SZJVL v Minister for Immigration
[2007] FMCA 864
•5 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 864 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal – selection of country information and the decision to rely on particular country information are part of the Tribunal’s fact-finding function – bias on the part of the Tribunal not proved – Tribunal required to consider the application in light of relevant information, evidence and arguments. |
| Migration Act 1958, ss.91X, 477 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 Johnson v Johnson (2000) 201 CLR 488 Refugee Review Tribunal, Ex parte H [2001] HCA 28 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | SZJVL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3686 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 June 2007 |
| Date of Last Submission: | 5 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,450.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3686 of 2006
| SZJVL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 5 June 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 26 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 24 June 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Extension of time
As a preliminary matter, I will deal with the issue of whether the proceedings were brought out of time and whether the applicant needs leave of the Court to bring these proceedings pursuant to s.477 of the Act.
In his application filed on 11 December 2006 the applicant says that he received notification of the Tribunal's decision on 22 October 2006. Were this to be so, the application would have been filed outside the 28-day period allowed by s.477. However, when this issue was raised with the applicant today, he said two important things, the first one being that he had not received the Tribunal's decision at the Tribunal but had received it by post, and the second being that he had been careful to lodge his application in this Court within the 28-day period which had been advised to him. The only letter in evidence today demonstrating despatch of the Tribunal’s decision to the applicant is the Tribunal's letter dated 21 November 2006 found at Court Book (“CB”) page 58.
Based on what the applicant has said to the Court today, combined with the only documentary evidence of when the Tribunal's decision was sent to the applicant, I am satisfied that he received notification of the Tribunal's decision no earlier than 21 November 2006 and that he filed his application within the 28-day period, namely, on 11 December 2006 as revealed by the Court records. This has the result that the application was not out of time and that no extension of time is required.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a single man in his late twenties from Kerala in southern India. He is a Hindu. (CB 63).
The applicant claims to fear persecution in India because of his political activities.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-8 of the Tribunal’s decision (CB 63-67). Relevantly, they are in summary:
a)the applicant was an active member of the ABVD, part of the major political party known as the BJP. Muslims were a majority in the applicant's village and at times there was major communal and political violence. The Muslim parties (IUML, PDP and NDF) did not like the applicant's involvement in “religious work”. He received “minor threats” which later became “death threats” when a Muslim leader, Cherkalam Abdullah (“Abdullah”), warned the applicant that he would be killed if he did not stop his BJP activities;
b)a few “Muslim fanatics” went to the applicant's house and destroyed household items. He notified the authorities but did not receive any help;
c)a few days later Hindu relics were found near the applicant's home but also close to a Muslim mosque. The applicant's father and friends wanted to build a temple on the site and this caused conflict with Muslims. The applicant complained to local authorities and Abdullah was detained by the police for several days but then released. The next day associates of Abdullah came to the applicant's home and destroyed all the furniture, attacked the applicant's father and raped his sister. Complaints were made to the authorities but the police did not assist; and
d)violence continued, with the applicant's home and his father's shop being burned. Then followed “huge communal violence” with many people being hospitalised. The applicant was threatened by phone. He left and went into hiding. He went to a friend in Chennai but after a few days Abdullah came to know where he was and his party workers tried to kill the applicant, who then fled to various places, including Singapore. He returned to India and subsequently came to Australia.
The Tribunal described his fears in the following terms:
He fears to return to India because he will be victimised or vilified by "fanatic associates" of the IUML or the NDF, whose workers are after him. (CB 63).
The Tribunal’s decision and reasons
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, as 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)the Tribunal found the applicant to be lacking in credibility, describing his “first story” about his political problems being a series of assertions which were neither plausible nor supported by any external evidence and his “second story” about discovery of the religious relic and plans for the erection of a temple having more elements of truth but still not grounding a claim for a protection visa;
b)the Tribunal rejected the applicant's claim that he was targeted by Muslim political parties for reason of his effectiveness as a political strategist for the BJP and rejected all the applicant's claims that he has been or will be in the future at risk of harm from members, supporters or sympathisers of any Muslim political party for reason of his own political affiliation of the BJP;
c)in reaching this conclusion the Tribunal observed that the BJP, a predominantly Hindu party, has a very small appeal in the applicant's home district of Hosdrug, noting that “the Muslims do not run a candidate on any Muslim-oriented ticket” (CB 68). The Tribunal observed that the electoral results in Hosdrug in 2001 saw over 92 per cent of votes going to secular parties. Having already noted that the Communist and Congress Parties were secular parties, that percentage vote indicated to the Tribunal that religious issues or religious identification are not of great concern to the citizens there. The Tribunal also noted that in Kerala as a whole, Hindus are nearly 58 per cent of the population with Muslims constituting 23 per cent and with Hindus forming the majority of the population in Nileshwar, the applicant's home town. The Tribunal concluded on the basis of this information that the applicant's claims of animosity between a Muslim political party and his own BJP, of a sort that could give rise to personal harm amounting to persecution, were exaggerated and implausible;
d)in relation to the issue of the Hindu relic and the possible erection of a temple, the Tribunal accepted that a relic had been found on land owned by the applicant's father and that the applicant, his father and other members of the Hindu community proposed that a temple should be built on the site. The Tribunal accepted that to do so would require re-routing the access to a mosque and consequently the Muslim community objected to the temple proposal. The Tribunal was satisfied that a very local conflict flared between a certain group of Hindus and a certain group of Muslims in 2002 and came to a head in November or December of that year, but it was also satisfied that the police took action and the matter proceeded through the proper channels. The Tribunal was satisfied that the matter is finished with; and
e)the Tribunal also observed there was nothing before it which indicated that the authorities in Kerala are partisan towards one particular religious group or another. The Tribunal found that the chance of harm befalling the applicant in the reasonably foreseeable future is remote, noting that although he has not resided on a full-time basis in his home town since early 2003, he nonetheless returned to visit his family for periods of ten to fifteen days at a time on a number of occasions over the following three and a half years. During that period he spent time in Chennai, Mumbai and Bangalore and throughout this time no harm befell him either in his home town or anywhere else.
Proceedings in this Court
In his amended application filed in Court today the applicant raises numerous asserted grounds of review and he has also made submissions to the Court today.
The essence of the applicant's claim is a challenge to the findings of fact made by the Tribunal as well as to its conclusions as to the merits of his application for review. However, unless there is an error in relation to a jurisdictional fact, it is the Tribunal's task to make findings of fact and it is not for this Court to substitute its own conclusions on those facts even should it have a different view in relation to them. Similarly, it is the Tribunal's role to determine the merits of the applicant's application to it and in an application for judicial review such as this, it is not within the power of this Court to substitute its own view of the merits of the applicant's application even should its view be different to that of the Tribunal. Having made those general comments, it is appropriate to make observations in relation to some specific matters which the applicant's application presents to the Court.
Country information
First, it would seem that the applicant challenges the country information which was relied upon by the Tribunal and referred to in its decision. However, the selection of country information and the decision to rely on particular country information are part of the Tribunal's fact‑finding process and duty as the Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. ... It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that.
On this subject the applicant sought to lead evidence today by way of affidavit to put before the Court additional country information which he said had not been before the Tribunal. However, for the reasons already expressed, that information could be of no assistance to the Court in the determination of the application currently before it.
Bias
The second issue presented by the applicant's application, as identified by the Minister, is the possibility that contained within it there is an allegation of bias. It is unclear whether the applicant suggests that the Tribunal was actually biased and that its mind was actually closed and impervious to the matters the applicant put to it or whether in the conduct of the hearing its behaviour was such that the applicant was led to this conclusion.
As to actual bias, North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
As to apprehended bias, in Johnson v Johnson (2000) 201 CLR 488 at 492 [11] it was said that the relevant test:
… is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
In relation to the situation of a Tribunal decision such as the one under current consideration, I also note with respect the comments of Gleeson CJ, Gaudron and Gummow JJ in Refugee Review Tribunal, Ex parte H (2001) HCA 28.
No transcript of the hearing before the Tribunal has been put before this Court to demonstrate that the Tribunal conducted itself in such a way that the applicant might have reasonably apprehended bias on the Tribunal's part. A consideration of the Tribunal's decision record does not indicate the Tribunal had a closed mind, nor is there anything to suggest that the conduct of the hearing before it should have given rise to any apprehension of bias.
Should bias have been what the applicant alleges, it is a serious allegation to make and one which cannot be made out without cogent and persuasive evidence, of which there is none on this occasion.
Proper review
Another issue raised by the applicant's application is whether the Tribunal actually conducted a proper review, because in para.15 of his amended application he says that the Tribunal reached its decision in a “hasty and unorderly process”. As was observed by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 640 [44], it is central to the dispositive powers conferred on the Tribunal that it conducts a review and that it must consider the application in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains itself. A consideration of the Tribunal's decision on this occasion indicates that that is what the Tribunal did. It not only considered what the applicant put before it and gave the applicant considerable opportunity during the course of the Tribunal hearing to discuss and explain his claims and the asserted factual bases for them, it clearly undertook a conscientious consideration of those matters. The fact that it may not have referred to every piece of information which was before it in that part of its decision headed “Findings and Reasons” is not indicative of error: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630.
Duty to inquire
Paragraph 15 of the amended application suggests that the Tribunal ought possibly to have conducted further investigations into the matters surrounding the applicant's claim. To the extent that this is the allegation, the authority of Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 demonstrates, with respect, that the Tribunal is under no duty to inquire. In his oral submissions today the applicant said to the Court that he had not known that he should have put before the Tribunal information additional to the information which he did put before it. However, the applicant was invited to the Tribunal hearing on the basis that on the information which the Tribunal had at that point it was unable to make a decision in his favour. This is seen in the letter from the Tribunal to the applicant dated 24 August 2006 reproduced at CB 42 and 43. In that letter the Tribunal also says this:
We now invite you and any persons listed below to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.
Clearly, the applicant was put on notice by the letter from the Tribunal inviting him to the hearing that he could put additional information to it by way of evidence and arguments. It is for the applicant to satisfy the Tribunal that he is entitled to a protection visa and thus it is incumbent upon him to put before the Tribunal such information as he can which will assist the Tribunal to reach that level of satisfaction. It is further worth noting that the hearing record of the Tribunal reproduced at CB 46 and 47 indicates that the start time of the hearing was 9.30 am on
3 October 2006 and that it concluded at 11.55 am. The applicant had nearly two and a half hours before the Tribunal to lay before it such information as he wished in order to assist it to reach the level of satisfaction required by the Act.
The Tribunal assumed that Hindus in India could not be persecuted
In his submissions today the applicant also said that the Tribunal had assumed that Hindus in India could not be persecuted because they were the majority religious group. However, that is not what the Tribunal did. Although the Tribunal noted that Hindus were the majority group in the area where the applicant lived, it nevertheless accepted the fact of the inter-communal violence or dispute generated by the discovery of the relic and the discussion of the erection of the temple. However, having accepted those facts, the Tribunal also found that the matter was finished with and that the applicant had been provided with adequate State protection. Consequently, no jurisdictional error is demonstrated in respect of this asserted ground of review.
Conclusion
For all these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 20 June 2007
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