SZKKG v Minister for Immigration
[2007] FMCA 947
•7 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 947 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision affirming a decision of a delegate of the Minister not to grant the applicants protection visas – applicants are citizens of India. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 430, 474 |
| SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth (1999) 197 CLR 510 |
| First Applicant: | SZKKG |
| Second Applicant: | SZKKH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1010 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 June 2007 |
| Date of last submission: | 7 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Markus |
| 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 $4,200.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1010 of 2007
| SZKKG |
First Applicant
| SZKKH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 9th February and handed down its decision on 1st March 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicants Protect (Class XA) visas.
The Applicants seek a judicial review of that decision, and in particular, they seek:
i)an order in the nature of certiorari quashing the Tribunal's decision.
ii)a writ of prohibition preventing the First Respondent Minister from giving effect to the refusal of the visa made by the Minister's delegate.
iii)an order in the nature of mandamus compelling the Tribunal to rehear and redetermine the application of the Applicants.
Background
The background to this matter is that the Applicants, who are husband and wife, are citizens of India. They arrived in Australia on 19th August 2006 and applied for Protection (Class XA) visas on 4th October 2006. Their applications were refused on 16th November 2006 and on
30 November the Applicants applied to the Refugee Review Tribunal for a review of the decisions of the delegate.
The Tribunal noted that no claims were made by or on behalf of the Second Applicant who relies on her status as a member of the First Applicant's family. The Tribunal also noted that the Applicants did not provide any additional documentation with their application for review. The First Applicant did, however, provide a copy of his passport issued by the Republic of India.
The Tribunal invited the Applicants to attend a hearing to take place on 6th February 2007. The First Applicant appeared before the Tribunal. He gave evidence with the assistance of an interpreter in the Gujarat language. He described how he is of the Hindu religion and a goldsmith by trade. His father was the president of a Hindu organisation and it is part of the Applicant's case that the Applicant's father was unfortunately shot and killed after having received some threats from hardcore Muslims about a religious function.
The Applicant and his wife left Gujarat in March 1999 and they arrived in Bahrain in February 2004. Unfortunately, due to what was described in the Court Book as a rising tide of fundamental Islam in Bahrain, the Applicant and his wife left Bahrain in the middle of 2006 and came to Australia.
The Tribunal asked the First Applicant a number of questions about his family background and his history in Gujarat and about threats that the First Applicant said that he had received from the fundamentalist Muslims. The Tribunal did refer to one claim that the Applicant had put, that the local Muslims had threatened to accuse the Applicant of selling drugs and the Tribunal said that it regarded that claim as far-fetched, noting that the Muslims were a minority group in Gujarat and noting that from the independent country information police in the state of Gujarat were very partisan towards Hindus. The Tribunal refers to that in the last paragraph on page 90 of the Court Book.
A copy of the Tribunal decision record can be found at pages 85 through to 92 of the Court Book and at pages 93 to 98 appears copies of independent country information referred to in the Tribunal decision, being a Human Rights Watch World Report 2003 relating to India.
The Tribunal based on the copies of the Applicants' passports found that the Applicants were citizens of India. The Tribunal was not satisfied, however, that the First Applicant suffered serious harm of a type or a gravity that could be called persecution and was satisfied that he had access to state protection. The Tribunal also noted that despite the regrettable murder of the Applicant's father in 1998, the Applicant did not encounter any further harm whilst he stayed in Gujarat and noted that the Applicant had returned to India on other occasions, including when he went to Gujarat in 2003 and married his wife.
The Tribunal noted independent country information to the effect that close to 90 per cent of the Gujarat population is Hindu and that the Muslims are a very small minority. The Tribunal referred to the independent country information in the Human Rights Watch World Report, to which I have previously referred, to say that the police are biased towards Hindus and that the VJP still needs the state government in Gujarat.
The Tribunal found it implausible that the First Applicant could suffer threats from the local Muslim community and be unable to access effective state protection from any harm implicit in those threats. The Tribunal was not satisfied that serious harm, let alone harm amounting to persecution, had befallen the applicant in the past and found that the chance of such harm would befall him in the reasonably foreseeable future to be remote.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision of the delegate not to grant the Applicants Protection (Class XA) visas.
The application for judicial review
The Applicants commenced proceedings for judicial review by filing an application and an affidavit in this Court on 26th March 2007. They filed an amended application on 15th May 2007. Unfortunately, this document was not served on the solicitors for the First Respondent Minister, although the First Applicant told the Court that he believed that his migration agent had done so. I allowed time during the hearing so that the solicitor for the First Respondent could not only receive a copy of the amended application but peruse it and prepare arguments in reply.
The amended application sets out some 13 paragraphs of what are said to be the grounds of the application. There are also what are said to be particulars of those grounds appearing after paragraph 13. It is fair to say that many of the grounds that appear in the application do not appear to be grounds of review at all but appear to be either statements of fact or matters in the nature of submission. In any event, I propose to consider the matters in the amended application and whether what is referred to is indeed a ground of review or not I will deal with the matter accordingly.
The Applicant is not legally represented. He attended Court and indicated that he was not able to comment on matters of law and was not able to provide particulars of certain information referred to in his amended application. He did say that he attended the hearing and the Member asked him questions and he replied to all of those questions. He said that after that when the Member finished the hearing the Member did not give him a further opportunity to speak. I note no transcript appears.
Dealing with the Applicant's amended application, he first of all says:
The purported decision of the Tribunal does not reflect that it was made in good faith and according to the rules of natural justice.
The allegation of a lack of good faith is not particularised as it should be and there is indeed no evidence of it.
I am mindful of decisions such as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 where the Full Court of the Federal Court comprised by Tamberlin, Mansfield and Jacobson JJ said that an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. The allegation is not to be lightly made, it must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme, but this is especially so where all that the applicant relies upon is the written reasons for the decision under review (see paras.43 and 44). There is no evidence of bad faith.
As to a breach of natural justice, I am mindful of the fact that s.422B of the Migration Act applies and, in any event, there is no particularisation of any breach of natural justice and no evidence of any whether natural justice at common law or otherwise. The first ground fails.
The second ground says:
The Applicant attended the hearing which commenced on 6 February 2007 and gave oral evidence with the department.
That is not a ground of review.
The third ground says:
The applicant was born in Mandvi Kutch, India. He is of Gujarati ethnicity and that his religion is Hindu. The Applicant was practising Hindu religion. The applicant fears persecution on account of being a practising Hindu. He fears that he will receive threats from Muslim extremists, and not be able to practice religion freely nor subsist if returned to India.
That is not a ground of review, it is a statement of the Applicant's factual case.
The fourth ground says:
The Applicant's case is that even if he returns to India he will nevertheless fear persecution because of threats from Muslim extremists, not be able to practise religion freely or subsist.
Apart from the fact that that appears to be in part a restatement of the earlier paragraph, it is in fact a statement of the Applicant's case and is not a ground of review.
Ground 5 says:
The Applicant gave oral evidence of such fears to the Tribunal. The Tribunal noted that the Applicant appeared to be a credible and truthful witness and accepted
(i) The Tribunal accepts the independent country information that religious tensions regularly arise in India and that there have been frequent outbursts of inter communal violence.
(ii) The Tribunal accepts that there has been murdered in 1998 by Muslim fundamentalists due to defying a warning not to hold a particular Hindu ceremony. (See Court Book page 53).
(iii) The Tribunal further accepts that after the death of his father and as the eldest son, the applicant's family recommended to leave India. (See Court Book page 53).
(iv) The Tribunal accepts the likelihood that the applicant and his family received threats as claimed, as evidence supports the escalation of tension and violence between Hindus and Muslims were targeting, threatening and murdering each other on account of their respective religions.
(v) Furthermore, country information suggests that tensions continue, the situation between Muslims and Hindus has improved in 2006.
The reference to matters that the Tribunal is said to have accepted clearly from the page numbers of the Court Book refer to the delegate's decision and not the Tribunal's decision. In any event, as Mr Markus for the First Respondent pointed out, the Tribunal hardly could be said to have noted that the Applicant appeared to be a credible and truthful witness, especially in the light of a statement at page 90 of the Court Book where the Tribunal said that it regarded a particular complaint about threats and extortion as "far-fetched". There is no ground of review in para.5.
Ground 6 says:
State protection of religious groups also improved during 2006 with an increase in prosecuting extremists responsible for targeting religious groups.
This is not a ground of review.
Ground 7 says:
However the Tribunal did not accept that the Applicant's fear extended to the whole country, and that finding appeared to be contrary to the Applicant's evidence to that effect.
This is not a ground of review. In any event, the Tribunal did not make that finding and the ground seems to be challenging a factual basis of the delegate's decision.
Grounds 8 and 9 say as follows:
(8) The Applicant claims that he was unable to subsist in India, stating that he “cannot do any business to earn a living”.
(9) The Applicant cannot practise his religion freely in India. There are reports that Hindus are targeted by extremists throughout India.
These are not grounds of review, they are statements of fact or submissions relating to the Applicant's case.
Ground 10 says, in part:
The Tribunal referred at Court Book to information it considered, [including US Department of State, Country Reports on Human Rights - 2003, India 28 February 2005: International Freedom of Report 2002, India]. The Tribunal appears not to have taken account of the following excerpts from that report.
Here follow four paragraphs relating to factual matters. The page number given, page 49, indicates that the Applicant has confused the Tribunal decision with the delegate's decision. The delegate's decision is set out in the Court Book at pages 43 through to 55. The Tribunal decision, as I indicated earlier, can be found at pages 85 to 92 of the Court Book. They are two different decisions. I also note that the Tribunal did not refer to the United States Department of State Country Reports on Human Rights in the Tribunal decision.
Ground 11 says:
The Tribunal appears not to have considered, or at least considered adequately whether or not it would have been reasonable in all the circumstances to expect the Applicant to have sought refuge in or to have relocated to another part of the country.
In my view, there was no need for the Tribunal to have considered the question of whether it would be reasonable for the Applicants to have relocated within India. The Tribunal was not satisfied that the First Applicant had shown a well-founded fear of persecution for a Convention reason and consequently the question of relocation does not arise. This ground fails.
Ground 12 says:
The applicant was threatened and harassed by the local Muslims. The applicant was affected serious harm with Muslim extremists. The above statements confirm ‘well-founded fear’ of persecution by the applicant. However, the Tribunal failed to take into account such a grave situation of the applicant and thereby made a jurisdictional error.
This is not a jurisdictional error. It is an attempt at merits review by the applicant. It is no more than a challenge to the Tribunal's factual findings. That ground fails.
Ground 13 is quite lengthy. It begins by claiming that the Tribunal made a jurisdictional error by misdirecting itself as to the nature of its role and duties and responsibilities. There is no particularisation of that claim as to how the Tribunal misdirected itself and, in my view, no evidence of it. The particulars claim that the Tribunal used critical adverse information obtained after the delegate's decision which was neither provided to the Applicant before the hearing nor put to the Applicant during the hearing. There is a reference there to Muin which I presume refers to the High Court decision of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.
The Applicant was not able to provide to the Court any information about what this information was said to have been. In any event, I am unable to discern any information of the nature referred to from my reading of the decision and it appears to me that this claim relates to some sort of an allegation of a lack of procedural fairness at common law. I am unable to discern any, but in any event, s.422B of the Migration Act applies.
If the Applicant is referring to independent country information to which the Tribunal did refer at page 91 of the Court Book, in my view, that material was brought to the Applicant's attention by the Tribunal during the hearing. In any event, that independent country information, the Human Rights Watch World Report 2003, was not created after the delegate's decision but it was put to the Applicant.
The Applicant claims that the Tribunal misapplied the test, or alternatively, misinformed the Applicant about the test. The Applicant does not say what the test was and provides no particularisation of any misapplication of it or misinformation of the applicant about it. The Applicant goes on to say:
The applicant presented a vivid fear of persecution in front of the Tribunal. However, the Tribunal failed to discharge its duties and responsibilities by ignoring the possibilities of such persecution and thereby chose a narrow view of the situation.
This in effect is the Applicant challenging the factual findings of the Tribunal and challenging of the Tribunal's conclusion as to the facts. It is, in my view, an attempt at obtaining merits review of the Tribunal's decision which is not available on judicial review. The Applicant then goes on to claim a breach of s.424A of the Migration Act alleging that the Tribunal failed to provide particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision that is under the review and did not ensure, as far as practicable, that the Applicant understood why that information was relevant to the review and did not invite the Applicant to comment upon it.
The Applicant was unable to give particulars of any information that he claims was relied upon by the Tribunal in breach of s.424A of the Migration Act. In my view, there is no breach of s.424A. The information relied upon by the Tribunal to affirm the delegate's decision came from two sources: first, the independent country information, to which it referred on page 91 of the Court Book, and second, the Applicant's own evidence. The independent country information comes under the exclusion of sub-section 424A(3)(a) of the Migration Act. The Applicant's own evidence to the Tribunal comes under the exclusion in s.424A(3)(b) of the Migration Act. There is no breach of s.424A of the Migration Act.
The Applicant claims that:
The Tribunal has therefore failed to appropriately discharge its duties and responsibilities in respect of this particular matter.
There is no particularisation of that claim and it appears to be no more than a submission and not a ground of review. The Applicant claims:
The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do and therefore the Tribunal failed to exercise its jurisdiction.
The Applicant or whoever prepared the amended application for the Applicant I note in passing appears not to have noticed that the Tribunal Member was in fact a woman, but if the claim relates to a failure to comply with s.430 of the Migration Act, I am not of the view that any breach of that section has been shown. Section 430 of the Migration Act sub-section (1) says:
Where the Tribunal makes its decision on a review the Tribunal must prepare a written statement that
(a) sets out the decision of the Tribunal on the review and
(b) sets out the reasons for the decision and
(c) sets out the findings on any material questions of fact and
(d) refers to the evidence or any other material on which the findings of fact were based.
In my view, the Tribunal decision does exactly that. Even if a breach of s.430 were a jurisdictional error - and I am not persuaded that it is - there is no evidence of such a breach. In my view, a breach of s.430 of the Migration Act is not a jurisdictional error. I refer to the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 where it is my understanding that the High Court found that a breach of s.430 does not affect the decision because the decision had already been made. This ground of review also fails.
The Applicant also claims the Tribunal erred in failing to consider all claims and issues put forward by the Applicant. If he is referring to the fact that he sought to make a further claim to the Tribunal after the hearing had closed, there is no evidence by way of a transcript to support that. In my view, the Tribunal decision shows that the Tribunal did consider the Applicant's claims.
The final claim under the heading "Particulars" says:
The fear of persecution experienced by the applicant was well and truly within the definition of the Refugees Convention as amended by the Refugees Protocol. It was therefore under the obligations under purview of Australia's protection obligations under the Refugees Convention as amended by the Refugees Protocol and ss.36(2) and 65(1) of the Migration Act 1958. However, the Tribunal failed to apply the above relevant law and wrongly decided the matter against the applicant.
That claim, which is in a somewhat convoluted form, takes issue with the ultimate conclusions of the Tribunal. As was said by Gyles J in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]:
Insofar as the Federal Magistrates Court is concerned, it has no role to second-guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only direct the Tribunal if jurisdictional error is revealed.
That ground under the heading "Particulars" does not reveal any jurisdictional error.
I note that the Applicant is not legally represented and I will consider the grounds in the Applicant's original application and I will not regard those grounds as having been abandoned. The grounds that he raised in that Applicant were, first, the Tribunal exceeded its jurisdiction by finding that the applicant added claims at the end of the hearing, namely threats by local Muslims, and this was an unfair finding. The reply to that is that the merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to the witnesses, are for the Tribunal to determine (see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and 292-292).
As was put to me by the solicitor for the Minister, the Tribunal principally rejected the Applicant's claims in relation to that issue by making credibility findings which are findings of fact. They are not findings of law. Credibility findings are a function of a primary decision-maker and as a consequence, as it is put, are difficult to overcome (see Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]).
As to the ground that the Tribunal misunderstood the Applicant's claims in finding there was no relevant familial connection between the Applicant's father having encountered some harm the year before and the Applicant having been harmed, I am of the view that the Tribunal showed that it clearly understood the Applicant's claims and the findings that it reached were open to the Tribunal on the basis of the evidence. That ground, therefore, must fail.
As to the third ground, that the Tribunal failed to assess the real claims of fear suffered by the Applicant, which is that it found it implausible that the Applicant could suffer threats from the local Muslim community and be unable to access effective state protection from any harm implicit in those threats, this is not a proper ground of review. It is taking issue with the Tribunal's factual findings and the Tribunal did not accept the Applicant's evidence in relation to the issue. Even if the Tribunal had made an incorrect finding of fact that is not an error of law, let alone a jurisdictional error (see Abebe v Commonwealth (1999) 197 CLR 510 at [137]).
I have also read through the Tribunal decision and the supporting material in order to ascertain whether any other arguable ground for jurisdictional error can be made out. I am satisfied that no other arguable ground appears and it follows that the decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of prohibition, certiorari or mandamus.
The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. This is a matter in which it is appropriate for a costs order to be made as the Applicants have been wholly unsuccessful in their claim. The amount sought is $4,200.00, which is within the scale provided by the Federal Magistrates Court Rules and I am satisfied it is an appropriate figure.
The First Applicant has told the Court that he is not able to work in his trade as a goldsmith and is engaged in farm work instead, which I am quite satisfied would be considerably less lucrative. This would clearly affect his capacity to pay. In the circumstances, I will allow four months to pay.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 June 2007
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