SZLNN v Minister for Immigration
[2008] FMCA 744
•2 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 744 |
| MIGRATION – Review of decision of RRT – no point of principle. |
| Migration Act 1958, ss.422B, 424, 425 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth (1999) 197 CLR 510 SZGYM v Minister for Immigration [2007] FCA 1923 SZIWK v Minister for Immigration [2007] FCA 168 SZJZE v Minister for Immigration [2007] FCA 1653 |
| Applicant: | SZLNN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
| File Number: | SYG 3266 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 June 2008 |
| Date of Last Submission: | 2 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay First Respondent’s costs assessed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3266 of 2007
| SZLNN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 26 February 2007. On 21 March 2007 he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 4 April 2007 a delegate of the Minister refused to grant a protection visa. On 27 April 2007 the applicant applied for review of that decision from the Refugee Review Tribunal. On 10 May 2007 the Refugee Review Tribunal advised the applicant that it had considered the information before it but was unable to make a favourable decision on that material alone and invited him to a hearing on 6 June 2007. The applicant attended the hearing and provided the Tribunal with certain documentation.
On 8 June the Tribunal wrote again to the applicant [CB 83] asking for specific information and documentation. It requested that information by 4 July. On 29 June certain information was provided but not all of that was requested. In his letter of 29 June 2007 [CB 84] the applicant had asked the Tribunal for further time because he had appointed a lawyer to obtain documentation but believed it would take between 24 and 32 weeks.
On 19 July 2007 the Tribunal wrote again to the applicant [CB 141] indicating that the first letter had an incorrect date for response. It noted that it had taken into account those documents that had been previously provided and requested the balance of the documents by 27 August 2007. The applicant responded to that letter on 23 August [CB 143] advising the Tribunal that it would take 30 days for some material, eight weeks for other material and 24 weeks for a copy of a High Court order that had been requested. On 27 August 2007 the Tribunal informed the applicant that it was not prepared to grant him any further extension of time. On 5 September 2007 the Tribunal wrote to the applicant advising him that it had made its decision in his matter and invited him to a handing down of that decision on 27 September 2007. The Tribunal determined to affirm the decision under review.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations were that he was a catholic living in the State of Kerala who had become associated with a catholic priest named Father Alapatt who ran a religious institution which specialised in exorcising evil spirits. Father Alapatt’s organisation had become the object of attention by some Hindu activists who believed that it was being used to persuade Hindus to convert to Christianity.
The applicant told of a number of incidents in which he had been attacked by members of this Hindu organisation the VHP, in 2001, 2003 and 2004. In the first incident, the applicant had his hand broken and was required to go into hospital. The second incident involved another member of the church who the applicant claimed to have been killed. In the third incident the applicant’s leg was broken and on 24 December 2006 there was a further incident in which the applicant was attacked with a sword and a knife. It seems that he and his family were all the subject of the attack and they were all required to attend hospital for some considerable period. The applicant claimed that the final attack came to the attention of a minister in the state government and was also being inquired into by the local police. Apparently the Minister had apologised for the attack. The applicant claimed that he was the subject of “torturing and threatening” phone calls and as a result had to leave his wife and two daughters in Kerala while he escaped into Australia.
The Tribunal questioned the applicant about the claims which he had made and noted that he indicated he was able to provide documentary proof. As a result it had written the letter of 8 June 2007 asking for such documents, such as the court order of the High Court of Kerala, medical reports of his injuries and hospital admission records and a copy of a newspaper report of the attack of 24 December 2006. When the Tribunal came to consider its decision it took into account certain independent country information which revealed that whilst the Indian Constitution provided for freedom of religion, and this was generally respected, there were incidents of the type described by the applicant including certain incidents in his home state.
In its findings and reasons the Tribunal indicated that it was satisfied that the applicant was a Catholic and that he had been associated with Father Alapatt. It also accepted that some attacks had been made upon Father Alapatt and his supporters and noted that the High Court of Kerala had issued orders which provided protection both to Father Alapatt and to volunteers at his centre. The applicant had, however, indicated to the Tribunal that the general order of the court did not protect him. The Tribunal, after noting that the orders seemed to protect helpers such as the applicant, indicated that it concluded that the legal system provided adequate State protection to persons such as the applicant and accepted the applicant’s evidence that there had been no attacks since the court orders were obtained.
The Tribunal came to a view about the applicant’s evidence concerning the physical attacks that he referred to and which I have already discussed:
“The Tribunal also does not accept that the applicant was physically attacked on 3 occasions because of his work as a volunteer at the devotional retreat centre. The applicant claims to have suffered a head injury in 2001 that required him to be hospitalised for a month, as he was in a coma, to have had a broken arm in 2004 after which he had to rest for 6 months and to have suffered knife wounds in December 2006, which also led to hospitalisation. However, the applicant stated that he has suffered no ongoing medical problems from any of his injuries. The applicant’s evidence to the Tribunal was vague regarding the treatment he received. The Tribunal does not find it credible that the applicant would have completely recovered from the injuries he describes, and so finds the applicant’s evidence about the attacks and injuries not to be credible. The Tribunal is not satisfied the applicant was physically attacked and seriously injured on three occasions in 2001, 2004 and 2006 because of his work as a volunteer at the devotional retreat centre.”
Because the Tribunal did not accept that the attacks had taken place and because it did accept that others in the organisation had obtained the assistance of the court, the Tribunal came to the view that adequate State protection was available to the applicant and he was not a person to whom Australia owned protection obligations.
In an amended application filed in this Court on 10 March 2008, the applicant makes a number of complaints about the Tribunal’s findings. The first, which is numbered 2, is that the Tribunal “failed to see that the applicant satisfied the criteria under Article 1A(2) of the Convention”, being a reference to the Refugees Convention. As Ms Watson says in her helpful written submissions, this ground is simply an attempt to challenge the merits of the Tribunal’s rejection of the applicant’s claim to be a refugee. It is not open to a court to engage in fact finding about the merits of an applicant’s case.
The second matter raised by the applicant is a complaint that the country information utilised by the Tribunal was not relevant. This should be read together with the third complaint which is that the Tribunal failed to consider the facts but has accepted third party country information thus violating the principles of natural justice because no fair and detailed inquiry was conducted.
The Tribunal is entitled under s.424 of the Migration Act 1958 (the “Act”) to obtain information which it believes is relevant to the review. This information can include independent country information. It is not entirely clear whether that information was put to the applicant, but even if it was not, it was not required to be because since the insertion of s.422B the requirements of Div.4 of Pt.7 of the Act constitute a code for the provision of natural justice. More importantly perhaps is the fact that the Tribunal considered that independent country information and accepted that the type of anti clericalism about which the applicant complained did exist and had occurred in the State of Kerala, thus the use of the independent country information did not act against the applicant’s case, rather it reinforced it. The Tribunal was not saying that these things did not happen, it was saying that if they happened the applicant was able to obtain protection from the Indian authorities.
The fourth matter raised by the applicant was in relation to the Tribunal’s finding that his fear of ongoing persecution was not credible. The applicant states that this is a one-sided finding and a fair opportunity had not been granted to the applicant. A finding on credibility is one for the Tribunal; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. A finding on credibility is a finding of fact and there is no jurisdictional error in the Tribunal making a wrong finding of fact; Abebe v Commonwealth (1999) 197 CLR 510 at [137].
I am unable to assist the applicant in relation to this complaint.
The fifth matter raised by the applicant was that the Tribunal denied him natural justice by refusing to grant him an extension of time to provide his evidence. It should be noted that the applicant applied for a review of the delegate’s decision in April 2007. The Tribunal’s decision was not handed down until 27 September 2007. The Tribunal was able to take into account any evidence provided to it up to the time of the handing down so the applicant had over six months in which to gather together sufficient evidence to satisfy the Tribunal that he was a refugee. It is the applicant who is obliged to make his own case and I am not satisfied that the Tribunal acted unreasonably in the time limits which it gave the applicant, bearing in mind, in particular, that the first period granted by the Tribunal was extended as a result of the Tribunal’s own error from 4 July to 27 August.
The applicant provided the Tribunal with no assistance as to why it would take 24 to 30 weeks to obtain certain information and the Tribunal was entitled to apply its own understanding gained from its experience in dealing with claims of this nature when fixing a reasonable period.
The sixth claim made by the applicant related to the interpretation. This matter was raised by the applicant today at the hearing. The applicant claimed that the interpretation was inadequate and did not express the real substance of his evidence. An inadequate interpretation can amount to a breach of s.425 of the Act; SZGYM v Minister for Immigration [2007] FCA 1923; SZIWK v Minister for Immigration [2007] FCA 168, but in order to obtain relief on this ground the applicant must prove that the interpretation is inadequate. As Middleton J said in SZJZE v Minister for Immigration [2007] FCA 1653 at [21]:
“With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that:
(a)The standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or,
(b)Errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants.
See generally Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]”
(and numerous other authorities cited)
The applicant has not complied with the strictures identified by Middleton J and has merely asserted a failure of the interpretation at the Tribunal hearing.
The seventh ground raised by the applicant was that the reasons given by the Tribunal for its rejection of his claims were vague and without any details. I am unable to accept this view held by the applicant of the Tribunal’s decision. It seems to me that the Tribunal has considered in some detail all the grounds upon which the applicant claimed to be a refugee and has provided reasons in full form for its decision.
Finally, the applicant says that the Tribunal has made a one-sided decision and denied him natural justice. This complaint does not expand on any previous complaints and seems to me to be merely an iteration of them. As I have not accepted the previous complaints I cannot accept this one.
After considering the matters raised by the applicant in his application and hearing him today I am unable to provide him with the review he seeks. I dismiss the application. I order the Applicant to pay the First Respondent’s costs assessed in the sum of $4,250.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: