SZKGQ v Minister for Immigration
[2007] FMCA 1250
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1250 |
| MIGRATION – Visa - protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of India claiming to be a victim of extortion by a Muslim gang – credibility issues – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZCQA v Minister for Immigration & Citizenship & Anor [2007] FCA 827 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 SZGZN & Minister for Immigration & Citizenship [2007] FCA 170 MZXGB v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 392 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 62 ReMinister for Immigration & Multicultural Affairs & Anor; Ex parte Miah, (2001) 206 CLR 57 |
| Applicant: | SZKGQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 702 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 July 2007 |
| Date of Last Submission: | 24 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 702 of 2007
| SZKGQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 22nd January and handed down on 13th February 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks judicial review of that decision. In an amended application filed on the 19th of this month, he seeks an order that the Court set aside the decision of the Refugee Review Tribunal and remit the matter to the Tribunal for determination according to law, that matter being the application for review of the delegate's decision that was dated 3rd July 2006.
Background
The background to this matter is that the Applicant is a citizen of India. He arrived in Australia on 1st May 2006 and on 23rd May applied for a Protection (Class XA) visa. A delegate of the Minister refused the application for a visa on 3rd July 2006. On 26th July 2006 the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.
The Tribunal wrote to the Applicant and invited him to attend a hearing on 23rd November 2006. The Applicant attended that hearing and gave evidence with the assistance of an interpreter in the Gujarati language. He told the Tribunal that he feared returning to India because someone had threatened to get his money and kill him. He said that his wife and children had also been threatened. He had worked as a bank employee and his wife worked for the government.
The Applicant said he had been threatened because the person threatening him knew that he earned a good income. He claimed to have been harmed two or three times and he claimed he had been threatened by a gang leader named Babbu who was a Muslim. The Applicant also claimed that he experienced problems because he supported the BJP in India, and during the communal rights in Gujurat, people who participated in politics were seriously harmed by Muslims. He claimed that he lived near a Muslim community and was fearful during the riots that occurred in Ahmedabad between Hindus and Muslims.
The Tribunal wrote to the Applicant on 29th November 2006 after the hearing was completed. That letter was intended to comply with the requirements of s.424A of the Migration Act. It was headed "Invitation to comment on information" and told the Applicant that the Tribunal had information that would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. That information included the statement attached to the Applicant's visa application relating to his claim of harm resulting from the demands by Babbu for money.
There was other information set out in considerable detail, not only about the demands for money from the man Babbu but also about the Applicant's claims for problems that he had encountered because a cousin of his named Ashok had been targeted by Muslims because he was blamed for the death of a young Muslim person.
The Tribunal pointed out to the Applicant that he did not mention anything about a series of events where he claimed to have been beaten and intimidated by the police at the hearing, when the Tribunal asked him what other claims he had in relation to his application.
The letter also referred to attacks by Muslims and being beaten in 2002, a claim by the Applicant that in 2003 that he and a group of bank employees were threatened by large groups of Muslims, and the Tribunal also referred to the Applicant's fear of being caught up in violence if there were riots between Hindus and Muslims. The Tribunal also brought to the Applicant's attention the fact that he departed India on 15th July 2005 and returned to India on 14th November in that year. He claimed he had visited the United Kingdom during that time.
The Tribunal brought to the Applicant's attention his written statement about after he left India his wife and two children were attacked in their home, and that his wife suffered serious injuries. The Tribunal brought the Applicant's attention and matters in his written statement about the fact that he was recognised by Muslims during a particular festival and that in early March 2006 he claimed to have been doing some political work for the BJP when Muslims from the Bakra Mandi area attacked him and his BJP friends. He said that these people had also threatened him that he should steal money from the bank and give the money to them, and made threats that his son would be kidnapped if he did not do this.
The Tribunal told the Applicant in that letter why all those pieces of information were relevant, and summarised the letter by saying:
Taken together, these issues may indicate that you have not given a truthful account of your past experiences in India, your fear of harm or the reasons for it should you return. If the Tribunal were to reach such a conclusion the Tribunal would not be satisfied that you were owed protection by Australia, and you would therefore not be entitled to the visa you have sought. [1]
A copy of the Tribunal's letter of 29th November 2006 can be found at pages 81 through to 85 of the Court Book.
[1] See Court Book at page 85
The Tribunal’s Findings and Reasons
The Tribunal handed down its decision on 13th February 2007. A copy of the decision record can be found at pages 91 through to 111 of the Court Book. The Tribunal accepted that the Applicant was a Hindu and a citizen of India. It accepted that he resided in Ahmedabad and was employed in a bank. The Tribunal accepted that the Applicant and his family may have experienced apprehension as a result of general communal violence in Ahmedabad from 2002, and that the Applicant may have been caught up as a bank employee in communal tensions.
However, the Tribunal was not satisfied that the Applicant and his family had been specifically targeted, nor was it satisfied that they had suffered serious harm for a Convention reason, or that there was a real chance that the Applicant would suffer serious harm for a Convention reason if he were to return to India. The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) visa.
The Tribunal at pages 104 to 110 of the Court Book made a careful examination of the Applicant's claims. Those claims have been summarised by counsel for the Respondent Minister, Mr Johnson, in an outline of submissions and I adopt that summary. The Applicant claimed:
i)to have been a victim of extortion by a Muslim gang leader and his gang;
ii)to have suffered interrogation and torture by Muslim police officers as a result of the alleged implication of a cousin in the death of a Muslim;
iii)that the applicant and his family had suffered in attacks by Muslims during and after the 2002 communal riots in Ahmedabad;
iv)that the applicant was at risk by reason of his involvement in the BJP;
v)that he was at risk of persecution by reason of other incidents;
vi)that his wife and children had suffered harm after he left for Australia.
The Tribunal did not accept that the Muslim gang leader named Babbu and members of his gang had demanded money from the Applicant, and have rejected his claims of being the victim of extortion. The Tribunal did not accept that the Applicant had approached the police for help in relation to any extortion threats or associated violence, and therefore the question of the availability of affected state protection did not arise.
The Tribunal noted that the Applicant had not referred to his claims of interrogation and torture by Muslim police officers at the Tribunal hearing. The Tribunal noted also the Applicant's responses to the
s.424A letter. The Tribunal did not accept that those incidents had occurred, or that the Applicant was implicated in incidents relating to the death of the young Muslim, or that he was detained, interrogated or physically abused by Muslim police officers, or that he and his family were attacked after the death of the young person.
The Tribunal did refer to country information about communal violence that has happened in Gujurat in February 2002, and found those attacks to have been significantly by Hindus on Muslims rather than by Muslims on Hindus. The Tribunal did not find credible that the Applicant was detained or treated to be claimed by Muslim police officers.
With respect to the Applicant's claims of attacks by Muslims during and after the 2002 communal riots, the Tribunal referred to the Applicant's written evidence, his evidence to the Tribunal and his response to the s.424A letter.
The Tribunal was not satisfied that the Applicant would not have raised attacks on his home and family at the hearing of those attacks that actually occurred. The Tribunal did not accept that the Applicant and his family had experienced specific attacks by Muslims on their property or involving harm to themselves during the period of communal violence.
The Tribunal noted the Applicant's trip to the United Kingdom in 2005 for four months without having sought protection in the United Kingdom. The Tribunal did not find that this was credible in respect of the Applicant's claims as to the harm that he said that he suffered in 2002 and 2003.
The Tribunal did accept that the Applicant and his family may have suffered some disruption by communal violence following the Godhra attack in February 2002 and that the Applicant and other bank employees may have been caught up in an incident near the bank in 2003. But the Tribunal did not accept that serious harm amounting to persecution had been suffered for a Convention reason, or that those incidents gave rise to any real chance of serious harm amounting to persecution in the future.
Turning to the Applicant's claimed fear of harm. As a member or involved with the BJP the Tribunal found the Applicant's evidence to be vague and confused, and whilst it accepted that he was a supporter of the BJP who had done some work to help the party in gatherings and meetings, found that his involvement was only at a minor or low level and did not accept that he had any high profile in the party. The Tribunal did not accept that there was a real chance of persecution on the basis of either past or future involvement with the BJP if the Applicant were to return to India.
Dealing with other incidents that the Applicant claimed to have occurred, the Tribunal did not accept the incidents had occurred or that they gave rise to any well founded fear of persecution. The Tribunal also rejected the Applicant's claim that his wife and children had been threatened or attacked after he left for Australia. The Tribunal rejected that on the basis that the Applicant claimed these events had been in connection with other things that the Tribunal had not accepted, being his claim of extortion and threats and experience of violence.
The Tribunal's decision rested upon the findings as to the credibility of the Applicant's actual claims. These were factual findings.
The application for judicial review
In the Applicant's amended application filed on 19th July the Applicant sets out three grounds which include not only their own particulars but their own submissions:
a)The first ground is that the Tribunal acted in breach of s.424A of the Migration Act and in breach of the rules of procedural fairness by failing to put to the Applicant for comment the independent country information on which it relied in making its determination, and which was potentially adverse to the Applicant.
b)The second ground which was submitted in the alternative was that the Tribunal has an obligation to consider and decide whether the country information on which it relied in making its decision, or at least clear particulars thereof, should be given to the applicant pursuant to its statutory obligation under sub-section 424A(1), or whether the material comes within the scope of sub-section 424A(3). The Tribunal failed entirely to consider and decide that issue.
c)The third ground claims that the s.424A letter to the Applicant dated 29th November 2006 is a very long and complex letter, and it is submitted the material was so confusing and so complicated that the Applicant was in effect unable to provide a proper response to it.
Particulars of all those claims have been set out in some detail and I will deal with them in due course.
As to the breach of s.424A alleged in the first ground, the Applicant submits that the independent country information to which the Tribunal referred did not fall within the exception in sub-s.424A(3)(a) because the information is not just about a class of persons of which the Applicant or any other person is a member. The Applicant refers to the independent country information to which the Tribunal referred, including material from the United States Department of State Country Report on Human Rights Practices in India for 2002, and a Human Rights Watch Report of February 2003.
The Tribunal, it is submitted, also referred to having raised with the Applicant ‘the information indicating the BJP held government at the State level with a strong majority’, although the information submitted is not specifically sourced. The Applicant submits that whilst this material ‘is not specifically about the Applicant or another person’ and therefore meets the first leg of s.424A(3)(a), it cannot be said to be ‘just about a class of person of which the applicant or any other person is a member’.
In support of that submission the Applicant relied on the comments of McHugh J in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [50] and [59], and also SZCQA v Minister for Immigration & Citizenship & Anor [2007] FCA 827.
The Applicant submits that while the decisions of the Full Federal Court in QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92, and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 are acknowledged, the Applicant submits that the scope of s.424A(3)(a) has not been finally determined by the High Court and submits that it therefore remains open to this Court to find in favour of the Applicant in his particular circumstances.
I should make it clear at this stage that this submission is, with respect, misconceived. The fact that a matter may not have been the subject of a decision by the High Court of Australia is not relevant to the Federal Magistrates Court if there is a decision of the Full Court of the Federal Court on the subject. Appeals from the Federal Magistrates Court are provided for in s.24 of the Federal Court Act 1976. That Act was amended with the bringing in force of the Federal Magistrates Act 1999.
The scheme is that in its Federal law jurisdiction appeals from the Federal Magistrates Court go to the Full Court of the Federal Court, but it is open to that Court to decide that those appeals may be heard by a single Judge. Appeals from this Court, whether they are heard by a Full Court of three or by a single Judge, or appeal decisions from this Court, whether they are heard by a Full Court of three or a single Judge, are binding. Decisions of the Full Court of the Federal Court are binding on this Court. It is not open to the Federal Magistrates Court to challenge a decision by the Full Court of the Federal Court on the basis that that matter may not have been the subject of a decision by the High Court. Unless and until the High Court makes a finding on a particular subject, the decision of the Full Court of the Federal Court is binding on the Federal Magistrates Court. The Federal Magistrates Court must follow it.
I am referred by counsel for the First Respondent to the decisions of VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11] - [16], and WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 at [26] and [27] per Ryan J, with whom Middleton J agreed.
In VJAF, the Full Court referred to the operation of s.424A of the Act, in particular sub-section 1 and 3, and dealt with the question of whether the Tribunal was required to provide details of independent country information. At paragraphs [12] to [15], their Honours said:
12. Section 424A(1) obliges the Tribunal to give to the applicant for review particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. Both parties accept that this obligation is prima facie engaged in this proceeding. The scope of the exception provided in s.424A(3)(a) is, however, at issue: "This section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member."
13. The appellant contends that the information does not fall within the exception for two reasons. First, the information, whilst not being specifically about the applicant is specifically about other persons, though unnamed. Second, this information is not "just about" a class of persons of whom the applicant is a member, as it also concerns "how the Cambodian authorities deal with SRP members."
14. Both contentions fail. The first contention depends upon the characterisation of the information contained in the country reports. These reports were prepared by human rights bodies and foreign governments and concerned two main themes: the political environment associated with the holding of local level commune elections in February 2002; and the general treatment of SRP members by the Government. Those reports necessarily involved some reference to the people who took part in the events described therein. But it does not follow that this was information specifically about those persons, and it plainly was not.
15. The major premise of the second contention, as the appellant accepted, is that s.424A(3)(a) contains two criteria that must be satisfied in order for the Tribunal to be relieved of its statutory obligation. Such a construction of the paragraph has been rejected by previous Full Courts. The true construction of the paragraph is one whereby
reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
That was the view of the unanimous Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (at [12]-[14] per Gyles and Conti JJ; at [21] per Allsop J) (VHAP of 2002) and it has been followed ever since.
The counsellor for the Respondent submits, and I believe correctly, that the Applicant's argument must be rejected. I am also referred to more recent examples of the proposition that s.424A has no application to country information. In SZGZN & Minister for Immigration & Citizenship [2007] FCA 170 at [6] and [12] per Allsop J, and MZXGB v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 392 at [60] per Lander J. I note that both of those decisions were in fact appeals from the Federal Magistrates Court and are of course binding.
The first leg of the Applicant's first ground, therefore, must fail. As to the second leg of that ground, which is an allegation or a claim of a breach of the rules of procedural fairness, it must be noted this is a case to which s.422B of the Migration Act applies. And this excludes the operation of the common law natural justice hearing rule. (See MZXGB v Minister for Immigration & Multicultural and Indigenous Affairs to which I have previously referred. See also Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214, and SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 62).
Ground 1 therefore fails.
Ground 2 relates to the claim of the Tribunal's obligation to consider and decide whether the country information on which it relied in making its decision, or at least clear particulars thereof, should be given to the Applicant pursuant to its statutory obligation under
sub-s.424A(1), or whether it comes within the scope of sub-s.424A(3).
There is not that obligation. The Tribunal does not have an obligation to record its reasons for any decision it makes in respect of the issue of invitations to comment under s.424A. The Tribunal's obligations to provide reasons under s.430 of the Act only applies to final decisions and not to procedural decisions.
The Applicant, I note, relies on the decision of ReMinister for Immigration & Multicultural Affairs & Anor; Ex parte Miah, (2001) 206 CLR 57, to the effect that the presence of a provision such as s.424A does not preclude the continued existence of the common law requirements of procedural fairness and natural justice. That decision with respect no longer represents the law because s.422B was not in force at the time when the decision in Miah was made. Section 422B came into force in the year 2002, and so the decision in Miah, with respect, is no longer authority on that point.
The third ground relates to the length and complexity of the s.424A letter. The Applicant submitted that the material is so confusing and so complicated that the Applicant was in effect unable to provide a proper response and points out that the applicant is of Gujarati ethnicity and presently lives in Griffith where he is very isolated, and as such he requires an interpreter. The Applicant refers to his response to the letter where he said:
It is impossible for me to submit or comment regarding my statement in protection visa. Here I said that whatever I had given statement in my statement is true and correct.
Whether or not the Tribunal's letter was complicated and confusing - and I am not of a view that it was, even though I am of a view that it was a lengthy letter - it is not a jurisdictional error of the Tribunal to act in the way it did in order to meet its obligations under s.424A. It was necessary in the Tribunal's view to bring this information to the attention of the Applicant in the method prescribed by s.424A and give him the opportunity to comment upon it. It is not jurisdictional error to seek the Applicant's comments in writing.
Indeed, I am referred to the provisions of s.424B of the Act which gives the Tribunal to determine the way the Tribunal considers is appropriate in the circumstances for the Applicant to respond. I am not of the view that the third ground shows any jurisdictional error.
My reading of the Tribunal decision and the supporting material does not indicate any other arguable case for jurisdictional error. The Applicant was not legally represented in the proceedings, although he did have the benefit of legal advice from a solicitor on the legal advice panel who prepared a lengthy and extensive submission on his behalf, and in fact attended Court on two occasions to provide assistance to the Applicant, even though she did not appear.
Nevertheless, the Applicant was unrepresented at the hearing and in my view it is appropriate for the Court to conduct its own examination of the material in order to form its own view as to whether any jurisdictional error appears. I am unable to discern any. As there is no jurisdictional error the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. As such it is final and conclusive, and is not subject to orders in the nature of the certiorari or mandamus, which were the orders that the Applicant sought.
It follows that the application must be dismissed. I intend to dismiss the application.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim and there is no reason not to make an order for costs in favour of the successful First Respondent. The amount sought is $7,500.00, which is higher than would normally apply. This matter, however, has had a history which has involved a greater number of Court events than otherwise would be the case. The history of this matter briefly is that the application first came before a Registrar of the Court on 5th April 2007. Directions were made, and the matter was placed in the Registrar's callover which was to be heard at 2:15pm on 21st September 2007.
In order to bring about an early hearing and finalisation of a number of matters awaiting hearings, a decision was made to remove matters from the callover and reallocate them. This application was listed for mention and directions before me on 4th June 2007. The Applicant did not attend, although he was aware of the hearing and it was clearly his intention to attend. What happened, however, was that on that day the flight was disrupted by fog and a fax was forwarded to the Court from the airline Regional Express verifying that on 4th June 2007 the Applicant's flight, ZL456, was disrupted due to fog.
On that day there was a solicitor, Mr Prince, appearing as amicus curiae for applicants, and orders were made vacating the orders of the callover and listing the application for Final Hearing at 11:30am on
12th July 2007. The Applicant had sought to take advantage of the RRT Legal Advice Scheme. The solicitor to whom he had been allocated,
Ms Nicholl, sought an adjournment on the Applicant's behalf on the basis that she had not been aware that a new timetable had been set for preparing any amended application and that a new hearing date had been set, earlier than was originally expected.
On 12th July 2007, in order to allow the Applicant to take proper advantage of the Legal Advice Scheme, I agreed to adjourn the hearing until today and directed that the amended application and any written submissions should be filed and served by 19th July, which was the original time specified in the directions. The amended application and submissions were indeed filed by 19th July, and as Mr Johnson pointed out, the Applicant's case varied considerably from what had been the case previously. That then necessitated additional submissions in response, and the application was heard before me today.
In my view the additional time that has been involved, and the need for further work to be done does indeed justify costs in the sum of $7,500.00, and I propose therefore to order that the applicant pay the first respondent’s costs in the sum of $7,500.00.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 31 July 2007
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