SZKBF v Minister for Immigration
[2007] FMCA 695
•16 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 695 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – Tribunal decision based on adverse credit finding – allegation of bad faith not proved – no denial of procedural fairness. |
| Migration Act 1958, ss.91X, 424, 430, 439, 440 |
| SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 |
| Applicant: | SZKBF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 174 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 April 2007 |
| Date of Last Submission: | 30 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms R. Francois |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 174 of 2007
| SZKBF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 2 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 7 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 25 September 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.
Background facts
The Tribunal described the applicant as follows:
… he was born in India in 1975 and is Tamil, Hindu. He states that he has never married and that he was in business before he came to Australia. He states that he was self employed as a sales manager in India from 1998 until 2000. He states that his parents and his brother reside in India. (Court Book (“CB”) page 146).
The applicant claims to fear future persecution in India because of his political opinions and activities.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 146-149). Relevantly, they are in summary:
a)the applicant was general secretary of the MNK Party while he was in college and in 2001 he assisted the party leader in the Assembly election. He claims that he held “a very distinguished position in MNK party”;
b)the applicant claims to have been oppressed and tortured by supporters of the leader of the opposing party, the PNK, and that extremist opposition supporters ransacked his business;
c)the applicant claims to have been threatened with death if he did not leave the Party. He claims that the police were unable to help him, as the leader of the opposition party was influential. The applicant claims that he could not avoid those who threatened him by moving to other places in India;
d)the applicant moved to Thailand to “wait for the situation to change in India”. He came to Australia and then returned to Thailand because he thought things had changed. He spoke to his parents and was told that the opposition party was still looking for him, so he decided to come to Australia “to save his life”;
e)the applicant fears being tortured or killed by politically motivated extremists and says that he cannot get protection from the harm he fears;
f)as the applicant was a promising businessman, political activist and voice against the PNK, the PNK were angry with him; and
g)he failed to get help from the police when he asked, as the PNK leader was powerful and the police station was controlled by him/them.
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, 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 concluded that the applicant was not a witness of truth and it did not accept, on the evidence before it, that the applicant was a member or secretary of the MNK political party or that he assisted/played a role in the election or that he suffered harm from members, supporters or the leader of an opposing political party in his country saying:
i)it did not accept that the applicant was assaulted/tortured/oppressed by members or supporters or the leader of an opposing political group or extremists who were politically motivated in his country or that his business was ransacked/destroyed by them or that he was in hiding prior to leaving India or at any time;
ii)it did not accept as true that the applicant was searched for in India and/or in Thailand by those people who wished to harm him in India because of his political activities;
iii)it did not accept as true that the applicant left his country because of the persecution that he claimed or that he fears to return there because he fears persecution in India for the reasons he claims;
b)the Tribunal did not consider that it was consistent with the applicant’s claims that he was persecuted for his political activities in his country in 2001, and that his persecutors followed him to Thailand after he left India in 2004, that he returned to India after leaving there in 2004, and also that he returned to Thailand on five occasions after leaving India. The Tribunal did not accept as true the applicant’s explanation that he left Thailand and returned there because he was being searched for and that he was able to return because those searching for him left;
c)the Tribunal did not consider that it was consistent with the applicant’s claims about fearing harm in India, and being in hiding there after 2001, that he managed to live there until 2004 and work at least enough to support himself, at jobs such as in hotels. The Tribunal did not accept as true that the applicant was in hiding in India at any time;
d)in the Tribunal’s view, if the applicant truly feared harm in India if he had to return there, he would not have withdrawn his application for protection in Australia at the time that he did and returned to Thailand. Given the seriousness of the applicant’s claims, his explanation for withdrawing his first application for protection and returning to Thailand was not reasonable or plausible, namely that he heard that those people searching for him there had left and the cost of living was cheap; and
e)to the extent that the applicant claims that he fears for the safety of his family in India, the Tribunal did not accept that this claim was true. His family members had continued to reside in the family home in India.
In essence the Tribunal found:
The Tribunal considers that the applicant gave untruthful evidence about his claims. It considers his claims were invented by him to assist his application for [a] protection visa.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1. The Tribunal applied the wrong test
(a)By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the Applicant the Tribunal was, in fact, placing too high an onus of proof on the application and failing to give the applicant the benefit of the doubt.
(b)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…
2. … the decision maker acted in bad faith.
At the hearing the applicant also relied on the affidavit sworn and filed by him on 18 January 2007 which, amongst other things contained the following:
The Tribunal failed to internalize the circomastatilal [sic] ground of the review application and weighing both subjective and objective claims of the review application and in reviewing the huge supporting facts and documents and such has breached section 424, section 430, section 439, section 440 of the Act.
At the hearing the applicant also submitted that he had not been given a proper interview by the Tribunal.
Dealing with each of these grounds in turn:
By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing too high an onus of proof on the application and failing to give the applicant the benefit of the doubt
The applicant misunderstands the Tribunal’s decision. It was not based upon the absence of independent evidence corroborating the applicant’s version of events. Rather, it was solidly grounded on an adverse finding as to the applicant’s credit.
It is for the applicant to put before the Tribunal a case of adequate credibility such that it would be appropriate for him to be given the benefit of the doubt. This was not a case where the applicant presented a credible claim which lacked independent corroboration, thus potentially justifying him being given the benefit of the doubt. Instead, he was comprehensively disbelieved by the Tribunal on the basis that his prior political involvement was so minor that it was implausible that he would be the subject of the adverse attentions of which he complained and his travel history was inconsistent with him having a well-founded fear of persecution by reason of his prior political involvement.
No jurisdictional error is demonstrated in relation to this asserted ground of review.
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
At the hearing in this Court the applicant was asked what he said were the individual elements of his claim which had been “left out” by the Tribunal. He was not sure what these were and was unable to assist the Court. A consideration of the recounting by the Tribunal of the claims made by the applicant, found at CB 146-147, does not evidence any failure by the Tribunal to consider any of the applicant’s claims or the detail of them. For this reason, this element of this asserted ground of review is not made out.
As to the remainder of this ground, it is for the Tribunal to arrive at findings of fact based on the evidence or drawn by inference from the evidence before it. There is no template as to how that function should be performed, in the sense advanced by the applicant, namely that the totality of the claim should be seen as a whole and individual elements should not be individually scrutinised. But, in any event, the Tribunal did both. It not only considered individual elements of the applicant’s claim, as demonstrated by the summary of its decision and reasons set out in paragraph 6 above, it also reached an overall view which is quoted above in paragraph 7. Consequently, this aspect of this ground is not made out either.
The decision maker acted in bad faith
This is a serious allegation in respect of which no evidence has been put before the Court.
The Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
· An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
· The allegation is not to be lightly made and must be clearly alleged and proved.
· The presence or absence of honesty will often be crucial.
· The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
· Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
· Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
The only evidence before the Court of the Tribunal’s conduct is what appears in its decision record (CB 143-153) and that does not support the applicant’s allegation, which is not made out.
Breaches of various sections of the Migration Act
This passage in the applicant’s affidavit repeats paragraph 2 of the original application filed by the applicant on 18 January 2007. As noted by the Minister in his written submissions, this ground of review alleges breaches of the following sections of the Act:
a)section 424 – which empowers the Tribunal to seek additional information;
b)section 430 – which sets out the requirements for the Tribunal to provide a statement of reasons and findings;
c)section 439 – which makes it an offence for Tribunal members, among others, to disclose information obtained in the course of the review;
d)section 440 – which empowers the Tribunal to restrict publication of certain matters.
The applicant has provided no particulars of the alleged breaches of the sections. As to s.424 it is not apparent from the Tribunal’s decision, nor has any evidence been led on the point, to suggest that the Tribunal sought information additional to what was contained in the departmental file. That being so, no obligations under the section arose. As to s.430 the Tribunal’s decision record met its requirements and no breach of the section is apparent. As to s.439 there has been no evidence put before the Court to demonstrate that there has been any breach of the section. As to s.440 no evidence or submissions are before the Court to indicate that a jurisdictional error has occurred in connection with this section.
It may be that the applicant is seeking a review of the merits of this claim based on his complaints regarding the Tribunal’s decision-making. Merits review is not available in these proceedings which are for judicial review of the Tribunal’s decision. To the extent that the applicant is seeking a review of the merits of his application, he must fail. As was said in Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. (footnotes omitted)
For these reasons, this asserted ground of review is not made out.
Denial of procedural fairness
Although the applicant was directed on 5 February 2007 to file and serve a transcript of the Tribunal hearing, should he have wished to rely upon one, he has not done so. There is no evidence before the Court on the subject of whether or not the applicant was given a real and meaningful hearing other than the Tribunal’s decision record which sets out in summary form the course of the hearing before the Tribunal and which indicates that the applicant was invited to answer the Tribunal’s questions, which he did. Moreover, at the conclusion of the hearing the Tribunal advised the applicant of its concerns regarding the claims which he made and invited him to comment further on these matters. However, he said he did not wish to comment further.
In the absence of other evidence, the applicant’s assertion is no more than that, assertion. Given what appears in the Tribunal’s decision record, there is no basis to conclude that the applicant was not given a proper hearing and, as a result, this asserted ground of review is not made out.
Conclusion
For 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-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 16 May 2007
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