SZLHV v Minister for Immigration
[2008] FMCA 250
•10 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLHV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 250 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant a citizen of India claiming fear of persecution on grounds of religion and political opinion – allegations of bias – no evidence of bias – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 414,415,420,424 |
| NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 distinguished SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed. SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed |
| Applicant: | SZLHV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2824 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 February 2008 |
| Date of Last Submission: | 26 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2008 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondents costs fixed in the sum of $3900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2824 of 2007
| SZLHV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister not to grant him a protection visa. The applicant applied for protection on the basis that he is an ethnic Tamil Muslim from Tamil Nadu who claims to have offered social assistance to Hindu Dalits or untouchables and claims to have converted some Dalits to Islam. His claims are for the Convention related reasons of religion and imputed anti-Hindu nationalist political opinion. The applicant claims that the Tribunal fell into jurisdictional error and sets out eight grounds in his amended application.
The background to this matter is that the applicant arrived in Australia on 3 May 2006. He applied for a protection (Class XA) visa on 29 January 2007. His application for a visa was refused on 17 April 2007 so he applied to the Refugee Review Tribunal for review of that decision on 4 May 2007. The applicant did not provide any additional documentary evidence in support of his application for review. The Tribunal wrote to him on 6 June 2007 inviting him to attend a hearing on 4 July. The applicant completed the response to hearing invitation indicating that he did wish to attend the hearing and that he would require the assistance of an interpreter in the Tamil language.
The applicant attended the hearing on 4 July 2007 where he gave evidence with the assistance of a Tamil interpreter. He provided for the Tribunal a copy of his passport. He also provided some other documentation including medical reports from a psychiatry registrar at St Vincent's Hospital. He provided a medical report from a doctor in India which indicated that he was suffering from an "affective illness (bi-polar)" and was under treatment of that doctor in 2003 to 2005. He also provided a number of other documents and photographs and newspaper reports in support of his case.
The Tribunal signed its decision on 31 July 2007 and handed that decision down on 21 August. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. A copy of the Tribunal decision record can be found at pages 160 through to 173 of the Court Book. In the Tribunal decision, the Tribunal sets out the applicant's claims and evidence. The Tribunal summarised the Convention based bases of the applicant's claim as follows:
The applicant, an ethnic Tamil Muslim from Tamil Nadu who claims to have offered social assistance to Hindu Dalits "(untouchables)" and who claims to have converted some Dalits to Islam claims fear of persecution in India at the hands of Hindu groups including radical Hindu Nationalists for Convention related reasons of "religion" and imputed anti-Hindu Nationalist "political opinion[1]".
[1] See Court Book at page 163
The Tribunal sets out the applicant's evidence to the Tribunal in some detail and noted that at one stage the applicant appeared to suffer from some form of an anxiety attack. The Tribunal recorded that incident as follows:
At one stage during the hearing the applicant hyperventilated and became hysterical. These characteristics appeared during the recounting of an instance of abuse at the hands of Hindu fundamentalists. The applicant was not crying but presented as though in a panic. Concerned that these manifestations might be symptoms of a genuine anxiety attack, the Tribunal adjourned the hearing. When the hearing resumed the applicant continued to speak with a high pitched voice but was generally more composed. He indicated he was prepared to continue with the hearing[2].
[2] See Court Book at page 165
The Tribunal asked the applicant about certain aspects of his history that troubled the Tribunal member, including the applicant's visits to Thailand, Singapore, Malaysia, the United States of America and Australia. The Tribunal expressed a concern about the applicant's many instances of return to India because the applicant had told the Tribunal that as soon as he returned to India Hindu fundamentalists who were seeking to persecute him would know that he was back and pursue him.
The Tribunal also asked the applicant why he had travelled to the United States of America where he travelled in 2006 before coming to Australia for the first time. The Tribunal noted that the applicant said that he went to America to seek protection. However, the applicant did not formally apply for protection in the United States and said that this was because a friend whom he was visiting was murdered and the applicant felt traumatised. The Tribunal also asked the applicant about why he did not apply for protection in Australia on his first visit before returning to India voluntarily in 2006.
The Tribunal's finding and reasons are set out at pages 168 through to 173 of the Court Book. The Tribunal accepted on the evidence of the applicant's passports that he was a national of India. The Tribunal accepted that the applicant lived and worked in Chennai and worked in connection with his father's agricultural concerns and later worked in the hardware trade. The Tribunal accepted that the applicant was involved in a consumer protection council, lobbying for consumer protection and reporting infringements of consumer rights until 1995.
However, the Tribunal expressed concern about certain parts of the applicant's evidence which it noted were unsupported:
The Tribunal notes that the applicant's claim about having to resign from the Consumer Protection Council is unsupported and notes that this is a characteristic common to the overwhelming bulk of the applicant's substantive claims. The Tribunal is troubled by this. The applicant has provided quite copiously detailed evidence of the fact that he ran the restaurant from 2001 and he has provided a copy of the report to the police about the fire. But the Tribunal finds that by marked contrast all of his substantive claims for a protection visa are unsupported. The Tribunal is also somewhat troubled by the applicant's characterising of his work with the Consumer Protection Council of Social Work, or at least as evidence of an ongoing commitment to social service[3].
[3] See Court Book at page 170
The Tribunal did not accept on the evidence before it that the applicant's claims about having found himself as the Tribunal said, "off-side" with Hindu fundamentalists or with the authorities. The Tribunal did not accept that the applicant left India in 2003 with a genuine fear of persecution or genuinely seeking formal or informal protection from persecution in India. The Tribunal referred also to this claim:
He made the unsupported claim about his name being on a hit list and said that his enemies had the ability to locate him within a month of his return to India, and yet he voluntarily returned to India three times and stayed well over a month each time. He also stayed in, or at least close, to Chennai. He claimed he was able to avoid detection by staying at (or near) the hospital where his wife was staying in 2004 and yet incongruously he said he discovered that his enemies had spies at the hospitals but still he stayed there and still was not killed. The Tribunal finds that these claims lack credibility.
The Tribunal did not accept that the applicant's actions and movements outside India were consistent with a genuine fear of Convention related persecution. The Tribunal recorded serious concerns about the applicant's claim to have entered the United States of America in order to seek international protection but not having done so. The Tribunal was prepared to accept the unsupported claim about the applicant's friend being murdered and about this circumstance traumatising the applicant to a point where he decided to leave but did not accept that the applicant really intended to seek international protection in the United States of America.
The Tribunal explained this by saying:
This is because he subsequently travelled to Australia, a country that does not appear to have had any traumatic significance to him where he evidently gathered quite detailed information about the right to apply for protection and about concomitant rights for protection visa applicants in certain conditions, but ultimately did not apply for protection during his initial three month permitted period of stay and instead returned voluntarily to India and stayed there another three months[4].
[4] See Court Book at page 171
The Tribunal found that none of the medical evidence supplied by the applicant supported the claim that the applicant had suffered or had a genuine fear of Convention related persecution in India. The Tribunal referred to the question of internal relocation in this way:
Although the Tribunal touched upon the question of internal relocation in its questions to the applicant at the hearing, it makes no findings on that question because it does not accept that the applicant's substantive claims are reliable.[5]
[5] Court Book at page 172
The Tribunal was not satisfied on the evidence before it that the applicant faced a real chance of Convention related persecution in India and found his claimed fear of persecution was not well-founded. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and found that the applicant had not satisfied the criterion set out in s.36(2)(a) for a protection visa.
The applicant commenced proceedings for judicial review of that decision in this Court on 13 September 2007. He filed an amended application on 11 December 2007. In that amended application he seeks orders or a declaration of the notification by the delegate and the Tribunal to refuse to grant the protection visa was invalid and of no effect. Two, a writ of Certiorari quashing the decision of the Refugee Review Tribunal. Three, an order that no action be taken to remove him from Australia while the decision is pending. Four, an order to redirect the applicant's claim to the Tribunal:
For further consideration and to advise the Tribunal to make a favourable decision.
I would comment that the first order sought insofar as it relates to the delegate is inappropriate and there is nothing to suggest the notification by the Minister's delegate to the applicant was in any way at fault. The order that the applicant seeks - an order in the nature of Mandamus returning the application to the Tribunal to advise the Tribunal to make a favourable decision is also inappropriate. Nevertheless, the applicant seeks relief and sets out eight grounds, although the seventh and eighth grounds both bear the number seven.
The grounds set out are these:
i)The Tribunal failed to accord procedural fairness under s.424 of the Migration Act (1958) as considered by the Full Court of the Federal Court in NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 insofar as the Tribunal relied on independent evidence as to the prevalence of claims about political persecution. 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 systematic nature.
The applicant then goes on to quote the provisions of s.424A of the Migration Act in full. The ground goes on to say:
In accordance with the above section, the delegate and the Tribunal would give me particulars of the independent information as to claims based on adequate State protection to me though I raised the issues of the poor law and order situation in India and such information formed part of the reasons for the Tribunal decision. The Tribunal mentioned to me the adverse information to decide my case neither at the time of review nor afterwards.
ii)I have given adequate evidence to the Tribunal that I was hit by a truck intentionally to kill me but the Tribunal member failed to consider my genuine claims.
iii)The Tribunal failed to consider properly the test whether the applicant 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's failure to satisfy the statutory obligation was a serious jurisdictional error caused by the Tribunal.
iv)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. The Tribunal used all information for a matter of reasoning and evaluation of my case for the protection visa. The Tribunal was pre-occupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information.
v)That the decision of the Refugee Review Tribunal was infected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or integers central to the applicant's claims. Because I spent long time being questioned without a break and felt stressed and intimidated.
vi)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction:
1. The Tribunal did not consider the applicant who had been attacked and verbally harassed by the Hindu fundamentalist people because of his involvement with Dalits people.
2. In relation to the above, the Tribunal did not consider the applicant's claim that because of his involvement with Dalits people, the Hindu extremists would kill him if he returned to India.
vii)The Tribunal had acted logically when it concluded that "The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of Convention related persecution in India. His claimed fear of such persecution is not well-founded. He is not a refugee". The Tribunal committed a clear jurisdictional error because it failed to weigh properly the effect of the following:
1. I was founder and secretary of Punganur Consumer Protection Council.
2. Hindu Revolution Group tried to kill me.
3. I continue to experience ongoing physical and psychological effects for all that I have been through in India.
viii)The Refugee Review Tribunal failed to act that the applicants must satisfy the definition of Refugee as defined in article 1A(2)of the Convention. To go further, the Tribunal failed to see that the applicants satisfy the four key elements that are required to satisfy the Convention definition. The applicants state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protect visa. The first element - applicant must be outside his country. The second element - the applicant must fear persecution. If the applicant returned to his country his life would be in danger. The third element - the persecution that the applicant fears must be, for one or more reasons, enumerated in the Convention definition, race, religion, nationality, membership of a particular social group or political opinion. The applicants fulfil this. The fourth element - the fear of persecution for a Convention must be a well-founded fear. The applicants fulfil all the four elements. The Tribunal, which has described these in its decision and failed to take note of this.
The applicant then proceeds to refer to s.91R(2) of the Act by saying:
Without limiting what is serious harm for the purpose of 1B following our instances of serious harm for the purposes of that paragraph (a) a threat to person's life and liberty.
The applicant also refers to ss.414, 415 and 420 of the Migration Act relating to the Refugee Review Tribunal. He goes on to say:
Therefore the applicant submits that the Tribunal failed to analyse properly the future harm that I may face if I have to go back to India. Hence due to this failure the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the real chance test before dismissing the applicant's claim.
The first comment to be made is that the grounds in the amended application appear to be standard form grounds, some of which are more in the nature of a submission and are familiar to this Court from other applications before it, as Ms Buchanan for the Minister submitted, some of the grounds do not appear to relate to the application.
The first ground alleges a breach of s.424 but should mean s.424A of the Migration Act, and refers to the Tribunal as relying on independent evidence as to the prevalence of a claim about political persecution. I asked the applicant what independence there was as the Tribunal decision seemed to relate entirely to the evidence provided by the applicant at the hearing. The applicant's response to the Court's question was rather a non-sequitur in which when asked what was the independence evidence to which he was referring, he said that when the Tribunal kept rejecting whatever he said he could not say anything more.
As far as the first ground is concerned, there is no information upon which the Tribunal relied, other than that provided by the applicant. The reference to NARV v Minister for Immigration & Multicultural & Indigenous Affairs does not assist the applicant's case. There is no breach of s.424A of the Migration Act and ground one fails.
The second ground claims that the applicant had given adequate evidence to the Tribunal that he was hit by a truck intentionally to kill him but the Tribunal failed to consider his genuine claims. This is no more than cavilling at the Tribunal's factual findings. There was evidence, all of which came from the applicant, which the Tribunal considered and the Tribunal was not satisfied that the applicant had substantiated his claim. It was open to the Tribunal to make this finding on the evidence. Ground two fails.
Ground three contains a claim that the Tribunal failed to consider the proper test for serious harm under the provisions of s.91R(2)(a) of the Migration Act. The Tribunal did consider the question of serious harm:
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 basis 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[6].
I am satisfied that the Tribunal was aware of the appropriate test and I am satisfied from reading the Tribunal decision record that it applied that test to the applicant's evidence. Ground three fails.
[6] See Court Book at page 162
Ground four again refers to country information saying:
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.
This only illustrates the danger of relying on generic all-purpose grounds because it is quite clear that there was no independent information collected by the Tribunal and the only country information was that provided by the applicant himself. The danger of using such basis precedence is that the applicant's case appears to be confused and irrelevant. The Tribunal, according to the applicant, failed to consider Amnesty International country information. I asked the applicant what that meant and eventually he agreed that what he meant was that the Tribunal should have considered information from Amnesty International.
It is quite clear that the Tribunal, although it has the power to make its own inquiries and seek information under ss.424 and 427 of the Migration Act is under no obligation to do so. If the applicant wanted the Tribunal to consider the information from Amnesty International he should have provided it to the Tribunal. There is no jurisdictional error and ground four fails.
The applicant claimed in ground five that the Tribunal decision was affected by jurisdictional error because the Tribunal did not take into account certain relevant considers or integers central to his claims. I asked the applicant what those claims were and he said that they were things that he had said that the Hindu extremists would be after him to take his life. He said that the extremists purposely hit him with a truck and he had injuries to his back. He said that he had submitted certificates given by five doctors but the Tribunal did not accept them.
The balance of the ground goes on to say:
Because I spent long time being questioned without a break and felt stressed and intimidated.
The applicant said that he suffered a lot during the hearing because the Tribunal kept asking questions about what happened to him. Seeing his condition, they adjourned the hearing for a short time. He said that he had been deeply affected by the hardship that he underwent and is receiving treatment from a psychiatrist in Australia. This was all because of threats from the Hindu extremists. The Tribunal did take note of the fact that the applicant suffered a difficulty in that he hyperventilated and, according to the Tribunal, became hysterical during the hearing. This was recorded at page 165 of the Court Book in the passage I quoted earlier.
The Tribunal did adjourn the hearing and, according to the decision record, the applicant indicated that he was well enough to continue. I note from the RRT hearing record that appears at page 77 of the Court Book that the hearing commenced at 10.10 am and adjourned at 11.08 am. It resumed at 11.15 am, apparently, according to the note, there was a break immediately and the hearing resumed at 12 noon and ended at 1.20 pm. It was always open to the applicant if he felt unwell and unable to continue to seek an adjournment or a postponement of the hearing to another day. The fifth ground does not indicate any jurisdictional error and therefore fails.
The sixth ground claimed that the Tribunal failed to consider certain claims made by the applicant thereby it failed to carry out its review function and exercise its jurisdiction. As Ms Buchanan for the Minister pointed out in her submission, the Tribunal did consider those particular claims. The claims were, one, that the applicant had been attacked and verbally harassed by Hindu fundamentalist people because of his involvement with Dalits people, and two, that because of his involvement with Dalits people, Hindu extremists would kill the applicant if he were to return to India. The Tribunal considered those claims in the findings and reasons at page 168 and 169 of the Court Book but did not accept those claims. No jurisdictional error is shown and the sixth ground failed.
The applicant in ground seven claims the Tribunal acted illogically when it found he was not satisfied on the evidence fore it that the application faced a real chance of Convention related persecution in India. His claimed fear of persecution was not well-founded. Even if your logicality were a ground upon which jurisdictional error may be found, I am not satisfied that any illogicality has been shown. The Tribunal considered the applicant's claims but was not satisfied, on the evidence that he provided with those claims, had been made out. There is no lack of logic there. The findings were open on the evidence. No jurisdictional error has been shown and ground seven fails.
The eighth ground misleadingly referred to under the number 7, appears to have been taken from a document relating to someone else in that throughout it the applicant is referred to in the plural. It in effect claims that the Tribunal failed to see that the applicant satisfied the four elements required to meet the Convention definition of a refugee. That is no more than cavilling with the Tribunal's conclusions that the applicant is not a person whom Australia has protection obligations. It is in effect an invitation to the Court to conduct merits review. The references to ss.91R, 414, 415 and 420 of the Migration Act do not assist the applicant. The applicant's final ground fails.
The applicant in oral submission took the view the Tribunal's actions and statements of the hearing reflected some sort of bias against him. He claimed that the Tribunal member said that he was reacting and said, "You are acting a part". He said he felt that the Tribunal member could not truly have done justice to him. He asked the Court to listen to a tape of the hearing. He had not provided a transcript. I note that this claim has not been mentioned in the amended application and it was raised for the first time at the hearing.
An allegation of bias is a serious allegation. Sadly, allegations of bias are raised all too often in applications for judicial review of Tribunal proceedings. The Full Court of the Federal Court has made it quite clear in such decisions as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[7], and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[8] . The allegations of bias are serious because they contain an implication of personal fault on the part of the decision-maker. Allegations of bias must be strictly alleged and strictly proved. It is a rare and extreme case where bias will be found from the Tribunal's reasons for decision. The applicant has claimed that a remark made by the Tribunal member at the hearing indicates some form of bias.
[7] [2002] FCAFC 361
[8] [2002] FCAFC 358
It seems extraordinary that this claim was not made on any prior occasion than in oral submissions at the hearing. The applicant filed an application on 13 September 2007 and an amended application on 11 December 2007. The documents are virtually identical. I am not satisfied that the applicant has made out his allegation of bias and it seems extraordinary that the claim was not made in either the original application or the amended application.
I am mindful of the fact that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision and the supporting documents independently of the applicant's submissions or the respondent's submissions in an effort to ascertain wether any arguable case for jurisdictional error can be made out. There is no arguable case of jurisdictional error that I can discern. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. As such, it is final and conclusive and it is not subject to orders in the nature of Certiorari, Mandamus or Prohibition which the applicant seeks.
It follows that the application must be dismissed and I will consider an application for costs on behalf of the first respondent Minister.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 10 March 2008
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