SZLES v Minister for Immigration
[2008] FMCA 139
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLES & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 139 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal breached s.424A(1) of Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 474; pt.8 div.2 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1; Attorney-General (NSW) v Quin (1990) 93 ALR 1; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481; 1996 185 CLR 259; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609; HCA 26 (13 June 2007) |
| First Applicant: | SZLES |
| Second Applicant: | SZLET |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2506 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 February 2008 |
| Date of last submission: | 12 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| Applicant appeared in person with Gujarati interpreter |
| Solicitors for the respondent: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2506 of 2007
| SZLES |
Applicant
| SZLET |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 July 2007 and handed down on 2 August 2007.
The first-named applicant claims to be a businessman from India (“the Applicant”). The second-named applicant also claims to be from India and is the wife of the Applicant (“the Second Applicant”). The Second Applicant is reliant on the claims of the Applicant.
The Applicant arrived in Australia on 22 March 2007, having departed legally from Mumbai on a passport issued in his own name and a visa issued on 13 March 2007.
On 27 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by financiers who were members of the “Rabari community” and whom he owed money. The Applicant claimed that these financiers would kill him if he complained to police.
On 19 May 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 5 June 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 12 July 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 August 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 14 June 2007 the Tribunal invited the Applicant to attend a hearing on 10 July 2007. From the submissions of the First Respondent:
“The applicant subsequently attended the hearing to give evidence, during which he also claimed that he and his wife had been attacked and threatened by the Rabari moneylenders and had been in hiding for some time before leaving India: CB 97.5-97.9 and 99.2-99.4. The applicant also claimed that he supported the BJP and had, in the past during elections, been attacked twice by Congress Party supporters, although he stated that there had been no further problems after the elections: CB 98.9 - 99.1.
The Tribunal found that the applicant lacked credibility based on inconsistencies between his written statement and oral evidence, and internal inconsistencies in his oral evidence at the hearing: CB 99.9. The Tribunal also rejected his explanation for his failure to raise in his written statement the claims he made orally to the Tribunal concerning his alleged assault and attacks: CB 100.3-100.6. Nor did the Tribunal accept the applicant’s explanation that a student, whose identity was unknown to him, helped him complete his PVA: CB 100.5.
The Tribunal accepted the applicant’s evidence that he had been attacked during election time “a long time ago” and that after that incident “the matters were resolved and were never repeated”. Accordingly, the Tribunal found that there was no real chance that the applicant would face persecution for his political opinion: CB 100.3. The Tribunal also accepted that the applicant may have borrowed money and had difficulties repaying the loan, but found that this claim had no Convention nexus: CB 100.7.
Accordingly, the Tribunal was not satisfied that the applicants were owed protection obligations, and affirmed the delegate’s decision.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Gujarati interpreter.
The Applicant confirmed that he relied on the grounds in the amended application filed on 16 January 2008. The grounds of the application are expressed to be as follows:
“1. The tribunal has wrongly applies the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion persecution the applicant claims
Particulars: Section 91 R (1) (b) & (c) of the Act requires the persecution to be of serious harm and systematic and discriminatory.
The tribunal failed for not providing more opportunities to the applicant and therefore generalise the applicants claim and therefore failed to apply correct test in accordance with section 424A (1) of the Migration Act. Ref. SAAP Vs Minister for Immigration and Multicultural Affairs. HCA
2. There was certain informations used by the tribunal without providing an opportunity to respond. The adverse informations used by the tribunal was not given by the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. The tribunal did not disclose the information in accordance with S 424A (1) of the migration act.
3. The tribunal has importantly dealt with the aspect of the applicant’s claim relating to state tolerance and complicity of the applicants religion and membership of a particular political or social group and as a result of all he faced financial hardship, to whom the Australia has protection obligation as a member of such group. and therefore the tribunal’s decision was involved jurisdictional error and failure of jurisdiction or mis application of law and procedure. The tribunal conclude that the applicant can relocate in other parts of India. And therefore did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN convention and therefore relocation principles is not the correct test by the tribunal. therefore mis applying the law is in fact failure of the tribunals jurisdiction. The matter should be remitted to the tribunal for further determination and to decide in accoudence with the law and procedures.(sic)”
The grounds of the amended application were interpreted for the Applicant and he was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant made no meaningful submission.
However, the Applicant stated that there were further documents in the nature of bank transfers and letters of threats that he had wished to submit to the Tribunal. The Applicant informed the Court that he had never raised the existence of these documents with the Tribunal, nor did he seek any adjournment from the Tribunal to provide any such material. Further, there is no evidence before this Court of the identity of particular documents that the Applicant would wish to have provided to the Tribunal; why the Applicant was not able to provide any such documents to the Tribunal; and any attempt made by the Applicant to obtain those documents. In the circumstances, it cannot be an error on the part of the Tribunal going to its jurisdiction for it to fail to have regard to documents that were not provided to it and about which it was not made aware.
Ground 1
Ground 1 appears to contain three complaints each of which is identified and dealt with below.
The first complaint in ground 1 appears to be a bare assertion that the Tribunal wrongly applied the law to the facts and appears to be more in the nature of a disagreement with the findings of fact made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [195]; Attorney-General (NSW) v Quin (1990) 93 ALR 1 at 25; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491; 1996 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
The Tribunal rejected the Applicant’s claims based on adverse credibility findings. The Tribunal found the Applicant “not to be a credible witness” and to be “evasive in his responses to the Tribunal”. The Tribunal found that the Applicant changed his evidence considerably in the course of the hearing and that his oral evidence was “significantly different to his written claims”. The Tribunal rejected the Applicant’s explanation about the inconsistencies in his claims. Whilst the Tribunal accepted that the Applicant may have borrowed money he was unable to pay, the Tribunal found that any harm the Applicant may face in India was not for a Convention-related reason. Accordingly, the Tribunal affirmed the decision under review.
The findings of fact made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. In reaching its conclusions, the Tribunal applied the correct law to the facts as it found them to be.
The second complaint in ground 1 appears to be that the Tribunal did not provide more opportunities to the Applicant and failed to comply with s.424A(1) of the Act. Such allegations are unsupported by particulars and do not disclose an error capable of review by this Court. The Applicant was unable to identify for the Court the opportunities sought by him and refused by the Tribunal.
The third complaint in ground1 appears to be an allegation of a failure to comply with s.424A(1) of the Act. In relation to the s.424A(1) complaint, there was no information that enlivened the obligations of s.424A(1) of the Act. The Tribunal’s subjective evaluation of the Applicant’s evidence and its assessment of the internal inconsistencies in the Applicant’s evidence is not information that enlivens the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609; HCA 26 (13 June 2007)). The Tribunal’s reasons for affirming the decision under review were its adverse credibility findings and its finding that any harm suffered by, or likely to be suffered by, the Applicant had no Convention nexus. As stated above in these Reasons the findings of the Tribunal, including the adverse credibility findings, were open to the Tribunal on the evidence and material before it and for which it provided reasons.
In the circumstances, ground 1 is not made out.
Ground 2
Ground 2 makes a bare assertion that the Tribunal did not disclose information in accordance with s.424A(1) of the Act. The Applicant was unable to identify any information which he alleged should have been provided to him in accordance with s.424A(1) of the Act. The s.424A(1) issue is otherwise dealt with at paragraph 24 above in these Reasons.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 alleges that the Tribunal concluded that the Applicant could relocate to other parts of India and that in making such a finding the Tribunal did not apply the “correct test of relocation principles”. Such a complaint is misconceived. The Tribunal made no finding in relation to relocation. Nor was it necessary for the Tribunal to consider relocation where its rejection of the Applicant’s claims and adverse credibility findings were made with such apparent confidence that the Tribunal was not bound to consider whether its findings might be wrong (Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 575-6).
Accordingly, ground 3 is rejected.
Conclusion
Otherwise, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 12 February 2008
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