SZKPZ v Minister for Immigration
[2007] FMCA 1751
•27 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1751 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of India claiming fear of persecution from business rivals – where Tribunal found that there was no Convention ground – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R, 91S, 424A, 425, 425A, 474(2) |
| Applicant: | SZKPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1534 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 September 2007 |
| Date of Last Submission: | 27 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,450.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1534 of 2007
| SZKPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of India. He asks the Court to set aside a decision of the Refugee Review Tribunal, signed on the 2nd and handed down on 24th April refusing him a protection visa. He claims that the Tribunal
a)made an error of law by incorrectly applying the law to the facts,
b)denied him procedural fairness by not believing his submissions and his oral evidence,
c)did not give weight to the statements that he made, and (d) based its decision on one-sided information prepared for denying applications for people coming from India.
The background to this matter is that the applicant arrived in Australia on 21st August 2006. On 25 September in that year he applied for a protection (Class XA) visa. He did so on the basis that he claimed to have been persecuted by some brothers named Patel, who attempted to deprive the applicant and his brother of their legitimate interest in a company by means of threats and violence. A delegate of the Minister for Immigration and Multicultural Affairs, which was the Minister's then title, refused the application for a visa on 22nd December 2006.
On 23rd January 2007 the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant and invited him to attend a hearing which took place on
14th March 2007. The applicant brought details of his passport when he attended the hearing. He gave evidence to the hearing with the assistance of an interpreter. The Tribunal signed its decision on
2nd April and handed that decision down on 24th April 2007. A copy of the Tribunal's decision record can be found at pages 75 to 81 of the Court Book.
In the decision the Tribunal summarised the claims and evidence that it had to decide, both by considering the claims in the application for a protection visa and by considering the applicant's evidence at the Tribunal. That summary of the claims in evidence could be found at pages 78 to 80 of the Court Book. The Tribunal's findings and reasons at pages 80 and 81. The Tribunal was satisfied that the applicant was a citizen of India based on the fact that the applicant produced an Indian passport and assessed his claims against that country.
The Tribunal noted that the applicant claimed persecution from members of the Patel family in Mumbai in India who were aided and abetted by another businessman called Prakesh More. The applicant accused the Patels of using standover tactics against the applicant and his brother trying to deprive them of their cable business at a fraction of its value. The Tribunal noted the applicant's claims that the Patels had some political contacts and the applicant claimed that police were reluctant to conduct investigations to assist the applicant and his brother with necessary speed.
The Tribunal noted the applicant's evidence that he had approached both the police and the Courts and that an Inspector Patel, which I understand is a common name in India, had arrested the people that the applicant claimed had persecuted his brother and himself. There are proceedings currently before the Court in India and the defendants are currently free on bail. The Tribunal stated that it could find no evidence that the applicant had been persecuted or harassed or targeted for being a member of a particular or identifiable social group and noted that the applicant confirmed at the hearing that he did not remove himself at any stage to a different part of India to avoid persecution. The Tribunal went on to say:
The Tribunal categorises his alleged persecution as a personal business dispute with certain individuals which, from evidence the applicant has given in the hearing, will be resolved in the Indian legal system in due time. Therefore, the Tribunal finds that he has not been singled out for persecution with the tacit acceptance or approval of the Indian government or its authorities.[1]
[1] See Court Book at 81
The Tribunal found on the basis of the evidence that it had heard and read, there was no evidence of any systematic and discriminatory conduct in harm feared by the applicant as outlined in s.91R of the Migration Act. The Tribunal noted that the applicant had successfully availed himself of the protection of the Indian legal system against the people that he claimed had persecuted him and found that he had no evidence of Convention related harm. The Tribunal also found that the applicant had not been discriminated against on the basis of his race, religion, nationality, political opinion or membership of a particular social group or that he would face any discrimination of that nature if he were to return to India.
Accordingly the Tribunal found that the applicant did not fear persecution for a Convention reason and affirmed the decision of the delegate not to grant the applicant a protection (Class XA) visa.
The applicant has commenced proceedings in this Court seeking judicial review of that decision. He filed an application and an affidavit in support on 16th May 2007.
In his affidavit the applicant claimed that the decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law for the facts as found by the person who made the decision.
He also claimed that he was denied procedural fairness when the Tribunal member did not believe his submissions and oral evidence.
In his application the applicant sets out three numbered grounds.
The first refers solely to the dates that the Tribunal signed and handed down its decision.
Ground two says:
The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
Ground three says:
I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence. The Tribunal's decision is totally contradictory of Prof Hathaway's quote.
A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.
The applicant goes on to quote Professor Hathaway's 1991 book and refers to Professor Hathaway's view that the Tribunal, when deciding a claim for refugee status should not take an overly stringent approach to questions of credibility but the applicant submits that the Tribunal seems to have done just that. The applicant also claims that the Tribunal did not give weight to the statements made by him, in particular about harassment, and submits that the Tribunal member based the entire decision on one-sided information prepared for denying the application for the people coming from India.
The applicant has attended Court today and was satisfied to rely on the written information that he had prepared for the Court. For the respondent Minister, Ms McWilliam of counsel, drew the Court's attention to the Tribunal's key finding on page 81 of the Court Book which can be summarised by saying that even accepting everything that the applicant told the Tribunal, the Tribunal was not satisfied that the applicant had established persecution, certainly as understood by s.91R of the Migration Act.
In written submissions, Ms McWilliam very clearly summarises the applicant's grounds as follows:
a)Incorrect application of the law and the facts;
b)Denial of procedural fairness in refusing to believe the applicant's submissions and oral evidence;
c)Failure to give weight to the statements made by the applicant regarding particular harassment, and
d)Basing the whole decision on one-sided information prepared for denying the applications of people coming from India.
Ms McWilliam submits that there is nothing to suggest that the Tribunal misapplied the relevant law to the facts. She submitted that, on the applicant's own evidence, the harm that he feared was not motivated by race, religion, nationality, political opinion or membership of a particular social group, which are the five Convention grounds. In any event the applicant was successfully availing himself of the protection of the State through the Indian legal system. For those reasons, the harm feared by the applicant does not fall within s.91R of the Migration Act. As to the applicant's complaint of denial of procedural fairness and that the Tribunal has refused to believe the applicant's submissions and oral evidence, Ms McWilliam submitted that this claim was misconceived.
She submitted, and I believe correctly, that the Tribunal did accept the applicant's claims. The trouble is that the Tribunal did not characterise those claims as amounting to persecution for a Convention reason. Ms McWilliam submits that there is no other evidence of any other denial of procedural fairness because the Tribunal invited the applicant to a hearing and in compliance with s.425 of the Migration Act and did so in a manner that complies with s.425A. She points out that the applicant was on notice of the issues that arose in relation to the decision that was under review because the Tribunal's findings were the same as the reasons for the delegate's decision.
As to the applicant's third claim which Ms McWilliam characterises as failure to give weight to the statements made by the applicant regarding particular harassment, this claim she submits is a complaint about the merits of the Tribunal's decision and not a proper ground of review.
As to the applicant's fourth claim which is that the Tribunal based its whole decision on one-sided information prepared for denying the applications of people from India, Ms McWilliam submits that this is not sustainable. She submits to the Court that the decision of the Tribunal was based on the applicant's evidence in submission and was not based on any one-sided information. The applicant elected not to make any particular submissions in reply.
In this case, it is clear that the Tribunal did accept the applicant's evidence. This is not a case where the Tribunal found that the applicant was not a credible witness, far from it. However, the applicant's evidence, taken at its highest, does not establish a case to show that the applicant can seek protection under the Refugee's Convention as amended by the Refugees protocol. The Tribunal, on its examination of the evidence, found that the applicant had not established discrimination against him on any of the five Convention bases, race, religion, nationality, political opinion, or membership of a particular social group.
The Tribunal did note that the applicant claimed that he had been subjected to what certainly sounds like criminal activity by the Patel brothers but that he and his brother had sought and obtained protection from the State, that there were in fact proceedings against the Patels taking place in the Indian legal system and that the defendants, the Patels, were currently on bail pending the outcome of the Court proceedings.
The Tribunal decision did not, to my mind, indicate any misunderstanding of the law, or a misapplication of the law.
The Tribunal clearly considered the elements of the Convention definition of refugee and considered the question of persecution and set out in the preamble to its decision at pages 77 and 78 of the Court Book its understanding of what is set out in s.91R and s.91S of the Migration Act.
I am satisfied that there is no error of law revealed in the Tribunal's application of the relevant law to the facts of the applicant's case. I am not satisfied that even if the Tribunal had refused to believe the applicant's submissions and oral evidence, which it did not, that this would constitute a denial of procedural fairness. Mindful that the applicant was not legally represented, I have also considered any other statutory procedural fairness obligation and I am satisfied that no breaches of s.424A, 425 or 425A of the Migration Act have been made out.
A complaint of a failure to give weight to a particular statement, in this case relating to harassment, is a complaint about the weight that the Tribunal gives to certain evidence. This is in effect a challenge to the Tribunal's factual finding. It is well established that a Court conducting judicial review of the decision of an administrative decision-maker has no warrant to intervene on any factual findings if a finding of fact is supported by evidence capable of allowing that finding of fact to be made. In this case I am satisfied that the evidence before the Tribunal was sufficient to allow the Tribunal to make the findings of fact that it did.
The applicant's fourth ground is unusual because there is no information that the Tribunal relied on, one-sided or not, other than the evidence given by the applicant himself. The Tribunal accepted what the applicant had to say but in the long run it was not satisfied that the applicant's claims, taken at their highest, established that he was entitled to protection under the Refugees Convention.
If the fourth ground, or rather the third part of the third ground as set out in the application is a claim of bias against people from India, there is just no evidence of that whatsoever. It follows then that no jurisdictional error has been made out. Where there is no jurisdictional error it is clear that the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Accordingly, the application must be dismissed.
I am satisfied that this is a proper matter for an order for costs in favour of the first respondent.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 16 October 2007
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