which was not put before it.

22. In this second paragraph of the written submissions the applicant also says that the Tribunal failed to consider the impact of him because of his political background, however, this amounts to an invitation to reopen the applicant’s claim on its merits which is not available in these proceedings or, otherwise, overlooks the Tribunal's detailed consideration of the applicant's political history. Whichever is the case, no jurisdictional error is demonstrated in this element of this asserted ground of review.

23. In the third paragraph of the applicant's written submissions he says that the Tribunal failed properly to consider s.91R(2)(a) in the context of relocation. First, the issue of relocation was not something which was considered by the Tribunal. Secondly, s.91R(2)(a) refers to threats to a person's life or liberty as amounting to serious harm for the purposes of the Act and, as has already been discussed in these reasons, this issue was specifically considered by the Tribunal. And, finally, in relation to serious harm as provided for in s.91R, a consideration of this issue would only arise if the Tribunal accepted that the applicant had a well-founded fear of persecution for a Convention reason and it was necessary to consider whether such feared harm amounted to serious harm. That was not necessary in this case because the Tribunal did not accept that the applicant had a well-founded fear.

24. In relation to the fourth paragraph of the written submissions the applicant makes reference to the Tribunal's use of country information.  The Tribunal is entitled to select the country information upon which it chooses to rely.  Its fact-finding function is a matter solely for it when it comes to country information and no jurisdictional error is revealed in this element of this paragraph. 

25. In para.4 of the written submissions the applicant also says that the Tribunal was preoccupied and did not have a fresh look.  Again bias or prejudgment on the part of the Tribunal is suggested which, for the reasons already given, is not made out.  Finally, in this paragraph the applicant says that the Tribunal failed to consider Amnesty International country information.  No such information was before the Tribunal and its failure to consider it therefore does not amount to error.  If the applicant submits that the Tribunal should have sought out Amnesty International country information, it was under no obligation to do so as has already been expressed in these reasons.

26. In para.5 of the written submissions the applicant says that the Tribunal breached s.424A of the Act by failing to serve on him country information about Kerala and information about the CPI and CPIM organisations. However, such information falls within the exclusion found in s.424A(3)(a) on the basis that it is not specifically about the applicant or another person but about classes of persons.

27. Paragraph 6 of the written submissions repeats the first paragraph of the amended application.  Paragraph 7 of the written submissions submits that the Tribunal failed properly to apply the refugee test under the Convention.  Pages 2 and 3 of the Tribunal's decision reveal the Tribunal's discussion of the refugee test and its correct understanding of the test.  Moreover its reasons reveal that it applied the test correctly. 

28. Paragraph 8 of the applicant's written submissions seeks to rely on Muin v Refugee Review Tribunal (2002) 190 ALR 601 and the finding by the High Court in that case that the Tribunal erred by misleading the applicant as to what material had been supplied to it. The facts in Muin's case are not the same as the facts in this case and the finding there has no application to the facts here. 

1. In the second last paragraph of his written submissions the applicant says that the Tribunal failed to analyse the future harm he might face if he returned to India.  In review applications such as this the Tribunal has to consider what is likely to happen in the future if the applicant is to return to his country of nationality.  A determination of what is likely to happen in the future relies in large part on a consideration of what has happened in the past;  the Tribunal's consideration of the applicant's experiences in India before coming to Australia indicate no error in this respect.  In particular, the applicant's low political profile revealed that he had no real chance of being persecuted by reason of his political opinion were he to return to India.  No error is disclosed in relation to this allegation by the applicant. In relation to the applicant's alleged fear regarding the murder he says he witnessed, the Tribunal rejected that allegation and thus the question of future harm arising out of it did not arise. 

2. The final matter raised by the applicant in his written submissions is that the Tribunal failed properly to apply the “real chance” test.  As part of its consideration of the refugee test at page 3 of its decision record the Tribunal discusses the “real chance” test and does so without displaying misunderstanding of it.  It then proceeded to apply that test properly. Having considered the applicant's political profile and activities, the Tribunal expressly said this:

   … the Tribunal finds that there is no real chance of the applicant being persecuted for the reason of his political opinion arising from his membership in, or involvement with, the CPIM.  (CB 97)

3. Consequently no jurisdictional error is demonstrated in relation to this allegation made by the applicant. 

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate: 

Date:  21 August 2007