SZKKY v Minister for Immigration
[2007] FMCA 1043
•27 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1043 |
| MIGRATION – Tribunal may accept or reject evidence as it thinks appropriate – no error in not dealing with claims not put to the Tribunal. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZKKY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1062 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 27 June 2007 |
| Date of last submission: | 27 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Ms A. Nesbitt of Sparke Helmore Lawyers |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1062 of 2007
| SZKKY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 2 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 16 February 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa (CB 83). The applicant filed an amended application on 21 May 2007.
The applicant was born on 1 April 1974 and claims to be from India and of Catholic faith (“the applicant”).
The applicant arrived in Australia on 1 September 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 12 October 2006 (Note: the applicant’s wife was included in the protection visa application as a member of the family unit, however, she has not been included as a party to the application to the Court). In this application he claimed, in summary, as follows (CB 32-6):
·From his student days the applicant had been involved with the Indian National Congress Party (INC) via its affiliates, namely, the Kerala Student Union (KSU) and the Youth Congress;
·In 1993 he was injured and admitted into hospital following a bomb attack by ‘Bomb Edison’, the “gangster leader” of the Communist Party; he resumed an active political life after his recovery “without any issues” for the next 4.5 years;
·In 1998 he was appointed as Mandalam Committee Secretary of Kazhakuttom, which “added [to his] responsibilities and commitment” to the INC; around this time, the loading workers of the INC were in conflict with the loading workers of the Communist Party; that there was open fighting between the two groups and the Communist Party supporters “misunderstood that I am the master brain of the scene”; after this incident the applicant and his father were physically attacked, each sustaining serious injuries. (The applicant stated in Court that his father has died as a result of beatings. No medical evidence has been presented by the applicant as to that fact. The assertion is new material that was not before the Tribunal. This Court therefore cannot take that material into account);
·In 2002 Bomb Edison was attacked and his right hand and leg amputated during the assault; Communist Party supporters saw it “as a politically motivated assault” and blamed the applicant; following threats to his life, the applicant travelled to Kuwait in January 2003 with his brother;
·In March 2005 the applicant returned to India to get married. During this period Bomb Edison committed suicide, though there were rumours that he was killed by INC supporters. The applicant was advised to return to Kuwait, which he did;
·In June 2006 the applicant returned to India. He was followed by two men but managed to escape any harm; he states that “some anti-social elements threw stones to my home and broke a few windows at night time and abused my parents”. He was forced to flee Australia.
This application was refused by a delegate of the first respondent on 16 November 2006 (CB 47).
On 12 December 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 57). The applicant attended a hearing before the Tribunal on 15 February 2007 to give evidence and present oral arguments (CB 86).
On 16 February 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 83-90) (highlighting added):
The applicant has claimed to the Tribunal that if he returns to India he fears he will be persecuted both because he was being blamed for the death of the CPM-linked goondas named Edison and because of his involvement with the INC party. He has claimed that he was attacked or threatened on a number of occasions in the past for these reasons. The applicant has not claimed that the persecution which he fears is for reasons of his race, religion or nationality. The applicant’s claims indicate that his fear of persecution is (at least in part) because of his membership of a particular social group, namely the INC, and/or his political opinion, which presumably is directly related to his long time association with the INC.
The applicant has also claimed that the police and other state protection authorities are unwilling and/or unable to protect him from the persecution that he fears because of their corrupt connections with politicians and criminal elements. More generally the applicant claimed that police protection was inadequate.
The Tribunal notes, and has drawn to the applicant’s attention, that the INC is currently the ruling party in the national Indian Government and is the ruling party in several state governments. It was the ruling party in the applicant’s home state of Kerala until the May 2006 election when a left coalition including the CPM party took power. Despite losing office in Kerala, INC candidates retained a significant number of seats in the state parliament.
The Tribunal also notes DFAT’s advice (cited above) that Kerala is a law abiding state where legal recourse is available to those who feel threatened and persecuted; and that if supporters of registered parties in India are subject to political persecution from rival political parties or other agents, they generally have recourse through the Indian legal system.
The Tribunal does not accept that the applicant is unable to avail himself of the protection of the relevant authorities of India, including the police. The applicant claims that he has strong political connections with one of the most powerful political parties in India: the INC is currently the ruling party in the national Indian Government and is the ruling party in several state governments. Drawing on the DFAT advice referred to above, the Tribunal considers that the applicant’s claimed political connections and beliefs would, at the very least, not hinder his ability to avail himself of the protection of the police and other relevant authorities in India.
Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention. In particular, the Tribunal considers that the applicant, in response to his claimed fear of persecution for reasons of his political opinion and/or involvement with the INC, is able to avail himself of the protection of India. It follows that the first named applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
No specific Convention claims were made by or on behalf other applicant. The fate of the other applicant's application therefore depends on the outcome of the first named applicant’s application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.
The Tribunal affirms the decisions not to grant the applicants Protection (Class XA) visas.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The applications
In his application filed on 2 April 2007, the applicant set out three grounds as follows:
(1)The Tribunal failed to accept that the applicant is unable to avail himself of protection of Indian authority.
(2)The Tribunal failed to accept that the political criminal elements held the applicant responsible for the death of Edison.
(3)The Tribunal failed to accept that the politicians, goondas and the Police planned to kill him and the applicant escaped near death.
The applicant’s amended application filed on 21 May 2007 set out the following grounds and particulars:
(1)The Tribunal constructively failed to exercise its jurisdiction by failing to refer to or make any findings on the following aspects in the Applicant’s case and had made jurisdictional error.
(a)That the Tribunal had knowingly and with intent refused to accept the fact that the Applicant never had state protection. The Tribunal was well aware of the facts of the claims where he states that he had been in constant fear of assault and death from the political criminal elements and the authorities in power who used their influence to further harass the Applicant and failed to give any protection requested by his own party members including himself. The Tribunal had deliberately rejected the Applicants claims on the grounds of available state protection in Kerala. The Tribunal made a jurisdictional error in failing to give consideration of the basic claims.
(b)That the Tribunal constructively failed to accept the Applicant’s claims and relied on the DFAT’s advice as to the availability of the legal recourse for those who are threatened and persecuted, but failed to give any valid reason as to the fear of persecution the Applicant faced from the political goondas and criminal elements who are hired and protected by the authorities and ruling politicians to persecute the innocent and opposing party politicians. The Tribunal erred in ignoring the basic reasons for the fear of persecution of the Applicant and made a jurisdictional error.
(c) The Tribunal made an error in holding that as “the INC was the ruling party in Kerala before the general election in 2006 and the Applicant could get recourse through Indian legal system. The Tribunal failed to note that the ruling party being the CPM has wide powers and influence in Kerala and would be difficult for poor people like the Applicant to rise against the government and their authorities in power. The Tribunal failed to note that CPM party worked in conjunction with the criminal elements to control the opposing parties and their members. The Tribunal failed to give valid reason why the Applicant would not face harm on his return back to India and hence made a jurisdictional error.
(d)The Tribunal deliberately ignored the details as to the continuous injuries sustained by the Applicant from the criminal elements and the Applicant’s well founded fear arising there from in considering his claims. The Tribunal deliberately ignored the serious harm the Applicant faced in the past and the well founded fear of future persecution the Applicant could face and made a jurisdictional error.
Findings of the Court as to the grounds in the application
Grounds one, two and three seek to review findings of fact by the Tribunal. The Court applies the following decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Insofar as ground one alleges an error of law as to its findings that the applicant could avail himself of effective protection in India, the Court accepts the submissions for the first respondent as follows:
The Minister submits that there is no error in this regard. There is no suggestion that the Tribunal misunderstood the doctrine of effective protection. It is noted that the Tribunal raised the question of effective protection with the applicant at the hearing (CB 88.5-88.8), so it can not be said that there was a failure to provide the applicant with a fair hearing in this regard (i.e. so as to establish a breach of s.425). Nor was there a breach of s.424A, because the information relied upon by the Tribunal in arriving at its conclusion was independent information which fell within the exception to s.424A found in s.424A(3)(a).
No error of law has been shown. The Court rejects grounds one, two and three.
Findings of the Court as to the grounds in the amended application
Ground one alleges that the Tribunal erred in law by failing to refer to, and make findings, on the following alleged aspects of the applicant’s case.
Particular (a) alleges that the Tribunal failed to accept the applicant’s evidence as to state protection. The Tribunal is entitled to accept or reject evidence as it thinks appropriate: Lee (post). The decision of the Tribunal shows that it gave detailed consideration to the issue (CB 89). Particular (a) one raises a claim that “political criminal elements and the authorities used their influence to further harass the applicant”. That claim was apparently not put to the Tribunal and there is no evidence that it was put to the Tribunal. There is no error in law of the Tribunal failing to deal with the claim that was not before it.
The question of bias, which appears to be raised in particular (4)(i) will be considered later. Particular (a) is rejected.
Particular (b) complains about an alleged failure to accept evidence by the applicant and complains that the Tribunal ignored the basic reasons for the fear of persecution of the applicant. The Court applies the following statement in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Particular (b) claims that the “authorities and ruling politicians” hired “criminal elements” to persecute the applicant. No evidence has been produced to show that that claim was put to the Tribunal. Therefore there is no evidence that the Tribunal was in error in not dealing with that claim in its decision. Particular (b) is rejected.
Particular (c) complains about a finding of fact. It is not subject to review: NAHI (ante). Particular (c) is rejected.
Particulars (a) and (d) allege bias. No evidence has been filed to comply with the requirement “that an allegation of bias must be clearly made and distinctly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it is “a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”:SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
“To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously’”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias, whether actual or apprehended, has not been established. Particulars (a) and (d) are rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 4 July 2007
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