SZJZY v Minister for Immigration
[2007] FMCA 1347
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1347 |
| MIGRATION – Alleged denial of procedural fairness – Division 4 Part 7 of the Act is an extensive statement of the natural justice hearing rule – invited to attend hearing – deficiencies in, or lack of, information not “information” within s.424A – interpreter alleged to have misinterpreted – need to show so inadequate that effectively prevented from giving evidence. |
| Migration Act 1958 (Cth), ss.422B, 424A, 474 |
| Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 |
| First Applicant: | SZJZY |
| Second Applicant: | SZJZZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 58 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 14 May 2007 |
| Date of last submission: | 14 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr. J. Mitchell |
| Solicitors for the Respondent: | Ms. M. Mafessanti of Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 58 of 2007
| SZJZY |
First Applicant
| SZJZZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 8 January 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 November 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application.
The first named applicant was born on 1 May 1963; his wife (the second named applicant in these proceedings) was born on 6 May 1965. Both applicants have India citizenship and claim to be of Hindu faith. Their two sons remain in India.
The applicants arrived in Australia on 27 March 2006 and applied for protection visas with the Department of Immigration and Multicultural Affairs on 2 May 2006. The applicant wife did not submit her own claims to refugee status, but was included in the application of her husband (“the applicant”). In this application he claimed that Hindu-Muslim riots were a “frequent story” in his region, and that he feared persecution from Muslim fundamentalists (CB 32). The applicant claimed that his business was damaged and set on fire during riots in 2002, and that he was an active member of Rashtariya Hindu Mahasabha. The applicant claimed that he was threatened and attacked and that the Gujarat State police could not offer him protection “as the enemy is unknown and unlocated” (CB 19-22, 32).
This application was refused by a delegate of the first respondent on
3 June 2006 (CB 48).
On 5 July 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 59). The applicant gave oral evidence before the Tribunal on
10 November 2006, at which time he maintained the claims made in his original protection visa application.
By decision signed on 20 November 2006, the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 100-103) (highlighting added):
The Tribunal is satisfied that the applicant is a Hindu citizen of India and that he is outside that country.
The Tribunal discussed with the applicant his claims about his religious activities. The Tribunal accepts as being plausible that the applicant was involved in the building of temples free of charge. The Tribunal accepts as being plausible that the applicant installed idols in temples at no cost. The Tribunal accepts as being plausible that the applicant looked after temples as well. The Tribunal accepts as being plausible that in 1997, 1999, 2000 and 2001 the applicant was involved in the building of temples from foundation to completion and that he had built five to six temples. The Tribunal accepts as being plausible that as well as the above activities, the applicant was involved in cleaning temples during weddings and providing help generally. The Tribunal accepts the applicant’s evidence that he was not involved in any other religious activities. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s religious activities as accepted by the Tribunal did not give the applicant a profile that would have meant that there could or would be a real chance of harm occurring to him on this basis. In essence and in consideration of the evidence as a whole, the Tribunal is satisfied that by being involved in those activities, the applicant did not have a profile that would have meant that he would have been targeted by Muslims. His religious activities were essentially altruistic in nature and did not harm anyone. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s religious activities did not give him a significant actual and/or imputed religious profile that would have meant that he was of any adverse interest to Muslims.
In relation to the applicant’s political activities, the Tribunal has concerns about the applicant’s evidence. The applicant gave evidence that he wrote his name with the BJP but due to problems “I had trouble joining”. The Tribunal asked him to clarify what he meant. The applicant subsequently said that he was involved with the BJP “just to help everyone”. The Tribunal asked him again what kind of activities he was involved in as part of his political activities. He stated he helped in cleaning/manning the roads and supplying water to the public. The Tribunal asked the applicant when he was involved in those activities and the applicant stated this occurred in January of 2001. He said he could not recall the exact dates. The Tribunal asked the applicant if he was a member of the BJP. He stated that he was for one year from the beginning of 2001 to December 2001. The Tribunal asked the applicant if he had a membership card from the BJP. He stated that he does not have one here. In the opinion of the Tribunal, the applicant’s evidence was internally-inconsistent, vague and incoherent, raising doubts about the claims. Furthermore, the applicant has not provided any evidence in support of his claim of membership of the BJP. In light of those comments and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant was ever a member of the RHM/BJP, or that he was involved in any activities actual or perceived to be BJP activities, or that three of their activists were killed, or that he stayed away from Gujarat for a Convention reason. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant did not have an actual and/or imputed political profile that would have meant that he was of any adverse interest to Muslims.
The Tribunal accepts as being plausible that the warehouse, including machinery, had been damaged as a result of fires that occurred after the riots in February 2002. The Tribunal notes that on the 27 February 2002, a train had allegedly been attacked by Muslim extremists, although, recently the Justice U. C. Banerjee Commission found that the fire, which occurred aboard the Sabarmati Express at the Godhra railway station in Gujarat on February 27, 2002, was accidental and was not caused deliberately (Hindu Godhra train fire just accidental: Banerjee panel, 4 March 2006 03/04/stories/2006030415010100.htm). Following the incident, there was a general period of unrest and rioting. It is reported that the “incident set off days of rioting in Gujarat state in which at least 1,000 people, most of them Muslims, died” (India train fire 'not mob attack', 17 January 2005, /2/hi/south_asia/4180885.stm). On the basis of the available information and in consideration of the evidence as a whole, the Tribunal does not accept that any harm that the applicant suffered as a result of the fire after the 27 February 2002 was essentially and significantly related to any Convention ground including but not limited to his religion and/or political activities, actual and/or imputed. Whilst the Tribunal accepts as being plausible that when the applicant reported the incident to the police, the police did not take action, in consideration of the evidence as a whole and given that this was a period of unrest, the Tribunal is not satisfied that the police did not do so for a Convention reason(s).
Given the Tribunal’s satisfaction that the applicant’s involvement in religious activities did not give him a profile significant to lead to any ill-treatment or to be targeted by the Muslim community in his area, that he did not have an involvement in the BJP, and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant received threatening telephone calls at any stage, including but limited to, subsequent to the reporting of the fire to the police, nor is the Tribunal satisfied that the applicant was ever threatened verbally, or that they were shot at and/or the police did not act upon their complaint.
Generally-speaking, members of the Hindu community in India are not ill-treated in India. The Tribunal has considered the applicant’s claims independently and cumulatively. In consideration of the evidence as a whole, the Tribunal does not accept that the applicant has a political, ethnic/racial or a religious profile that means that he has suffered any persecution as contemplated by the Convention or that there is a real chance of this occurring to the applicant in the reasonably foreseeable future. In essence and for the stated reasons, the Tribunal is not satisfied that the applicant would be harmed by Muslim fundamentalist organisations who attacked him before or that Gujarat police cannot protect him as the “enemy is unknown and unlocated”.
The Tribunal appreciates that there are religious-based tensions in India. However, on balance, independent country information indicates that whilst there are problems in some areas, the Indian Constitution provides for freedom of religion and that the government generally respected this right in practice and that
“The law prohibits arbitrary arrest and detention…The law requires that detainees be informed of the grounds for their arrest, be represented by legal counsel, and, unless held under a preventive detention law, arraigned within 24 hours of arrest, at which time the accused must either be remanded for further investigation or released...The law provides for an independent judiciary, and the government generally respected this provision in practice…….The criminal procedure code provides that trials be conducted publicly, except in proceedings involving official secrets, trials in which statements prejudicial to the safety of the state might be made, or under provisions of special security legislation. Sentences must be announced publicly, and defendants have the right to choose counsel independent of the government. There are effective channels for appeal at most levels of the judicial system, and the state provides free legal counsel to indigent defendants. Defendants were allowed access to relevant government-held evidence in most civil and criminal cases; however, the government had the right to withhold information and did so in cases it considered sensitive. In 2003 the Delhi High Court issued new witness protection guidelines to reduce the number of witnesses who recanted their testimony under threat from defendants.”
(US Department of State Report, India Country Reports on Human Rights Practices - 2005, Released by the Bureau of Democracy, Human Rights, and Labor 2006). Further, the US Department of State Report, International Religious Freedom Report (Released by the Bureau of Democracy, Human Rights, and Labor 2005) notes that the Indian government “protected religious freedoms during the reporting period through speeches by the Prime Minister promoting communal harmony, the drafting of a model comprehensive law to deal with communal violence, the appointment of activists to high level positions responsible for minority issues, the creation of a Commission for Minority Educational Institutions to improve minority access to education, the establishment of a national commission to determine effective ways to improve the social welfare of religious minorities, and the repeal of controversial legislation targeting minorities”. In consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance of persecution occurring to the applicant on the basis of his Hindu religion.
In the course of the hearing, the applicant told the Tribunal that he was in New Zealand for 22 days. In relation to the question as to whether he had sought asylum in New Zealand, the Tribunal found the applicant’s responses to be inconsistent, evasive and vague. In consideration of the evidence as a whole, the Tribunal is not satisfied that when the applicant was in New Zealand, he enquired or made any application or sent any letters to the New Zealand authorities concerning an application for a protection visa. The US Department of State Report, New Zealand, Country Reports on Human Rights Practices - 2005, (Released by the Bureau of Democracy, Human Rights, and Labor March 8, 2006) states that
“The law provides for the granting of asylum or refugee status in accordance with the 1951 UN Convention relating to the Status of Refugees and its 1967 protocol, and the government has established a system for providing protection to refugees. In practice the government provided protection against refoulement, the return of persons to a country where they feared persecution, and granted refugee status or asylum. The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in assisting refugees and asylum seekers. The government also provided protection to individuals who may not qualify under the definition of the 1951 convention and the 1967 protocol. Under its refugee quota, the government resettles up to 750 UNHCR-approved refugees per year. In the 12-month period ending July 30, the government approved 761 persons for refugee status”.
In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant did not seek asylum in New Zealand and that this raises real doubt about his claimed fear of persecution in India.
In essence, the Tribunal is not satisfied that there are Convention reasons as to why the applicant should not return to India. In consideration of the evidence as a whole, the Tribunal does not accept that the applicant has a political, ethnic/racial or a religious profile that means that there is a real chance of persecution as contemplated by the Convention occurring to the applicant in the reasonably foreseeable future.
In sum, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
No specific Convention claims were made by or on behalf other applicants. The fate of the other applicant's application therefore depends on the outcome of the first named applicant’s application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out three grounds as follows:
(1)RRT decision was infected by jurisdictional error and breached procedural fairness;
(2)The decision now falls with the application of SAAP, which gives new definition of s.242A (sic s.424A);
(3)RRT breached s.424A of the Migration Act, failed to disclose adverse information.
The applicant has not filed an amended application.
The applicant was invited to put submissions to the Court in support of his application.
Findings of the Court
Ground one complains that the Tribunal breached procedural fairness. The Court finds that as the application to the Tribunal was filed on 5 July 2006, it was filed after s.422B commenced (4 July 2002). Section 422B(1) provides that the subdivision it forms part of, is an exhaustive statement of the natural justice hearing rule. The Court accepts the submissions for the first respondent that the content of Division 4 of Part 7 of the Migration Act is a procedural code that abrogates the common law natural justice hearing rule in relation to the application (Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62), and that there were no breaches as the applicant was invited to attend the hearing (CB 66) and attended the hearing (CB 98). Section 424A will be considered below.
The Court accepts that there is no transcript before the Court to prove that the Tribunal did not put determinative issues to the applicant for comment. Section 422B means that there is no requirement to do so.
The Court understands the reference to “s.242A” in Ground 2 to be intended as a reference to s.424A. There is no s.242A and that claim is meaningless. In respect of the claim of a breach of s.424A, the Court accepts the submission for the first respondent that the decision was based on information given by the applicant, deficiencies in that information and country information.
In respect to the applicant husband’s religious claims, the Tribunal did not accept that the applicant’s religious activities gave rise to a well-founded fear of persecution for a Convention reason. This finding was based on a lack of information from the applicant. The finding was not based on “information” within s.424A, but on an appraisal and conclusions reached by the Tribunal. Such reasoning of the Tribunal is not “information” covered by s.424A: SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.
The Court accepts the submission of the first respondent that an appraisal of the deficiencies in the claims and lack of detail on key aspects of the applicants claims, is not “information” covered by s.424A : VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24]; WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [26]–[29]; Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [19]. No breach of s.424A occurred.
The Court accepts the submission of the first respondent in respect to the applicant husband’s political claims, that the Tribunal found his evidence to be inconsistent, vague, and incoherent. The evidence given by the applicant in support of his application comes within the exception provided by s.424A(3)(b), and the perceived deficiencies in the applicant’s material are not “information” within s.424A (see authorities referred to above).
The Court accepts the submission for the first respondent as to the Tribunal’s findings relating to the fire at the applicant’s warehouse. Those findings of fact were properly open to the Tribunal and do not show a breach of s.424A, as they were based on a lack of satisfaction that the harm, and the slow response by the police, are Convention related. The finding was based on the applicant husband’s evidence, which was provided in support of his application and is therefore covered by the exception in s.424A(3)(b). The shortfalls in the evidence and material were not “information” within s.424A. Section 424A was not breached.
The Tribunal’s findings that there is not a real chance of persecution occurring in the foreseeable future, is based on country information and comes within the exception in s.424A(3)(a). Section 424A was not breached.
The Court finds no error of law or reviewable error of fact.
The applicant filed written submissions and was invited to make further submissions to the Court.
Findings as to the applicant’s submissions
The applicant claims that he was ill at the hearing before the Tribunal and was denied natural justice when he was forced to continue the hearing. The Tribunal considered the applicant’s claim he was unwell but stated that “without a medical certificate, the Tribunal cannot be satisfied that any illness that he suffers from could impact on his ability to give evidence in the course of the hearing” (CB 98.4). The Tribunal indicated that “if in the course of the hearing he [the applicant] becomes unwell, an adjournment would be considered”. The Tribunal therefore considered its discretion to grant an adjournment and decided not to do so. The applicant was not denied natural justice.
The applicant claims that the Tribunal “misunderstood the whole case” as it concluded that the applicant’s actions of being a member of Rastriya Hindu Mahasabha in Ahmedabad, building temples and installing idols, “did not give the applicant husband a significant actual and/or imputed religious profile that would have meant that he was of any adverse interest to Muslims.” The applicant adds now that he is a member of the Suther caste. This last matter was not put to the Tribunal, and the applicant cannot complain that it was not considered (the issue of interpreters is covered below).
The Tribunal considered the applicant’s claims about his religious activities of building temples and accepted that evidence, but decided at CB 100.9 that he “the applicant’s religious activities did not give him a significant actual and/or imputed religious profile that would have meant that he was of any adverse interest to Muslims.” That finding of fact was properly open to the Tribunal on the material before it and is not subject to review.
The applicant claims that his political activities were misunderstood by the Tribunal and that the interpreter “totally misinterpreted the applicant’s version.”
The applicant complains that the Tribunal did not believe him and was incorrect in finding that he “did not have an actual and/or imputed political profile that would have meant that he was of any adverse interest to Muslims.” Findings as to credibility are findings of fact for the Tribunal and will not be interfered with unless it is shown that the Tribunal “acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 per Tamberlin, R D Nicholson JJ at [64], referring to the decision of the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ). The same tests apply to the finding of fact that the “applicant did not have an actual or imputed political profile…of any adverse intererst to Muslims” (CB 100.9).
The applicant claims that the Tribunal failed to assess the cumulative effects of incidents like his warehouse being burnt. The Tribunal accepted the evidence that the applicant’s warehouse had been damaged as a result of fires (CB 101.3) but stated that
On the basis of the available information and in consideration of the evidence as a whole, the Tribunal does not accept that any harm that the applicant suffered as a result of the fire after the 27 February 2002 was essentially and significantly related to any Convention ground including but not limited to his religion and/or political activities…
That finding of fact was properly open to the Tribunal.
As for the applicant’s claim of police inaction, the Tribunal found that it was during a period of unrest, and that it was not satisfied that the police did not take action for a Convention reason. That finding of fact was properly open to the Tribunal.
The applicant expresses dissatisfaction with the interpreter at the hearing before the Tribunal. The Court accepts the submission for the first respondent that the test of whether there is a denial of natural justice by reason of the provision of poor interpreters is as set out in two cases:
(i)Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [22]. It would need to be shown that the translation of the hearing before the Tribunal was “so inadequate that it could be said that the appellant was effectively prevented from giving evidence at the Tribunal hearing”, and
(ii)Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [19]: “the appellant did not present to the Court any material attesting to the inaccuracy of the interpretation provided, nor any review by a competent interpreter of an audio recording of the Tribunal's proceedings.”
It has not been shown that the interpreting services were so inadequate that the applicant was effectively prevented from giving evidence, and a transcript of the hearing has not been provided to the Court with an accompanying affidavit by a competent interpreter demonstrating that problems occurred. This complaint has not been made out and is rejected.
The applicant then sought an adjournment to enable him to obtain documents to put before the Court. The applicant agreed that the documents were new material that was not put before the Tribunal. The Court declined to grant the adjournment as the material could not assist it to determine whether the Tribunal had erred. Also, the applicant had been on notice since 8 July 2006 (CB 65) that he should “immediately send us any documents, information or other evidence you want the Tribunal to consider” and the Tribunal hearing did not occur until 10 November 2006. The applicant claimed that he did not have that letter interpreted to him, or the s.425 invitation of 21 September 2006 (CB 67) which again invited him to send “documents or written arguments you want the Tribunal to consider”. The fact that the applicant failed to have interpreted to him letters obviously from the Tribunal is the applicant’s fault and not the fault of the Tribunal. There was no good ground for an adjournment and it was refused by the Court.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 9 August 2007
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