SZLMY v Minister for Immigration
[2008] FMCA 963
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 963 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Court not empowered in judicial review proceedings to review the Tribunal’s factual findings nor its decision on the merits of the application before it – Tribunal did not fail to consider the evidence which was before it – Tribunal not required in its decision record to refer to every piece of evidence or every argument which is before it – no breach of the rules of natural justice as codified by s.422B of the Migration Act 1958 – Tribunal does not need to have found a negative case against an applicant before it can affirm the delegate’s decision. |
| Migration Act 1958, ss.65, 422B, 424A, 425, 430, 474, 476 Federal Magistrates Court Rules 2001, r.13.03A |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLMY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3230 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 May 2008 |
| Date of Last Submission: | 17 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| No appearance by the Applicant |
| Counsel for the Respondents: | Mr Y. Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3230 of 2007
| SZLMY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India and claims to be a Sikh. He alleges that while in India he was actively involved in the Khalistan movement and was thereafter subject to ongoing police harassment. He left India and arrived in Australia on 22 March 2007.
The applicant claims to fear persecution in India because of his active involvement in the Khalistan movement.
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.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 – 11 of the Tribunal’s decision (Court Book (“CB”) pages 104 – 111). Relevantly, they are in summary:
Protection visa application
In his protection visa, the applicant made the following claims:
a)he is an Indian citizen and is of Sikh religion;
b)he fears persecution by the Indian government, Indian and Punjabi police and the Indian political authorities;
c)he was actively involved in the Khalistan movement which sought to form a separate Sikh state in India. In 1985 he went to Iraq because of the bad conditions in India and returned a few years later. He thought that the situation might have improved but realised that things were worse than before;
d)his name is in the police records. In March 1992 the police raided his house and asked him about the whereabouts of Sikh extremists. He refused to provide the police with any information and he was badly tortured;
e)in April 1992 the Punjab police kidnapped his 5 year old son and demanded information and money for his return. He not able to provide all the details and his son was killed;
f)in August 1992 the Nawanshahar police arrested him and his father and brother and they were physically tortured. They were then handed to the Jalandhar police for further investigation. The applicant’s family sold their land in order to pay for the legal fees and to bribe the police;
g)the police continued to harass him and his family. His brother died of a heart attack because of the constant harassment; and
h)in 2005 he was arrested once again and his family advised him to go overseas.
Tribunal hearing
At the hearing before the Tribunal on 9 August 2007, the applicant made the following additional claims:
a)as a member of the Khalistan movement, he would be the first person questioned by the police if anything happened. If he was not around to be harassed, the police (both uniformed and plainclothes) would harass his children;
b)the risk he now faces stems solely from his past involvement with the Khalistan movement. This was the only reason that the police were making trouble for him and his family;
c)he tried to move to another location. He went to Delhi where his child was subsequently kidnapped and killed;
d)
in 2005 he left his job as an inspector for a bus company as he feared police harassment. After this time he went into hiding.
He moved around and lived with relatives and would stay away from the family home for 15 days to one month. He would come back for around one week and then, when the police were likely to come, he would escape out the back door. He did not work during this period;
e)
in 2002 a child was murdered and he was named as a suspect.
He is a suspect in any incident that occurs nearby. Later, the people who killed that child phoned the applicant to tell him that they had in fact meant to kill his son. The applicant did not know who these people were but feared for his safety;
f)
he was involved in the activities of the Khalistan movement and the Sikh Students’ Federation during the 1980s but was not involved in any killings, bombings or any other terrorist activities. He would just propagate their religious beliefs.
The applicant ceased his involvement after the death of the Sikh leader Saint Bhindrawala in 1985;
g)after the police raid on his family, the applicant spent one month behind bars and was asked to confess. His son was killed about a month later while the applicant was hiding somewhere. He stated that he was working and hiding in Delhi during this time;
h)a man named Bakshish Singh was suspected of murdering the applicant’s son. In 1992 Bakshish Singh was killed. The applicant’s father was charged with his murder but was later acquitted;
i)the applicant, his father and brother were detained for about one month after Bakshish Singh’s daughter-in-law put their names forward as suspects in the murder. They were then sent to the gaol in Jalandhar for three months. They paid a bribe of 20,000 rupees to the local police and were released;
j)the regularity of police harassment depended on the bribe he paid. He was harassed at least once a year, sometimes more;
k)he was arrested and detained on several occasions between 1992 and 2005. He was accused of many different crimes during this time but the elders of his village would go to the police and tell them that he was innocent;
l)he did not seek protection visa status in 2003 when he came to Australia to visit his sister because he was not in any serious danger at that time;
m)he was arrested in 2005 because of a bank robbery nearby but was released after he gave the police 10,000 rupees;
n)his lawyer in India told him that the police were still investigating the murder of the child in 2002 and were still looking for him;
o)he is also being sought in relation to possible terrorism offences and the murder of two political personalities. He has not been questioned about the latter because he had been in hiding for some time and escaped before they managed to question him;
p)he obtained his passport and had it renewed in 2007 by bribing the police;
q)he had no difficulties in leaving India;
r)he decided to seek refugee status after he arrived in Australia; and
s)it would be difficult for him to live elsewhere in India as his data has been entered into the police computers and they would look for him wherever he would go. He tried to change his appearance but he was still recognised.
The applicant also provided several documents to the Tribunal.
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)the Tribunal found that the applicant had not been truthful in his evidence about those experiences in India central to his claims, noting that:
i)he gave inconsistent evidence about “a simple proposition”, being whether or not his family owned a property in Delhi;
ii)his claim that he was both working and “in hiding” at the time of his son’s death was inconsistent and implausible;
iii)he gave evidence that he was in hiding after events in 2005 yet had his passport renewed in 2007, which involved the payment of a fee and the visit of a police officer to his home to whom he had to pay a bribe. The Tribunal found it inconsistent and implausible that he could be in hiding from the police but in this time also be welcoming a police officer at his door in order to get a passport;
iv)he claimed that he suffered ongoing harassment from the police from 1992 onwards and was detained on a number of occasions yet, in spite of this, the applicant stayed in Australia from March to April 2003 and did not seek refugee status. The Tribunal found his inaction in seeking asylum inconsistent with his claims of ongoing harassment;
v)his explanation for not seeking asylum in 2003, being that his parents and his wife had told him that things were alright and that it was safe for him to return, was both inconsistent and implausible; and
vi)the Tribunal was not satisfied that any events involving police harassment or arrest occurred in 2005, given that:
·the Tribunal had doubts about the truthfulness of the applicant’s claim that he suffered ongoing police harassment from 1992 onwards; and
·the applicant did not provide any details of the police harassment so severe that it had earlier caused him to leave his job, details which the Tribunal expected would be firmly cast in the applicant’s mind;
b)the applicant’s inconsistent and implausible evidence caused the Tribunal to doubt his credibility in respect of all his claims of persecution;
c)in relation to the documentary evidence provided by the applicant in support of his claims, the Tribunal found that:
i)while the death of his son in 1992 was supported by newspaper articles, the applicant provided no evidence which suggested police involvement. Further, when questioned by the Tribunal at the hearing the applicant stated that he was not sure whether the police killed his son. The Tribunal noted that the involvement of police in his son’s death was central to the applicant’s claim that he was persecuted;
ii)documentary evidence relating to the death of his son and the death of Bakhshish Singh submitted by the applicant suggested that there was a dispute between families in the applicant’s home town. The Tribunal concluded that the evidence did not assist the applicant’s claims in that:
·even if the documents were accepted as genuine, it would only lead the Tribunal to find that there was a serious dispute between families in the applicant’s home town; and
·it did not support the applicant’s claim that his son was killed by or on behalf of the police as part of a pattern of victimisation and harassment, or that Bakhshish Singh was killed by the police or that the applicant and his family were wrongly accused of his murder;
iii)the statement relating to a child’s death in 2002 did not assist the applicant’s claims as it made no reference to the applicant being involved in, or suspected of, this crime;
iv)the letter from an Indian lawyer dated 2 April 2007 was not authentic and was contrived to address the delegate’s concerns, noting that:
·the contents of the letter contradicted the independent country information which suggests that persons involved in the Sikh Students’ Federation and the Khalistan movement would not be of interest to the Punjabi or Indian authorities unless they were a “high profile” criminal; and
·the letter was not before the delegate when he made his decision on 16 May 2007.
The Tribunal thus gave no weight to this letter;
v)the letter from the applicant’s daughter postmarked 19 July 2007 was not before the delegate when he made his decision, thus raising concerns that it was contrived to address the delegate’s concerns about whether the applicant was currently at risk from the Punjabi and Indian police. The Tribunal concluded that even if it were to accept the letter as genuine, it was “so vague and lacking in detail” that the Tribunal could place no weight on it;
d)The Tribunal accepted that:
i)the applicant is a Sikh from the Punjab;
ii)the applicant’s son was killed in 1992 and that a person named Bakhshish Singh, a suspect in his son’s death, was also killed in that year and that the applicant and his family were suspects in that killing;
iii)in relation to the death of Bakhshish Singh, it was likely that the applicant, his brother and his father were arrested and held in one month’s detention and then held in prison for three months in 1992 as claimed;
iv)the applicant came to Australia in March 2003 for a visit and did not claim asylum at that time; and
v)the applicant’s claim of persecution was based solely on his membership of the Khalistan movement rather than because he is a Sikh;
e)the Tribunal accepted that the circumstances surrounding the death of the applicant’s son and another man may have indicated a risk of serious harm to the applicant at that time. However, even if the Tribunal were to accept that a risk of harm still existed on that basis, it was not satisfied that this would be persecution for Convention reasons;
f)the Tribunal was not satisfied that the police were involved in any way in the killings or that any violence that occurred between the families in or near the applicant’s village was for Convention reasons;
g)based on the various inconsistencies and implausibilities identified by the Tribunal and its conclusion that the evidence of the applicant was generally not credible, the Tribunal stated as follows:
The Tribunal does not accept that the applicant was a part of the Khalistan movement or a member of the SSF in the early 1980s, that he had to go to Iraq to escape police persecution for that reason in 1985, that the applicant’s son was kidnapped and killed by or on behalf of the police in 1992, that he was subject to regular police raids, detention, imprisonment, threats and torture after his return to India in 1992 up until his leaving India in 2007, that he was the suspect in a child murder in 2002, that he was forced to leave his employment because of police harassment in 2005, that he was arrested for an alleged robbery in 2005, that he was in hiding from the Indian and Punjabi police from 2005 onwards or that he, or his family, is presently at risk of persecution from the Punjabi and Indian police should he return to India. (CB 119-120)
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
(2)The decision was an improper exercise of the power conferred by the Act or the Regulations.
By a faxed letter dated 28 April 2008 the applicant advised the Court and the first respondent’s solicitors that he was at that time in Perth and unable to attend Court and could not fund a solicitor to appear for him. Under cover of that letter the applicant supplied written submissions and asked that the Court decide the application in his absence. In those submissions the applicant raised further grounds, namely:
a)the Tribunal failed to observe procedures required by the Act or regulations;
b)the Tribunal breached s.476(1)(b) of the Act;
c)the Tribunal breached s.476(1)(c) of the Act;
d)the Tribunal breached s.476(1)(e) of the Act;
e)the Tribunal failed to consider the applicant’s evidence on its merits;
f)the Tribunal incorrectly applied the real chance test; and
g)the Tribunal’s conclusions were reached without either proper evidence or justification.
The Minister’s application at the hearing, that the proceedings be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 because of the applicant’s non-attendance, was refused and the matter proceeded to a hearing pursuant to r.13.03A(e).
Following the conclusion of the hearing I observed that the first respondent’s written submissions addressed the application which was originally filed and commenced the proceedings, rather than the amended application which was filed on 25 January 2008. The Court wrote to both parties noting this fact and inquiring whether the amended application had been served on the first respondent. Although it had been, it had not been supplied to the first respondent’s counsel and supplementary submissions were subsequently forwarded to the Court on behalf of the first respondent. The applicant was then invited by a letter from the Court to advise within 14 days whether he objected to those submissions being considered by me. No response being received, leave was granted to file the submissions and the applicant was then invited to file his own written submissions in response to those supplementary written submissions. The applicant was given
21 days from the date of that letter to file written submissions or to advise whether he wished to make oral submissions, failing which a decision would be made on his application. No response was received from the applicant until 17 July 2008 when further written submissions were filed.
The applicant’s written submissions filed on 17 July 2008 were not truly submissions in reply to the first respondent’s supplementary submissions. Rather, they amount to an attempt to reopen his case, a course for which leave has been neither sought nor granted. In the circumstances, the submissions made in the document should be disregarded. Notwithstanding this, I have reviewed the document and am of the view that it adds nothing of substance to the submissions and allegations already made by the applicant, raising as it does complaints regarding the Tribunal’s fact finding and its duties under s.424A and s.430 of the Act.
Turning now to the matters raised by the amended application and the applicant’s original written submissions:
The Tribunal did not observe procedures required by the Act or regulations
This allegation is particularised with twelve dot-points. The first particular says the Tribunal did not consider certain evidence and yet it is clear at CB 104 and from the Tribunal’s questions of the applicant summarized at CB 106-111 that the evidence in question was considered. Consequently, on the facts, this particular does not disclose reviewable error.
The second to eighth dot-points raise questions of fact which were matters for the Tribunal alone. The Court is not empowered to review the Tribunal’s fact-finding except in very limited circumstances which are not relevant here. Consequently, these particulars disclose no reviewable error on the part of the Tribunal.
The ninth particular asserts that the Tribunal ignored the rules of natural justice and the merits of the case. As with matters of fact, the Court is not empowered to review the Tribunal’s findings on the merits of the application. Consequently, this element of this particular discloses no reviewable error on the part of the Tribunal. As to the assertion that the Tribunal ignored the rules of natural justice, these are codified by virtue of s.422B in those provisions found in div.4 of pt.7 of the Act. A review of the Tribunal’s decision record discloses no breach of any of the sections in div.4 of pt.7 and particularly no breach of s.424A or s.425. With regard to the former, the information relied upon by the Tribunal when reaching its decision was independent country information and information which the applicant supplied to the Tribunal for the purposes of the review. Both of these classes of information fall within the exclusions found in s.424A(3), with the consequence that no requirement to serve a s.424A(1) notice arose.
As to s.425, the applicant was invited to appear at the Tribunal hearing and he did so. The applicant has not identified any determinative issues which the Tribunal failed to notify to him, nor has he suggested that the Tribunal’s hearing was in any way unfair. Consequently, the ninth particular discloses no reviewable error on the part of the Tribunal.
The tenth particular says that the Tribunal did not adopt “the proper legal procedure or did not follow the Guidelines and Rules when deciding the case” without identifying which procedure, guidelines or rules he means. As already noted, the natural justice hearing rule is codified by s.422B in those sections found in div.4 pt.7 of the Act. For the reasons set out above in relation to the ninth particular, this particular discloses no reviewable error on the part of the Tribunal.
The eleventh particular alleges that the Tribunal decision “was an improper exercise of the powers” conferred on the Tribunal. No details of this allegation are provided, nor is there any indication of whether impropriety on the part of the Tribunal is implied. If such an implication is sought to be made, it fails. Allegations of bias or bad faith must be clearly made and proved. To the extent that an allegation of impropriety is made implicitly, it is deficient in form and lacking in substance and does not present a basis upon which the Tribunal’s decision might be set aside. To the extent that this particular alleges an incorrect exercise of the Tribunal’s powers, it is also unsuccessful. Consideration of the Tribunal’s decision record reveals that the Tribunal understood the task it had to undertake, recognised the law it had to apply and considered the facts and arguments which had been placed before it by the applicant. The Tribunal considered the facts in the context of the relevant tests and correctly followed the procedures required by the Act. This particular discloses no jurisdictional error on the part of the Tribunal.
The final particular asserts that the Tribunal “took the narrow meaning of the Refugee Convention instead of broad meaning”. This assertion implies that the Tribunal had cause to apply the refugee test in the course of its consideration of the review application. In the circumstances of this case, that was not so. This was because the Tribunal concluded that the applicant was not to be believed. As it said:
The Tribunal considered that the applicant had not been truthful in his evidence about those experiences in India central to his claims. The Tribunal found much of the applicant’s evidence to be inconsistent and implausible and this caused the Tribunal to doubt his credibility in respect of all of his claims of persecution for Convention reasons. (CB 115)
Consequently, this ground discloses no error on the part of the Tribunal.
The decision was an improper exercise of the powers conferred by the Act or the Regulations
For the reasons already given in respect of the eleventh particular of the first asserted ground of review, this ground is also not made out.
The Tribunal did not observe the procedures required by the Act or the Regulations
Supporting this allegation the applicant provides particulars to the effect that in respect of eight matters the Tribunal failed properly or at all to set out its reasons for decision, its findings on material questions of fact and the evidence upon which those findings were based. That is to say, the applicant alleges that the Tribunal breached s.430 of the Act. The essence of the applicant’s submission is that the Tribunal was required to make findings in respect of the eight particularised matters and that, by failing to do so, it erred. However, s.430 does not require the Tribunal to refer to every piece of evidence and every argument which is before it. It requires the Tribunal to set out the evidence underlying the findings of fact expressed to support the articulated reasons for the decision which the Tribunal reaches. The Tribunal’s decision record does this and the assertion that it should have done what the applicant submits is incorrect and does not disclose error on the Tribunal’s part.
Tribunal breached s.476 of the Act
The second, third and fourth matters raised by the applicant in his submissions refer to a section in the Act which did not exist at the relevant time in the terms asserted. He may be referring to a previous version of the section. Whatever may be the case, the grounds advanced by him are misconceived and disclose no error on the part of the Tribunal.
Tribunal failed to consider applicant’s evidence on its merits
The fifth ground raised by the applicant in his submissions is to the effect that the Tribunal failed to consider on its merits the evidence he submitted. This allegation cannot be sustained. The Tribunal’s approach was logical and reasoned and clearly took into account the evidence proffered by the applicant. The fact that the Tribunal concluded that that evidence was inconsistent and implausible does not suggest that it was not considered on its merits.
Tribunal applied “real chance” test incorrectly
The sixth and the seventh grounds submit that the Tribunal applied the real chance test incorrectly. For the reasons already given in relation to the final particular of the first ground contained in the amended application, these assertions are not made out.
Conclusions reached without proper evidence or justification
The final ground raised by the applicant in his submissions was that the Tribunal reached its conclusions without proper evidence or justification. The Tribunal’s finding was that the applicant’s claims lacked credibility and that, as a consequence, he had no well-founded fear of persecution for a Convention reason. As already observed, this was a logical and reasoned conclusion. It was based on the evidence and thus does not amount to jurisdictional error. It may be that the applicant asserts that the Tribunal should have mounted a negative case against his claims and needed to find that such a negative case was proved before it could affirm the delegate’s decision. However, that is not the Tribunal’s role. It must determine whether it is satisfied that the applicant meets the criteria for a protection visa and, unless it is so satisfied, it has no alternative under s.65 of the Act but to affirm the delegate’s decision. It does not need there to be a case disproving the applicant’s allegations; a lack of satisfaction that an applicant meets the criteria for a protection visa will require affirmation of the delegate’s decision. Consequently, this ground does not disclose jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 July 2008
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