SZKEP v Minister for Immigration
[2007] FMCA 727
•16 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 727 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision –visa – protection visa – refusal – applicant does not bear an onus of proof in Tribunal proceedings – giving the applicant the benefit of the doubt does not require the Tribunal to accept the applicant’s claims uncritically. |
| Migration Act 1958, ss.65, 91X, 422B, 424, 424A, 425, 430, 439, 440, 476 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZIWK v Minister for Immigration & Citizenship [2007] FCA 168 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZKEP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 445 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 May 2007 |
| Date of Last Submission: | 16 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 445 of 2007
| SZKEP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 16 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 3 January 2007 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 5 October 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) requires that this Court not publish the applicant’s name.
Background facts
The applicant is recorded as having said in a statutory declaration, which is reproduced at pages 4 to 8 of the Tribunal's decision, that he was born in the state of Tamil Nadu in India, he is a Christian, as is his entire family, and that he became involved in politics in 1996.
The applicant claims to fear persecution in India because of his political activities.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-9 of the Tribunal’s decision (Court Book (“CB”) page 110-115). Relevantly, they are in summary:
a)the applicant first became interested or involved in politics in 1996 and he believed that through political involvement he would be able to provide a voice for the Christian minority in Tamil Nadu;
b)in 1997 one of his friends suggested he become a member of a political party with which that friend was associated named the Anaithu India Anna Dravida Munnetra Kalagam Party (“ADMK”);
c)after becoming a member of the ADMK, the applicant became involved in various political activities;
d)in 2001 he was elected to the position of secretary for ADMK in the Kothur area. In the 2001 elections the ADMK was elected to government;
e)in 2003 the applicant was approached by the district secretary of the opposing party, the Dravida Munnetra Kalagam (“DMK”). This opposing party official, Mr Karthik, asked the applicant to join the DMK as local secretary in return for which he would be paid 500,000 rupees. The applicant refused this offer;
f)Karthik then began to create many problems for the applicant by trying to sabotage his political activities. The applicant says this in para.13 of his statutory declaration:
In December 2003 a young man I knew from the ADMK approached me with his girlfriend and asked that I provide them with shelter. The girl was from the caste Devar Kulam, and the boy was a member of a lower caste. When her family had found out about their affair her brothers beat the boy up and told him that he was not to see her again under threat of more violence. They told him that if he married her they would tell Karthik who would create problems for him that would result in his arrest, as Karthik had influence amongst the police. The brothers also threatened him with further violence from Karthik. I arranged for the couple to stay at a friend of mine's house named Paneer, who was living in a nearby town … (CB 111).
g)this couple asked the applicant to assist them to marry, which he did, and they were married in his presence. When Karthik came to know of this he sent his bodyguards to the applicant's watch shop at night and they smashed the glass and everything else inside, including the stock. Although the applicant was not present when they did this, one of his female employees was and was told by one of Karthik's bodyguards that he would face more violence and problems from Karthik as revenge for arranging the marriage;
h)in early 2004 the ADMK party leader organised public forums in which the applicant spoke publicly about Karthik’s destruction of his shop and his other criminal activities. Around a week later, the applicant was approached by DMK members who told him that their party leader had ordered that he be killed. The applicant’s party leader arranged for police protection for six months;
i)in March 2006, the applicant was putting up campaign posters for the ADMK when he was approached by about seven or eight men who beat him with sticks;
j)the next day he was at home and received a phone call from an anonymous person who warned him that he would be killed if he remained involved in the ADMK election campaign;
k)five days later while he was away from home four DMK party members went to his home and threatened his family and told the applicant’s wife that he would be killed if he did not stop his party work;
l)on 2 April 2006 the applicant drove to Chennai with his friends, but on the road they encountered fifteen men armed with wooden sticks, knives and iron weapons who attacked the applicant and his friends. The applicant was able to run away, but his friends were kidnapped and he never found out what happened to them. In the course of this encounter the applicant was assaulted; and
m)deciding that continuing campaign work was not safe, the applicant resigned from the ADMK. After cancelling his membership the applicant moved to Chennai only to be told that ADMK party members were angry with him. He was also told that other party members who had resigned had had their hands and limbs cut off in order to enforce party discipline. The applicant decided it was no longer safe to be in Chennai so he moved to New Delhi. Concluding that he would never feel safe in India, the applicant came to Australia.
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 applicant did not present any corroborating evidence at all in support of any of his claims, such as evidence of membership of his party, evidence of his leadership position or supporting material from any of his party associates regarding the attacks on and threats to him. Consequently, the Tribunal did not accept that the applicant was a local party secretary, that he had been attacked or threatened as a result of his political activities at any time, that his family was threatened, that his business was assaulted by reason of his political activities or that there is any danger to him or his family from his own party or from any other persons as a result of his political activity; and
b)noting that the applicant's knowledge of party history and important party events was not what it would have expected of a person who held an important position in a political party over a number of years, the Tribunal did not accept that the applicant's political profile was such as to explain either the extreme actions he claimed were taken or threatened against him by the DMK or the extreme danger from the ADMK.
Proceedings in this Court
In his amended application the applicant raises four grounds of appeal or asserted bases for judicial review and in his submissions to the Court today he raised an additional ground.
Dealing with each of these in turn:
By requiring the independent evidence of the fact before the Tribunal would accept a claim being made by the applicant, the Tribunal was, in effect, placing too high an onus of proof on the applicant and failing to give the applicant the benefit of the doubt.
The Tribunal did not require independent evidence, as asserted by the applicant, but rather, relied on the material supplied to it by the applicant to conclude that his allegations were not credible. It was the lack of credibility of the version of events advanced by the applicant, rather than by their comparison to any actual or potential independent evidence, which led the Tribunal to the conclusion which it reached.
As to the question of the Tribunal placing too high an onus of proof on the applicant, considerations of onus of proof are misplaced in proceedings such as the one undertaken by the Tribunal. Onus of proof is a concept relevant to proceedings before a Court. As the High Court said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282, the use of terms appropriate to civil litigation or terms which are used in civil litigation provide very little assistance in the context of administrative decision-making.
The question which the Tribunal has to determine is whether it is satisfied that the applicant meets the criteria for a protection visa. Section 65 of the Act makes this clear. It was for the applicant to present material to the Tribunal such that it could reach the level of satisfaction required by the Act. It was not a question of the applicant discharging an onus of proof.
As to the question of giving the applicant the benefit of the doubt, the authorities do indicate that a liberal attitude should be taken to considering the credibility of an applicant's claims, but it is not obliged to accept those claims uncritically, as Nicholson J paraphrased the reasons of Beaumont J in Randhawa's case in SZIWK v Minister for Immigration & Citizenship [2007] FCA 168.
The issue confronting the applicant in these proceedings in relation to this allegation is that he was comprehensively disbelieved by the Tribunal. Consequently, questions of giving him the benefit of the doubt really did not arise. If he had presented a case which the Tribunal considered had some credibility, some degree of latitude may have been considered by the Tribunal to be appropriate. However, in circumstances of this application, the applicant's claim was simply one lacking credibility and any supporting evidence. For these reasons the first ground set out in the amended application is not made out.
The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution rather than look at [the] claim as a whole to determine 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.
Paragraph 1(b) of the amended application says this:
The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution rather than look at [the] claim as a whole to determine 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.
When he was asked during the hearing what the Tribunal had left out, the applicant was unable to identify what might have been left out.
A consideration of the Tribunal's reasons indicates that nothing of substance was not considered by it.
It should be kept in mind when considering this ground that the applicant's claim before the Tribunal rose and fell on the adverse credibility finding. In this regard, to talk about the Tribunal looking at individual elements rather than the claim as a whole does not really address the way the Tribunal reached its conclusion. The Tribunal set out the information provided to it by the applicant, both in his statutory declaration and his oral evidence at the Tribunal hearing, and having set this out, concluded that it did not accept his factual assertions.
As the Tribunal said after putting to one side issues regarding his fraudulent visa application and inconsistencies between his statutory declaration and his oral evidence:
My concern with the applicant's claim lies elsewhere. As I said to him at hearing, his knowledge of his party's history and of important party events is not what I would have expected of a person who held an important position in the party over a number of years. In those circumstances, I do not accept that his political profile was such as to explain either the extreme actions he claimed were taken or threatened against him by the DMK or the extreme danger from ADMK persons as a result of his abandoning the party. (CB 115 – 116).
Consequently, no jurisdictional error has been demonstrated in relation to ground 1(b) of the amended application.
The Tribunal failed to internalise the circumstantial ground of the review application and in weighing both the 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.
In relation to s.424, this is a provision which permits the Tribunal to seek additional information. No particulars of the asserted breach of this section have been provided and it is not apparent that there has been any breach of that section.
Similarly, no particulars have been provided of the alleged breach of s.430 of the Act which provides how the Tribunal must record its decisions. Again it is not apparent that the Tribunal has breached that provision.
As to s.439, which relates to disclosure of confidential information, again there is no particularisation of this allegation or any evidence to support it.
Similarly, in relation to s.440, which relates to restriction of publication and disclosure of certain matters, there is no particularisation or evidence in support of this allegation.
I find that there have been no breaches of those sections and that this aspect of this ground is not made out.
A further interpretation of this ground might be that the applicant is seeking a review of the merits of his application. In proceedings for judicial review it is not open to this Court to review the merits of the application on the Tribunal below. These proceedings are concerned with determining the fairness of the procedure adopted by the Tribunal and its adherence with the law in relation to that procedure and the expression of its decision. Consequently, this Court cannot reopen the consideration of the merits of the applicant's application.
The Tribunal in its decision of 25 January 2007 failed in its written statement [such] that [there was] a breach of the rules of natural justice, therefore it rises (sic) the ground under section 476 of the Migration Act.
Going now to ground 3, the third ground set out in the amended application is pleaded as follows:
The Tribunal in its decision of 25 January 2007 failed in its written statement [such] that [there was] a breach of the rules of natural justice, therefore it rises (sic) the ground under section 476 of the Migration Act.
When asked at the hearing what written statement he was referring to the applicant was unable to assist the Court. Section 422B of the Act provides that div.4 of pt.7 of the Act contains an exhaustive statement of the natural justice hearing rule in relation to Tribunal proceedings in relation to things with which the division deals.
It should be noted that the Tribunal did send to the applicant a letter pursuant to s.424A, although at the end of the day the issues raised by that letter were not the reason or part of the reason for the Tribunal's affirmation of the delegate's decision. The Tribunal's decision was based on evidence which the applicant gave to the Tribunal for the purposes of the application, thus bringing it within the exception found in s.424A(3)(b).
As to whether there might have been a breach of s.425 of the Act, there has been no allegation that issues which might have been determinative of the application were not notified to the applicant, nor that the invitation to hearing pursuant to s.425 found at CB 67 and 68 was deficient in any way. Consequently, no jurisdictional error is demonstrated in respect of this asserted ground of review.
Bad faith
The fourth ground of review in the amended application consists of six paragraphs of which only the final sentence in the final paragraph raises an asserted ground for review of the Tribunal's decision; that is, that the decision-maker acted in bad faith. This is a serious allegation for which there is no evidence.
As the Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756:
The circumstances in which the Court would 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.
There is nothing in the Tribunal's decision record which would suggest that the Tribunal acted in bad faith, nor has the applicant put anything before the Court which would support such an allegation. Consequently, this asserted ground of review is not made out.
The applicant told the truth to the Tribunal
At the hearing the applicant submitted that what he had said to the Tribunal was the truth and he did not know why it found as it did. I take this to be an invitation to this Court to reconsider the merits of the application made to the Tribunal. For the reasons already expressed, such a course is not available in proceedings such as these. Consequently, to the extent that this submission was asserted to be a ground of review, it is not made out.
Conclusion
Consequently, jurisdictional error on the part of the Tribunal has not been demonstrated. The application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 12 June 2007
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