SZLMK v Minister for Immigration
[2008] FMCA 1372
•3 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1372 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLMK”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424, 424A |
| ApplicantWAFV of 2002 v Refugee Review Tribunal [2003] FCA 16 Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) FCA 558 Dan v Commissioner of Taxation (Cth) [No 2] [2000] FCA 752 Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigraton & Multicultural Affairs v Jia Legeng [2001] HCA 1 NACB v Minister for Immigration [2003] FCAFC 235 NATC v Minister for Immigration [2004] FCAFC 52 O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 Refugee Review Tribunal, re; ex parte H (2001) 179 ALR 425 SBAP v Refugee Review Tribunal [2002] FCA 590 SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 SZJZV v Minister for Immigration & Anor [2007] FMCA 2013 VFAB v Minister for Immigration [2003] FCA 872 |
| Applicant: | SZLMK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3192 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Malayalam interpreter. |
| Counsel for the Respondents: | Ms N. Tondl (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 15 October 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3192 of 2007
| SZLMK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant was born in 1985 in Kerala, India. He claims that he was persecuted in India due to his “political opinion” and his Muslim faith.
The applicant claims that he and his brother were attacked by the ABVP (Akhil Bharatiya Vidyarthi Parishad), the student wing of the national BJP (Bharatiya Janata Party). He claims they were both hospitalised, his brother died and he never finished his studies because of this. Further, he claims that his family home was attacked by the ABVP and suggests this was due to “religious bigotry” because the home was near a Hindu temple.
The applicant initially claimed that he was harassed by the ABVP because he refused to join them. However, at the Refugee Review Tribunal (“the Tribunal”) hearing held on 20 September 2007 he claimed that he was harassed due to his membership of the Muslim Student Federation (MSF).
The applicant’s passport indicated that it was issued on 26 April 2004, that he travelled to the United Arab Emirates from 26 December 2005 to 19 February 2006 and that he had departed India for Australia on 9 April 2007. At the Tribunal hearing, the applicant also claimed that he came to Australia with a cricket team. The applicant claims that he went to the UAE seeking protection and returned to India when this was unsuccessful.
The applicant applied to the Department of Immigration for a Protection (Class XA) visa on 19 April 2007. A delegate of the Minister refused to grant the visa on 31 May 2007 and the applicant was notified of this by letter dated 31 May 2007. On 27 June 2007, the applicant applied to the Tribunal for review of the delegate’s decision. On 20 September 2007, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. On 15 October 2007, the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision (reference number 071533094).
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date, the applicant indicated to the Court that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of their appeal. The applicant was allocated a panel advisor.
The Tribunal’s decision and reasons
The applicant was invited and attended a Tribunal hearing conducted on 20 September 2007. The Tribunal gave oral reasons on the day and signed its decision on 28 September 2007. It affirmed the delegate’s decision for the following reasons:
a)The Tribunal accepted that the MSF existed and operated in Kerala and that it was in opposition to the ABVP. However it did not accept this alone gave rise to the applicant facing a real chance of persecution in India. It also did not accept that the applicant was a member of, or ever had any significant involvement with, the MSF (CB 88.2).
b)The Tribunal rejected the applicant’s supporting documents as fraudulent (CB 88.3) and did not accept that they were “false evidence of true circumstances” on the basis of his evidence (CB 88).
c)The Tribunal was confident about its dismissal of the applicant’s political activities for the following reasons:
i)The applicant’s evidence about his circumstances relating to his two instances of travel outside India;
ii)The applicant’s evidence about returning to India voluntarily and safely in 2006; and
iii)The applicant’s claim about always having resided in Kerala, even when he was looking for work after finishing school and college (CB 88.4).
d)The Tribunal found on the applicant’s own omission that the medical evidence produced in support of his claim of being attacked for political/religious reasons was unreliable (CB 88.5).
e)The Tribunal found that the medical evidence “forms a pattern” with the documents produced as proof of his membership of the MSF, both of which were damaging to him (CB 88.5).
f)The Tribunal gave no weight to the applicant’s claim that the ABVP tried to recruit him or that it or any other relevant organisation, person or party took an interest in him (CB 88.6).
g)The Tribunal gave no weight to the applicant’s claim that the police falsely charged him (CB 88.7).
h)The Tribunal was prepared to accept that the applicant’s brother was deceased, however, due to his lack of credibility, it gave no weight to his claim as to the circumstances in which his brother died (CB 88.7).
i)The Tribunal considered the applicant’s failure to comment on or rebut a number of potentially significant adverse positions put to him at the hearing going to his claimed fear of returning to India and residing in Kerala. It concluded that his case was a fabrication based on the applicant’s silence (CB 88.8).
j)The Tribunal found that the applicant’s travel to Australia was out of an interest in cricket and that whatever other interest he had in joining the team, they were not Convention related. It did not accept the applicant’s claim about being motivated to leave India for fear of persecution (CB 89.1).
k)The Tribunal gave weight to the applicant being able to reside in Kerala where he could entertain the notion of a normal life, complete his studies and look for work in his home town (CB 89.2).
Ultimately, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason (CB 89.3).
Consideration
Despite granting leave for the applicant to file and serve an amended application with complete particulars of each ground of review relied upon by 21 January 2008, nothing has been filed. The original application filed on 15 October 2007 recites grounds in standard form that are frequently pleaded in this Court by migration applicants from the Indian subcontinent. The result is that the grounds of review do not specifically address the issues raised by this Tribunal decision but are general grounds of administrative review only broadly applicable to matters that arise in the migration jurisdiction. The grounds pleaded are generally not understood by the applicants and have not been appropriately amended to the particulars of their claims contained in their visa applications.
Ground one
The Tribunal failed to accord procedural fairness under s.424 of the Migration Act 1958 as considered by the full Federal Court in NARV v MIMIA (2003) FCAFC 262 insofar as the Tribunal relied in Independent evidence as to the prevalence of claim 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 of systematic nature.
Section 424A of the Migration Act provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) 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
(ba) 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.
In accordance with the above section the delegate and the Tribunal would give me particular 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 reason for the Tribunal decision. The Tribunal mentioned to me the adverse information to decide my case neither at the time of review nor afterwards.
This ground alleges that the Tribunal failed to “accord procedural fairness” under s.424 of the Migration Act 1958 (Cth) (“the Act”). The ground then goes on to cite s.424A of the Act and states that “in accordance with the above section, the delegate and the Tribunal would give me particular(s) of the Independent information as to claims based on ‘adequate state protection to me’”.
This ground demonstrates a lack of understanding by the applicant who confuses and misunderstands of the operation of s.424 and s.424A of the Act. The Tribunal did not issue the applicant a letter under s.424. The reference to s.424 is a copying error and in fact appears in all versions of this ground in different applications to this Court.
The applicant claims that independent information as to “adequate state protection” was not disclosed to him pursuant to s.424A of the Act. Ms Tondl, for the respondents, submits that information in respect of the adequacies of state protection falls within the exception in s.424A(3)(b) such that there was no breach of s.424A in this regard.
Ground two
2. That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or ‘integers’ central to the applicant’s claim;
This claim is made without any particulars, written or oral submissions that identify what the relevant considerations or “integers” are. Ms Tondl submits that the Tribunal clearly considered the applicant’s claim that he was harassed and intimidated by the ABVP because of his involvement with the MSF, that he was assaulted on several occasions and that he would be killed by the ABVP if he returned to India. However, it simply did not accept that he was a member of, or had any significant involvement with, the MSF and gave no weight to the claim that the ABVP showed any interest in him. The Tribunal’s “Findings and Reasons” states:
On the evidence before it, the Tribunal accepts that the Muslim Student Federation exists and operates in Kerala state. The Tribunal accepts that the MSF and the ABVP would not have common political grounds and that their respective members might clash occasionally depending on individual circumstances pertinent to individual places and times. However, the Tribunal does not accept that this general fact on its own gives rise to the applicant facing a real chance of persecution in India. Although the Tribunal accepts that the applicant is a Muslim, based on his name, the Tribunal does not accept on the evidence before it that the applicant was a member, or ever had any significant involvement with, the Muslim Student Federation. The Tribunal finds that all the documents relating to the applicant’s supposed political activities to be fraudulent, especially given the presence of a blank version of the letterhead and “alternate versions of the membership receipt”.
Ground three
3. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular of grounds
(a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from ABVP because of his involvement with Muslim Students Federation.
(b) In relation to above the Tribunal did not consider the applicant’s claim that the opposition party members will kill him if he returns to India.
The applicant’s original visa application claims that he was assaulted on a number of occasions by ABVP Goondas. The applicant recounted incidents in which he was set upon by ABVP workers and supporters. These claims were also conveyed to the delegate with an initial explanation that the attacks were motivated by the applicant’s refusal to join the ABVP. The Tribunal decision states under the sub-heading “Claims and Evidence”:
At the RRT hearing conducted on 20 September 2007, the applicant introduced the claim that he was a member of the “Muslim Students Federation”. He claims that this was why he was being harassed by the ABVP, rather than just because he refused to be recruited into the Hindu national BJP student wing. It is not clear why a student group aligned with a Hinduist party that was and is friendly with the RSS would take such trouble to try and recruit a Muslim. (CB 84.5)
The Tribunal then proceeded to question the applicant on various aspects relating to his delayed departure from India to travel to the UAE and why he returned to Kerala when he claims it is not safe to return. It then explored details in respect of his membership of the MSF and the apparent inconsistencies in his claims and supporting evidence. The Tribunal simply did not accept that the applicant was a member of or had any significant involvement with the MSF and gave no weight to the claims that the ABVP showed any interest in him. Ms Tondle submits that no error arises from the Tribunal not accepting that he was a member of the MSF or that the ABVP showed no interest in him.
Ground four
4. I have given adequate evidence to the Tribunal that I was physically assaulted on several occasions but the Tribunal member failed to consider.
The Tribunal decision states:
The applicant, a Muslim who comes from Kerala state, claimed to the department that when he was a student he suffered serious harassment from members of the ABVP, the student wing of the national party called the BJP. He claimed his harassers tried to force him to join the ABVP. He said that in connection with the harassment against him the police forcedly charged him. He said no action had been taken against him since the police lay charges.
The applicant claims to the department that he was travelling with his brother one day when ABVP members attacked him and his brother. He claims both were hospitalised. He claims that his brother died as a result of the attack. He said this prevented him from finishing his studies. He claimed the friend then told him he could seek protection in Australia.
The applicant told the department that his family home was attacked one day after his school team won a match against another school. He said the ABVP heard of the attack by the other team and joined in. He suggested his family had a house near a Hindu temple had something to do with it, implying the attack was an incident of racial bigotry. He complained to the authorities but received no help because he indicated, the police in Kerala were under the influence of ABVP. (CB 82.5)
While the Tribunal accepted that the applicant’s brother was deceased, it did not accept or give any weight to the majority of the applicant’s claims and clearly articulated each element of this rejection. This conclusion was open to the Tribunal and no error arises from the findings in this regard. The Tribunal found that the applicant’s evidence did not support the suggestion that on either occasion he was forced to flee India for his safety. Ms Tondl submits that grounds two, three and four amount to an attempt by the applicant to seek a merits review of the Tribunal decision – a task which this Court cannot engage in: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Ground five
5. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if she asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
Section 91R(2)(a) refers to a threat to a person’s life or liberty amounting to serious harm for the purposes of the Act. A consideration of this would only arise if the Tribunal accepted that the applicant had a well-founded fear of persecution for a Convention reason and it was necessary to consider whether such feared harm amounted to serious harm. The other element of the claim is that the Tribunal failed to properly consider whether the applicant would suffer serious harm if he relocated. However, the issue of relocation was not raised during the hearing and was not part of the ultimate findings of the Tribunal. A review of the decision and the material contained in the Court Book make no reference to relocation in respect of this matter. This is a further example of the use of formulaic grounds without an understanding of the issues addressed in the Tribunal’s decision. This error is further emphasised by the fact that gender of the applicant in this ground has not been amended as part of the copying exercise. The grounds pleaded originally apparently applied to a female applicant. I agree with Ms Tondl’s submission that this allegation is entirely without basis.
Ground six
6. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weight against my case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International Country Information.
Ms Tondl submits that the applicant appears to complain about the general nature of the country information. However, this does not amount to a reviewable error, see SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16] per Hely J:
[16] I cannot accept these submissions, because it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.
A special leave application to the High Court in that matter was refused on 27 April 2005.
The applicant complains that the Tribunal failed to consider the “Amnesty International Country Information” but there is nothing in the decision or the Court Book that indicates that he brought any such information to the attention of the Tribunal for consideration. This again reflects the blind copying of grounds from other pleadings.
The applicant’s claim that the Tribunal failed to “have a fresh look” is, at its highest, an attempt to raise an allegation of bias. Ms Tondl submits that this is not arguable on the face of the Tribunal decision. An allegation of bad faith or bias must be proved other than by perusing the face of the record: O’Toole v Charles David Pty Ltd (1991) 171 CLR 232. A claim of this nature necessitates proof of extreme circumstances: Dan v Commissioner of Taxation (Cth) [No 2] [2000] FCA 752 at [34]; Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) FCA 558 at [36]. An example of this is dishonesty: ApplicantWAFV of 2002 v Refugee Review Tribunal [2003] FCA 16; SBAP v Refugee Review Tribunal [2002] FCA 590. It is a serious allegation that should not be made lightly: Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807. This claim has been made in the absence of particulars, evidence or submissions to support the assertion.
Ms Tondl submits that there is also no evidence to establish apprehended bias. There is nothing on the face of the decision to indicate that the Tribunal had a mind “incapable of alteration” (Minister for Immigraton & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [35] and [72]) or that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Refugee Review Tribunal, re; ex parte H (2001) 179 ALR 425 cited by Kenny J in VFAB v Minister for Immigration [2003] FCA 872.
Ground seven
7. The Tribunal had acted illogically when concluded that “The Tribunal finds that the applicant is an unreliable in the present matter and is not satisfied that he faces a real chance of Convention related persecution in India. He 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:
(a) I was the active member of the Muslim Student Federation;
(b) I had been harassed and tortured by the ABVP;
Illogicality in and of itself does not constitute jurisdictional error: NACB v Minister for Immigration [2003] FCAFC 235 at [22]-[29]; NATC v Minister for Immigration [2004] FCAFC 52 at [25]-[27]. The applicant alleges that the Tribunal failed to “weigh properly” the effect of the evidence that he was an active member of the MSF and that he had been harassed and tortured by the ABVP. Ms Tondl submits that the Tribunal clearly considered each of these claims and disbelieved or gave no weight to them. Similar to grounds two, three and four, this is an attempt by the applicant to cavil with the merits of the Tribunal decision. There is no basis to the claim that there is a legal error which may be established by reason of irrationality or illogicality in the Tribunal’s findings: Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] per Gleeson CJ.
Ground eight
8. The Refugee Review Tribunal a failed to act that the applicants satisfy the definition of ‘Refugee’ as defined in Article 1(A)(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 return to his country his life would be in danger.
The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The applicant fulfils this.
The fourth element – the fear of persecution for a Convention must be a “well founded” fear. The applicant fulfil all the four elements.
The Tribunal, which has described these in its decision, have failed to take a note of this.
This ground contends that the Tribunal erred in failing to find that the applicant met the necessary requirements under the Convention to be a refugee. He asserts that the Tribunal failed to “analyse properly” the future harm he may face if he returns to India and that the Tribunal did not carry out the “real chance” test.
Ms Tondl submits that there is no merit in the claim that the Tribunal failed to analyse any “future harm” the applicant may face if he returns to India or that it failed to apply the “real chance” test. The Tribunal entirely rejected the applicant’s claim regarding the harm he allegedly suffered in India in the past. In doing so it concluded that the applicant did not face a risk of persecution in India for any of the reasons claimed. It is evident that the Tribunal was referring to the risk of persecution in the future. Consequently this claim cannot succeed: SZJZV v Minister for Immigration & Anor [2007] FMCA 2013 at [54].
Conclusion
The applicant in these proceedings was a self represented litigant who appeared with the assistance of a Malayalam interpreter. The Court provided the applicant with a panel advisor and granted him leave to file an amended application but, as at the date of hearing, he had not availed himself of this opportunity. The application contained formulaic grounds of review frequently pleaded in this Court in the recent past. As I have noted in other decisions, there are numerous errors in the drafting of all versions of the document and the grounds refer to material that does not appear in either the Court Book or the Tribunal decision. The applicant relied entirely on his original application, which other than addressing general issues in administrative review proceedings, was of little relevance to this Tribunal decision. Unfortunately the applicant did not provide any written submissions and was unable to make any meaningful submissions during the hearing.
Ms Tondl, for the respondents, assisted with written and oral submissions in response to the application. I am satisfied that the issues identified in the application have been satisfactorily addressed. In the circumstance, the Court is obliged to independently consider whether any argument based on the material contained in the Court Book or the Tribunal decision supports a claim of jurisdictional error not identified in the proceedings. I have reviewed the material available and I am satisfied that it is not apparent that any other ground of review exists which would suggest the Tribunal made a jurisdictional error in its decision-making process. Consequently the applicant’s claim should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 3 October 2008
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