SZLGS v Minister for Immigration
[2008] FMCA 253
•13 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 253 |
| MIGRATION – Review of Refugee Tribunal decision – no denial of procedural fairness – no failure to consider relevant considerations – Tribunal addressed each aspect of the claims before it – impermissible merits review – consideration of “serious harm” did not arise – choice and use of country information a matter for the Tribunal – no evidence of bias or bad faith – no failure to apply “refugee” – reason for treatment a reason other than a Convention reason – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91S, 424A, 91R, 422B, Division 4 of Part 7 |
| Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 |
| Applicant: | SZLGS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2733 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 3 March 2008 |
| Date of Last Submission: | 3 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 5 September 2007, and amended on 2 January 2008, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2733 of 2007
| SZLGS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 5 September 2007, and amended on 2 January 2008, made under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 24 July 2007, and handed down on 14 August 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The first respondent has put a bundle of relevant documents before the Court (Court Book – “CB”)) from which the following background can be discerned.
The applicant is a national of India who arrived in Australia on 1 March 2007 and applied for a protection visa on 12 March 2007 (CB 1 to CB 26, with attached statutory declaration setting out the applicant’s claims reproduced at CB 27 to CB 31). This application was refused by the Minister’s delegate on 21 March 2007 (see the decision record at CB 42 to CB 47). The applicant sought review by the Tribunal on 12 April 2007 (application reproduced at CB 49 to CB 52 with attached written submissions at CB 53). The applicant appeared before the Tribunal and gave evidence on 2 July 2007 (CB 73). The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 91.3 to CB 94.5). The applicant also provided a number of documents to the Tribunal in support of his claims.
Applicant’s claims to protection
The applicant claimed to fear harm from the ruling “DMK-led Government” in his home state of Tamil Nadu and from the State police. The applicant claimed that his father had been active in organising other farmers to protest against landlords who were exploiting them, and that his father supported and worked with the Communist Party of India (Marxist-Leninists) (CPI (ML)) People’s War Group (PWG). Following the murder of a local council president in June 2006, the applicant claimed that the police formed a belief that the applicant’s father was involved in the murder and that, after coming to the applicant’s house, the police took the applicant to the police station, without giving any reasons, where he was abused in order to reveal his father’s whereabouts. Two weeks after being released the police again arrested the applicant and charged him with several “fake cases” and he was sentenced to one year in gaol. The applicant claimed that he decided while in gaol to join the CPI (ML) and to act against the government and the police, but while out on bail his uncle arranged for him to leave India and escape to Australia.
The Tribunal
The Tribunal found that it had some concerns with the credibility of the applicant’s case but gave the applicant the benefit of the doubt (CB 95.9), and accepted that the applicant had been arrested in June 2006, mistreated, released after a day and then detained for one month and released on conditional bail, and that he was required to report to police on a weekly basis and that he had heard that the police had threatened to kill him to force his father’s surrender.
The Tribunal however did not accept that the applicant’s experience in the past, or his fear of future harm, was essentially and significantly related to one or more of the Convention reasons (CB 96.1). The Tribunal found that the harm suffered by the applicant and the authorities’ interest in him was not for reason of his political opinion, or imputed political opinion, but rather that it was “part and parcel of the harm he was subjected to by the authorities in trapping his father” (CB 96.7). The Tribunal disregarded any fear of persecution, any persecution that the applicant’s father had experienced, pursuant to s.91S of the Act in determining whether the applicant himself had a well-founded fear of being persecuted for reason of his membership of his father’s family. In all, therefore, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and affirmed the delegate’s decision not to grant him a protection visa.
Application to the Court
The applicant put forward a number of grounds by way of amended application filed on 2 January 2008. The amended application is largely formulaic, large parts of which have been regularly seen in this Court. I understood the grounds to be as follows:
1)A breach of s.424A of the Act (the ground stated asserts a failure to accord procedural fairness under s.424 of the Act but then proceeds to set out s.424A of the Act). To the extent that it can be said that this complaint is particularised it appears that the applicant complains that the Tribunal failed to provide him with independent information used adversely and resulting in the case being decided against him.
2)That the Tribunal failed to consider the applicant’s claims. Stated ground two asserts the Tribunal failed to consider his claims despite his having given “adequate evidence” that he had been arrested by the police and that he had been falsely accused and sentenced to one year’s gaol. Stated ground five asserts the Tribunal did not take into account relevant considerations, or failed to take into account “integers” “central to the applicant’s claims”. Stated ground six complains the Tribunal did not consider that the applicant had been under intense pressure from the Tamil Nadu police and the DMK party because of his father’s involvement with the CPI (ML) and action against landlords, and the Tribunal did not consider his claims that the police and the DMK party would kill him if he returned to India.
3)That the Tribunal failed to properly consider whether the applicant would suffer “serious harm” pursuant to s.91R(2)(a) of the Act if he were to relocate in India.
4)The stated ground four complains about the Tribunal’s use of certain “country information” and the weight that it accorded this information, and also asserts that the Tribunal failed to consider “the Amnesty International country information”.
5)The stated ground four also asserts “the Tribunal was preoccupied and did not have a fresh look” which may be taken to be an allegation of bias or bad faith on the part of the Tribunal.
6)That the Tribunal failed to find that the applicant did satisfy the Refugees Convention definition of “refugee” and in particular, that although the Tribunal referred in its decision record to the four key elements to the Convention definition, it nonetheless failed to consider whether the applicant would be subject to future harm if he returned to India.
7)Although not the subject of complaint by the applicant, given that the applicant appeared unrepresented before the Court, I also considered whether the Tribunal erred in the approach adopted pursuant to s.91S of the Act.
Hearing before the Court
At the hearing before the Court, the applicant appeared unrepresented. He was assisted by an interpreter in the Tamil language. Mr J P Knackstredt of Counsel appeared for the first respondent.
The applicant confirmed that he wished to press his amended application and wanted the Court to consider what was said in that document. I also have before me from the applicant his affidavit made on 5 September 2007 asserting jurisdictional error on the part of the Tribunal and annexing the Tribunal’s decision. I also have before me written submissions filed on behalf of the first respondent.
The applicant stated before the Court that the Tribunal did not “take in” what he had submitted to it. Beyond this, the applicant claimed he was not in a position to further assist the Court beyond what was in his amended application, and had nothing further to add.
Ground One – Denial of Procedural Fairness
The applicant’s first ground asserts a failure to accord procedural fairness to the applicant. It should be noted that this is a case to which s.422B of the Act applies making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias). (See Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48].)
The applicant complains (in context, probably a reference to s.424A of the Act) that he was denied procedural fairness under “s.424”. While this section is plainly within Division 4 of Part 7, there is no obligation on the Tribunal to seek additional information from the applicant. The mandatory obligation contained in this section relates to once having sought and obtained such information, the Tribunal must have regard to it in making the decision on the review. Plainly, these circumstances do not arise in the current case.
The object of complaint in this ground plainly appears to be s.424A of the Act. The applicant relies on NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 (“NARV”) to assert that he was denied procedural fairness by reason of the Tribunal’s failure to draw his attention to the independent country information. I agree with Mr Knackstredt’s submissions that following the introduction of s.422B into the Act, NARV cannot assist the applicant in the circumstances claimed. While the common law may require that country information be put to an applicant as a matter of fairness (see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, particularly where the information is critical to the Tribunal’s decision and the applicant is not on notice of the issues raised by the information), since the introduction of s.422B, the issue is whether the “information” comes within the understanding given to that term for the purposes of s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [15]-[22]).
The Tribunal’s decision did turn in part on the country information available to it. (See CB 94.8 to CB 95.2, and see generally CB 96 to CB 97 in relation to information that the CPI (ML) PWG was a prescribed terrorist organisation and banned under Tamil Nadu’s criminal legislation.) Such information clearly falls within the exception contained in s.424A(3)(a) of the Act from the requirements set out in s.424A(1) of the Act (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).
The other set of information relied on by the Tribunal is the applicant’s own evidence – the information provided by the applicant himself at the hearing – and such information falls within the exception contained in s.424A(3)(b) of the Act which again excludes the operation of s.424A(1) of the Act. This ground does not succeed.
Ground Two – Failure to Take Into Account Relevant Considerations
The applicant also complains that the Tribunal had failed to take into account “certain relevant considerations” which I understood to be that the Tribunal failed to take into account, or to consider, aspects of the applicant’s claims (see stated ground five). To the extent that this can be said to have been particularised, the applicant complains (see stated ground two) that he gave evidence to the Tribunal that he had been arrested by the police and mistreated in order to reveal his father’s whereabouts, and that the Tribunal did not consider that the applicant was under “pressure” from the police in Tamil Nadu and the DMK because of his father’s involvement with the CPI (ML), and did not consider the applicant’s claim that the police and the DMK would kill him if he were to return to India.
The Tribunal set out the applicant’s claims in its decision record at CB 89.3 to CB 94.7, including evidence that the applicant gave at the hearing before it. The Tribunal did have regard to the applicant’s claim that he had been placed under “pressure” and mistreated by police because of his father’s activities and the authorities’ motives in using the applicant to locate his father’s whereabouts, and that the police had threatened to kill him. The Tribunal plainly had doubts about some of the applicant’s claims but the expression of such doubts cannot be said to be a failure to have regard to, or consider, those aspects of the applicant’s claims. In any event, the Tribunal accepted that the applicant had been arrested, mistreated, released and re-arrested and detained for one month, and also accepted that he was required to report to the police on a weekly basis and that he had heard that the police had threatened to kill him to force his father’s surrender.
Further, the Tribunal plainly noted the applicant’s claim that if he were to go back to India he would be killed by the ruling DMK-led Government in Tamil Nadu and the state police (see CB 90.6). Ultimately, however, the Tribunal’s reasoning was that the authorities’ (in context, both the DMK-led Government and the police) interest in the applicant was for the reason that the applicant’s father was wanted by the police for his suspected involvement in the commission of a number of murders (CB 97.2, and also see CB 96.4). Given its application of s.91S of the Act (see further below), it did not accept that the applicant’s experiences in the past, or his fear of future harm, was Convention-related (CB 96.1), and disregarded the applicant’s past experience of harm and his fear of future persecution, because they all “flow from the father’s non-Convention-related fears” (CB 97.4).
Any plain reading of the Tribunal’s decision record reveals that in articulating the applicant’s claims the Tribunal did not overlook any aspect of the claims put forward by the applicant (and other than the matters stated, the applicant has not put forward any other claims which he says were put before the Tribunal and with which it allegedly did not deal). I cannot see on what is before the Court now that the Tribunal failed to consider any integer central to the applicant’s claims, let alone any integer of the applicant’s claims, such as it could be said that its decision was infected by jurisdictional error. In my view, in all the circumstances, what the applicant seeks to complain about is that even though he gave “adequate evidence” the Tribunal nonetheless found against him. Given that the Tribunal’s findings were open to it on what was before it (and for which it gave reasons), the applicant’s complaint really does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).
Ground Three – Failure to Consider Whether “Serious Harm”
The applicant also complains that the Tribunal failed in its application of the requirement to consider, pursuant to s.91R(2)(a), whether the harm feared involved “serious harm” in the sense that there was a claimed threat to the applicant’s life and liberty, and this is said to be in circumstances if the applicant were to relocate.
First, it should be noted that the Tribunal made no finding relating to the applicant’s relocation within India. The Tribunal did not affirm the delegate’s decision upon any basis relating to the applicant’s capacity to relocate away from his home area or state. Nor was there any requirement for it to do so given its findings that the applicant’s past experiences, and fear of future harm, were not for any Convention-related reason (see VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544 at [43], per Callinan and Heydon JJ).
That is, the Tribunal found that although it accepted some of the applicant’s claims, his past experiences and fears of future harm were not essentially and significantly related to any Convention reason, and this, as Mr Knackstredt, correctly in my view, means that the applicant did not meet the requirement set out in s.91(1)(a) of the Act. In considering this issue, the Tribunal did turn its mind to what constituted “serious harm”, including the threat to the applicant’s life or liberty (as set out in s.91(2)(a) of the Act).
The Tribunal’s finding that the applicant’s claims of past experiences and fears of future harm were not related to any Convention reason, when seen in conjunction with its application of s.91S of the Act which required it to disregard the applicant’s fears based on the claims of the father’s fear of persecution (given that that persecution was not for a Convention reason either), meant that the Tribunal plainly had not made any findings of fact relevantly favourable to the applicant that called for further consideration of what constitutes “serious harm” for the purposes of s.91R(1). Simply, the Tribunal did consider the claims and future fear of harm, including the claims of the threat to the applicant’s life or liberty, but its finding that none of the claims which it accepted had a Convention nexus meant that it was not required to go any further in its consideration. Similarly, the Tribunal was not required to consider whether the applicant could avoid the harm feared by relocating within India.
Ground Four – Country Information
The applicant also complains about what is said to be the Tribunal’s failure to properly consider and use “country information”. It is not clear exactly what complaint the applicant makes given the reference to the stated grounds (see paragraph 4 of the amended application). If the applicant complains that the Tribunal should have sought additional information in the nature of independent country information then I agree with the Minister’s submissions that s.424(1) of the Act confers power on the Tribunal to seek additional information that may be relevant to the determination of the application before it but, as set out above, the exercise of such power is discretionary and only requires the Tribunal to have regard to such information if in fact it seeks it and obtains it. Further, there is no obligation on the Tribunal to conduct its own independent enquiries. In relation to the complaint that the Tribunal failed to consider “the Amnesty International country information”, there is nothing before the Court now to show that the applicant put any such information before the Tribunal, or even referred the Tribunal to it, despite ample opportunity to do so.
If the applicant’s complaint under this ground is a complaint about the weight accorded to country information (“considered to weigh against my case”), then such a complaint does not succeed. The Tribunal’s assessment of the country information is a factual matter for it (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 (“NAHI”) at [11] and [13]). This ground also does not succeed.
Ground Five – Bias or Bad Faith
The applicant also asserts (in paragraph 4 of the amended application) “the Tribunal was preoccupied and did not have a fresh look”. This could be understood as a complaint that the Tribunal acted with bias or in bad faith. An allegation of bias or bad faith must be “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17). It is rare in the extreme for an allegation of bias to be made out on the basis of the published reasons for decision alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J).
On what is before the Court, I cannot see that the applicant has put any evidence before the Court that would satisfy the relevant tests, let alone that he would succeed in any such complaints (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).
Ground Six – Failure to Properly Apply the Definition of “Refugee”
The applicant also complains (paragraph 7 of the amended application) that the Tribunal failed to find that the applicant satisfied the definition of the Convention definition of “refugee”. (I note that the formulaic paragraph appearing in the applicant’s amended application makes reference to “applicants” but am satisfied that there was only one applicant before the Tribunal and before the Court now.)
The applicant merely asserts, with reference to what he says are part of the four elements, or key elements, that are required to satisfy the Convention definition, that the Tribunal failed to take note of these elements, and presumably, to apply them to the applicant’s factual claims and to ultimately find for the applicant.
First I note that, as Mr Knackstredt submits, the Tribunal set out the relevant definition of “refugee” in its decision record (CB 87 to CB 89) in what can only be described as the usual and unobjectionable terms. As already stated, the Tribunal determined, for reasons which it gave, that the claims of past harm suffered by the applicant, and the fears of future harm, had no Convention nexus, and therefore the applicant did not satisfy the definition of a “refugee” as set out in Article 1A(2) of the Convention (and as must be understood in the light of s.91R in any event). The Tribunal’s findings were plainly open to it on the material before it and I can only agree with Mr Knackstredt that the applicant’s complaint really seeks impermissible merits review from this Court (Wu Shan Liang; see also NAHI at [10]). This ground also does not succeed.
Further Consideration – Section 91S of the Act
Although not complained of by the applicant, I also considered the Tribunal’s approach to, and use of, s.91S of the Act. Part of the applicant’s claim to fear harm was derived from circumstances relating to his father. The applicant’s claims were that his father had been active in agitating against landlords who exploited local “peasants”, and that he agitated on behalf of these people “for their rights”. Further, that his father worked with members of the CPI (ML) group. The authorities and police believe that the applicant’s father was involved in a number of murders arising from this action, and searched for him. In its analysis, the Tribunal did consider whether the applicant’s membership of his father’s family (“a particular social group”) was the essential and significant reason behind the harm that he suffered, and the harm that he feared in the future.
Given that part of the applicant’s claims derived from the circumstances relating to his father, it was necessary for the Tribunal to have regard to s.91S of the Act. The application of this section has been the subject of judicial review in a substantial number of cases, in particular a number of so-called “Albanian blood feud cases” (see, for example, SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301). What can be derived from this consideration is that it was necessary in the current case for the Tribunal to focus on the reason that his father was targeted, and that this can be distinguished from a focus on the father’s reasons for acting in the way that he did which attracted the claimed persecution. The question for the Tribunal is whether the fear of persecution was for a reason other than a Convention reason.
In my view, the Tribunal approached this issue consistent with this requirement. It formed the view that the applicant’s father’s political opinion, that is, the view and action that he took in support of agrarian rights for local peasants, was not the reason for the authorities’ interest in him. The Tribunal pointed to evidence that clearly suggested that the applicant’s father was wanted by the police for his suspected involvement in the commission of a number of murders. It was the suspicion of involvement in serious criminal activity that motivated the authorities to be interested in, and to pursue, the applicant’s father (see CB 97.1).
In my view, the Tribunal properly turned its mind to, and correctly applied, the requirement of s.91S to the facts as found before it. It disregarded, pursuant to s.91S, the applicant’s father’s fear of persecution from the authorities, and subsequently, any such fear on the part of the applicant, because it found that the applicant’s fear arose from being a relative of a person targeted by the police because of the father’s suspected involvement in serious criminal activity. The Tribunal disregarded the applicant’s fear and past experiences of harm and his fear of future persecution (noting that it directed its mind to the applicant’s mother and the applicant’s brother’s situations) because they were all found to have “flow[ed] from the father’s non-Convention-related fears”. I cannot see any error in the approach adopted by the Tribunal and the application of s.91S to the circumstances before it.
Conclusion
None of the applicant’s grounds, as set out in the amended application, reveals jurisdictional error on the part of the Tribunal in its decision. Nor can I otherwise discern any such jurisdictional error. In these circumstances, the application to the Court is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 13 March 2008
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