SZKIR v Minister for Immigration
[2007] FMCA 1335
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1335 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. The rules of natural justice do not require decision makers to give reasons – Tribunal under no duty to make inquiries as it is for the applicant to satisfy the Tribunal that he meets the criteria for a protection visa – selection of country information is a matter for the Tribunal – Tribunal decision not illogical. |
| Migration Act 1958, ss.91X, 422B, 424, 430, 439, 440, 476 |
| Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Muin v Refugee Review Tribunal (2002) ALR 601 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | SZKIR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 858 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 July 2007 |
| Date of Last Submission: | 16 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 858 of 2007
| SZKIR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 14 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 30 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 29 September 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… he was born in Adirampattinam in India on 13 July 1967. The applicant states that he belongs to the Sunni ethnic group and his religion is Islam. He states that he is a citizen of India. … he was at school for 10 years in Adirampattinam from January 1973 until December 1983. He states that his past employment was that he was self-employed as a manager. His occupation before he came to Australia was “Business”. (Court Book (“CB”) page 121).
The applicant claims to fear persecution in India because of his political activities and membership of a particular social group.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-15 of the Tribunal’s decision (CB 121-132). In the statement accompanying his protection visa application the applicant said:
a)in 1983, the applicant finished his schooling and helped out in his father’s clothes store until 1997. In 1988, the applicant became a member of Adirampatinam Panjayat Union and All India Anna Diravida Munnetra Kalagam. In 1989, the applicant became Deputy President of Jaya Peravai, which was run by the chief minister of Tamil Nadu;
b)since 1995, the applicant’s father’s clothing store began running at a loss. In 1998, the applicant went to Japan to look for work. He remained in Japan until 2001;
c)the applicant’s uncle (Kasim) had no children and decided to transfer all his property to the applicant. Upon hearing this news, Kasim’s brothers-in-law (Sahib and Hakim), demanded that Kasim transfer all the property to them instead. These two brothers had the support of political parties behind them;
d)on 20 April 1998, Kasim told the applicant’s father that Sahib and Hakim were sending Kasim death threats. Within two days, Kasim decided to secretly register the property in the applicant’s name. Sahib and Hakim found out about the property transfer and murdered Kasim;
e)after the murder of Kasim, the applicant’s father tried to go to Patukottai Court to secure the transfer of the properties. Sahib and Hakim found out about it and began to target the applicant’s father. On 15 May 1999, the applicant’s father was murdered. Sahib and Hakim ordered the applicant to withdraw the case and threatened to kill the applicant if he did not do so. On 15 August 2001, the applicant fled to Malaysia. He was unable to stay there permanently, so he returned to India after a month and lived in Chennai secretly;
f)on 2 September 2001, several Hindus and Muslims were killed in an incident in Adirampattinam. In 2003, there was a Hindu festival and RSS, VHP and BJP members burnt down the applicant’s clothing store because they suspected that the applicant was involved in the incident at Adirampattinam in 2001. The applicant claims that after his occurred, his financial status became “very low”. The applicant reported the incident to the police, but they did not take any action. The applicant and his family were attacked by RSS, VHP and BJP members because he had complained to the police. They threatened to kill the applicant if he did not withdraw the complaint;
g)from 1988, the applicant was involved in the All India Anna Diravida Kalagam (“AIADMK”). During 2001-2006, the AIADMK and Diravida Muentra Kalagam (“DMK”) were political competitors. In the election held on 8 May 2006, the AIADMK lost. DMK members began attacking the AIADMK. The applicant found out that the DMK had started a rumour that he was a Muslim terrorist;
h)in May 2005, the applicant attended court “and I told all my problems, that I went through, in the court”. After the court decision, the applicant resided in the village with his family. He claims that his enemies started to attack him, so he complained to the local police;
i)the applicant was still afraid of his enemies, so he went to Dubai on 7 October 2005. The applicant’s enemies began threatening the applicant’s family, so he returned to India after a week. The applicant’s enemies found out that the applicant had returned from Dubai. They tried to kill him by running over him with a truck. The applicant was injured and was admitted to hospital.
In his application to the Tribunal the applicant again repeated his allegations concerning his family’s internal dispute, the attack made by the BJP and RSS, this time saying it was his home not his business which was attacked, and the failure of the police to act on his complaints. The applicant also said that DMK won the 2005 election and “wreaked vengeance on the defeated ADMK”. (CB 125) The applicant was branded a Muslim fundamentalist, was attacked three times and again his complaints to the police elicited no action.
At the Tribunal hearing the applicant gave further evidence on these issues which was, in some respects, inconsistent with his previous versions.
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 Tribunal found that the applicant’s fear of threats or danger from his uncle’s brothers-in-law did not arise as a result of a Convention reason;
b)although the applicant stated that he had attempted to remain in other countries (Malaysia and Dubai), his own evidence was that he remained for less than 14 days in Dubai and about 28 days in Malaysia. His passport showed that he had a multiple entry visa to Malaysia. The applicant’s evidence that he tried to stay in those countries was not consistent with the fact that he only stayed for very short periods in Dubai and could have returned a number of times to Malaysia but did not do so;
c)the Tribunal found that it would have been reasonable for the applicant to have relocated within India;
d)the Tribunal found that the fire which burnt down the applicant’s clothing shop was not politically motivated and was not indicative of persecution by others as a result of different political opinions or religions. The Tribunal found that the applicant had falsely claimed that the fire was politically motivated to advance his own claims for refugee status;
e)the Tribunal did not accept the applicant’s evidence that he held the position of deputy president or vice president of the AIADMK. Alternatively, even if the Tribunal was wrong and the applicant had held such a position, the Tribunal did not believe that the applicant had held such a position for over fifteen years. The Tribunal was not satisfied that the authorities in India had ever had any interest in the applicant and the Tribunal did not accept the applicant’s evidence that he had a well-founded fear of persecution because of his political opinion and his position with the AIADMK;
f)the Tribunal did not accept that the injuries suffered by the applicant on 25 October 2005, were the result of the applicant’s enemies attempting to kill him by running him down. The Tribunal found that it was simply an unfortunate road accident.
In essence the Tribunal found:
The Tribunal does not accept that the applicant has a well-founded fear of persecution in India for the reasons that he claims. The Tribunal does not accept that the applicant has been a prominent member of a political party or that he has been persecuted for being Muslim or that there is a real chance that he will be persecuted for being a Muslim. The Tribunal does not accept that there is a real chance that he will be persecuted on his return to India. (CB 138).
Proceedings in this Court
The grounds of the application are pleaded as follows:
1.A declaration that the purported decision of the Refugee Review Tribunal (“a decision”) was not “privative clause decision” within the meaning of s474 of the Migration Act 1958.
2.The Tribunal failed to internalize 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.
3.The Tribunal in its decision of 30 January 2007 failed in its written statement that a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act.
In his affidavit filed in support of his application the applicant raises additional grounds of complaint in respect of the Tribunal’s decision which, relevantly, were expressed in the following terms:
(a)The RRT overwhelmingly depended on DFAT and other agency reports which were prepared by Australian Embassy, India and other agencies. It was clearly evident that, instead of investing or asking the concerned people, the authority unjustly sought information from secondary and fallacious sources. Thus, the review applicant suspicious about the neutrality of authorities.
(b)I provided a detail submission and necessary supporting documents in describing the above situation, but the Tribunal did not consider those on a ground that these information were not required to establish status. If this is the case, then there are no rationality in collecting irrelevant information which jeopardized the decision of Tribunal.
(c)The authority unexpectedly brought the issue in the review Tribunal and tried to hide the real threat of fundamentalist, which I have been trying to establish from the beginning of my claim. It is true that the present Gov. are fanatic, and they are not capable of protect the hidden attacks, which already killed many politicians, religious minorities and crippled many progressive personals. It is clearly evident from various classified documents of foreign mission that the Hindu fundamentalists are still organized force of India and they are irrational and ferocious.
(d)Thus RRT decision on this review of my political persecution in India was influenced by the misleading information provided by the DFAT and other superficial classified sources, which ultimately failed to construct and establish the logic of the decision of RRT based on evidence and facts.
Dealing with each of these grounds in turn:
The Tribunal’s decision was not a privative clause decision
This is not a ground of review but is, rather, a prayer for relief.
The Tribunal failed to internalize 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
This ground is far from clearly pleaded and appears to invite the Court to undertake merits review. Such a course is not available in these proceedings for judicial review. In relation to the sections of the Act which the applicant has particularised, s.424 gives the Tribunal power to seek additional information, s.430 provides for the manner in which the Tribunal is to record its decision, s.439 relates to disclosure by the Tribunal of confidential information and s.440 gives the Tribunal power to restrict publication or disclosure of certain matters. None of these sections is relevant to these proceedings and this asserted ground of review discloses no jurisdictional error on the part of the Tribunal.
The Tribunal in its decision of 30 January 2007 failed in its written statement that a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act
The rules of natural justice do not require an administrative decision-maker to provide reasons for his or her decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
In relation to the applicant’s reference to s.476 of the Act, that section provides this Court with jurisdiction in relation to migration decisions. It does not provide a basis for setting aside the Tribunal’s decision. No jurisdictional error has been made out in respect of this asserted ground of review.
The Tribunal should have conducted its own investigations and not relied on secondary and fallacious sources of information
It is for the applicant to satisfy the Tribunal that he meets the criteria for the grant of a protection visa: Muin v Refugee Review Tribunal (2002) ALR 601 per Gleeson CJ at 604 [7]. The Tribunal is under no duty to make inquiries; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at 22 [43], Gleeson CJ agreeing at 13 [1]. Consequently, the applicant’s complaint that the Tribunal should have investigated or sought out concerned people is misconceived. The Tribunal had no obligation to do so.
As to the secondary and allegedly fallacious sources, these have not been identified by the applicant although this appears to be a reference to the independent country information referred to by the Tribunal in its decision record. As the Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at 11:
By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. … It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
For these reasons, no jurisdictional error is demonstrated in relation to this asserted ground of review.
The Tribunal did not consider the applicant’s submission and supporting documents
Again, no particulars of the assertion had been provided by the applicant. In its decision the Tribunal has set out information which it says was provided to it by the applicant for the purposes of the review. If the Tribunal failed to identify any information provided to it by the applicant he should have made that clear at some point in these proceedings. He not having done so, the only reasonable inference to draw is that the Tribunal’s description of what it was given by the applicant is complete. The corollary of that inference is that no jurisdictional error is demonstrated in relation to this asserted ground of review as a consideration of the Tribunal’s decision demonstrates.
State protection is not available to the applicant
As the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason the question of state protection is otiose and no jurisdictional error arises in respect of it.
The Tribunal’s decision lacked logic
Far from demonstrating illogicality the Tribunal’s decision demonstrated a methodical approach to the various assertions advanced by the applicant. It considered those assertions, together with other information supplied by the applicant and some small amount of country information, to arrive at conclusions which were open to it on the information before it. Its reasoning does not demonstrate that the decision can be characterised as “irrational, illogical and not based on findings or inferences of facts supported by logical grounds”; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at 20 [38], Gleeson CJ agreeing at 13 [1].
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 21 August 2007
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