SZLGJ v Minister for Immigration

[2008] FMCA 310

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 310

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate refusing to grant a protection visa – applicant is a citizen of India claiming fear of persecution for reasons of his religion – whether Tribunal failed to comply with Migration Act 1958 (Cth) s 424A – independent country information – use of “generic” applications – no jurisdictional error.

Judiciary Act 1903 (Cth), s.44(c)
Migration Act 1958 (Cth), ss.91R(2), 414, 415, 420, 424, 424A

Re: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: SZLGJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2720 of 2007

Judgment of: Scarlett FM

Hearing date: 27 February 2008

Date of Last Submission: 27 February 2008

Delivered at: Sydney

Delivered on: 27 February 2008

REPRESENTATION

Counsel for the Applicant: Nil

The Applicant: Appeared in person

Counsel for the Respondents: Mr Silver

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $3,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2720 of 2007

SZLGJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. The applicant is a citizen of India.  He asks the Court to conduct a judicial review of a decision of the Refugee Review Tribunal.

   
   

   The Tribunal signed a decision on 25^th July 2007 and handed that decision down on 14^th August 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant claims that the decision is affected by jurisdictional error and asks the Court to make orders to this effect:

2. First, he seeks an order or declaration that the notification by the delegate and the Tribunal to refuse to grant the protection visa are invalid and have no effect to s.44(c) of the Judiciary Act 1903 (Cth). I would comment that no submissions have been made about any defect in notification, and in any event the Court is not reviewing a decision of the delegate of the Minister, but reviewing a decision by the Tribunal.

3. Second, the applicant seeks a writ of certiorari quashing the Tribunal decision.  Third, he seeks an order that no action should be taken to remove him from Australia while the decision is pending.  He also claims an order to redirect the applicant's claim to the RRT for further consideration and to advise the Tribunal to make a favourable decision.

4. I pointed out to the applicant that if the Court is to make an order in the nature of mandamus or any other orders the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.  Even if the Court is persuaded that an order in the nature of mandamus is appropriate, it is not the case that the Court would direct the Tribunal to make a decision favourable to the applicant.  The Tribunal decision is made by the Tribunal, without prompting from the Court.

5. The applicant has set out eight grounds in his application as to why he considers the decision to be in error.  I will deal with those grounds shortly.

Background

1. The background to this matter is that the applicant arrived in Australia on 2^nd March 2007. He applied for a protection (Class XA) visa on

   
   12^th March 2007

   . He claimed to have suffered persecution in India on the basis of his religion. He said that he was a Muslim who fell in love with a young and beautiful Hindu woman. He was deterred from continuing with the relationship by physical violence on the part of the woman's family. When he did report the matter to the police they did nothing.

2. A delegate of the Minister refused his application for a visa on

   
   28^th March 2007

   .

Application to the Refugee Review Tribunal

1. On 18^th April in that year the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal wrote to him on 30^th April informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.  The letter invited the applicant to appear before the Tribunal to give oral evidence and present arguments at 12:00 noon on 20^th June 2007.  The applicant forwarded to the Tribunal a response to hearing invitation indicating that he did wish to attend the hearing and he would need an interpreter in the Tamil language.  The applicant attended the hearing on 20^th June and gave evidence with the assistance of a Tamil interpreter. He produced at the hearing his Indian passport.  He also provided a map of Chennai in Tamil Nadu in India.

2. After the hearing, on 22^nd June 2007, the Tribunal wrote to the applicant. The letter was headed "Invitation to comment on information", and told the applicant that the Tribunal had information that would, subject to any comments that he made, be the reasons or part of the reason for deciding that he was not entitled to a protection visa. The letter then set out this information and told him why the Tribunal considered the information to be relevant.

3. The letter invited the applicant to comment in writing by 17^th July 2007. The applicant did comment in writing. He forwarded a letter to the Tribunal which was received on 16^th July. He told the Tribunal that he had in fact been targeted by Hindu fanatics, and his uncle and some others were being attacked, and he escaped by luck. He said that he could not get any special police protection, and his father had arranged a visa for him to go to Singapore in December 2006. He then got a visa to go to Australia. And he complained that people had attacked his uncle and others on 13^th February 2006. He claimed there was no guarantee on his life in India.

4. The Tribunal handed its decision down on 14^th August 2007.[1] The Tribunal in the decision set out the applicant's claims and evidence, both from the applicant's original application and a considerable amount of detail from the applicant's oral evidence to the Tribunal.

   [1] A copy of the Tribunal decision can be found at pages 80 through to 91 of the Court Book.

5. The Tribunal also referred to the letter sent to the applicant on

   
   22^nd June 2007

   , which it described as a letter "Pursuant to s.424A". The Tribunal quoted the applicant's reply in full.[2] 

   [2] See Court Book pages 88 to 89.

6. The Tribunal set out its findings and reasons on pages 89 to 91. The Tribunal accepted the applicant was an Indian national and noted his claim that he feared harm in India because he was a Muslim and fell in love with a Hindu woman whose father was an active RSS member and did not agree with the relationship.  However, the Tribunal did not find the applicant to be a credible witness.  The Tribunal referred to Department records about the applicant's application for a sub-Class 420 visa to come to Australia on 8^th January 2007 which was before an incident which he alleged had happened on 13^th February in that year.

7. The Tribunal did accept that the events referred to on 13^th February occurred, but was not satisfied that the applicant was involved and did not accept that the applicant fled India because of a fear arising from that incident. The Tribunal was not satisfied that another attack in April 2006 occurred.  The Tribunal went on to find:

   Based on the above adverse credibility findings the Tribunal is satisfied the applicant is not a witness of truth.  The Tribunal is not satisfied that any of his material claims to invoke refugee protection in Australia are true.[3]

   [3] See Court Book page 90.

8. The Tribunal went on to find that even if it did accept that the applicant had formed a relationship with a Hindu girl whose father did not approve, those events referred to it ended nearly two years before, and that the applicant did not live in the same town at the lady, but about 75 kilometres away, and that the applicant had not had contact with the lady since he arrived in Australia, and she has since married. 

   
   

   The Tribunal was not satisfied that the lady's father or family or associates would have any continuing interest in the applicant.

9. The Tribunal found that the harm that the applicant feared was sufficiently localised that the applicant could remain in his town or relocate elsewhere in India.  And even if the lady's father or family or associates did have any continuing interest in the applicant, the Tribunal did not accept that they would pursue him in his home town or that they would want to or be able to locate him anywhere in India.  The Tribunal went on to find:

   None of the evidence provided satisfied the Tribunal that employment or language for instance would make it unreasonable for the applicant to relocate within India.  Accordingly, the Tribunal does not accept the applicant has a well founded fear of persecution for reasons of race, religion, nationality or because of his membership of a particular social group or political opinion if he returns to India in the foreseeable future.[4]

   [4] See Court Book page 90.

10. The Tribunal affirmed the decision not to grant the applicant a protection visa.

Application to the Federal Magistrates Court

1. The applicant commenced proceedings in this Court seeking judicial review on 4^th September 2007. He filed an amended application on

   
   5^th December 2007

   . Unfortunately this amended application is somewhat of a generic nature and the applicant told the Court that it had been prepared by a friend of his. I commented to the applicant rather critically that the friend had apparently been rather busy as it was the third time that I had seen an application in this form in the last two days.

2. The application sets out eight grounds which are numbered from 1 to 7, because there are two grounds numbered “7”. Not all of the grounds are relevant to the applicant's application. They bear a striking similarity to grounds in other applications that have been before the Court recently. Ground 1 claims a breach of s.424 of the Migration Act, although it clearly is intended to mean s.424A. The Ground claims that the Tribunal failed to accord procedural fairness insofar as the Tribunal relied on independent evidence as to the prevalence of claims about political persecution. The applicant went on to say:

   On the basis of that the Tribunal was not satisfied as to the genuineness of my claims nor of the genuineness of my statements about my harassment of systematic nature.

3. In my reading of the decision I have not found any reference to independent evidence or independent country information. 

   
   

   The Tribunal decision was based entirely on the applicant's evidence, which the Tribunal found not to be credible.  Even if the Tribunal did accept the applicant's claims, it found that the situation had come to an end some two years previously and in any event the Tribunal was satisfied it would have been reasonable for the applicant to relocate within India.  There was no independent evidence referred to and so ground 1 must fail.

4. Ground 2 says:

   I have given adequate evidence to the Tribunal that I was physically assaulted on several occasions and they attacked my uncle and put fire on his property, but the Tribunal member failed to consider my claims.

5. It is quite clear from the Tribunal's decision that it did consider that aspect of the applicant's evidence quite carefully and in detail.  Once it had done so the Tribunal rejected the applicant's credibility, and a credibility finding is a matter that remains with the Tribunal (see Re: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham)[5].  Counsel for the Minister also submitted that this ground amounts to merits review, which is not available (see A v Minister for Immigration & Multicultural Affairs)[6].  In my view, there is no substance to the applicant's second ground, and no jurisdictional error is demonstrated.

   [5] (2000) 168 ALR 407

   [6] [2002] FCAFC 56 at [8]

6. The third ground alleges:

   The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s.91R(2)(a) of the Migration Act, which is a mandatory jurisdictional requirement for the Tribunal to do if he asked to relocate in India.

   
   

   The Tribunal failure to satisfy the statutory obligation was a serious jurisdictional error caused by the Tribunal.

7. Well, the fact is that the Tribunal did consider the test of serious harm.  At page 82 of the Court book the Tribunal says:

   The expression "serious harm" includes for example a threat to life or liberty, significant physical harassment or ill treatment, or significant economic hardship or denial of access to basic services, or denial of capacity to earn a livelihood where such hardship or denial threatens the applicant's capacity to subsist. S.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality in the sense that it is official or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy, it may be enough that the Government has failed or is unable to protect the applicant from persecution.[7]

   [7] See Court book page 82.

8. In my view the Tribunal did consider the test in s.91R(2) of the Migration Act but the Tribunal was not satisfied that the applicant was a witness of truth. No jurisdictional error is demonstrated, and ground 3 fails.

9. Ground 4 claims that 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 outcome.  As was made clear earlier, the Tribunal did not rely on any independent country information at all.  The ground goes on to complain that the Tribunal was preoccupied and did not have a fresh look, and also complains that the Tribunal failed to consider Amnesty International country information.

10. The applicant did not provide any report from Amnesty International in support of his claim.  There was no information from Amnesty International before the Tribunal.  It is well established that there is no obligation on the Refugee Review Tribunal to make inquiries and it is for the Tribunal to determine what country information it wishes to use (see Minister for Immigration & Multicultural & Indigenous AffairsvSGLB[8], also see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs)[9].

    [8] (2004) 207 ALR 12 at [43]

    [9] [2004] FCAFC 10 at [11]

11. The applicant's fourth ground has not been made out, and no jurisdictional error is shown.

12. The fifth ground alleges that the Tribunal decision was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or integers central to the applicant's claims. The applicant has not set out what those were and there is nothing in the Tribunal decision that would indicate that any central part of the applicant's claim had not been considered. The ground also claims that the applicant spent a long time being questioned without a break and felt stressed and intimidated. This is a standard form claim that the Court has seen on several occasions and I asked the applicant about that and he told the Court that he was at the Tribunal for about two to three hours.

13. No jurisdictional error is made out in that ground, and accordingly ground 5 fails.

14. Ground 6 claims that the Tribunal failed to carry out its review function and to exercise its jurisdiction because (a) the Tribunal did not consider the applicant had been attacked and beaten by Hindu people because of his relationship with the daughter of the RSS member and claimed that the Tribunal did not consider the applicant's claim that because of his relationship with the daughter Hindu extremists would kill him.

15. The fact is that the Tribunal did consider that, rejected that account on the basis of his credibility, and even if the Tribunal did accept that the applicant had been in a relationship with that woman, noted that the events had all been finalised some two years beforehand.  The Tribunal considered the evidence and did not accept it.  No jurisdictional error is shown in that ground and it fails.

16. In the second of the two grounds numbered 7 the applicant claims that the Tribunal failed to accept that the applicant, curiously referred to in the plural throughout this ground, satisfied the definition of refugee as defined in article 1A(2) of the Refugees Convention. That is in effect a challenge to the Tribunal's factual findings. The ground refers to requirements of s.91R(2)(a), ss.414, 415 and 420 of the Migration Act, but the relevance of those sections is not made clear. No jurisdictional error is shown.

17. The first paragraph numbered 7 claims that the Tribunal applied the wrong test by requiring independent evidence of the factor the Tribunal would accept a claim being made by the applicant. The Tribunal was in effect placing too high an onus of proof on the application in failing to give the applicant the benefit of the doubt. It is difficult to understand what is actually meant by that claim and there is no sign in the decision that the Tribunal required independent evidence of particular matters. The Tribunal just did not accept the applicant's evidence.

18. The second part of the ground alleges that the Tribunal left out individual elements of the applicant's claim and tested whether they individually amounted to persecution, rather than looking at the claim as a whole.  That claim does not relate to the Tribunal's reasons for decision at all.  No jurisdictional error has been displayed in any of the eight grounds raised by the applicant.

19. The applicant in oral submissions told the Court that he had a lot of problems in his home country that he was attacked, and if he goes back to India his life will be in danger.  The applicant has not shown any jurisdictional error.

20. I would comment that it is unhelpful where applicants rely on some mysterious friend who produces a generic catch all application which sometimes appears as submissions.  Quite clearly parts of this document appear to have been taken from other documents, and the errors become all too obvious to the Court.  There are certain spelling errors which occur repeatedly, such as the use of the word write for writ, the description in the final ground marked 7 of the applicant referred to in the plural where there is only one applicant, and the complaints in grounds 1 and 4 about the use of independent country information when it is quite clear from the decision that none was used.

21. The use of confusing and inappropriate grounds does not assist an applicant's case. I am mindful of the fact that the applicant is not legally represented and indeed seems to have sought assistance from someone who does not have any legal qualifications. I read through the Tribunal decision myself in an effort to ascertain independently of either the applicant's claims or the respondent's submissions any semblance or suggestion of jurisdictional error, but I am unable to discern any.

22. It follows that the Tribunal decision is a privative clause decision, and under s.474 of the Migration Act it is not subject to orders in the nature of certiorari, mandamus or prohibition. The application will be dismissed.

23. There is an order for costs in the sum of $3,400.00, which I consider to be an appropriate amount.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  11 March 2008