SZKPH v Minister for Immigration
[2007] FMCA 1962
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1962 |
| MIGRATION – Section 424A – country information excepted – natural justice – whether denied – whether duty on Tribunal to conduct its own enquiries – whether Tribunal must mention all of the applicant’s claims. |
| Migration Act 1958 (Cth), ss.91R, 420, 422B, 424, 424A, 425, 430, 439, 440, 474, 476 |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZKPH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1444 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 23 November 2007 |
| Date of last submission: | 23 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms T.L Wong |
| Solicitors for the Respondents: | Mr A.J Cox of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1444 of 2007
| SZKPH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application 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 26 March 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 29 November 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that Communist Party members threatened and terrorized him for employing workers from the BJP party. The applicant claimed that the Indian authorities arrested and tortured him for the same reason, and threatened to prosecute him as a terrorist if he did not leave the country immediately (Court Book “CB” 27-29).
The application was refused by a delegate of the first respondent on 11 December 2006 (CB 42) and by the Tribunal on review on 26 March 2007 (CB 84). The matter is now before this Court pursuant to an application for judicial review filed on 7 May 2007, and an amended application on 19 July 2007.
Issues for determination
The issues before the Court are as follows:
·Whether s.424A of the Migration Act 1958 (Cth) (“the Act”) was breached by failing to provide details of country information;
·Whether there was a denial of natural justice;
·Whether the Tribunal must conduct its own enquiries;
·Whether the Tribunal considered all of the applicant’s claims;
·Whether there was a failure to take a relevant consideration into account;
·Whether the Tribunal relied on irrelevant issues.
The application
In his application, the applicant set out three grounds as follows:
(1)A breach of the rules of natural Justice occurred in connection with the making of decision. RRT made an error of law when they failed to comply with the s.424A 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 26 March 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 applicant filed an amended application on 19 July 2007 setting out the following grounds and particulars:
(1)That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant’s claims;
(2)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular of Grounds
(a)The Tribunal did not consider the applicant who had been under immense and intimidating pressure from the Communist party members because of his involvement with BJP and RSS party member and union.
(b)In relation to above the Tribunal did not consider the applicant’s claim that he was threatened by the thug from the CPM, or that he was arrested and taken to Varkala police station regarding his plan to review the lolly business or that he was threatened by the police that he would be detain as a terrorist.
(3)The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
(4)The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final court out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
(5)I have given the adequate evidence to the tribunal that during a burglary in Johannesburg I was cut on the middle from my chest to my under belly and I was admitted at the hospital. When police found my huge mark in my body during the arrest, and questioned me about it. When I told them the truth, they did not believe me and suspected me as a terrorist working with the RSS. The Tribunal also failed to consider that.
(6)The RRT member emphasised on some irrelevant questions at the hearing and ignored my political background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
(7)The Tribunal applied the wrong test. The Tribunal left out individual elements of the applicant’s claims and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.
(8)The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing too high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.
Findings of the Court in relation to the grounds in the application
Ground one alleges a denial of natural justice. No particulars are provided. By virtue of s.422B of the Act, Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule that applied to this matter. A s.425 invitation was sent to the applicant (CB 57).
The applicant alleges a breach of s.424A and complains that the Tribunal did not give him particulars of independent country information about adequate state protection being available. That information is covered by the exception in s.424A(3)(a).
The decision of the Tribunal shows that it affirmed the decision of the delegate because it did not accept much of the applicant’s evidence. In doing so, it had regard to the evidence given by the applicant, and not to any information. There was therefore no “information” that was required to be put in a s.424A letter. A breach of s.424A has not been established. Ground one is rejected.
Ground two alleges a breach of ss.424, 430, 439 and 440 of the Act. Section 424 provides that in conducting a review the Tribunal may get any information it considers relevant. A breach of s.424 has not been established. Section 430 provides that the Tribunal must prepare a written statement setting out its decision, reasons, and findings. That was done. No breach has been established. Section 439 relates to non-disclosure of confidential information, and has no relevance to these proceedings. Section 440 relates to restrictions on publication and has no relevance to these proceedings.
Ground two complains also about the rejection of evidence and weight given to it. As stated by the Federal Court of Australia 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”. Ground two is rejected.
Ground three alleges a denial of natural justice and alleges a breach of s.476. Section 476 contains provisions about the jurisdiction of the Court. No breach has been established. Ground three is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges that the Tribunal did not consider integers central to the applicant’s claims. In its decision the Tribunal set out the applicant’s claims and evidence in the application and at the hearing in a thorough and detailed manner. It then set out its findings and reasons on the claims and evidence. It has not been established that the Tribunal failed to consider all parts of the applicant’s claims. Ground one is rejected.
Ground two (a) alleges that the Tribunal failed to exercise its jurisdiction because it did not consider the immense pressures the applicant had been under from the Communist Party. The Tribunal did consider that matter, and found that:
·it “cannot be satisfied that the applicant is in fear of persecution from the CPM” (CB 98.4); and
·it is “implausible that the CPM would seek to locate him and destroy his business…” (CB 98.5); and
·“The Tribunal does not accept the applicant’s claim that the CPM would prevent him moving the lolly business from Kerala” (CB 98.8).
Ground two (a) is rejected.
Ground two (b) alleges that the Tribunal did not consider the applicant’s claims that:
·he was threatened by a thug from the CPM;
·he was arrested and taken to Varkala police station; and
·he was threatened by police and that he would be detained as a terrorist.
The Tribunal considered and rejected each of those claims at CB 97.8 and 98.2–98.3 respectively. This ground seeks a review of the merits, which is not available. Ground two (b) is rejected.
Insofar as ground two alleges a failure to investigate the applicant’s claims, it considered the material put to it and “is under no duty to inquire”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43].
Ground three alleges a failure to investigate the applicant’s claims. The decision of the Tribunal shows that that is not so. The Court refers also to SGLB (ante). Ground three is rejected.
Ground four complains that the Tribunal “did not use the country information as specific”, and that “the general information gathered by the Tribunal considered to weigh against my case in the final court out come”, and that the Tribunal “used the all information for matter of reasoning and evaluation of my case for protection visa”. The Court takes that to be a complaint that the Tribunal used general country information that weighed against the applicant’s claims, when it should have used specific country information. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [11] as follows:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. 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. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. 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.
No error has been established in the Tribunal’s reliance on country information (CB 9838). Ground four is rejected.
Ground five alleges a failure to consider the applicant’s evidence about the cut to his stomach. That claim was referred to by the Tribunal (CB 89.9, 90.5, 91.3, 93.8). Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J.
Also, as stated in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 per Justice Lindgren at [58]:
It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.
The Tribunal referred to the evidence on this issue. The Court finds that the failure to mention that evidence in its reasons does not show that it was overlooked. Ground five is rejected.
Ground six alleges that the Tribunal emphasised irrelevant questions and ignored the applicant’s political background. It has not been established that the Tribunal emphasised irrelevant questions, or that it ignored the applicant’s political background. The Tribunal referred to the applicant’s relationship with the BJP at CB 89.8, 89.10, 90.8, 91.7, 92.10, 93.2. The failure to mention that claim does not mean that the Tribunal did not take it into account: SZEHN (ante). Ground six is rejected.
Ground seven alleges that the Tribunal applied the wrong test in looking at individual elements of the applicant’s claims, rather than looking at the claim as a whole. The Tribunal is entitled to accept or reject evidence at it thinks appropriate: Lee (ante). In doing so, it is proper to look at individual elements. After doing that the Tribunal then considered the evidnece as a whole (CB 99.1). Ground seven is rejected.
Ground eight complains that by requiring independent evidence of a fact before the Tribunal would accept a claim, the Tribunal placed too high an onus of proof on the applicant and failed to give him the benefit of the doubt. The Court agrees with the following statement by the Tribunal in another matter:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
Also,
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The Tribunal did not require the applicant to provide independent evidence of any facts and did not refer to an onus of proof being on the applicant. The Court finds no error by the Tribunal. The Tribunal rejected much of the applicant’s evidence. It was open to it to do that: Lee (ante).
The applicant alleges that the Tribunal failed to properly consider the test of whether the applicant would face serious harm according to s.91R(2)(a). The Tribunal did consider that issue and decided that
it is not satisfied that has a well-founded fear of being persecuted for a Convention reason if he returns to India. (CB 98.9).
That finding of fact was properly open to the Tribunal.
The applicant claims that he satisfied the four key elements of the definition of “refugee”. The Tribunal was not satisfied that the applicant is a “refugee” as defined for the reasons it gave (CB 98.4, 98.6, 98.8).
The applicant alleges a breach of the obligation in s.420 for the Tribunal to provide a “review that is fair, just, economical, informal and quick”. A breach has not been established.
Applicant’s written submissions
The applicant’s written submissions contain additional complaints. The applicant alleges that s.424A was breached insofar as the Tribunal relied on independent evidence about his claim of political persecution. The applicant seeks support from the decision in NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262. The country information in NARV was (at [32]):
about a ‘very high level of document fraud in Bangladesh’…[and] went directly to the reliability or authenticity of documents placed before the Tribunal by the applicant.
In the above case, the information went to the issue of the weight to be attached by the Tribunal to particular documents relied on by the applicant. The country information in the present case is referred to in detail at CB 95.3-97.2. That information is “not specifically about the applicant or another person and is also not ‘just about’ a class of persons of which the applicant is a member” (at [31]). It was therefore not required to be included in a s.424A letter.
The next complaint is that the Tribunal failed to give proper consideration as to whether the applicant would face serious harm if he was to relocate in India. That issue is subsumed in the finding by the Tribunal that it cannot be satisfied that the applicant’s fear of persecution is well-founded (CB 98.8). This complaint is rejected.
Point 3 of the applicant’s written submissions repeats ground 4 of his amended application, and has been rejected above. In addition, the applicant complains that the Tribunal “failed to consider the Amnesty International country information”. There is nothing to show that any such information was put before the Tribunal and ignored. The Court refers to the decision in NAHI (ante). The Tribunal was free to get information it thought relevant and weight is a matter for it.
Point 4 of the applicant’s written submissions repeats ground 5 of the amended application, and has been rejected above.
Point 5 of the applicant’s written submissions repeats claims in grounds 7 and 8 of the amended application, which have been rejected above.
The applicant then reasserts that he meets the four elements required to be a refugee. As stated above, the Tribunal decided as a matter of fact that the applicant did not satisfy the grounds. Those findings of fact are not subject to review.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with 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 thirty-four (34) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 6 December 2007
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