SZJVK v Minister for Immigration & Anor
[2008] FMCA 943
•1 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 943 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of India claiming fear of persecution as a Muslim - credibility – no reviewable error. PRACTICE & PROCEDURE – Legal advice – privilege – where applicant chose to rely on written legal advice provided under the RRT Legal Advice Scheme – where applicant sought to tender the document – explanation of privilege – where applicant waived privilege after having been advised by the Court. |
| Migration Act 1958 (Cth), ss.424A, 430 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | SZJVK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 654 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 July 2008 |
| Date of Last Submission: | 1 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms McDonald |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 654 of 2008
| SZJVK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of India. He asks the Court to set aside a decision of the Refugee Review Tribunal. The Tribunal handed down a decision on 21st February 2008, affirming the decision of a delegate of the Minister not to grant the Applicant a protection visa.
The Applicant asks the Court to issue writs of certiorari, prohibition and mandamus. He wishes that the Tribunal's decision should be quashed, that the Minister should be restrained from acting on that decision and his application for a visa should be sent back to the Tribunal for determination according to law.
The Applicant claims that the Tribunal's decision is affected by jurisdictional error for seven reasons that he sets out in his amended application. The Minister for Immigration & Citizenship opposes these orders being made.
Preliminary
The application has had slight difficulties in being heard. On the First Court Date, which was 28th April 2008, I made directions for the hearing of the matter. The matter was listed for hearing on the afternoon of 11th June 2008. The Applicant attended Court on that day. He was not legally represented, nor is he legally represented now. Unfortunately, no interpreter in his language was available, even though the Registry of the Court had ordered an interpreter in sufficient time.
In my view, it was necessary for the hearing to be adjourned until an interpreter could be available. The application proceeded today and the Applicant attended Court and had the benefit of an interpreter in the Malayalam language.
Background
The background to this matter is that the Applicant arrived in Australia on 7th May 2006 and applied for a Protection (Class XA) visa on
6th June 2006. He claimed that, if he returned to India he would be killed by some Hindu fanatics. He provided a typed three-page declaration in which he referred to the fact that he was an active member of the Indian Union Muslim League and he referred to communal clashes between Muslims and Hindus in the area where he lived. He described how he had formed a relationship with a young woman, who was not only a Hindu but the daughter of a well-known Hindu religious leader.
The Applicant claimed that the lady's father and his gang threatened him and indeed attacked his own father. The Applicant claimed that the lady left her home and that he and she decided to marry but, tragically, the lady met a violent death. As a result, the Applicant claims that the lady's father took an oath that he would kill the Applicant, and this was followed by violence and the Applicant went into hiding. He claimed, indeed, to have been attacked with a bulb which contained acid, which resulted in his hospitalisation with burns. He claimed that, as a member of the Indian Union Muslim League (IUML), he was targeted by the opposition, BJP.
The Delegate’s decision
A delegate of the Minister considered his application but refused the application for a visa. The delegate noted the Applicant's claims to fear persecution because of his political opinion and religion but found there was no evidence that suggested that membership of an opposition political party in India attracts persecution.
The delegate found there was no evidence to suggest that Muslims in India had been targeted or persecuted by the ruling authorities in India. The delegate noted that citizens of India enjoyed freedom of movement in their country and, if the Applicant did not wish to return to his home area, then, the delegate considered that relocation to another part of India would be a viable option.
The delegate found that the Applicant did not, amongst other things, have a real chance of Convention-based persecution if he returned to India. The Minister's decision refused the application for Protection (Class XA) visa on 24th June 2006.
Application to the Refugee Review Tribunal
First RRT Hearing
On 21st July 2006 the Applicant lodged an application for review of the delegate's decision at the Sydney Registry of the Refugee Review Tribunal. No other documents were provided with the application.
The Tribunal wrote to the Applicant on August 2006, inviting him to attend a hearing on 12th September 2006.
The First Tribunal’s Findings
The Applicant attended that hearing and gave evidence with the assistance of an interpreter in the Malayalam language. The Tribunal handed down a decision on 23rd November 2006 affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant commenced proceedings for judicial review in the Federal Magistrates Court and on 4th July 2007 Emmett FM made orders by consent in the nature of certiorari and mandamus.
Second RRT Hearing
The decision was referred back to the Tribunal and on 8th August 2007 (by coincidence, exactly a year after the Tribunal had originally invited the Applicant to a hearing). The Tribunal wrote to the Applicant and invited him to attend a second hearing of the Tribunal.
That hearing was originally scheduled for 14th September 2007; it was rescheduled for 22nd October 2007. The Applicant attended the hearing and gave evidence.
On 24th October 2007 the Tribunal wrote to the Applicant under the provisions of s.424A of the Migration Act. That letter set out, in some detail, if that the Tribunal considered would, subject to any comments that the Applicant made, be the reason, or a part of the reason, for affirming the decision under review. The letter invited the Applicant to provide comments in writing by 16th November 2007.
The Applicant wrote to the Tribunal on 16th November 2007, asking for an extension of time to provide those comments. On 19th November 2007 the Tribunal granted that request and extended the deadline until 27th December 2007.
On 27th December the Applicant wrote again to the Tribunal, again seeking an extension of time. On 2nd January 2008 the Tribunal replied, curiously, refusing the application for an extension of time but then granting it. The letter said:
“The Tribunal has considered the request carefully but has decided not to grant an extension of time for providing the comments/response. The comments/response must therefore be received at the Tribunal by 27 January 2008, as previously advised.”[1]
[1] See Court Book at page 109.
The Tribunal then wrote to the Applicant again on 8th January 2008. This letter was a further letter written under the provisions of s.424A of the Migration Act. That letter asked for the Applicant's written comments by 31st January 2008.
On 30th January 2008 the Applicant wrote to the Tribunal, again requesting an extension of time. That time, on 4th February 2008, the Tribunal wrote to the Applicant, refusing the application for an extension of time. The Tribunal said:
“The Tribunal has considered the request carefully but has decided not to grant an extension of time for providing the comments/response. The comments/response must therefore be received at the Tribunal by 31 January 2008, as previously advised.”[2]
[2] See Court Book at page 117.
I note that the time for providing the comments had already expired four days before the date of the letter.
The Tribunal handed down its decision on 21st February 2008.
The decision was signed on 1st February 2008, and a copy of the Tribunal decision record can be found at pages 121 through to 135 of the Court Book.
The Second Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out at pages 132 through to 134 of the Court Book. The Tribunal affirmed the decision of the delegate not to grant the Applicant a protection (Class XA) visa. In the decision the Tribunal set out the Applicant's claims and evidence and referred to the Applicant's evidence to the previous, differently-constituted, Tribunal on 12th September 2006. The Tribunal also referred to the Applicant's evidence before that Tribunal on
22nd October 2007. The Tribunal also referred to its s.424A letters and the Applicant's response.
The Tribunal noted the Applicant's claim that he had suffered harm in the past because of political reasons and because of his love affair with a Hindu. The Tribunal referred to the Applicant's evidence at the hearing as being inconsistent with his visa application and referred to the Applicant's claims of death threats and attacks on him, including the attack with the bulb full of deadly acid. The Tribunal expressed doubt about this material and said:
“This and the applicant's statement at hearing that he lived in Mumbai from around January 2005 leads the Tribunal to conclude that none of these events occurred.”
The Tribunal went on to refer to the Applicant's claim of persecution arising from his love affair with a Hindu girl but did not accept that the Hindu's girl father took an oath to kill him, or that he or his family or his friends were attacked as a result. The Tribunal went on to find:
“Given that the Tribunal does not accept that the Hindu girl's father took an oath to kill him, he was attacked as a result, even if it accepts the applicant had a love affair, then, given that this affair was a long time ago, the Tribunal does not accept that the applicant has a well founded fear of being persecuted for reasons of his past relationship with a Hindu girl should he return to India.”[3]
[3] See Court Book at page 133.
The Tribunal went on to express doubt about the Applicant's claims to have been involved in politics in the way that he had claimed but was not satisfied that the Applicant had a well-founded fear of being persecuted for his political beliefs by the BJP, or the RSS, or Shiv Sina, or any Hindu fanatics. The Tribunal noted that the Applicant had stated that he had been living in Mumbai since 2005 and said:
“Given that the Tribunal does not accept that anything has happened to him there (or indeed that any harm has happened to him since 1993) then the Tribunal does not accept even if he were involved in politics up to 1994 and continued his membership in the Indian Union Muslim League up to 2004, that he has a well-founded fear of being persecuted in Mumbai in the foreseeable future.”[4]
[4] See Court Book at page 134.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and found that he did not satisfy the criterion set out in s.36(2)(a) for a protection visa. Accordingly, the Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa.
Application for Judicial Review in this Court
The Applicant commenced proceedings for judicial review in this Court by means of an application of an affidavit in support filed on
18th March 2008. He indicated, at the First Court Date on 28th April 2008, that he wished to participate in the Refugee Review Tribunal Legal Advice Scheme and he was referred to a barrister on the
RRT Legal Advice Panel.
The Applicant filed an amended application on 26th May 2008. He did not file, prior to the hearing, a written outline of submissions.
The lawyers for the Minister filed a written outline of submissions on 4th June 2008.
The Applicant has attended the hearing and sought to tender a letter of advice dated 21st May 2008 from the barrister on the Legal Advice Panel who had given him legal advice under the scheme. I explained to the Applicant that he was under no obligation to make the contents of that legal advice public and I endeavoured to explain the concept of privileged information and the meaning of "Legal Professional Privilege".
I advised the Applicant that it was his decision as to whether he wished to make that information public or not but if he did wish to rely on that document, then, the lawyer for the Minister would be entitled to receive a copy of the document. After I was satisfied that the Applicant understood that explanation, I asked him if he still wished to tender the document and he said that he did.
The document is indeed a letter of advice from Mr Terrence Ower, barrister at law, dated 21st May 2008. I have accepted it as a written submission, as it contains a practical and detailed examination of the Applicant's case. The document also advised the Applicant as to Mr Ower's opinions as to the likelihood of success but that is not a matter that would sway this Court one way or another.
There is one issue that Mr Ower raised which I should comment upon because Mr Ower has suggested an argument that could be raised in these proceedings. Mr Ower suggests in the advice that if the Applicant wished to avail himself of that argument, then, he would need to amend his application by adding a further ground. Mr Ower set out the ground, which is set out as ground 3, which clearly relates to the Applicant's original application, which only contained two grounds. The Applicant, however, chose not to avail himself of that particular ground that had been suggested by Mr Ower of counsel.
The Applicant filed an amended application on 26th May 2008, which contains seven grounds, which are confusingly numbered 1, 2, 3, 4, 5, 6 and 8. The grounds do not include the ground suggested by Mr Ower of counsel. I have proceeded on the basis that the Applicant chose not to add that particular ground to his amended application.
The seven grounds before the Court are as follows:
·Ground 1: The Second Respondent fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.
Particulars:
There was no basis on which the Tribunal could find that if the Applicant was not involved in politics up to 1994 and continued his membership in the Indian Union Muslim League up to 2004, the Applicant's claim that he had been attacked with a bulb filled with deadly acid was fabricated.
·Ground 2: The Second Respondent misconstrued the requirement of s.91R(1)(a) of the Migration Act.
Particulars:
The Tribunal held incorrectly that there is no real chance the Applicant would suffer persecution in India for membership of the IUML.
·Ground 3: The Tribunal failed to ask a question that it was, in the circumstance of this case, legally required to ask.
Particulars:
Whether the Indian authorities provided a standard of protection comparable with international standards.
·Ground 4: That the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or ‘integers’ central to the Applicant's claims; because the Applicant was being questioned for a number of hours without a break, he felt stressed and intimidated.
·Ground 5: The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particulars:
(a) The Tribunal did not consider the Applicant who had been under immense and intimidating pressure from BJP loyalists.
(b) In relation to above the Tribunal did not consider the Applicant’s claim that his relationship with a Hindu girl and political background put his life at risk.
·Ground 6: The Second Respondent, in making its determination failed to record its decision in accordance with s.430 of the Migration Act.
Particulars:
(a) The Tribunal made no finding as to the extent or nature of persecution suffered by the Applicant.
(b) The Tribunal however found that any persecution suffered was not for any Convention reason but did not give reasons for the finding.
(c) The Tribunal failed to record the material facts, for the reasons referred to above.
·There is no Ground 7.
·Ground 8: The Tribunal failed to determine the chances of the Applicant being persecuted should he return to India.
Ground 1
Dealing with those grounds in order, the first ground is somewhat confusingly set out. It is fair to say, however, that the Tribunal did not make the findings that the Applicant claimed that it did make and claims that were not open on the evidence before it. The Tribunal did not find that the Applicant was not involved in politics up to 1994 or that he did not continue his membership in the Indian Union Muslim League. What the Tribunal found was that the Applicant was not involved in politics at district level: “This leads the Tribunal to conclude he was not involved in district‑level politics.”[5]
[5] See Court Book at page 133.
The Tribunal went on to find that, even if it were satisfied that the Applicant had been involved in politics, it took note of the fact that the LDF won the Kerala State Election and that the BJP did not win any seats. The Tribunal found that the Applicant did not have a well‑founded fear of being persecuted for his political beliefs by the BJP or other extreme Hindu people if he were to return to Kerala and even if he were to be involved in Indian Union Muslim League politics. The Tribunal was not satisfied that the Applicant had suffered the harm that he claimed.
I am satisfied that, contrary to the Applicant's submission, those findings were open on the evidence before the Tribunal and, indeed, the Tribunal considered the evidence not only at the second Tribunal hearing but the evidence in the first Tribunal hearing, as it was entitled to do. The Tribunal found inconsistencies in the Applicant's evidence and I agree with the submission made by the solicitor for the Minister that the Applicant's first ground effectively seeks to cavil with the merits of the Tribunal's decision.
Merits review is not available on judicial review and the findings of fact made by the Tribunal cannot be disturbed on judicial review (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[6]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs[7] and Minister for Aboriginal Affairs v Peko-Wallsend Ltd[8]).
[6] [2004] FCAFC 10 at [10]
[7] (1989) 169 CLR 379
[8] (1986) 162 CLR 24 at [40]-[42]
The Applicant's ground 1 fails.
Ground 2
The Applicant's second grounds claims that the Tribunal misconstrued the requirement of s.91R(1)(a) of the Act by incorrectly finding that there was no real chance the Applicant would suffer persecution in India for membership of the IUML.
This again is a challenge to a finding of fact made by the Tribunal and, as I am satisfied that there is evidence before the Tribunal upon which it was open to the Tribunal to make that finding of fact. I am satisfied that ground 2 is no more than an attempt at merits review, which is not available on judicial review in this Court.
Ground 2 fails.
Ground 3
Ground 3 is the ground that alleges that the Tribunal failed to ask a question that it was legally required to ask, which was whether the Indian authorities provided a standard of protection comparable with the international standards. This ground is misconceived.
The Tribunal was not satisfied, and did not accept, that the Applicant would suffer persecution for the reasons that he claimed. Consequently, there was no need for the Tribunal to consider the question of effective state protection.
Ground 3 must fail.
Ground 4
Ground 4 claims the Tribunal did not take into account relevant considerations or integers central to the Applicant's claims. The only particulars of that claim appear to be a non sequitur in that the Applicant said: “Because the applicant was being questioned for a number of hours without a break and felt stressed and intimidated.”
The Applicant did indeed attend the Tribunal hearing and, quite clearly, was questioned. There is nothing by way of any evidence to indicate that the Applicant felt stressed and intimidated or that, at any time, he made the Tribunal aware of these matters. I note that the Tribunal hearing, according to the RRT Hearing Record at page 93 of the Court Book, commenced at 11:13am on 22nd October 2007 and it appears took considerably less than the three and a half hours that was scheduled. I note the interpreter arrived at 10:50am and appears to have been excused at 1:00pm.
Even if the Applicant was stressed or intimidated in what does not appear to me to be an overly-long hearing, there is no evidence that he made this clear to the Tribunal or asked for any sort of a break or adjournment in the proceedings.
Ground 5
Ground 5 claims the Tribunal failed to carry out its review function and to exercise its jurisdiction and sets out two particulars:
(a) The Tribunal did not consider the Applicant, who had been under immense and intimidating pressure from BJP loyalists;
(b) In relation to above, the Tribunal did not consider the Applicant's claim that his relationship with a Hindu girl and political background put his life at risk.
It is quite clear from the Tribunal's findings and reasons that the Tribunal considered those claims. It considered his claims relating to his relationship with a Hindu girl and to his political involvement.
It did not, however, accept that those claims showed that he had a real chance for persecution for a Convention reason upon his return to India.
No jurisdictional error has been shown in respect of that ground and it must fail.
Ground 6
Ground 6 claims that the Tribunal failed to record its decision in accordance with s.430 of the Migration Act. Even if that were the case, a breach of s.430 is not of itself jurisdictional error. In any event, I am quite satisfied that the Tribunal's findings and reasons[9] clearly set out the Tribunal's decision and the reasons for that decision.
[9] See Court Book at pages 132-134.
The particulars claimed are:
a) The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.
I am satisfied that the Tribunal was not satisfied about the extent or nature of persecution claimed to have been suffered by the Applicant.
Particular (b) claims that:
b) The Tribunal, however, found that any persecution suffered was not for any Convention reason but did not give reasons for the finding.
The Tribunal did not make that finding. There was a somewhat similar finding made by the delegate but no such finding made by the Tribunal.
Particular (c) claims:
c) The Tribunal failed to record the material facts, for the reasons referred to above.
The Tribunal's findings and reasons set out the factual basis of the Tribunal's findings.
Ground 6 fails.
Ground 8
Ground 8 claims that the Tribunal failed to determine the chances of the Applicant being persecuted, should he return to India.
The simple answer to that is: “Yes, it did.”
The Tribunal considered the evidence and did not accept that the Applicant had a well‑founded fear of being persecuted:
a)for reasons of his past relationship with a Hindu girl[10]; or,
b)that, even if he were involved in politics and continued his membership in the Indian Union Muslim League, he would have a well-founded fear of being persecuted in Mumbai in the foreseeable future.[11]
[10] See Court Book at page 133.
[11] See Court Book at page 134.
I am satisfied that the Applicant's grounds of review have not been made out.
I am satisfied that jurisdictional error has not been demonstrated and I am satisfied that no arguable case for jurisdictional error has been disclosed.
Conclusions
I accept the fact that the Applicant has not been legally represented in these proceedings but he has had the benefit of legal advice from a barrister, Mr Ower, who is a member of the RRT Legal Advice Panel and appears regularly in matters in this jurisdiction before this Court.
I would comment in passing that the Applicant was fortunate to obtain, at no charge, the advice that he received from Mr Ower and it is quite clear that this member of the RRT Legal Advice Panel has taken his responsibility seriously and provided the Applicant with advice about his case. The fact that the Applicant chose not to rely on a ground that Mr Ower suggested that he may avail himself of is no reflection at all on the quality of the advice that Mr Ower provided.
After considering all the material before me and after considering the oral submissions by both the Applicant and Ms McDonald for the First Respondent, I am satisfied that no jurisdictional error has been made out and that the Tribunal decision is a privative clause decision, as defined by s.474(2) of the Migration Act.
As a privative clause decision, it is final and conclusive and is not subject to orders in the nature of certiorari, prohibition or mandamus, as the applicant seeks. It follows that the application should be dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 9 July 2008
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