SZKSA v Minister for Immigration
[2007] FMCA 1834
•1 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1834 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of s.424A shown – no error in Tribunal proceeding to make a decision without having received documents which the applicant had not told the Tribunal he wished to submit. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| First Applicant: | SZKSA |
| Second Applicant: | SZKSB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1685 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 November 2007 |
| Date of Last Submission: | 1 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2007 |
REPRESENTATION
The Applicants appeared in person.
| Counsel for the Respondents: | Ms. V. McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicants pay the first respondent's costs fixed in the amount of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1685 of 2007
| SZKSA |
First Applicant
| SZKSB |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. The first applicant claims that he was an active member of Vishawa Hindu Parishad (“VHP”) and that this subsequently led to him fearing harm from Muslim fundamentalists. The applicants left India for Australia where they arrived in 2006.
The first applicant claims to fear persecution in India because of his faith. He claims to fear harm from Muslim fundamentalists.
The second applicant is the wife of the first applicant. She has no independent claim to fear persecution and her application will succeed if the first applicant's claim succeeds. As the first applicant is the principal applicant he will be referred to in these reasons as “the applicant”.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
23 October 2006. 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 rehear 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 it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v 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 claim for a protection visa are set out on pages 4 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 89 – 93). In summary, the facts advanced by the applicant are as follows:
a)the applicant lived in Ahmedabad in Gujarat state where he was the president of a particular temple and an active member of the VHP;
b)with his business partner and many members of the VHP the applicant was on a train returning from Ayodhya which was stopped near Godhra by "miscreants" and set on fire killing more than 108 people. Sectarian violence between the Hindu and Muslim communities followed this event;
c)on the evening of 27 February 2002 riots broke out, it would seem in Ahmedabad, and on 4 March 2002 the applicant and his partner came to know that their shop had been looted and set on fire;
d)according to the applicant not only was his shop burnt but "we were threatened by telephone calls at our residence. We were threatened to kill [sic] by unknown Muslim fundamentalists." (CB 90);
e)the applicant said that the state government of Gujarat was unable to protect Hindus;
f)the applicant claimed to live in fear and insecurity as a result of the anonymous telephone calls which led to mental torture and an inability to live peacefully in India;
g)between 2002 and 2006 the applicant had a business selling fabrics from home;
h)he stated that he received threatening telephone calls for either about one and a half years or until six months prior to the Tribunal hearing, his evidence differing at different stages of the Tribunal hearing. The applicant said at the Tribunal hearing that he continued to receive the telephone calls because Muslim people knew that he was a member of the VHP;
i)the applicant said that he was also threatened in the street by Muslim people "who used any excuse to say threatening things" and that whenever he met some Muslim people they would threaten him and abuse him. He said he was slapped once or twice and on other occasions verbally abused;
j)the applicant stated that he went to the police but they would not help him without payment and he claimed that the police were only really interested in helping people with political connections and not ordinary people; and
k)when asked why he only came to Australia in 2006 when the main events had occurred in 2002 the applicant stated that although he was scared for his life he kept thinking that people would "forget".
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found 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 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although the Tribunal:
i)accepted that the applicant is a Hindu from Ahmedabad in Gujarat;
ii)accepted independent evidence before it which indicated that on 27 February 2002 a train travelling from Ayodhya was attacked by Muslims in Gujarat and set alight killing several Hindu devotees; and
iii)also accepted that there was considerable communal unrest in several parts of India including rural and urban areas across Gujarat following this incident;
the Tribunal did not accept any of the applicant's other claims. The Tribunal considered that the applicant had used the events of 2002 to manufacture a claim for refugee status in Australia. The Tribunal did not accept that the applicant was a credible witness or that he had given credible evidence to the Tribunal;
b)the Tribunal noted that the applicant claimed he was on the train from Ayodhya with his business partner whom he identified but the Tribunal noted that the same individual had lodged a claim for protection and had sought review in the Tribunal and that the statement which the applicant's alleged business partner had submitted in support of his protection visa application was identical to that submitted by the applicant in these proceedings except in very minor respects. At the Tribunal hearing the applicant denied any knowledge of the whereabouts of his claimed business partner although he acknowledged that he had "heard" that that person was in Australia. However, the Tribunal identified that the applicant's claimed business partner lived at almost the same address in Griffith as that given by the applicant in these proceedings. As a result:
i)the Tribunal did not accept that the applicant had not seen his claimed business partner in Australia;
ii)did not accept that it was credible that the applicant and his claimed business partner would provide addresses on their application forms to the Tribunal indicating that they both lived at a particular address in Griffith, albeit at different apartment numbers, and yet had not seen each other in Australia;
iii)the Tribunal was drawn to the conclusion that the applicant had collaborated with his claimed business partner in order to manufacture a set of claims for refugee status in Australia; and
iv)the Tribunal consequently found that the applicant was not a credible witness and it did not accept any of his claims relating to his experiences in India following the incident in February 2002;
c)the Tribunal considered that the applicant's evidence in relation to the police unwillingness to assist him was highly inconsistent with the independent evidence available to it. The Tribunal did not accept that:
i)a member of the VHP would not have been given assistance by the police; or that
ii)the applicant required the assistance of the police because of any of the reasons he claimed; or that
iii)the applicant sought the assistance of the police for the reasons he claimed;
or, therefore, that:
iv)the police refused to provide the applicant with assistance; or that
v)the applicant was in the VHP or that he suffered any harm as a result;
d)the Tribunal did not accept the applicant's evidence, which indicated that he remained in India for over four years following the initial incident, established that he had any fear of harm from Muslims in 2002. It did not accept that the applicant's evidence on this issue was consistent with his claim to fear serious harm in India from Muslims; and
e)the Tribunal did not accept that the applicant suffered any harm at the hands of Muslims as a result of the Godhra train incident or the events which followed it. Nor did it accept that the applicant had suffered any harm in the past as a result of his position in his temple.
Proceedings in this Court
The application to the Court was pleaded in the following terms:
(1) That the Tribunal's decision was in breach of s.424A(1) of the Migration Act 1958 (Cth);
(2) That the Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.
(3) That the Tribunal made denial of natural justice. Because it failed to provide further opportunity before the Tribunal.
Dealing with each of these grounds in turn:
Breach of s.424A
The findings of the Tribunal which led to its decision to affirm the decision of the delegate related to three matters namely:
a)the near identity of the terms of the statement provided by the applicant with the statement provided by another applicant before the Tribunal whom the applicant claimed was his business partner and who appeared to live in the same block of flats in Griffith as did the applicant;
b)the availability of state protection; and
c)the four year delay between the sectarian riots following the Godhra train incident and the applicant's departure from India.
The information relied upon to reach these findings was:
a)in general, the evidence given by the applicant at the Tribunal hearing. Such information falls within the exception found in s.424A(3)(b) and thus no s.424A(1) obligations arose in relation to it;
b)in relation to the first issue referred to at [11] this was information which was raised by the Tribunal in its s.424A(1) notice to the applicant dated 13 March 2007 which is reproduced at CB 74 and CB 75. Thus any s.424A obligations which the Tribunal had in relation to that information were discharged by the service of that notice;
c)as to the second issue, this depended significantly on independent country information and thus there was no obligation to serve a s.424A(1) notice in relation to it; and
d)in relation to the third issue the information in question is in reality a conclusion, a determination or an appraisal which is not "information" as that term is understood in the context of s.424A: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26.
Consequently no jurisdictional error is demonstrated in respect of the first asserted ground of review.
Error of law and lack of procedural fairness
This asserted ground of review is not particularised. The "error of law" alleged in the application is not apparent on the face of the Tribunal's decision and without particulars this aspect of this asserted ground of review lacks substance. It appears to be advanced as a catch-all allegation and has no standing independent of the other grounds pleaded.
As to the claimed lack of procedural fairness, the natural justice hearing rule is codified in div.4 of pt.7 of the Act. Other than the alleged breach of s.424A, which has already been considered in relation to the first asserted ground of review and has been dealt with in these reasons, no specific section in div.4 of pt.7 of the Act has been identified by the applicant as having been breached.
In particular, no breach of s.425 has been identified but in any event the Tribunal's decision discloses that the similarity of the two statements, the implausibility of the absence of police protection and the delay in his departure from India, were all raised with the applicant at the Tribunal hearing. In such circumstances and given that no other potential breach of the division has been identified I find that this asserted ground of review is not made out.
Denial of natural justice
The applicant identified the denial of natural justice as being that the Tribunal failed to provide him with a further opportunity to present evidence to it. The applicant said today that he had wished to put further documents before the Tribunal for its consideration, however, he also conceded that he had not asked the Tribunal for any additional time in which to do so. In the invitation sent to the applicant to attend the hearing, the Tribunal advised the applicant that he should:
immediately send us any documents, information or other evidence you want the Tribunal to consider. (CB 57)
If the applicant chose not to send to the Tribunal the documents he now says he wished to give it, failed to provide such documents to the Tribunal at the hearing and also failed to ask the Tribunal for additional time to provide such documents, there can be no complaint made that the Tribunal erred by reason that it proceeded to make its decision without having received such documents. No jurisdictional error has been demonstrated in respect of this asserted ground of review.
Conclusion
For the above reasons jurisdictional error on the part of the Tribunal has not been demonstrated and the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 19 November 2007
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