SZJVU v Minister for Immigration
[2007] FMCA 617
•23 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 617 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.65, 91R, 424A, 424B |
| Abebe v Commonwealth (1999) 197 CLR 510 Arumugam v Minister for Immigration [1999] FCA 251 NARE v Minister for Immigration [2004] FCA 554 Prahostono v Minister for Immigration (1997) 77 FCR 260 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 SJSB v. Minister for Immigration [2004] FCAFC 215 SZDFO v Minister for Immigration [2004] FCA 1192 VDAU v Minister for Immigration [2004] FCAFC 32 |
| Applicant: | SZJVU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3705 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 23 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3705 of 2006
| SZJVU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 21 November 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of political persecution. The background to the applicant’s protection visa claims and the Tribunal decision on them are set out in the Minister’s written submissions filed on 13 April 2007. I adopt as background for the purposes of this judgment paragraphs 3 through to 8 of those written submissions:
The applicant, a citizen of India, claimed in his protection visa application to fear persecution from the Indian authorities due to his involvement in the People’s War Group (PWG), which is the militant arm of the Communist Party of India (Marxist-Leninist) (CPI)(ML). The applicant also claimed that he was involved in the Maoist movement: court book (“CB”) 19-22.
In a statutory declaration submitted to the Tribunal on 25 September 2006, the applicant claimed further that he held various office bearing positions in the CPI(ML) from 1974 until 1981: CB 48-49. The applicant also claimed his father-in-law had fabricated charges against him and tried to kill him: CB 49.5-50. (See generally CB 65.5-67.4)
The applicant attended a hearing before the Tribunal on 26 September 2006.
On 19 October 2006, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) requesting comments on identified inconsistencies in the claims made in his protection visa application, the statement to the Tribunal and his oral evidence at hearing: CB 53-54. The applicant requested further time to respond to the letter as he was expecting further documents from India: CB 55. On 23 October 2006, the Tribunal refused the extension of time: CB 56. The applicant did not provide any further material in response to the s.424A letter.
On the basis of the evidence before it the Tribunal found that the applicant had fabricated his claim to be a member of the PWG, the CPI(ML) and rejected the claim that the applicant suffered serious harm in India as a result of this political opinion: CB 72-73. The Tribunal also rejected his claim to have been an office holder in the organisation and that he was detained between December 2002 and September 2004: CB 73.1. (See: CB 72-73 for reasons).
The Tribunal was not satisfied that the applicant had suffered Convention based persecution or that there was a real chance he would be persecuted if he returned to India.
The applicant sought judicial review of the Tribunal decision by a show cause application filed on 12 December 2006. In that application he asserts actual notification of the Tribunal decision on 22 November 2006. On that basis I find that the application was filed within time.
The application sets out eight grounds of review and foreshadows possible additional grounds. The application is supported by a short affidavit filed with the application. In addition, the applicant has taken the opportunity to file written submissions on 18 April 2007. In those submissions the applicant purports to provide particulars of actual bias. However, the particulars are assertions of other jurisdictional errors which, of themselves, would not amount to actual bias. The only evidence apart from the factual assertions in the applicant’s affidavit I have before me is the court book filed on 16 January 2007. I received the court book as evidence of the material before the Tribunal and its process.
It is apparent from the Tribunal decision that the applicant failed because he was not believed. The Tribunal was concerned about the applicant’s failure to demonstrate a meaningful grasp of the rationale of the People’s War Group to which he claimed to belong. Indeed, the Tribunal found that the applicant was unable to demonstrate any serious interest in or knowledge of State or Indian politics. The applicant had also asserted a fear of harm from his father-in-law but the Tribunal found that the applicant had not been harmed by his father-in-law or would be harmed by him should he return to India.
The grounds of review advanced by the applicant are comprehensively dealt with in the Minister’s written submissions. The applicant’s written submissions were unhelpful and in his oral submissions he dealt with his claims to a protection visa. I agree with and adopt paragraphs 9 to 14 and 17 to 22 of the Minister’s written submissions:
The applicant has not filed and served any amended application despite the orders and directions made on 8 February 2007 which permitted him to do so.
The application for judicial review pleads eight unparticularised grounds of review. Each will be dealt with separately below.
Ground 1 - The Tribunal “has failed to see that the applicant satisfies the definition ‘refugee’ in Article 1A(2) of the Convention” (sic)
Ground 2 - The Tribunal “failed to see that the applicant satisfies the four key elements to the Convention definition as stated b the Tribunal in page 3 of its decision” (sic)
Grounds one and two are effectively the same and contain no particulars to make them meaningful. The grounds must fail because the Tribunal expressly considered the definition of refugee and applied the correct principles: CB 63-65. There is nothing in the materials to suggest that the Tribunal misapplied the definition of persecution or serious harm under s.91R. Whether conduct amounts to persecution is a question of fact and degree for the Tribunal.[1]
[1] Prahostono v Minister for Immigration (1997) 77 FCR 260 at 268 per Hill J; Arumugam v Minister for Immigration [1999] FCA 251 at [37]; VDAU v Minister for Immigration [2004] FCAFC 32 at [24].
Additionally, the grounds appear to assert that the Tribunal made the wrong findings, which is an attempt to cavil with the merits of the Tribunal’s decision. This Court cannot engage in merits review and nor can it conduct a rehearing of the merits.[2]
[2] SZDFO v Minister for Immigration [2004] FCA 1192; NARE v Minister for Immigration [2004] FCA 554 at [10].
Ground 3 - The applicant was nervous at the hearing and the “Tribunal should have considered the matter on merits. The Tribunal should not have taken advantage of the confusion the applicant underwent at the time of the hearing” (sic)
There is no evidence or factual basis to support these assertions. The applicant was assisted by an interpreter at the hearing (CB 51) and the Tribunal gave the applicant time to present oral arguments and discussed with the applicant the inconsistencies in his evidence: CB 67.7, 67.8, 68.1, 68.4. Additionally, the Tribunal sent a s.424A letter to the applicant so that he could respond to the identified inconsistencies in writing. There is nothing in the Tribunal’s decision to indicate that the applicant’s nervousness denied him an opportunity to put his claims before the Tribunal or that the Tribunal took advantage of the applicant.
In relation to the claim that the Tribunal should have considered the matter on its merits, this claim cannot be made out. The Tribunal considered the applicant’s claims and characterised them correctly: CB 65-67, 72-73). The Tribunal was not obliged to accept the applicant’s claims at face value and no jurisdictional error is revealed in the approach or findings of the Tribunal because the facts that were put forward by the applicant did not cause it to be satisfied as to the applicable criteria.[3]
Ground 5 - The applicant had been denied a “fair and proper trial and the principles of natural justice has been denied to him by the Tribunal” (sic)
There is no evidence to support this bland assertion. There is nothing in the Tribunal’s decision to indicate that the applicant was not given a fair and proper trial. The Tribunal hearing was postponed until 26 September 2006 following the applicant’s claimed ill health: CB 44-46. As stated above in paragraph 13, the Tribunal provided the applicant with an opportunity to give oral evidence at the hearing and also discussed with him the inconsistencies in his evidence so he was aware of the relevant issues. Additionally, s.422B was in force at the time the applicant made his application to the Tribunal. The effect of s.422B was to exclude the common law natural justice hearing rule, including any common law obligation on the Tribunal to put matters to the applicant at hearing.[4] No jurisdictional error is apparent and this ground must fail.
Ground 6 - “The Tribunal failed to take seriously about the activities of the applicant as member of the People’s War Group. The Tribunal erred in stating that the claims of the applicant are vague” (sic)
This ground is not a proper ground of review and lacks any evidence in support or any meaningful particulars to indicate jurisdictional error on the part of the Tribunal. The Tribunal clearly considered and properly characterised the applicant’s claims and evidence as to his involvement in the PWG and questioned him as to his role and his understanding of the PWG: CB 68-69.
The applicant was unsuccessful before the Tribunal because it could not reach the requisite level of satisfaction on the material before it to find that the applicant met the necessary visa criteria. The primary basis for the Tribunal decision was that the applicant was unable to “demonstrate at interview any meaningful grasp of the rationale of the PWG” (CB 72.3). It found his evidence to be vague and unconvincing. As a result the Tribunal found that he had fabricated his claim to have been a member of the PWG: CB 72.7. These were findings of fact open to the Tribunal.
This ground appears to be challenging the Tribunal’s findings of fact which are a matter for the Tribunal alone. As discussed above in paragraph 12, the Court cannot engage in merits review.
Ground 7 - “The Tribunal is not correct is saying that the applicant has not suffered Convention related serious harm as contemplated by the Act”
This ground seeks to re-agitate grounds one and two. The submissions at paragraphs 11 and 12 above are relevantly repeated here.
[3] SJSB v. Minister for Immigration [2004] FCAFC 215 per Ryan, Jacobson and Lander JJ; and SZBCS v Minister for Immigration [2005] FMCA 25.
[4] SZCIJ v Minister for Immigration [2006] FCAFC 62; Minister for Immigration v Lay Lat [2006] FCAFC 61.
Ground 8 - Independent country information relied upon rather than the applicant’s evidence
The eighth ground alleges that the Tribunal relied on independent country information rather than the applicant’s evidence. This complaint does not identify jurisdictional error. It was for the applicant to put forward whatever evidence or other material he wished to have taken into account and for the Tribunal to decide whether the claim was made out.[5] The Tribunal is not under any duty to enquire nor is it obliged to accept a claim merely because positive evidence to the contrary is absent.[6] There was no requirement that the Tribunal put the information to the applicant given that it falls within s.424A(3)(a) of the Act. No jurisdictional error is revealed because the facts advanced by the applicant did not enable the Tribunal to be satisfied that the applicable criteria under s.65 of the Act had been met.
[5] Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437, especially at [57] per Gummow and Heydon JJ (Gleeson CJ relevantly agreeing at [1]); Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ
[6] SZATG v Minister for Immigration [2004] FCA 1595 at [36] per Hely J
The fourth ground in the applicant’s application is that the Tribunal did not give to him sufficient time to provide documents. I take this to be an assertion that the Tribunal fell into error in exercising its discretion pursuant to s.424B(4) of the Migration Act. The applicant had been invited to comment on adverse information by the Tribunal by letter dated 26 September 2006 (CB 53). He was required in that letter to respond by 20 October 2006. By letter dated 19 October 2006 the applicant requested an additional two weeks (CB 55). That request was refused by letter dated 23 October 2006 (CB 56).
The applicant’s request for more time was based upon the simple proposition that he was seeking additional supporting documents from India that had not been received. At the hearing before me this afternoon the applicant told me that he was still awaiting those documents and that they were difficult to obtain given the sensitivities of obtaining documents about the People’s War Group. If the applicant had explained the position more clearly to the Tribunal at the time he requested more time it is possible his request might have been seen to be more persuasive. In the bald terms in which the request was made, however, it is not surprising that the Tribunal refused it.
The Tribunal may also have taken into account that the applicant had been requested to provide documents when the Tribunal responded to his review application by letter dated 10 April 2006 (CB 39 and 40). As matters turned out the applicant had available to him approximately one month after he requested more time to submit further documents. The Tribunal decision was not handed down until 21 November 2006. If the applicant had presented any additional documents to the Tribunal before that date the Tribunal would have had to take them into account. He did not do so. Indeed, as the applicant told me today he is still waiting for the documents. The decision by the Tribunal refusing the request for more time to respond to the s.424A invitation was, in my view, open to it. No jurisdictional error is disclosed.
Neither is there any arguable claim of jurisdictional error based on the other grounds advanced by the applicant The matters advanced by the applicant in his protection visa and review applications in relation to his fear of political persecution were serious and required serious consideration. In my view the Tribunal gave serious consideration to the claims. That is not to say that the Tribunal necessarily made the correct decision. However, as I explained to the applicant, only the Minister can vary a valid decision of the Tribunal.
As no arguable case of jurisdictional error in this decision of the Tribunal has been advanced, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I so order.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant indicated that he would have difficulty paying costs but that is not a reason for the Court to refrain from making a costs order. The application of scale costs in this matter is appropriate. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item (1)(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 April 2007
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