SZKHV & Anor v Minister for Immigration & Anor
[2009] FMCA 264
•31 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 264 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was obliged to write separately to the applicants where the applicants have appointed the same authorised recipient and the information which may form part of the reason for the Refugee Review Tribunal affirming the decision under review is the same information in respect of each applicant and the Refugee Review Tribunal’s letter is addressed to both applicants. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 441G(1); 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 |
| First Applicant: | SZKHV |
| Second Applicant: | SZKHW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2450 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 March 2009 |
| Date of last submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2009 |
REPRESENTATION
| Applicants appeared on their own behalf |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Ms A. Echevarria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2450 of 2008
| SZKHV |
First Applicant
| SZKHW |
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 handed down on 6 August 2008.
The applicant claims to be a citizen of India and of Christian faith (“the Applicant”). The second named Applicant is the husband of the Applicant and his claims are dependent on those of the Applicant (“the Second Named Applicant”).
The applicants arrived in Australia on 12 June 2006 having departed legally from India on passports issued in their own names and visitor visas issued on 26 May 2006.
On 4 July 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.
On 29 July 2006, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for a protection visa.
On 28 August 2006, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 23 November 2006, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 November 2007, the proceeding was remitted by Smith FM to the Refugee Review Tribunal for determination according to law.
On 6 August 2008, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 22 September 2008, the applicants filed an application in this Court seeking judicial review of the Refugee Review 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 (“the Convention”).
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 Applicant’s application for a protection visa
In her protection visa application the Applicant claimed to have been persecuted by reason of her membership of a Christian schedule caste community. The Applicant stated that her house was damaged in 2005 by government officials as a result of the influence of the ruling upper caste. The Applicant claimed to have been discriminated against by reason of her caste and religion.
The Applicant claimed that she became a member of the People’s War Group (“the PWG”) in 1999. She claimed that in 2000 she became secretary of the radical women’s movement for her district. The Applicant claimed that she married the Second Named Applicant in December 2005. However, the Applicant said her husband’s family were against the marriage.
The Applicant claimed that she was arrested by police by reason of her membership of the PWG and placed in custody. She said she was forced to sign blank papers and tortured for 3 days and then imprisoned for 3 months. The Applicant claimed that she is an active member of the banned PWG party and as such would be at risk if she were to return to India both from authorities and “caste based organisational cronies who are in prominent position”.
The Delegate’s decision
On 29 July 2006, 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”).
The Tribunal’s review and decision
On 28 August 2006, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 23 November 2006, the Refugee Review Tribunal handed down a decision affirming the decision under review.
On 12 November 2007, Smith FM remitted the proceeding to the Refugee Review Tribunal for determination according to law.
On 12 February 2008, the Refugee Review Tribunal differently constituted (“the Tribunal”) wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to come to a hearing before the Tribunal to give oral evidence and present arguments on 25 March 2008. The Tribunal’s decision record discloses that both applicants gave oral evidence to the Tribunal on 25 March 2008.
At all times the Second Named Applicant’s claims were entirely dependent on the Applicant. The Second Named Applicant confirmed to this Court that he had no independent claims for a protection visa.
Following the hearing, the Tribunal wrote to the applicants on 28 April 2008 giving the applicants particulars of information that the Tribunal was of the view would form part of its reason for affirming the decision under review (“the s.424A Letter”). The s.424A Letter was addressed to the applicants’ migration agent and expressed at the outset to be sent to the migration agent “as an authorised recipient of the review applicants”.
The s.424A Letter began “Dear [Applicant]”. The s.424A Letter then had the heading “INVITATION TO COMMENT ON INFORMATION IN WRITING”, under which was written, “This letter is an invitation to you, and [the Second Named Applicant]. A reply to this invitation will be regarded as a joint reply, unless the Tribunal is advised otherwise.”
The Tribunal’s s.424A Letter gave the applicants the particular information that caused it concern and explained the relevance of that information to the applicants. The s.424A Letter went on to invite the applicants to comment by 21 May 2008.
On 20 May 2008, the Applicant wrote to the Tribunal requesting an extension of a further 28 days to provide comment. On 26 May 2008, the Tribunal wrote to the Applicant agreeing to the request for an extension giving the Applicant until 2 July 2008 to respond to the Tribunal’s s.424A Letter.
On 2 July 2008, the Applicant wrote to the Tribunal in response to the Tribunal’s s.424A Letter. The Applicant’s letter accepted that there were contradictions and inconsistencies between the Applicant’s oral evidence and that of her husband, the Second Named Applicant. However, the Applicant stated that she and her husband were “under ongoing stress due to the past adverse experience.” The Applicant’s letter said that the stress had caused an impact on both applicants in giving their oral evidence to the Tribunal. The Applicant stated “We have confusion, inability to recall our past experience and poor memory due to the stress caused by the trauma resulted from my past persecution in my home country.” The letter also included some further country information from Amnesty International Australia relating to the human rights abuses in respect of Christian schedule caste people in India.
The Tribunal rejected the Applicant’s explanation for the contradictions and inconsistencies in the applicants’ evidence given to the Tribunal. The Tribunal stated as follows:
“The applicant has claimed that any inconsistencies in her evidence were due to stress caused by trauma. I do not accept this. It is my view that the vagueness of the applicant’s evidence and the inconsistencies with that given by her husband were not due to stress caused by trauma as claimed by the applicant. Rather, it is my view that the evidence given by the applicant became vague and inconsistent when she was not being truthful about her past.”
Ultimately, the Tribunal did not find the Applicant to be a credible witness. The Tribunal was prepared to accept that the Applicant had attended classes on Marxism and had become involved in PWG. However, the Tribunal rejected the Applicant’s claims of past harm including her claims of past arrest, imprisonment and torture. The Tribunal also rejected the Applicant’s claim that her infant son, who remains with her mother in India, was injured as a result of her involvement in PWG.
The Tribunal found the Applicant’s claims to be “vague, implausible and inconsistent with the evidence given by her husband.” The Tribunal noted the particular instances of inconsistencies and contradictions in the evidence between the Applicant and her husband and provided detail where the evidence of each was inconsistent or contradictory.
Ultimately, the Tribunal was not satisfied that the Applicant had ever been subject to serious harm as a result of any involvement in the PWG or for any other Convention reason. The Tribunal had regard to the issue of state protection and found that there was no evidence before it that state protection would be “discriminatorily denied for a Convention reason.” Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution by reason of her membership of the PWG.
The Tribunal also had regard to the Applicant’s claims of discrimination by reason of her membership of the Christian schedule caste community and her Christianity. However, the Tribunal found that there was no evidence before it that any treatment undergone by the Applicant as a low caste Christian constituted persecution.
The Tribunal noted that the Applicant may have been subject of some discrimination by reason of her Christianity, including employment related discrimination. The Tribunal was not satisfied that the Applicant was forced to leave her home because she was part of the Christian schedule community.
The Tribunal found the Applicant’s evidence in relation to her alleged attacks on her house to be “vague”. The Tribunal also found her evidence in relation to her allegation of attacks in 2000 and 2005 to be contradictory. The Tribunal rejected the Applicant’s claims of having suffered serious harm as a result of her membership of the Christian schedule caste community or that she faced a risk of harm in the future. Having regard to the vagueness and inconsistencies in the Applicant’s evidence, the Tribunal was not satisfied that the asserted attacks took place at all. Ultimately, the Tribunal found that the Applicant did not have a well-founded fear of persecution on the basis of her membership of the Christian schedule caste community.
The Tribunal noted it had regard to the Amnesty International material submitted by the Applicant in addition to documentary evidence submitted to the Tribunal by the applicants. The Tribunal accepted that members of the Christian caste community experienced “minor social disadvantages which the Indian government has made efforts to address but do not experience persecution that could be described as systematic and discriminatory.”
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
On 22 September 2008, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision. The grounds of the application are expressed to be as follows:
“1. Breached of natural Justice and procedural fairness
2. Jurisdictional error”
The Applicant appeared before me at a directions hearing on 13 October 2008 on behalf of both applicants. On that occasion, I explained that unless this Court was satisfied that the decision of the Tribunal was affected by a jurisdictional error this Court has no power to interfere with the Tribunal’s decision. I explained to the Applicant that the grounds identified in the application were bare assertions that disclosed no error capable of review by this Court. The Applicant was also given a copy of the costs schedule of this Court and it was explained to her that, if the applicants were unsuccessful this Court may impose a costs order on them in accordance with the costs schedule of this Court. It was further explained to the Applicant that whilst any costs order remains unpaid those outstanding costs become a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The Applicant confirmed to the Court that she wished to proceed with her application. Accordingly, the Court gave the applicants leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any evidence by way of affidavit, including any transcript, of the Tribunal hearing. The applicants were also directed to file and serve written submissions in support of their application.
On 10 December 2008, the applicants filed an amended application. The ground of the amended application is expressed as follows:
“1. The Tribunal did not put forward to me clearly the serious inconsistencies in the evidence that my husband and I gave to the RRT at the oral hearing. This is clear breached of section 424A of the Migration Act.”
At the hearing before this Court, the applicants were unrepresented although had the assistance of a Malayalam interpreter. The applicants provided no further particulars, evidence or submissions in support of the amended application.
The Applicant confirmed that the applicants relied upon the ground identified in the amended application. The ground of the amended application was interpreted for the assistance of the applicants. The Applicant spoke on behalf of both applicants and was invited to say whatever she wished in support of the amended application or in support of her application generally.
The amended application was not supported by particulars, evidence or written submissions. The Applicant made no meaningful submissions in support of the amended application or in support of her application generally, other than to say that the Tribunal did not ask her or her husband any questions at the hearing. She also said the Tribunal did not put to the applicants at the hearing the inconsistencies that caused the Tribunal concern.
For the reasons set out below, the complaints made by the Applicant in her oral submissions to this Court and the grounds of her application and amended application are not supported by a fair reading of the Tribunal’s decision record.
The Tribunal accurately summarised the Applicant’s original claims in support of her protection visa application. The Tribunal had regard to the reasons of Smith FM in remitting the matter to the Tribunal for determination according to law. The Tribunal then summarised the evidence of both applicants given to it on 25 March 2008.
The Tribunal referred also to the s.4242A Letter and quoted in full the Applicant’s response dated 2 July 2008. The Tribunal then identified the independent evidence to which it had regard, relating, in particular, to schedule caste groups in India, Christian scheduled caste community and PWG.
The Tribunal identified discussions it had with the Applicant about her evidence at the hearing. A fair reading of the Tribunal’s decision record also makes clear that the Tribunal asked various questions of the husband, whose evidence the Tribunal also summarised in its decision record.
The applicants did not provide a transcript of the Tribunal hearing to this Court in support of their claims, despite having been given the opportunity to do so at the first court date directions. As stated above, the Court accepts as accurate the Tribunal’s decision record insofar as it records the evidence of each of the applicants and exchanges with the Tribunal.
The Tribunal’s s.424A Letter made clear to the applicants the substance of the inconsistencies and contradictions which caused the Tribunal concern and which may form part of the reasons why the Tribunal may affirm the decision under review. The Tribunal’s s.424A Letter clearly identified the information that caused the Tribunal concern and clearly explained the relevance of that information to the Tribunal’s consideration of the Applicant’s claims.
In the circumstances, the s.424A Letter gave to the applicants in clear terms the information that may be part of the reason for affirming the decision under review and explained its relevance. The s.424A Letter went on to invite the applicants to respond within a reasonable time. The time for comment was extended at the request of the applicants. Indeed the applicants were given the further time that they requested.
The s.424A Letter is clearly expressed to be an invitation to comment to both applicants. The s.424A Letter was sent to the migration agent authorised by the applicants to act on their behalf, in accordance with s.441G(1) of the Act. The s.424A Letter made clear that the letter was being sent to the migration agent as the authorised recipient of the review applicants. The s.424A Letter is expressly addressed to each of the applicants.
The applicants’ application for review makes clear that both applicants appointed the same migration agent as their authorised recipient. It would be absurd if the Tribunal was required to write a separate letter to the migration agent in respect of each applicant identifying, essentially, the same information, in circumstances where the applicants nominated the same migration agent and the Tribunal’s concern was in respect of the same information. The s.424A Letter to the migration agent made clear that it was being sent to the migration agent as the authorised recipient of each of the applicants.
In the circumstances, I am satisfied that the Tribunal has given to each of the applicants an opportunity to respond to information that may be the reason for affirming the decision under review.
The Tribunal had regard to the Applicant’s comments made in response to its s.424A Letter. The Tribunal’s findings in respect of the evidence and material provided by the applicants, was open to the Tribunal on the evidence and material before it and for the reasons it gave, including the adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The Tribunal identified with particularity the independent evidence to which it had regard and the manner in which it applied that information to the Applicant’s claims. The independent information to which the Tribunal had regard and the weight it gave the information was a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). A fair reading of the Tribunal’s decision record makes clear that it had regard to the further independent information provided by the applicants in response to the Tribunal’s s.424A Letter. In accordance with that information, the Tribunal found that the discrimination that Christian schedule caste members may suffer did not amount to systematic and discriminatory persecution for the purposes of the Convention. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
The Court has also had regard to written submissions provided by the Applicant following the hearing before this Court. Those written submissions do no more than disagree with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence and noted the applicants’ responses. The Tribunal then wrote to the applicants pursuant to s.424A of the Act giving them information that may be part of the reason for affirming the decision under review, explained the relevance of that information and invited the applicants to comment. The Tribunal had regard to the Applicant’s comments in response to the Tribunal’s s.424A Letter. The Tribunal identified independent information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 should be dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 March 2009
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