SZKRP v Minister for Immigration
[2007] FMCA 1720
•3 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1720 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – the applicant was not believed and therefore no question of the misapplication of refugee law arose – the Tribunal has no duty to make enquiries – Tribunal under no obligation to believe the applicant’s evidence – weight to be accorded evidence is a matter for the Tribunal – bias and lack of good faith not demonstrated – discretion did not miscarry when Tribunal refused applicant’s request for more time to respond to s.424A notice. |
| Migration Act 1958, ss.422B, 424A, 427, 474 |
| Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZKRP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1663 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 October 2007 |
| Date of Last Submission: | 3 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. S. Free |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1663 of 2007
| SZKRP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where he claims he was a member of the People's War Group (“PWG”) and the Radical Youth League (“RYL”). He alleges that while in India his activities associated with these bodies led him to being arrested, tortured and mistreated by the police. He left India for Australia in late 2006.
The applicant claims to fear persecution in India because of his political beliefs and activities.
After his arrival in Australia the applicant lodged an application for a protection visa. This was refused by the Minister's delegate on 6 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.
In these judicial review proceedings the Court cannot re-hear the applicant's application for a visa. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which the Tribunal's decision can be set aside: s.474 of the Migration Act (“Act”); Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
Background facts
The facts alleged in support of the applicant's application for a protection visa are set out on pages 4 to 19 of the Tribunal's decision (Court Book (“CB”) pages 143 to 158). Relevant elements of those claims are:
a)while at school the applicant became a member of the PWG and was involved in social and political activity; the movement was opposed to police atrocities against “the backward caste” and the poor;
b)as a member of the PWG the applicant helped with propaganda work organising, addressing and recruiting people for the movement;
c)the applicant jointed the RYL, which is the youth wing of the PWG of Communist Party of India (Marxist-Leninist) (“CPI (ML)”);
d)for a number of years the applicant visited villages in the area and continued working for the RYL. For a few years he was one of the movement's officials in his village;
e)the applicant was arrested and taken to the police station where he was held for 20 days, tortured and warned not to be involved in those activities again;
f)following release he was hospitalised and after recovery returned to his business. On his release the police came to his home, assaulted everyone there and burnt down the house;
g)the applicant and his friends started a newspaper which continued for several months before he was arrested by the police. A case was fabricated against him and he was taken to court, sentenced and imprisoned where he was severely tortured and mistreated. After release he went to "the city" but subsequently returned to his village and started doing propaganda work. He was arrested yet again, taken to the police station, held for a month and tortured;
h)upon release the applicant went again to "the city" but returned to his village after the police had assaulted his wife and children. Upon return from "the city" he was arrested and detained again. When a complaint was made about the treatment meted out to the applicant the police threatened the applicant and his family; and
i)as a result of his political activities the applicant was detained, charged and convicted on a frequent basis and during detention he was subjected to physical abuse, his home destroyed and his family assaulted.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it the Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 amended by the Protocol relating to the Status of Refugees 1967. The Tribunal's decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was not a credible or forthright witness, was evasive and did not respond to the questions posed by the Tribunal;
b)the Tribunal did not accept the applicant's claim that he was an active member of PWG or RYL and thus did not accept that he was persecuted for reasons of such membership, noting the following:
i)when questioned about the background and standing of PWG and RYL in Tamil Nadu the applicant was unaware whether or not they were banned by the government of that state. The applicant was unable to state the history of the PWG or the election involvement of the CPI (ML);
ii)the Tribunal was of the view that if the applicant had actively anticipated in the work of the two groups he would have been familiar with whether or not they were operating lawfully in his home state. The Tribunal also thought that the applicant would need to be cognisant of the basic information about the party if he were to be involved in the propaganda work in which he claimed to be engaged; and
iii)when asked if he was targeted specifically because he was a member of the PWG the applicant said that he was not. The Tribunal found this inconsistent with the independent country information available to it which suggested that PWG members are targeted by the police. The Tribunal was concerned that the applicant was unaware of such information of which it thought he would have been aware if he had been an active member of the PWG;
c)the Tribunal did not accept that the applicant was actively involved in the work of the PWG or the RYL or that he was involved in propaganda for them. The Tribunal said that it followed from this conclusion that it did not accept the applicant's claims of persecution arising from membership of those organisations;
d)the Tribunal did not accept that the applicant was engaged in the production of a newspaper or that he was otherwise involved in that activity finding his claims on that issue to be confused and vague;
e)the Tribunal did not accept that the applicant had been charged and detained by the police, mistreated in detention or that false cases were fabricated against him. The Tribunal did not accept that the applicant was required to pay fines as a result of false charges. In reaching these conclusions the Tribunal noted:
i)the applicant had stated that he had been detained many times before 2001 but could not say how many times and with what he was charged;
ii)the applicant was unable to explain to the satisfaction of the Tribunal why he was required to pay a fine rather than suffer a more serious penalty; and
iii)the applicant could not explain how the purpose of the authorities which was, he said, to prevent him from participating in the activities of the organisation could be served if he was released on bail after each charge;
f)the Tribunal did not accept that the applicant had been in hiding to evade the authorities since 2004 stating it to be implausible that the applicant remained in the family home until 2006 while he was evading the authorities or that his family would remain there too;
g)the Tribunal did not accept that the applicant was of any interest to the authorities because of his political profile, his involvement in any political organisation, his participation in other political or social activities or for any other reason. The Tribunal did not accept that the applicant's name was on the "Q list" or that a warrant has been issued against him; and
h)the Tribunal was not satisfied that the applicant had a genuine fear of persecution either in 2002 or in 2006 finding it significant that the applicant had had several opportunities to claim asylum prior to coming to Australia and had not done so.
Proceedings in this Court
In the application filed by the applicant in this Court he raises essentially four separate grounds by which he challenges the Tribunal's decision. In the hearing today he raised one and arguably two further grounds.
First ground – incorrect application of law to facts
The first ground, which is one raised in the application, is that the Tribunal erred by incorrectly applying the law to the facts as found. At the commencement of the Tribunal's decision the relevant law is set out and discussed in a way which demonstrates no error but the reference in this ground to an error of law distracts from the real basis of the Tribunal's decision which was credit.
The Tribunal's decision was based on its finding that the applicant could not be believed in the claims which he made concerning the persecution he alleged he suffered in India. Because the Tribunal found that it did not believe the applicant there was no need for it to apply refugee law in the way which this ground suggests it ought to have done. No jurisdictional error has been demonstrated in relation to this asserted ground of review.
Second ground – failure to enquire
The next ground is one which the applicant raised in his oral submissions today, namely that the Tribunal did not fully enquire into the matter before it. It is not unusual in proceedings such as this that applicants submit that the Tribunal ought to have done more than it did in the circumstances of their case and to feel that the Tribunal has an obligation to undertake enquiries or investigations into their claims. However that is not the case; the Tribunal has no duty to enquire.
Although the Tribunal has the power to make enquiries it is under no obligation to do so. In an application for review by the Tribunal it is for the applicant to satisfy the Tribunal that he meets the criteria for a protection visa. Although an applicant has no onus of truth in the sense in which that is understood in court proceedings, it is nevertheless for him to put sufficient material before the Tribunal such that it can reach the level of satisfaction to which reference has already been made. Consequently no jurisdictional error is demonstrated in relation to this asserted ground of review.
Third ground – denial of procedural fairness
The third ground, and one which appears in the application, is that the applicant was denied procedural fairness in that the Tribunal did not believe his submissions and oral evidence and took an overly stringent approach to questions of credibility. On the subject of procedural fairness, no reference has been made by the applicant to any section which is found in div.4 of pt.7 of the Act which, by virtue of s.422B of the Act, contains an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.
In reality, this element of this asserted ground of review is not a complaint about procedural fairness but a complaint about the conclusion which the Tribunal reached. For this reason no error of a procedural fairness nature is demonstrated.
As to the issue of whether the Tribunal ought to have believed the applicant's submissions and oral evidence and whether it took an overly stringent approach to questions of credibility it was said by Beaumont J in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 that in the proof of refugeehood a liberal attitude on the part of the decision maker is called for although that should not lead to an uncritical acceptance of any and all allegations made by applicants.
In Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559 the Full Court of the Federal Court said that there is no rule that a decision-maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for inconsistency and nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.
In any case the findings which the Tribunal made were open to it on the evidence before it. Such fact finding and in particular credibility findings are matters reposed in the Tribunal and it is not open to the Court to disturb them. The Tribunal's fact findings do not demonstrate the overly stringent approach to credibility which the applicant asserts and it was under no obligation to believe his submissions and oral evidence. No jurisdictional error has been demonstrated in relation to this asserted ground of review.
Fourth ground – weight given to the evidence
The next ground raised on the application was that the Tribunal did not give weight to statements made by the applicant. This point is similar to the previous one and has a similar answer. The Tribunal, as the finder of fact and in exercising that function, determines what evidence it will rely upon in reaching its decision and what weight will be accorded to that evidence. The fact that particular significance is given to some evidence and little or no significance is given to other evidence is a matter for the Tribunal and does not a ground a finding of jurisdictional error.
Fifth ground – bias, lack of good faith
The next asserted ground of review was that the Tribunal based its decision on one-sided information which was prepared for the purpose of denying the application “for the people from India”. Factually this assertion is not made out. The Tribunal's decision record is almost searching in the detail in which it enquired into the applicant's claim and the opportunities which it gave him to advance his claim. With the potential exception of the final asserted ground of review which will be the next matter discussed in these reasons, the Tribunal gave the applicant an opportunity to put before it what he wanted. The selection of evidence which the Tribunal relies on in reaching its decision is a matter for it and the only basis upon which this ground might impugn such findings would be on the grounds of bias or the lack of good faith.
In the Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Gleeson CJ, Gummow and Hayne JJ approved of the statement by French J that actual bias must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made (at 519 [33], 531 – 532 [72] and 561 [176]).
In relation to the question of whether the Tribunal lacked good faith in the undertaking of the review, in the judgment of the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749, their Honours set out at pages 755 – 756 [42] to [48] a summary of those matters which amount to a test of bad faith and the circumstances in which findings of bad faith, or failure to act in good faith, might be made. Significantly the fifth proposition articulated by their Honours is that the circumstances in which a court will find an administrative decision-maker has not acted in good faith are rare and extreme and that this is especially so where all that the applicant relies upon is the written reasons for the decision under review.
In this case the only evidence on which the applicant could rely in support of an allegation of bad faith or bias is the Tribunal's decision record. There is nothing in that document which leads me anywhere near the conclusion that such allegations could be proven and I find that this asserted ground of review is not made out.
Sixth ground – miscarriage of discretion
The final asserted ground of review, and one which the applicant arguably raised in submissions today, was that the Tribunal's discretion miscarried in deciding not to allow him further time to answer the s.424A notice that was served upon him. The first thing to be said in relation to this potential ground is that there is no obligation on the Tribunal to extend time for the applicant to answer a s.424A notice.
It is difficult to conclude that there may be jurisdictional error on the part of the Tribunal if it does not do something it is not obliged to do. However, accepting that the exercise of the discretion concerning whether or not to allow an extension of time, in order for the applicant to put before the Tribunal the additional documents which he told the Court he wished to put before the Tribunal, might have had consequences which led to the ultimate decision-making process being affected by jurisdictional error, the issue must be considered.
It is apparent that the decision not to extend time was one which was taken as part of the overall decision-making process and was not taken prior to the Tribunal making its decision on the review application as a whole. The applicant made his request for additional time in his letter to the Tribunal apparently received on 19 March 2007, according to the receipt stamp which appears at CB 91. The request appears on the fifth page of that letter (CB 95).
There is nothing in the evidence contained in the Court Book that suggests that the Tribunal responded to the request at any time prior to the handing down of its decision. Therefore, the Tribunal's reasons for not exercising its discretion in favour of extending time for the provision of documents are those reasons which appear in its decision record where it said this:
The Tribunal acknowledges the applicant's request for an extension of time to provide the court orders and other official documents. The Tribunal has not granted this request because the Tribunal is of the view that the applicant has not been involved in the organisations as claimed. (CB 161).
As counsel for the Minister has submitted, if the Tribunal on consideration of the evidence has come to the conclusion that the credibility of the applicant's case is so compromised that no corroborative evidence can assist it then there is no jurisdictional error in not considering such evidence as the applicant wishes to advance in corroboration of his claims. Therefore, no error is demonstrated by the Tribunal in declining to extend time for the provision of documents in response to the s.424A notice and, as the Tribunal's discretion did not miscarry on this issue, no jurisdictional error is demonstrated in connection with it.
Conclusion
Jurisdictional on the part of the Tribunal not having been demonstrated, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 October 2007
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