SZKDP v Minister for Immigration

Case •

[2007] FMCA 675

•

17 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKDP & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 675
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal breached s.427 of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal properly considered the issue of relocation – whether Refugee Review Tribunal complied with s.424A of the 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); 427; 427(b); 474; pt.8 div.2
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
First Applicant: SZKDP
Second Applicant: SZKDQ
Third Applicant: SZKDR
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG372 of 2007
Judgment of: Emmett FM
Hearing date: 3 May 2007
Date of last submission: 3 May
Delivered at: Sydney
Delivered on: 17 May 2007

REPRESENTATION

Applicant appearing on his own behalf
Counsel for the Respondent: Mr J. Smith
Solicitors for the Respondent: Ms M. Mafessanti, Clayton Utz
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG372 of 2007

SZKDP

Applicant

SZKDQ

Applicant

SZKDR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. 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 18 December 2006 and handed down on 19 January 2007.

  2. The applicant husband was born on 15 December 1977 and claims to be from India and of Muslim faith (“the Applicant”). The other two applicants are dependent on the Applicant’s application. They are the wife (“the second named Applicant”) and infant son of the Applicant and the second named applicant. The Applicant was appointed as the litigation guardian of the infant son of the Applicant and the second named Applicant.

  3. The Applicant arrived in Australia on 26 June 2006, having legally departed from Hyderabad, India on a passport issued in his own name and a visitor’s visa.

  4. On 4 August 2006, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

  5. In his protection visa application, the Applicant claimed that he feared persecution by “the current ruling party the Congress and their patronised allies” due to his political opinion, his role within the Teluga Desham Party (“the TDP”) and his “secular attitude”.

  6. On 16 August 2006, a delegate of the First Respondent (“the Delegate”) refused the applicants’ 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”).

  7. On 13 September 2006, the applicants lodged an application for review of the Delegate’s decision by the Tribunal. The applicants provided no further written material in support of the review application. On 19 January 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

  8. On 6 February 2007, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

  1. 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.

  2. 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.

  3. Australia has protection obligations to a refugee on Australian territory.

  4. 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.”

  5. 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

  1. On 25 September 2006, the Tribunal invited the Applicant to come to a hearing on 20 November 2006.

  2. The Applicant gave oral evidence before the Tribunal in which he expanded upon his written claims and indicated that further evidence could be sent from India by his father and provided to the Tribunal some time after the hearing. The second named Applicant also gave oral evidence.

  3. The Tribunal noted that it had before it the Department’s file, material referred to in the Delegate’s decision and “other material available to it from a range of sources”.

  4. In its Decision Record, the Tribunal noted inconsistencies between the Applicant’s written evidence in the visa application and the Applicant’s oral evidence given at the hearing. The Tribunal also noted inconsistencies between the evidence given by the Applicant and the second named Applicant.

  5. On 21 November 2006, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it. No response was received by the Tribunal from the Applicant or any representative of the applicants.

  6. The decision of the Tribunal is accurately summarised by the first respondent in his written submissions as follows:

    “6. The Tribunal did not find the applicant to be a credible witness and did not accept that he was actively involved in the activities of the TDP. It did accept that he had some minor involvement in the Party but found that it would not have rendered the applicant a target due to his political involvement or opinion and that it did not give rise to a real chance of the applicant being persecuted in the future: CB98.5 and 99.3.

    7. Further, the Tribunal did not accept that the applicant or his spouse was attacked or that his house was ransacked and rejected the claim that he had been threatened: CB100. The Tribunal rejected the applicant’s religion-based claims on the basis that there was no evidence to support any such fear: CB 100.6. In addition, the Tribunal found that, in light of the applicant’s background, his language skills, qualifications and experience, it would be reasonable for him to relocate to another part of India: CB101.4-5.”

The proceeding before this Court

  1. The applicants were unrepresented before this Court although had the assistance of an interpreter. The Applicant confirmed that he relied on an amended application filed on 19 April 2007 which identified the following grounds:

    “1. Whether the Refugee Review Tribunal (the Tribunal) made a jurisdictional error not allowing the obligation u/s 424A of the Migration Act 1958 (the Act).

    Particulars:

    (ii)The applicant would like to mention that the applicant gave information to the Tribunal at the hearing but all this information was examining by the Tribunal when the applicant’s wife came to give evidence before the Tribunal. And the Tribunal was examining the witness by asking questions- (a) “what dates this harassment occur”? (b) “So there were no further harassment from 26 September 2005” (c) the question about two traumatic episodes of harassment. But s.427 of the Act does not allow to examine the witness, the Tribunal only should take information regarding the claim of the applicant from the witness and it will assess the claim and give decision (page10 of the RRT decision)

    (ii)The Tribunal did not consider the financial hardship of the applicant that they will suffer because the applicant had sold all his property from there where he lived and relocation will create financial hardship to the applicant and it will subsist their standard of life.

    (iii)The applicant did not understand about the letter dated 21 November 2006 and he was anxious about the letter of the Tribunal dated 21 November 2006. Such as the applicant was confused from question no 7 of the Tribunal’s letter, where the Tribunal mentioned that the applicant is readily employable persons could relocate to another part of India. The applicant did not understand the letter and the applicant also did not understand what is meant by readily employable person – employment in India is very hard so how could the applicant would be readily employable (page14 of the RRT decision)

    2. The applicant also claim that the Refugee Review Tribunal made an error of law.

    Particulars:

    (i)The Tribunal made an error of law when it explain the requirements to constitute serious harm within the meaning of s.91R of the Migration Act 1958 (the Act). Because without giving any right reason the Tribunal can not conclude that conclusions. (Page14 & paragraph 2 of the RRT decision). The Tribunal can not say that without having explanation why threats started and the applicant was not threatened any other time-are the requirements to constitute serious harm this is an error of law.”

Ground 1 – Particular (i)

  1. This particular appears to be a complaint by the Applicant that the Tribunal asked questions of his wife (the second named applicant) and that, in so doing, contravened s.427 of the Act.

  2. Such a complaint is misconceived in that s.427 of the Act is a permissive section permitting the Tribunal, inter alia, to take evidence on oath or affirmation. There is no prohibition on the Tribunal exploring matters with witnesses before it. Section 427 of the Act is as follows:

    “(1) For the purpose of the review of a decision, the Tribunal may:

    (a) take evidence on oath or affirmation; or

    (b) adjourn the review from time to time; or

    (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or

    (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

    (2) The Tribunal must combine the reviews of 2 or more RRT – reviewable decisions made in respect of the same non-citizen.

    (3) Subject to subsection (4), the Tribunal in relation to a review may:

    (a) summon a person to appear before the Tribunal to give evidence; and

    (b) summon a person to produce to the Tribunal such documents as are referred to in the summons; and

    (c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

    (d) administer an oath or affirmation to a person so appearing.

    (4) The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

    (5) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.

    (6) A person appearing before the Tribunal to give evidence is not entitled to:

    (a) to be represented before the Tribunal by any other person; or

    (b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.

    (7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.”

  3. Section 427(b) of the Act provides that a person appearing before the Tribunal to give evidence is not entitled to examine or cross-examine any other person appearing before the Tribunal to give evidence. It is not a prohibition on the Tribunal asking questions.

  4. The Applicant’s wife, being the second name applicant, gave evidence on behalf of the Applicant and at his request. The Tribunal explored various matters with the wife and noted in its decision particular exchanges to which it had specific regard. There is nothing apparent from the Tribunal’s record of its exchange with the Applicant’s wife in its decision that would suggest the Tribunal conducted that task other than according to law.

  5. In the circumstances, no breach of s.427 of the Act on the part of the Tribunal has been established by the Applicant.

  6. To the extent that Ground 1 Particular (i) complains about the general conduct by the Tribunal of its hearing, such a complaint is not supported by any evidence, particularly, a transcript of the hearing.

  7. At a directions hearing before this Court on 1 March 2007, the applicants were directed to file and serve any affidavit containing additional evidence to be relied upon including any transcript of a Tribunal hearing by 10 April 2007. The Order made on that date informed the applicants that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing. No evidence of any nature was sought to be filed by or on behalf of any of the applicants.

  8. In its decision, the Tribunal recites with some specificity the claims made by the Applicant both in his application for a protection visa and his oral evidence given at the hearing. The Tribunal noted details of particular exchanges it had with the Applicant about his claims and the exploration by the Tribunal of concerns arising out of claims made by the Applicant.

  9. The Tribunal informed the applicants at the hearing that it was concerned about inconsistencies in their evidence and stated to the second named applicant that her husband, the Applicant, had “recounted to me two very traumatic episodes of harassment that you say you have no knowledge of, can you explain that” the Tribunal noted the second named Applicant replied “No”.

  10. The Tribunal then noted that it asked if there was anything further either of the applicants would like to bring to the Tribunal’s attention and noted that the Applicant stated he would provide more information within two weeks by facsimile.

  11. On 21 November 2006, the day after the hearing, the Tribunal sent to the Applicant a letter giving him information that may be part of the reason for affirming the decision under review, explaining its relevance to the deliberations of the Tribunal and inviting the Applicant to comment upon it (“the s.424A Letter”). In particular the Tribunal identified the inconsistencies between the evidence of the Applicant and the second named applicant in relation to the claims by the Applicant of assault and threats. No response was received from the Applicant and no further information was provided by the Applicant to the Tribunal.

  12. In the Findings and Reasons section of its decision, the Tribunal noted the differing accounts about matters provided by the Applicant in his written evidence and oral evidence given to the Tribunal, including differences in evidence between the Applicant and second named applicant.

  13. The Tribunal recited in the Findings and Reasons section of its decision the claims made by the Applicant and the difficulties the Tribunal had with his evidence which led the Tribunal not to accept the claims made by the Applicant about attacks and threats. The Tribunal noted that many aspects of the Applicant’s oral evidence changed as the hearing progressed and that the Applicant was unable to explain inconsistencies and “often gave no answer or plausible explanation.” The Tribunal found the Applicant not to be a credible witness.

  14. The Tribunal concluded that the Applicant did not have a well-founded fear of persecution.

  15. The findings and conclusions of the Tribunal in respect of the Applicant’s claims were open to it on the evidence and material before it and for which it provided reasons. Moreover, there is nothing on the face of the Tribunal’s decision, including the conduct of its review, that would suggest that the Tribunal in any way appeared to have prejudged the matter.

  16. Accordingly, Ground 1 Particular (i) is rejected.

Ground 1 - Particular (ii)

  1. This particular complains that the Tribunal did not consider the financial hardship of the Applicant if he were to relocate in India.

  2. Following the Tribunal’s conclusion that the Applicant did not have a well-founded fear of persecution for a Convention related reason and that it was not satisfied that there was any real chance that the Applicant would suffer persecution were he to return to India, the Tribunal proceeded to consider the issue of relocation and concluded that it would be reasonable for the Applicant to relocate to another part of India.

  3. The Tribunal considered the education and experience of the Applicant and noted that his qualifications were not location specific and that he was able to adapt well to new environments as demonstrated by his settlement in Australia despite language and cultural differences.

  4. In its s.424A Letter, the Tribunal specifically raised the issue of relocation and informed the Applicant that information indicated that he could reasonably be expected to relocate and safely return and reside in Mumbai and New Delhi in India. Despite being invited to comment on that information, no response was made by the Applicant, particularly no reference to any financial hardship that he may suffer.

  5. The Tribunal considered the issue of relocation in accordance with the material and evidence before it in relation to the individual circumstances of the Applicant, as it was bound to do (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 269-270 per Black CJ and 277-278 per Beaumont J; NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] and Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 at [18]). No error has been established by the Applicant in relation to the Tribunal’s consideration of relocation or its findings made in respect of that issue and its conclusion that it was reasonable for the Applicant to relocate were he to return to India.

  6. In any event, the consideration by the Tribunal of relocation is independent of its consideration of the claims of persecution made by the Applicant. Accordingly, any error in the Tribunal’s consideration of relocation would not affect the validity of the Tribunal’s conclusion that the Applicant does not have a well-founded fear of persecution for a Convention related reason (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]).

  7. Accordingly, Ground 1 Particular (ii) is not made out.

Ground 1 - Particular (iii)

  1. This particular complains that the Tribunal did not make clear to the Applicant what it meant by “readily employable persons, being able to relocate to another part of India.” That phrase was used by the Tribunal in its s.424A Letter as follows:

    “Well-educated and readily employable persons could relocate to another part of India.”

  2. The fact that the Applicant did not understand what the Tribunal meant by the phrase is not relevant in circumstances where that statement is not specifically about that applicant or another person, rather it is about a class of persons of which the applicant or other person is a member. In those circumstances, there is no enlivenment of any obligation under s.424A(1) of the Act to give to the Applicant that information by reason of s.424A(3)(a) of the Act. Section 424A(3)(a) of the Act provides that information that is not about the applicant in particular but about a class of persons of which the applicant is one is excluded from the obligations under s.424A(1) of the Act.

  3. Accordingly, Ground 1 Particular (iii) is not made out.

Ground 2 -  Particular (i)

  1. This ground complains that the Tribunal failed to explain why threats made to the Applicant did not constitute serious harm. Such a complaint is misconceived in that the Tribunal found that the threats of harm alleged by the Applicant did not occur. The Tribunal gave reasons for this finding, in particular, the unsatisfactory nature of the Applicant’s evidence causing the Tribunal to find the Applicant not to be a credible witness and the fact that such claims were inconsistent with the evidence of the second named Applicant.

  2. In any event, whether threats of harm amount to persecution is a question of fact for the Tribunal. The finding made by the Tribunal was open to it on the evidence and material before it and for which it gave reasons. For this Court to reconsider that finding involves the Court in merits review which it cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

  3. Accordingly, Ground 2 is rejected.

Conclusion

  1. The Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review. The findings and conclusions that it made were open to it on the evidence and material before it and for which it gave reasons.

  2. The Tribunal’s decision is not affected by error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

  3. The proceeding before this Court, commenced by way of application filed on 6 February 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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Cases Citing This Decision

1

SZKDP v Minister for Immigration and Citizenship [2007] FCA 1487