SZKMQ v Minister for Immigration and Anor (No.2)
[2009] FMCA 513
•25 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMQ v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 513 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India – whether the Tribunal breached s.424 of the Migration Act 1958 (Cth) considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424, 424A |
| SZKMQ v Minister for Immigration [2009] FMCA 72 SZKTI v Minister for Immigration (2008) 168 FCR 256 SZLPO v Minister for Immigration [2009] FCAFC 51 |
| Applicant: | SZKMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2809 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 28 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2009 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2809 of 2008
| SZKMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 18 September 2008 and handed down on 8 October 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and is a Muslim. He claimed to fear persecution for reasons of his religion and political opinion. He arrived in Australia on 8 October 2006 and applied for a protection visa on 10 November 2006. That application was rejected by a delegate of the Minister on 23 November 2006. On 18 December 2006 the applicant applied to the Tribunal for review of the delegate’s decision.
The Tribunal conducted a hearing on 15 February 2007. The Tribunal handed down a decision on 20 March 2007 but that decision was set aside by order of this Court on 5 November 2007[1]. The Minister conceded that the Tribunal had fallen into error in that it failed to consider all of the applicant’s claims contained in his statement to the Department enclosed with his protection visa application.
[1] court book (CB) 174
The applicant was invited to a second hearing by letter dated 22 November 2007[2] and he accepted that invitation[3]. The second Tribunal hearing was conducted over two days on 15 January 2008 and 25 February 2008.
[2] CB 178-179
[3] CB 180
After the hearing on 27 June 2008 the Tribunal made telephone enquiries in an attempt to verify some of the applicant’s claims. The Tribunal then sent a letter to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) on 27 June 2008[4]. The applicant responded by letter dated 21 July 2008[5].
[4] CB 360-362
[5] CB 363-364
This matter came before me on 9 February 2009 when I conducted a show cause hearing. At that hearing the applicant relied upon an amended application filed on 27 January 2009 which contained the following grounds:
1. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act and the Tribunal was minded to so find if it could obtain corroborative evidence from Father John Mathew who it unsuccessfully [tried], to contact. In such circumstances the Tribunal erred in that:
a. it failed to address the residual question as to how it should hold in the event that its finding that the applicant was not at risk of persecution was wrong; and
b. it failed to properly apply the consideration that [applicants] for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.
2. The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a moderate Muslim (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm from radical Hindus, and not able to access effective protection.
4. The decision of the second respondent was effected (sic) by jurisdiction error in that the second respondent failed to consider the applicant’s claim that his wife and mother are missing and ignored evidence which has given to the Tribunal.
5. The Tribunal erred in law amounting to jurisdictional error in finding that I do not have well-[founded] fear of persecution and I do not satisfy the criterion set out in s.36(2)(a) for a protection visa.
6. The Tribunal member failed to consider all the material readily available and/or accessible and the Member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those materials.
7. The Refugee Review Tribunal exceeded its jurisdiction or constructively failed to take in to account relevant consideration of my well founded fear of persecution for being a member of TMMK. The Tribunal accepted that the government continues to undermine by political in-fighting, pervasive criminality in politics, decrepit state institutions, and widespread corruption. The independent information also stating that the situation between Hindus and Muslims has mostly been acrimonious and tense in India and often erupting into violent clashes, but has failed to take into account the well-founded fear of my persecution I experienced prior to departure from India.
8. The Refugee Review Tribunal … failed to act that the applicant satisfy the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention. To go further the Tribunal failed to see that the applicant satisf[ies] the four key elements that are required to satisfy the Convention definition. The applicant state[s] that the Tribunal refers to four key elements and since they satisfy them they are entitled to [protection] visa.
The first element – applicant must be outside his country
The second element – the applicant must fear persecution. If the applicant return to his country his life … would be in danger.
The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The applicants fulfil this.
The fourth element – the fear of persecution for a Convention [reason] must be a “well founded” fear.
The applicant fulfils all the four elements.
Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.
Hence, due to this failure, the Tribunal has committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.
I ordered the Minister to show cause, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) why relief should not be granted in relation to the Tribunal’s failure to make enquiries of a priest identified by the applicant in accordance with the requirements of s.424 of the Migration Act: SZKMQ v Minister for Immigration & Anor [2009] FMCA 72. I formed the view then, and remain of the view now, that the amended application filed on 29 January 2009 does not otherwise disclose an arguable case of jurisdictional error.
The matter proceeded to a final hearing on 28 May 2009 only in relation to the issue identified in the show cause order. That issue requires some factual explanation, which is conveniently summarised in the Minister’s written submissions filed on 20 May 2009:
The “priest identified by the applicant” was a man by the name of Fr John Matthew. He was first identified as the putative author of a letter dated 17 February 2007 from the St Peter Church Home for Orphanage and Handicapped in Senthaneerpuram, Trichy, India ([CB] 124).
The applicant provided that letter to the Tribunal on 27 February 2007 after a hearing before the Tribunal, differently constituted ([CB]377 [53]).
The applicant provided other letters from the St Peter Church Home for Orphanage and Handicapped dated 1 November 2007 ([CB]182; [CB] [55]) and 27 December 2007 ([CB]217; [CB]384 [90]). While signed, these letters do not specify the author.
The Tribunal as presently constituted held two hearings, on 15 January 2008 and 25 February 2008 ([CB]183; [CB]333; [CB]377 [54]-[94]). At the first hearing, the Tribunal put to the applicant that its research had been unable to locate any information about the Church of St Peter. The applicant said that it was a “very small church” and “would not be listed”. The applicant did not know the denomination ([CB]84 [88]).
On 27 June 2008, the Tribunal tried, to no avail, to telephone Fr Matthew on a mobile number provided by the secretary to the Bishop of the Diocese of Trichy (RD 387 [97]). The Tribunal then contacted the parish priest of St Peter Church in Senthaneerpuram, who, in turn, gave the Tribunal the telephone number for the orphanage. The Tribunal telephoned the orphanage. The nun who answered “knew Fr Matthew but informed the Tribunal that he did not work at the orphanage and had not worked in the orphanage in November 2007” ([CB]387[98]).
On the same day (27 June 2008), the Tribunal wrote to the applicant pursuant to s 424A of the Migration Act 1958 (Cth). In that letter, the Tribunal referred to the matters set out in the previous paragraph and enclosed a recording of each of the telephone conversations ([CB]360; RD 388 [100]). The Tribunal said that the information was relevant because it suggests that:
· Fr Matthew was not attached to the St Peter Church Home for Orphanage and Handicapped;
· if he was not so attached, then Fr Matthew could not have written the letters provided by the applicant;
· the applicant is a not a witness of truth ([CB]360; [CB]387 [99]).
The applicant responded by letter dated 21 July 2004 ([CB]363-364; [CB]388 [101]). Relevantly, the applicant said:
“When I tried to get some information from Father John Matthew, he would not respond to any of my mails or my calls and then I had to request another friend of mine to drop by to check the where about of Father John Matthew an I was told that Father JM had been transferred to another Church in Ponmalai and my friend could not get any information about Father JM.
As informed by you (RRT) there is a father called John Matthew but he is not working in the Home for the handicapped. I have tried my best to get hold of Father John Matthew but I am not able to locate him. I am helpless at point and much worried about my Wife and mother. With this I hope to hear some positive consideration from the RRT as I am helpless and that’s all I have to add.”
The evidence
I have before me as evidence the court book filed on 15 December 2008.
Submissions
The applicant did not take up the opportunity to file any written submissions. He made oral submissions consistent with his response to the s.424A invitation to comment.
The Minister submits that the Tribunal did not fall into any error in relation to its enquiries about Father John Mathew. First, the Minister relies upon the recent decision of the Full Federal Court in SZLPO v Minister for Immigration [2009] FCAFC 51 in submitting that s.424(2) has no relevant application in this case. Further, the Minister submits that the Tribunal was aware of its obligations under s.424(2) in any event but was not in a position to request any additional information in writing from Father Mathew. The Minister further submits that information obtained from a nun at the St Peter Church Home and Orphanage for the Handicapped was properly put to the applicant pursuant to s.424A. The Tribunal had regard to the information provided by the nun (and the applicant’s response to the invitation to comment).
Consideration
In my interlocutory judgment I raised the following questions for resolution at the final hearing:
i)Whether the Tribunal was pursuing an inquiry to obtain additional information, pursuant to s 424(2) of the Migration Act?
ii)If so, whether the Tribunal committed a jurisdictional error in failing to follow the procedural requirements of s 424(3)?
iii)Whether, by ultimately disregarding the information in the light of comments provided by the applicant, the Tribunal breached the requirement in s 424(1) to take into account information obtained pursuant to that section?
iv)Whether the failure to make a written approach to the priest affects, in a jurisdictional sense, the adverse credibility findings made by the Tribunal especially in relation to the letters provided by the applicant?
I agree with the Minister’s submissions on those questions, as follows. In its findings and reasons, the Tribunal found that the applicant was not a witness of truth and was satisfied that he has created his claims of harm in India in order to obtain a protection visa[6]. The Tribunal set out the following bases for this finding:
a)The applicant departed India for Dubai on 26 January 2005 and returned in May 2005. At the hearing, he claimed that he was granted conditional bail, with reporting conditions, on 18 January 2005. In his response to the s.424A letter, the applicant claimed that he had to obtain bail on 26 January 2005. He had not previously indicated to the Tribunal that he had to obtain bail on the same day as his departure[7].
b)Referring to country information regarding exit procedures by Indian immigration officials, the Tribunal was of the view that the applicant, if he had been subject to police reporting, would not have been able to exit and re-enter India without any problems[8].
c)The Tribunal rejected the applicant’s explanations that his problems were localised, saying that they “do not ring true”. The Tribunal relied on independent information that Indian authorities check existing criminal charges and records against departing Indian nationals[9].
d)The Tribunal did not accept that the applicant’s father died because he was a victim of a clash between rival parties in July 2004. The applicant claimed that the clash involved three buses being attacked, the death of at least one person and numerous others injured and hospitalised. The Tribunal relied on independent information which indicated that violent clashes occurred mostly during elections. There were no elections in July 2004. Further, there were no reports of the claimed incident. The applicant said that reports of the incident were prohibited. The Tribunal found that explanation did “not ring true”. Given the magnitude of the incident, the Tribunal considered that some mention of it would have been made in independent sources[10].
e)The Tribunal considered that independent evidence does not suggest that the Indian government of authorities do not provide effective protection for Muslims against attacks by other parties[11].
[6] CB 397 [106]
[7] CB 397 [107]-[109]
[8] CB 397 [110]
[9] CB 398 [111]
[10] CB 398 [112]-[114]
[11] CB 399 [116]-[118]
On these bases, the Tribunal found that the applicant was not a witness of truth and rejected his claims[12].
[12] CB 399 [119]
Having made that finding, the Tribunal then considered the letters from St Peter Church Home for Orphanage and Handicapped provided by the applicant.
The Tribunal then sets out the applicant’s evidence at the hearing[13], its own actions on 27 June 2008[14] and the applicant’s response to the s.424A letter[15].
[13] CB 399 [120]
[14] CB 400 [121]
[15] CB 400 [122]
Paragraph 123 of the Tribunal’s reasons[16] is critical. It is convenient to set it out in full:
I accept that the information provided by the person on the telephone from the St Peter Church Home for Orphanage and Handicapped is unreliable in relation [to] when Father John Matthew worked at the St Peter Home for Orphanage and Handicapped. The applicant has been unable to provide any contact information to the Tribunal about Father John Matthew. He states that he is unaware as to his whereabouts. There is no address where the Tribunal is able to send a written invitation to Father John Matthew. I am unable to place any weight on a letter from St Peter Church Home for Orphanage and Handicapped dated 17 February 2007 and written in English purporting to corroborate the applicant’s claim that the wife was attacked and rushed to hospital and that she has moved into the St Peter Church Home for Orphanage and Handicapped and is staying with Father John Matthew. I am unable to check with Father John Matthew whether or not he wrote the letters or test the veracity of the information contained in those letters.(Emphasis added.)
[16] CB 400 [123]
The Tribunal also placed no weight on the letters dated 1 November 2007 and 27 December 2007[17].
[17] CB 400 [124]-[125]
The Tribunal then considered the other material upon which the applicant relied[18] before expressing its conclusions and rejecting the applicant’s claims[19].
Was the Tribunal pursuing an inquiry to obtain additional information pursuant to s.424(2) of the Migration Act?
[18] CB 401 [126]-[144]
[19] CB 404 [145]-[163]
Section 424(1) relevantly provides that, in conducting the review, the Tribunal may get any information that it considers relevant. If the Tribunal gets such information, the Tribunal must have regard to that information in making its decision.
Section 424(2) relevantly provides that the Tribunal may invite a person to give “additional information”. By s.424(3), an invitation must be given by one of the methods specified in s.441A (unless the person is in immigration detention).
The Full Court (Lindgren, Stone and Bennett JJ) considered the operation of these provisions in the recent decision of SZLPO v Minister for Immigration [2009] FCAFC 51. The Full Court:
·held that “additional information” in s.424(2) means “information additional to information previously given to the Tribunal by the invitee” (at [99]-[100]);
·was disposed, although without deciding, to consider that “person” in s.424(2) refers only to a “natural person” (at [103]-[108]);
·held that “person” in s.424(2) is limited by reference to a person whose identity is known at the time of extending the invitation (at [109]);
·held that a document is not “information” or “additional information” (at [110]-[114]).
In the light of the Full Court decision in SZLPO, it is clear that the Tribunal did not fall into jurisdictional error. In making the telephone enquiries that it did, the Tribunal was not inviting a person, whose identity was known to the Tribunal and who had previously given information, to give additional information pursuant to s.424(2).
Even if the letter dated 17 February 2007 is regarded as “information” provided to the Tribunal by Father John Mathew (as, for example, the letter from the church elders in SZKTI v Minister for Immigration (2008) 168 FCR 256), the critical difference here is that the Tribunal did not telephone Father John Mathew and obtain “additional information”. What the Tribunal did was to make telephone enquiries to try to find Father John Mathew. It did so because the Tribunal could not find any details of the institution and, significantly, the applicant himself was unable to provide details of his whereabouts. Moreover, the Tribunal did so cognisant of its obligations under s.424(2). This is clear from the Tribunal’s reasons where it says: “There is no address where the Tribunal is able to send a written invitation to Fr John Matthew”. In these circumstances, the Tribunal accurately recorded that it was “unable to check with Father John Matthew whether or not he wrote the letters or to test the veracity of the information contained in those letters”.
Because s.424(2) did not apply to the enquiries undertaken by the Tribunal, the procedural requirements of s.424(3) are not relevant.
Did the Tribunal fail to take into account information obtained?
I accept that the Tribunal did have regard to the information provided by the nun and obtained pursuant to s.424(1) of the Migration Act. The nun said that Father John Mathew “did not work at the orphanage and had not worked at the orphanage in November 2007”. The Tribunal put that information to the applicant in its s.424A letter and the applicant responded to that letter. The Tribunal accepted the applicant’s response and concluded that the information provided by the nun was “unreliable” in relation to when Father Mathew worked at the St Peter Church Home. In so doing, the Tribunal did have regard to the information provided by the nun but decided that it was unreliable in the light of the applicant’s response. I accept that there was no error in the Tribunal’s approach.
Did the Tribunal’s failure to make a written approach to the priest affect, in a jurisdictional sense, the adverse credibility findings made by the Tribunal, especially in relation to the letters provided by the applicant?
The Tribunal said the following in its reasons at [124]-[125][20]:
I have also taken the view that no weight should be given to correspondence from St Peter Church Home for Orphanage and Handicapped dated 1 November 2007 and addressed to the Inspector of Police at Trichy. Whilst the letter did corroborate that the applicant’s mother and wife are missing due to problems with the RSS, it did not indicate who the author of the letter was. It provides no information about the author or why the unnamed author filed a complaint with the police about person who went missing nearly a month prior to the letter being written.
As for document ‘B’ dated 27 December 2007 from St Peter Church Home for Orphanage and Handicapped I place no weight on that letter either. There is no information as to its author. Without being able to obtain any information from Father John Matthew I place no weight on this letter as being a letter signed by Father John Matthew stating he made a complaint to the police and there had been no response from the police.
[20] CB 400-401
I accept that the Tribunal drew no adverse inference from the letters. It simply gave them no weight in circumstances where they could not be verified. I accept that the weight to be afforded to the evidence was a matter for the Tribunal and no error is apparent. The Tribunal had, for other reasons, rejected the applicant as a witness of truth and the Tribunal was entitled in the circumstances to seek verification of otherwise corroborative evidence before placing weight upon it. The applicant was given a fair opportunity to comment upon the Tribunal’s unsuccessful effort to track down Father Mathew and, indeed, was sent the recording of the telephone conversations of 27 June 2008 which were referred to in the s.424A letter[21].
[21] Tribunal reasons at [100], CB 388
I conclude that no jurisdictional error in the decision of the Tribunal has been established. The decision is therefore a privative clause decision and the application must be dismissed.
Costs should follow the event. I see no reason to depart from the Court scale in this matter. That prescribes an amount of costs of $5,865 following a final hearing. I will order that the applicant pay the first respondent’s costs in accordance with the Court scale.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2009
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