SZLKP & Anor v Minister for Immigration & Anor
[2008] FMCA 1598
•18 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLKP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1598 |
| MIGRATION – Visa – Protection (Class XA) 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 – applicants are citizens of India claiming fear of persecution for reasons of religion – credibility – where Tribunal found no Convention nexus – whether Tribunal failed to comply with Migration Act 1958 (Cth), s.424A – no reviewable error. |
| Migration Act 1958, ss.36, 91R, 424A, 474 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| First Applicant: | SZLKP |
| Second Applicant: | SZLKV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3040 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 November 2008 |
| Date of Last Submission: | 18 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2008 |
REPRESENTATION
| The First Applicant: | Appeared in person |
| Solicitors for the Applicants: | Not legally represented |
| Appearance for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $3,100.00.
I will allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3040 of 2007
| SZLKP |
First Applicant
| SZLKV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicants in this matter are citizens of India. They ask the Court to review a decision of the Refugee Review Tribunal that was handed down on 6th September 2007. The Tribunal affirmed the decisions of a delegate of the Minister not to grant the applicants Protection (Class XA) visas. In their amended application that was filed on 21st January 2008 the applicants seek the following:
a)A DECLARATION that the decision of the Refugee Review Tribunal is null and void;
b)A WRIT OF MANDAMUS directed to the Refugee Review Tribunal requiring it to re-hear and re-determine their application according to law;
c)A WRIT OF CERTIORARI quashing the decision of the Refugee Review Tribunal;
d)A WRIT OF PROHIBITION directed to the first respondent, the Minister for Immigration and Citizenship, preventing the minister from acting upon or giving effect to or enforcing the Tribunal decision.
I have explained to the applicants that in order to make the orders that they seek, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. The applicants have set out in their amended application three grounds of review:
a)First, they claim a failure to comply with s.91R and s.424A of the Migration Act;
b)Second, they again claim a failure to comply with s.424A of the Migration Act;
c)Third, they make a claim that initially refers to a finding of state of protection that goes on to attack a finding said to be by the Tribunal that the applicants could relocate safely within India.
The first respondent, the Minister for Immigration and Citizenship, has filed a response opposing the orders that are sought.
The background to this matter is that the applicants arrived in Australia on 17th March 2007. On 18th April in that year they applied for Protection (Class XA) visas. The basis of the application was set out in a statement headed, "Letter of Claim" that was submitted with the application for a visa. The first applicant in these proceedings, who is the husband of the second applicant, is the primary applicant for a visa. The second applicant, who is the wife of the first applicant, is a part D applicant who does not have her own claims to be a refugee, but applies as a member of the first applicant's family unit.
The statement by the first applicant submitted with the applications for protection visas referred to the first applicant having owned and operated a shop in Ahmedabad. Business was doing well, but in 2002 communal riots took place and the shop was looted and burnt by a mob. The first applicant settled down to re-establish his business, but times were tight and a fellow shop owner offered him finance through some relatives. Those people provided the finance, but they wanted a share in the business, and eventually their claims increased, making it very hard for the first applicant to make a living. The first applicant claimed that the people started harassing him by sending local gangsters to his shop to threaten him. He said:
My city is notorious for this type of gang and gang wars. It is well known that most of the people involved in crime related to gang war were from Muslim community. These people have connection with underworld people of Mumbai and international gangs, this is complete network run by some people who always harass businessmen to get money from them, this type of people coming to my shop, so I was very scared. After that, I was very much disturbed.[1]
[1] See Court Book page 34.
A delegate of the Minister refused the application for a visa on
18th May 2007. The delegate considered country information in arriving at a decision. The delegate accepted the first applicant is of the Hindu faith and resided in the state of Gujarat prior to coming to Australia. The delegate accepted that the applicant was the proprietor of a clothing business in Ahmedabad, but did not accept that the first applicant had a well-founded fear of harm being perpetrated against him by Muslims in the foreseeable future on the basis of Hindu, should he return to India. The delegate considered country information about the communal rights in 2002 and made this finding:
I also find that during the 2002 riots and the resulting caste and religious tension that has followed, the applicant may however have experienced harassment, threats and targeting from individual Muslims and Muslim gangs as claimed. I find however that this has been perpetrated at the hands of mostly non-state agents and no state can offer guarantees against all forms of harm, mistreatment or even death. In addition, I find that the Indian authorities (both state and federally) can and will afford adequate protection to the applicant in such circumstances. With India being an official secular state I am satisfied that there is no state sponsored persecution of Hindu’s in India with the applicant being able to enjoy all the religious, political and legal freedoms as that of the general population at large.[2]
[2] See Court Book page 89.
After the delegate had refused their applications for protection visas, the applicants applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal received their application by post on 12th June 2007. The applicants did not provide any further documentary evidence with their application for review. The Tribunal wrote to the applicants on 12th and 15th June acknowledging receipt of their applications, and wrote again on 25th July 2007 inviting them both to attend a hearing to take place on 22nd August in that year. The first applicant replied by completing a response to hearing invitation.
He indicated that he wished to attend the hearing and would like an interpreter in the Gujarati language. Unfortunately, the first applicant was not able to attend the hearing on 22nd August. He was living in the country town of Griffith, New South Wales, and he missed the plane. He sent a fax message to the Tribunal advising that he had missed the plane and asking the Tribunal to hold a further hearing, but in Griffith. The applicant provided a copy of his airline ticket, which showed that he was booked on a flight due to depart from Griffith at 6:30 am and arrive in Sydney at 7:50 am on 22nd August.
The Tribunal wrote to the applicant that day, and scheduled a new hearing on 3rd September 2007. The Tribunal did not accede to the application to hold the hearing in Griffith, and decided not to hold the hearing by way of a video conference. The first applicant attended the hearing on 3rd September 2007. The second applicant, his wife, did not attend, and it was noted on the RRT hearing record that she was sick.[3]
[3] See Court Book page 117.
The first applicant provided his passport to the Tribunal and the Tribunal took a copy of it. The first applicant gave evidence with the assistance of an interpreter in the Gujarati language. The Tribunal gave an oral decision which, according to the decision record at page 125 of the Court Book, was made on 3rd September 2007, and signed its decision on 5th September. The Tribunal posted a copy of the decision to the respondents by registered post on 6th September 2007.
The Tribunal affirmed the decision not to grant the applicants' Protection (Class XA) visas. In its decision record, the Tribunal set out the claims and evidence, and noted that the first applicant was a Hindu from Ahmedabad in Gujarat State. The Tribunal noted that the first applicant claimed a fear of persecution in India for convention-related reasons of religion. The Tribunal summarised the first applicant's evidence to the Tribunal hearing, and also set out references to independent country information relating to the Gujarat communal riots in 2002. The Tribunal quoted, in particular, from the United States Department of States Country Reports on Human Rights Practices for 2002 and set out a substantial quotation from that report, which can be found at page 129 of the Court Book.
The Tribunal, in its findings and reasons, accepted that the first applicant was a national of India, and accepted that he ran a clothing business near the central railway station in Ahmedabad from 2001 onwards. The Tribunal then went on to refer to the applicant's claims about the damage to his business in the communal riots of 2002, saying:
The Tribunal accepts that the applicant's business suffered substantial damage as a result of communal riots in 2002. The Tribunal accepts, on the evidence before it, that "religion" was a significant factor in the 2002 riots, but the Tribunal finds that the riots constituted an isolated event, and that it is not evidence of the applicant facing a real chance of convention-related persecution in the reasonably foreseeable future.[4]
[4] See Court Book page 132.
The Tribunal was of the view that the evidence showed that the applicant and his means of subsistence in supporting his family had significantly recovered from the riots. The Tribunal made a finding, however, relating to whether or not there was a convention nexus with the applicants' claimed harm. The Tribunal said:
Even if the Tribunal accepts the Applicant's claims about his investors and their gangster friends at face value, it would not be satisfied on the evidence before it that any Convention-related factors were the essential and significant factors for the harm feared. The Tribunal considered not only the factor of "religion" but also the Applicant's status of a private businessman with regard to the Convention-related "particular social group" factor. However, the Applicant's evidence leads the Tribunal to the conclusion that purely individual mercenary motivations, some of them individually criminal ones, are the essential and significant factor in the harm that the Applicant claims to have suffered or feared.[5]
[5] See Court Book page 132.
Having found that the applicant's claims of persecution were not convention-related, the Tribunal then considered the credibility of the applicant's evidence. On that subject, the Tribunal had this to say:
The Tribunal's overall conclusion, however, is that the Applicant has exaggerated and fabricated his claims about what happened to him after he re-established his business. Giving weight to the Applicant's oral evidence about the continuing viability of his business, and giving no weight to what it regards as his far-fetched claim about running the business out of his home without his partner's knowing, the Tribunal finds on the evidence before it that, whether or not there was an initial agreement with those partners, say in early 2005, about appropriate and timely disbursement of the business's takings, it did not lead to the Applicant having to change his life in any significant way.[6]
[6] See Court Book page 132.
The Tribunal expressed the view that the applicant was fabricating that part of his case; that he had invented a story about having been kidnapped; and that his story about a deadline having been imposed upon him had been improvised by the applicant at the hearing.
The Tribunal summed up its views about the credibility of the applicant's evidence by saying this:
On the crucial issues under review, the Tribunal simply does not accept the Applicant as a witness of truth.[7]
[7] See Court Book page 133.
The Tribunal was not satisfied that the applicant faced a real chance of convention-related persecution in India, and that the first applicant was not a person to whom Australia has protection obligations under the Refugees Convention. Thus, the first applicant did not satisfy the criterion set out in sub-s.36(2)(a) for a protection visa.
The Tribunal then considered the situation of the second applicant, who had made no specific convention claims and relied on being a member of the first applicant's family unit. The Tribunal said this:
As the first named Applicant cannot be granted a protection visa, it follows that the other Applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.[8]
[8] See Court Book page 133.
After the Refugee Review Tribunal affirmed the decision not to grant them protection visas, the applicants commenced proceedings in this Court on 2nd October 2007. On 21st January 2008 they filed an amended application upon which they rely today. The lawyers for the minister filed written submissions on 1st April 2008. On 21st August 2008 the matter came before Howard FM. Neither applicant attended personally. The first applicant attended by telephone. His Honour adjourned the application for directions before me, and made this order:
The First Applicant must appear personally in Court on the adjourned date. The Second Applicant must be available to appear by telephone-link. If the First Applicant fails to appear personally on 20 October 2008, the matter will proceed in the absence of the parties and final orders will be made.
The matter came before this Court for directions on 20th October 2008. The first applicant appeared in person, and the application was listed for final hearing today. The first applicant has again attended in person before the Court today. Upon inquiry from the bench, he informed the Court that he had authority to make submissions on behalf of his wife, the second applicant. In the circumstances, I consider it unnecessary either for the second applicant to attend Court personally or by telephone.
The applicants have not filed any written submissions, but the first applicant made oral submissions with the assistance of an interpreter in the Gujarati language. His submissions concentrated on his dissatisfaction with the Tribunal's decision and his belief, which he is entitled to hold, that the Tribunal decision is wrong. He referred to some difficulty with hearing dates, but I note that the first applicant was able to attend the second hearing before the Tribunal, where he gave evidence and, indeed, he has certainly complied with the directions of Howard FM that he should appear personally in Court. He has done so, and he has arrived punctually on each occasion.
Ms Whittemore, who appeared for the Minister, relied on the written submissions filed on 1st April, and submitted that the first applicant was essentially seeking merits review of the Tribunal decision.
Her submission was that the first applicant was taking objection to the factual findings of the Tribunal. And, of course, it is well established that a Court conducting judicial review does not re-consider the factual evidence and make its own decision on those facts. Provided that there is evidence upon which those factual findings can be made, there is no scope for a Court conducting judicial review to intervene.
The lawyers for the Minister are somewhat critical of the grounds set out in the amended application. They say:
The amended application is formulaic and a familiar precedent to the Court although there is no indication on the face of the document that assists in identifying the author or source of the document. The grounds of the amended application do not appear to relate to the Tribunal decision in this matter.
The Minister's submissions in respect of the grounds may perhaps be summarised in this way:
a)No particulars are provided of the alleged breach of s.91R of the Act and, in any event, the Tribunal did not make any findings as to whether or not the harm the applicants claim to fear was sufficiently serious to amount to persecution or involved systematic or discriminatory conduct;
b)There is no breach of s.424A of the Migration Act which, in any event, has not been particularised, and the Tribunal's decision was essentially based on its inability to be satisfied on the information before it that the applicants had suffered any harassment, persecution or harm for a convention-related reason. As the basis for the Tribunal's decision was the Tribunal's thought processes, the Tribunal was not required to send a s.424A letter;
c)The applicants claim that the Tribunal did not apply the correct test of relocation principles is misconceived because the Tribunal did not make a relocation finding and did not consider the issue of relocation. It is submitted on behalf of the minister that no jurisdictional error has been made out.
The Tribunal based its decision on:
a)Its determination that the applicant's claims of harm suffered by him in India were not convention-related; and
b)Its findings that his evidence was not credible on the crucial issues under review.
Issues of credibility are essentially a matter for the administrative decision maker and, provided there is evidence upon which the Court can see that the credibility decision was open to the Tribunal, the Court has no power to intervene in a credibility finding. It is trite law that credibility findings are factual findings and matters for the Tribunal par excellence, Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham.[9] The issue also of whether or not the harm feared as a convention nexus is a factual issue. It is a matter for the Tribunal.
[9] (2000) 168 ALR 407; [2000] HCA 1 per McHugh J at [67]
Turning to the individual grounds, ground one alleges a failure to follow both s.91R of the Migration Act and s.424A. The applicant claimed that the Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion. The applicant made no claim to having been persecuted for his political opinion. The Tribunal considered persecution on the grounds of religion and also membership of a particular social group, but was not satisfied that the harm claimed, even taking the applicant's evidence at its highest, established a sufficient relation to the Refugees Convention. Accordingly, there is no breach of s.91R of the Migration Act.
The applicant claims a breach of s.424A of the Migration Act and refers to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.[10] The applicant claims there was certain information used by the Tribunal, without providing an opportunity to respond. He claims that the adverse information was not given by him for the purpose of review. He says the information was given for protection visa claim purposes to the delegate in deciding a protection visa. He further claims that the Tribunal did not disclose that information in accordance with s.424A(1) of the Migration Act.
This ground is misconceived. The Tribunal based its findings on the applicant's evidence to the Tribunal and perusal of independent country information, particularly relating to the communal riots in 2002.
That information does not fall within the purview of sub-s.424A(1) of the Migration Act. It falls within the exception in sub-s.424A(3) of the Act. That subsection specifically says this:
[10] [2005] HCA 24
This section does not apply to information:
(a)That is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)That the applicant gave, for the purpose of the application for review, or
(a) That the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the department; or
(c)That is non-disclosable information.
It can be seen that there was no information used by the Tribunal as the reason or part of the reason for affirming the decision under review that was not covered by one or other of those paragraphs of subsection 424A(3). There is no breach of subsection 424A(1) of the Migration Act. Grounds one and two fail.
Whilst there is some substance in the Minister's submission that the grounds given in the amended application do not relate to the applicant's case, ground three appears to relate not to the Tribunal decision at all but perhaps to the delegate's decision. It is well established, of course, that the Court's function is to review the decision of the Tribunal and not of the delegate. Ground three says this:
The Tribunal has importantly dealt with the aspect of the applicant's claim relating to state tolerance and complicity of the applicant's religion and membership of a particular religion or social group and, as a result of all, he faced financial hardship to whom the Australia has protection obligation as a member of such group and, therefore, the Tribunal's decision was involved jurisdictional error and failure of jurisdiction or misapplication of law and procedure. The Tribunal conclude that the applicant can relocate in other parts of India and, therefore, did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN Convention and, therefore relocation principles is not the correct test by the Tribunal. Therefore, misapplying the law is, in fact, failure of the Tribunal's jurisdiction. The matter should be remitted to the Tribunal for further determination and to decide in accordance with the law and procedures.
The Tribunal did not make a relocation finding at all. The delegate made a relocation finding:
Whilst I note there is no objective basis for the harm the applicant claims to fear in Gujarat, I find that should the applicant hold any subjective fear of returning to Gujarat, he can however reasonably relocate to another part of the country.[11]
[11] See Court Book page 90.
As I have said, the Court is not reviewing the delegate's decision.
The Court is reviewing the Tribunal's decision. The Tribunal did not make a relocation finding. Ground three is entirely misconceived and it would be easy to arrive at the conclusion that all three of the grounds in the amended application were prepared by someone who had not read the Tribunal decision at all. The applicant's grounds of review fail. I am aware of the fact that the applicant is not legally represented. My own independent reading of the Tribunal decision and the supporting material contained in the Court book does not indicate to me any arguable case of jurisdictional error. It was unfortunate that the first applicant missed the plane and thereby missed attending the first hearing. However, he quite properly advised the Tribunal of that fact on the day of the hearing and the Tribunal, equally properly, adjourned the hearing to another day. The first applicant was able to attend the hearing, and did so. He gave evidence with the assistance of an interpreter in the Gujarati language, which was the language that he had specified. The Tribunal considered all aspects of the applicant's claim, and I cannot see any failure to take any relevant consideration into account. I am satisfied that no jurisdictional error appears in the Tribunal decision.
Because there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Under subsection 474(1) of the Act, privative clause decisions are final and conclusive, and are not subject to the remedies of declaration, mandamus, certiorari or prohibition, which the applicants seek. It follows, then, that the application must be dismissed, and I will hear you please, Ms Whittemore, on costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 November 2008
0
3
1