SZLJJ v Minister for Immigration
[2008] FMCA 563
•23 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 563 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant disbelieved by Tribunal – no breach of Tribunal’s s.425 obligations – Tribunal has no duty to make inquiries – weight to be given to evidence is a matter for the Tribunal – no requirement to serve s.424A notice. |
| Migration Act 1958, ss.424A, 425 |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 |
| Applicant: | SZLJJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2971 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 April 2008 |
| Date of Last Submission: | 23 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2971 of 2007
| SZLJJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was an active member of the Congress Party. He alleges that while in India he worked to increase the popularity of the Congress Party and that this led to him being arrested, tortured and beaten by his political opponents. The applicant arrived in Australia on 10 April 2007.
The applicant claims to fear persecution in India because of his alleged political activity there.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 16 May 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 8 of the Tribunal’s decision (Relevant Documents (“RD”) pages 65 – 69). Relevantly, they are in summary:
a)the applicant is a Muslim by religion;
b)he was tortured and beaten by members of the Bharatiya Janata Party (BJP) and the Janata Dal;
c)he joined the Congress Party in 1998 because he felt that it was the only party which supported the Muslim minority in Bangalore;
d)he put up wall posters, handed out notices, put up massive cut-outs of Congress Party leaders and read announcements about the party on loudspeakers while driving around the town. He did the same sort of work during the election period;
e)while he was doing this party work he was taken to an unknown place and tortured by BJP members;
f)he was arrested twice and “tortured in the name of interrogation”;
g)as a Muslim politician he became the target of political intimidation, criminal investigation and detention by the police on suspicion of threatening national security;
h)he was released on the condition that he report to the police station twice a month;
i)if he returns to India he runs the risk of being arrested. He fears that the “politically motivated radical BJP members and police” will harass him or perhaps arrest him and he says that the Bangalore police were looking for him. He was told that they had come to his home and had asked his parents about him;
j)through his work the Congress Party increased in popularity. The local BJP leader asked the applicant to join the BJP because he knew the applicant was very popular throughout the district. The BJP leader offered him a position which the applicant refused because he knew that the BJP were violent towards Muslims;
k)he fears returning to India as the BJP and Janata Dal have threatened him with violence and the Bangalore police are controlled by the local BJP leader;
l)there are warrants for his arrest; and
m)he has not had any problems directly because of his religion but the Rashtriya Swayamsevak Sangh (RSS) and BJP people had threatened him because they believed he was influential in the Muslim group and was helping the Congress party with Muslim voters and for this they wanted revenge.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)having regard to the applicant’s obvious lack of familiarity with recent political developments in Bangalore, the Tribunal did not accept that he was involved in the Congress Party as claimed;
b)given this finding, the Tribunal did not accept that because of that alleged involvement:
i)he was threatened, harassed, beaten, abducted, tortured or otherwise persecuted by members of the BJP, Janata Dal or the RSS;
ii)he was wrongly accused of being a fundamentalist or a terrorist, arrested, detained, tortured or released on condition that he report to the police station twice a month;
iii)there were warrants for his arrest in India;
iv)the police have come to his home in India and have asked about him; or
v)he was labelled as a fundamentalist or a terrorist because of his claimed involvement in the Congress Party or specifically because he was encouraging Muslim people to support the Congress Party.
Proceedings in this Court
In the amended application filed in these proceedings the applicant has pleaded eight numbered grounds upon which he asserts the Tribunal’s decision should be set aside. In my view, none of those grounds, individually or when taken together, amount to a basis upon which the Tribunal’s decision ought to be set aside.
I now deal with the grounds in turn.
Tribunal did not take into account relevant considerations
The first asserted ground of review alleges that the Tribunal did not take into account relevant considerations or integers of the applicant’s claims and under para.2 provides particulars of this allegation. In particular, this ground says that the Tribunal failed to consider the pressure which the applicant had been put under by BJP and Janata Dal members, or his claim that opposition party members would kill him were he to return to India. However, the Tribunal did consider the applicant’s claims both as to their essential elements and also as to the various factual details which the applicant advanced in their support.
The difficulty which the applicant faces in these proceedings is that the Tribunal did not believe him. That is the basis upon which the Tribunal reached its decision. So it has to be concluded on the facts that the first asserted ground of review does not succeed as far as this element is concerned.
The first asserted ground of review contains an additional second element in which the applicant complains of having spent two hours being questioned without a break by the Tribunal as a result of which he felt stressed and intimidated. This is, in essence, an allegation that the Tribunal breached its obligations under s.425 of the Act and that the applicant was in some way unable to give the evidence which he wished to give the Tribunal or was unable to make the arguments and submissions in respect of his claims which he wished to present to the Tribunal. However, there is no evidence which would support such a conclusion. No evidence was given in Court today and no transcript of the Tribunal hearing has been tendered. The only evidence before the Court touching on this issue is what is contained in the bundle of Relevant Documents, and in particular the Tribunal’s summary of the hearing which took place before it, as well as the “RRT Hearing Record” reproduced at pp.52 and 53 of the bundle of Relevant Documents.
Nothing contained in the Tribunal’s decision record would suggest that the applicant was intimidated nor is there any record of him having complained of stress such that he was unable to present his case. Possibly that is because the Tribunal hearing did not last the two hours which the applicant alleges. The RRT hearing record discloses that the hearing commenced at 9:10am and finished at 10:15am. Certainly the applicant appears to have been asked a number of questions by the Tribunal. Given its concerns with the veracity of his claims that is hardly surprising. I cannot conclude that the applicant was intimidated or that there is any basis for him to allege that he was unable to present his case to the Tribunal in a way which would amount to jurisdictional error by reason of a breach of s.425 of the Act.
The paragraph numbered 2 in the amended application is not in reality a separate ground of review and is no more than supplementary to the first numbered ground of appeal.
Tribunal failed to investigate claims
Paragraph numbered 3 in the amended application alleges that the Tribunal failed to investigate the applicant’s claims. Except in exceptional circumstances which do not apply in this case, the Tribunal has no duty to make inquiries. It is for an applicant to put material before the Tribunal for its consideration. This asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Country information
The paragraph numbered 4 in the amended application reads as follows:
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 the all information for matter of reasoning and evaluation of my case for protection visa.
The weight which the Tribunal gives to the evidence which is before it is a matter purely for it. The role of fact finder in relation to review applications is a function reposed in the Tribunal. This asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Tribunal ignored relevant material
The fifth asserted ground alleges that the Tribunal ignored a relevant matter. This allegation is unparticularised and is really only a repetition of the first asserted ground of review and for the same reasons does not amount to a basis upon which the Tribunal’s decision may be set aside.
Tribunal applied the wrong test
The sixth asserted ground of review alleges that the Tribunal applied the wrong test and sets out two paragraphs of particulars containing a number of elements in this connection. In relation to the assertion that the Tribunal ignored individual elements of the applicant’s claims, this again is a repetition of the essence of the first asserted ground of review and fails.
The applicant next alleges that the Tribunal did not look at his claim as a whole, but that is exactly what the Tribunal did do.
The next assertion is that the Tribunal required independent corroboration of the applicant’s claims, but this is not so. The Tribunal’s conclusion on the factual allegations made by the applicant was one which the Tribunal was able to reach based solely on the evidence which the applicant gave when tested against independent country information. It was not a matter of the Tribunal requiring independent corroboration, because the Tribunal did not require this. It was simply a matter that the applicant was disbelieved.
The applicant next alleges that the Tribunal imposed on the applicant too great a burden of proof, but the Tribunal did no such thing. What the Tribunal needed was material and arguments before it which would satisfy it that the applicant met the criteria for a protection visa. Concepts of onus of proof, as that term is understood in the context of litigation, have no place in the operation of the Tribunal and the Tribunal’s decision demonstrates that it was not confused on this point.
The applicant next alleges that the Tribunal failed to give him the benefit of the doubt. However, in the context of this case there was no need for the Tribunal to do so. The “reasonable margin of appreciation” which is to be applied to any perceived flaws in the applicant’s evidence as referred to in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 557 would not avail the applicant here because of the Tribunal’s comprehensive rejection of his factual allegations. The Tribunal’s conclusions were based on sound logic and questions of the benefit of the doubt, while useful in some circumstances, have no practical value in this case.
Section 424A
The penultimate ground raised by the applicant is that the Tribunal breached s.424A of the Act. The Tribunal’s decision record reveals that the information upon which the Tribunal relied when reaching its decision was information which the applicant gave it at the hearing and independent country information. Both these categories of information fall within the exceptions found in s.424A(3) as a result of which the Tribunal had no obligations to serve a s.424A(1) notice.
Tribunal failed to properly apply the refugee test
The final ground pleaded in the amended application alleges that the Tribunal failed properly to apply the refugee test in that it failed properly to analyse the “future harm” the applicant might face were he to be returned to India. As the applicant’s factual allegations were disbelieved, there was no need for the Tribunal to apply the refugee test to his circumstances, notwithstanding that its decision record makes it clear that the Tribunal properly understood the tests which it would have had to apply, had there been proper factual bases for it to do so.
Conclusion
Jurisdictional error on the part of the Tribunal not having been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 5 May 2008
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