SZKCI v Minister for Immigration
[2007] FMCA 677
•17 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 677 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 424A(3)(b); 474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | SZKCI |
| Second Applicant: | SZKCJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG266 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 May 2007 |
| Date of last submission: | 1 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2007 |
REPRESENTATION
| Applicants appearing on their own behalf |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Ms E. Warner Knight, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG266 of 2007
| SZKCI |
First Applicant
| SZKCJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 December 2006 and handed down on 4 January 2007.
The first applicant was born on 3 March 1971 and claims to be from India and of Hindu faith (“the first named Applicant”). The second applicant is the wife of the first named Applicant and was born on 14 November (“the second named Applicant”) and also claims to be from India and of Hindu faith. The second named Applicant made no specific Convention claims on her own behalf and is reliant on the claims of the first named Applicant.
The first named Applicant arrived in Australia on 25 February 2006, having legally departed from Delhi Airport on a passport issued in his own name and a visitor visa. The second named Applicant arrived in Australia on 9 March 2006.
On 7 April 2006, the applicants lodged an application for a protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the first named Applicant claimed that he feared persecution by a Muslim political leader in his area who, was seeking him in relation to an incident involving the injury of the political leader’s son. The first named Applicant claimed that he was beaten by Muslim people in retaliation for this incident and that he had attempted, without success, to settle the matter “in monetary terms”. He further claimed that the Muslim political leader’s influence resulted in the police being ordered to harass him, and the High Commissioner, who would not hear his appeal, and that he was imprisoned on more than one occasion.
On 30 June 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 18 July 2006, the applicants lodged an application for review of the Delegate’s decision by the Tribunal. The applicants provided no further material in support of the review application. On 4 January 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 30 January 2007, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 22 September 2006, the Tribunal invited the applicants to come to a hearing on 31 October 2006. The applicants were informed that this date had been changed by letter, dated 27 September 2006, to a hearing date of 31 October 2006. The applicants were then again informed by letter, dated 25 October 2005, that the new hearing date of 31 October 2005 had been changed to a hearing date of 27 November 2005.
The Tribunal noted that it had before it the Tribunal case file, the Departmental case file, the material referred to in the Delegate’s decision and other materials available to it from a range of sources.
The applicants attended the hearing on 27 November 2006. The first named Applicant gave oral evidence before the Tribunal in which the he expanded upon his written claims. The second named Applicant did not give any evidence and the Tribunal noted in its decision that she stated she was only there to observe.
The Tribunal found that the first named Applicant was not a credible witness. The Tribunal noted inconsistencies between the written claims and the oral evidence given at the hearing. The Tribunal also noted the lack of evidence to support the first named Applicant’s claims and the time available to him that, since arriving in Australia, he had to gather such evidence.
In particular, the Tribunal found that many aspects of the first named Applicant’s oral evidence were “implausible, internally inconsistent and lacked credibility.”
The Tribunal identified the various inconsistent matters before it arising from the evidence and material before it. The Tribunal noted that the applicants’ original passports were given to the Tribunal by the first named Applicant.
The Tribunal identified with particularity various exchanges it had with the first named Applicant at the hearing, noting in particular concerns put by the Tribunal to the first named Applicant and his responses.
The Tribunal also identified with particularity independent country information before it that revealed that, in the applicants’ home town of Mumbai, Hindus, such as the applicants, are the majority and State authorities are bias in favour of Hindus. The Tribunal ultimately rejected the claims made by the first named Applicant.
The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the first named Applicant is a person to whom Australia has protection obligations and because the second named Applicant’s application depended on the outcome of the first named Applicant’s application, the Tribunal affirmed the decision not to grant either of the applicants protection visas.
The proceeding before this Court
The applicants were unrepresented before this Court although had the assistance of an interpreter. The applicants confirmed that the second named Applicant’s application was dependent on the outcome of the first named Applicant’s application.
The applicants filed in Court, with the consent of the First Respondent, an amended application relying on the following ground:
“1. The Refugee Review Tribunal (the Tribunal) made a jurisdictional error when the (sic) it rejected the applicant’s claim.
Particulars:
(i)The Tribunal mentioned that it doubts that the boys father had any influence over the police if there had not been an arrest but the Tribunal mentioned that the police of Mumbai did not have good relationship with the police but the Tribunal did not ask any information regarding this observation and how it thought that arrest can remove its doubt this a wrong observation of the Tribunal. (CB-193, 5th paragraph).
(ii)The Tribunal mentioned that the applicant and his wife had no trouble getting valid travel document to leave India so they did not have any trouble there in India but the Tribunal did not ask right question regarding the valid travel document and did not give an opportunity to explain this issue. Otherwise the applicant would have given a appropriate explanation of this issue.
(iii)The Tribunal wrongly observed that it did not accept that the applicant suffered injury because not going to the hospital but the Tribunal should know there are many ways to treat an injury one should not have to go hospital all the time there are alternate option on the basis of the circumstances (CB-194).
(iv)The Tribunal wrongly observed that sending back applicant’s son to live overseas shows that they did not have fear but the Tribunal did not give them an opportunity to properly explain why they have sent their son overseas and the Tribunal also did not give reason why it found that the incident of the 8 October 2005 did not took place. (CB-194)
(v)The Tribunal did not comply with the requirements s. 424A of the Migration Act 1958 it did not give the information to applicant for comment required by this section. The applicant also did not understand why their claim was rejected.
(vi)The Tribunal mentioned that the police are not fair and impartial so there is always persecution and discriminations and there is always possible to persecute the people by the authorities (CB-194)”
Particular (i) appears to complain that independent information considered by the Tribunal was not provided to the first named Applicant for his comment. However, s.424A(3)(a) of the Act specifically excludes, from the obligations of s.424A(1) of the Act, information that is not about the applicant in particular but about a class of persons of which the first named Applicant is one.
Essentially, this particular appears to complain about the Tribunal’s observation that if the political leader, whose son the first named Applicant alleged he injured, had influence over the police then the first named Applicant would have been arrested. The Tribunal rejected that claim. The Tribunal’s findings in respect of that allegation were open to it on the evidence and material before it and for which it gave reasons. Otherwise, the applicants’ disagreement with the Tribunal’s conclusion does no more than seek merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Neither of the applicants made any submission in respect of this particular.
Accordingly, this particular is rejected.
Particular (ii) complains that the Tribunal did not give the first named Applicant an opportunity to explain why the first named Applicant had no difficulty in obtaining passports to leave India. The information contained in the applicants’ passports was information given by the applicants to the Tribunal for the purposes of its review, as disclosed in the Tribunal’s decision and confirmed in the Tribunal hearing record. In the circumstances that information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
Further, the Tribunal noted, in the Claims and Evidence section of its decision, an exchange between it and the first named Applicant about the first named Applicant’s frequent travel.
In any event, the Tribunal’s reasoning process in respect of evidence before it is not a matter required to be put to the applicants by the Tribunal.
In the circumstances, the Tribunal’s finding that the applicants had no trouble in obtaining documents and were free to come and go from India and other countries was a finding open to it on the evidence and material before it and was evidence upon which it was entitled to rely as part of its reason process in making adverse credibility findings in respect of the first named Applicant.
Accordingly, particular (ii) is rejected.
Particular (iii) is a disagreement by the applicants with a factual finding by the Tribunal about the first named Applicant’s claims of injury.
In its decision, the Tribunal refers to the first named Applicant’s claims of serious injury and notes that it asked the first named Applicant if he went to hospital and noted his negative response. The Tribunal found it implausible that the first named Applicant, being well educated, well travelled and with the means to run a successful business, did not seek medical attention for serious injuries he suffered.
Accordingly, the Tribunal did not accept that the first named Applicant suffered serious injuries. That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.
The disagreement with that finding by the applicants does not demonstrate any jurisdictional error on the finding made by the Tribunal. Particular (iii) otherwise seeks merits review of the applicants’ claims in this regard. As referred to above in these Reasons, this Court cannot undertake that exercise.
Accordingly, particular (iii) is rejected.
Particular (iv) appears to disagree with the finding of the Tribunal that the first named Applicant did not have a subjective fear of persecution largely based on the fact that he sent his infant son back to live in the area where he claimed to have a well founded fear of persecution for a Convention related reason.
Particular (iv) complains that the Tribunal did not give the applicants an opportunity to properly explain why they sent their son back to Mumbai. However, in the Claims and Evidence section of its decision, the Tribunal identified its exchange with the applicants about sending their son back to Mumbai and noted the applicants’ response. That exchange is as follows:
“The Tribunal asked “Were you concerned about sending your son back to where the danger is?”
The applicant replied “Yes but there are more problems here (Australia), more concerns about safety at night here, he is happy and safe there.” The Tribunal again noted that the son is being sent back to the area where the assault happened. The applicant again reiterated that he was not concerned about his infant son’s welfare.”
That exchange, as recorded by the Tribunal in its decision, makes it clear that the applicants did have an opportunity to explain to the Tribunal why they sent their son to Mumbai. In the circumstances, the finding of the Tribunal that such conduct showed a lack of subjective fear was open to it on the evidence and material before it and for which it provided reasons.
Particular (iv) also appears to complain that the Tribunal did not give reasons why it rejected the applicants’ claims about the alleged incident of 8 October 2005. That incident was the claim by the first named Applicant that he injured the son of a senior influential political leader. The Tribunal found that the incident did not take place and did not accept that the first named Applicant was ever detained or harassed by police as a result of that incident. At the heart of the Tribunal’s rejection of those claims by the first named Applicant are inconsistencies in the evidence provided by the first named Applicant about that incident. Those credibility findings were open to the Tribunal on the evidence and material before it and for which it gave reasons.
The Tribunal decision, in the Findings and Reasons section of its decision, referred to the incident as “18 October 2005” rather than “8 October 2005”. However, in the Claims and Evidence section of its decision the Tribunal correctly refers to the date of the incident as 8 October 2005. No complaint is made by the applicants about the discrepancy in those dates and, a fair reading of the Tribunal’s decision, makes it clear that the reference to 18 October is no more than a typographic error.
Accordingly, particular (iv) is rejected.
Particular (v) contends that the Tribunal did not comply with s.424A of the Act. However, there are no particulars of information provided by the applicants of information that they contend enliven the obligations of s.424A(1) of the Act. To the extent that the Tribunal had regard to the information contained in the applicants’ passports, that information was given to the Tribunal by the applicants at the hearing, as referred to above. No other information enlivening the obligation of s.424A(1) of the Act is apparent from the Tribunal’s decision.
Accordingly, particular (v) is rejected.
Particular (vi) is no more than a statement that is not capable of demonstrating any jurisdictional error, nor does it assert any.
Accordingly, none of the particulars of ground 1 of the amended application is made out.
At the conclusion of the submissions of counsel for the First Respondent, the applicants were invited to make any further submission in response. The applicants made no relevant submission either in support of their application or in response to submissions made by counsel for the First Respondent. The applicants confirmed that they disagreed with the Tribunal’s findings in respect of the adverse credibility finding by the Tribunal of the first named Applicant’s evidence.
A fair reading of the Tribunal decision otherwise makes it clear that the Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 30 January 2007, is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 14 May 2007
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