SZLPV v Minister for Immigration - [2008] FMCA 1309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPV v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1309

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424, 424A, 425

Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration and Multicultural Affairs and Another (2006) 156 FCR 419
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330

Applicant:

SZLPV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3496 of 2007

Judgment of:

Barnes FM

Hearing date:

8 September 2008

Delivered at:

Sydney

Delivered on:

8 September 2008

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3496 of 2007

SZLPV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 18 October 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in April 2007 and applied for a protection visa. In a statement accompanying his protection visa application he claimed to have been an active member of the MSF (Muslim Student Federation) which was part of the IUML (Indian Union Muslim League) and that as he had been involved in politics in his home village and was “working politics” he had “genuine fears of vilification from Hindu fanatics in my social situation”. He claimed that he “worked hard for my party, this religious activity gave me lots of friends and foes”, that he did not pay much attention to religious and political clashes as he was engaged in political works and “tried to teach about IUML to other political people as well as pushed people to convert to the Muslim religion”. He claimed that he tried to “safeguard the rights of Muslim[s] and uplift their standards,” but that the Hindu parties (the BJP and the RSS) did not like his involvement in religious work and attacked him on “false issues.” The applicant claimed he became a full-time NDF worker and was warned by a named Hindu leader that he would be killed if he did not stop such works. He claimed he could not accept this as his father was an NDF local area president and that they followed strict religious rules. When he notified the authorities he received further threats from the “Hindu mafia and associates” of this person. He detailed incidents of violence that he claimed had occurred to him and his family from “Hindu fanatics” and claimed that he notified authorities but received no help.
The applicant also claimed that the Hindu leader was imprisoned after a conflict between the Muslims and Hindus but subsequently released because he had an influence in the BJP party. Criminal associates of this person were said to have come to the applicant’s home, destroyed furniture, attacked the applicant’s father and raped his sister who, after her marriage proposal was cancelled, had committed suicide. The applicant claimed that he complained to the police and petitioned the minister, but no one helped. He also claimed that his home and his father’s shop had been burnt by “Hindu fanatics”.
The applicant claimed the Hindu leader threatened that he would be killed, that he lived in hiding and then travelled to Singapore in 2006. He stayed only two days as the authorities would not grant him protection, so he returned to India. He claimed that “the BJP worker” came to know of his return and started to attack him again and that a couple of times he had “narrowly escaped from bomb blast,” that he was taken to hospital and bedridden for a few weeks with a burned leg and that the police did not assist.
The applicant claimed that he moved to another part of India, but that again the Hindu leader came to know where he was and tried to kill him. He claimed to fear for his safety on the basis that if he returned he would be “victimized and vilified by BJP or RSS fanatic’s associates”.
The application was refused by a delegate of the first respondent who referred to a lack of detail and absence of substantiation of the applicant’s claims. The applicant sought review by the Tribunal. He attended a Tribunal hearing.
In its reasons for decision the Tribunal stated that the applicant, a Muslim from a particular district in Kerala state, claimed to fear persecution for the Convention-related reasons of religion and political opinion. It referred to independent country information in relation to politics in Kerala, noting that the applicant’s alleged adversary (the BJP) did not have a foothold in the Kerala parliament, but was the third largest party in the state.
The Tribunal also referred to the fact that the IUML was a party concerned with advancing Muslim interests in India and that its student wing, the Muslim Students Federation, had a branch in the district in which the applicant lived.
The Tribunal described the NDF (National Development Front), as another “arguably Islamist political entity”, a body which had a reputation for being a hardline militant Islamic group, occasionally attracting criticism as a terrorist group. The Tribunal referred to independent country information in relation to the NDF, which included a reference to a description of the NDF of Kerala being a “non-political outfit” which had developed to fight for the rights of Kerala’s Muslims.
The Tribunal observed that while the applicant claimed he was a member of the NDF, he had misnamed it the National Democratic Front giving it an “explicitly political characteristic” that the organisation itself appeared to “disown”. The Tribunal found that the applicant’s description of the NDF’s activities in promoting the social and economic interests of marginalised communities and minorities indicated that he was talking about the National Development Front. While he had kept referring to it wrongly as the National Democratic Front, the Tribunal found that the only organisation with such a name was the National Democratic Alliance in Kerala which was not Islamist or even Muslim oriented, but rather pro-Hindu and sometimes linked to the RSS.
The Tribunal found that the applicant’s claims about his work with the NDF were vague, that he could not cite any slogans or platforms and that when pressed to describe in detail the kind of work he did, the applicant had talked in what appeared to be “circles.” The Tribunal gave examples of its concern. It noted that while the applicant appeared to give the correct names of persons associated with the National Development Front, he was extremely vague as to how the NDF was structured and did not know the size of the NDF membership in Kerala.
The Tribunal also had regard to the fact that while the applicant claimed to fear persecution in India because of his involvement with the NDF, he had said that he left 25 comrades behind in his home area, evidently doing the same work for the NDF. It considered but rejected his explanation that he could not continue working for the NDF in Kerala because of his father’s political profile.
The Tribunal observed that when asked what student organisations he had joined the applicant said he had been a member of the IUML. However the Tribunal pointed out that the IUML was not itself a student organisation and that its student wing (the MSF) had its own branch in the applicant’s local area.
After discussing the applicant’s inability to explain why he called the NDF by the wrong name, the Tribunal recorded that the applicant had said that he named it wrongly because he did not have much knowledge. He did not know where its headquarters were in a particular place. The Tribunal found that this evidence appeared vague, as was his evidence when asked if the NDF had a view on Palestine (which its website said it did). The applicant did not know what that view was and did not express any view for his own part. The Tribunal recorded that when it put to the applicant that it was concerned he might not have been linked to the NDF, he said he just followed his father who was “only” a leader.
The Tribunal recorded that it had asked the applicant if he had any more relevant information and that he said that he had left all his papers in his house. The Tribunal advised him that he could submit any material he wished to submit prior to the handing down of the decision.
The applicant told the Tribunal that he came to Australia as part of a cricket team, that he was a cricketer and had been selected because of his cricket skills. The Tribunal questioned the genuineness of his desire for protection, given that he obtained a passport in 2003 and did not come to Australia until selected for the cricket team.
The Tribunal found the applicant’s evidence about his two night trip to Singapore in April 2006 to be “vague, confused and seemingly improvised” in relation to how much he looked into protection prospects and staying there. It suggested that his account did not seem plausible and noted that he returned to India thereafter, apparently voluntarily.
In light of these concerns, while the Tribunal accepted that the applicant was a Muslim from a particular place in Kerala, it did not accept that the applicant had or had had any significant links to the IUML or its student wing, which he could not even name correctly. It did not accept that he had had any significant contact with the NDF, given his vagueness about its structure, his duties within it and its name. Nor did it accept on the applicant’s evidence that his father had any significant political profile in India.
The Tribunal did not accept on the vague and contradictory evidence before it that the applicant’s absences from Kerala were due to a fear of persecution. It found the applicant’s claims about fleeing to Singapore for protection were “particularly unimpressive” and that on the evidence before it, he went to Singapore for work or trade reasons. The Tribunal considered the applicant’s claim about seeking protection in Singapore to be a fanciful improvisation. His voluntary return to India left the Tribunal disbelieving that he went to any other places within India for protection.
The Tribunal found on the applicant’s oral evidence that he came to Australia not to seek protection from persecution and not as a response to facing persecution in India, but because he was selected to play cricket on the basis of his skill. It was of the view that his protection visa application was the product of afterthought or was in some way an exploitation of the circumstances that brought him here, and that he had applied for a protection visa for reasons other than out of a need for protection under the Refugees Convention. It found that the applicant was an unreliable witness. It was not satisfied he faced a real chance of Convention-related persecution in India and found that his claim of fear of Convention-related persecution was not well-founded and that he was not a refugee.
The applicant sought review by application filed in this Court on 12 November 2007. He relies on an amended application filed on 4 February 2008. He did not file written submissions.
The first ground in the amended application is that: “The Tribunal failed to accord procedural fairness under s424 of the Migration Act 1958”. There is nothing in the material before the Court to suggest that s.424 is relevant to the circumstances of this Tribunal review. However it appears from what follows that this is in fact a contention that the Tribunal breached s.424A on the basis that it failed to put independent country information to the applicant for comment. However, as submitted for the first respondent, it is well established that such information falls within the exception in s.424A(3)(a) of the Migration Act 1958 (Cth) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330; and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178).
More generally in relation to procedural fairness, this is a case to which section 422B applies (see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62; and NBKT v Minister for Immigration and Multicultural Affairs and Another (2006) 156 FCR 419). If this ground is to be taken as a complaint about the conduct of the hearing, the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. There is nothing in the Tribunal reasons for decision to establish that the Tribunal failed to raise with the applicant dispositive issues as required under s.425 (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152) or otherwise failed to meet its obligations under Division 4 of Part 7 of the Migration Act. This ground is not made out.
The second ground in the amended application is that the Tribunal “did not take in to (sic) account certain relevant consideration or ‘integers’ central to the applicant’s claims” because the applicant “spent a number of hours being questioned without a break and felt stressed and intimidated.”
It has not been established that the Tribunal failed to take into account integers of the applicant’s claims. One issue that arises from the manner in which the Tribunal set out the applicant’s claims is whether it addressed his claims to fear persecution for reasons of both religion and political opinion. It is apparent however that the Tribunal did address the applicant’s claims both in relation to involvement in politics through the IUML and also his claims that could be said to be based on religion through his claimed involvement in the NDF, which the Tribunal described as a non-political organisation that was militant Islamist group.
The applicant has not particularised the manner in which he claims that integers or aspects of his claim were not considered. He contended that he spent a number of hours being questioned without a break and felt stressed and intimidated. Insofar as this is intended to be a reference to the Tribunal hearing, again I note that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. There is nothing in that material to establish that the Tribunal failed to offer the applicant a meaningful hearing, that his claims of stress and intimidation established that he was not able to take advantage of the opportunity offered to him or, indeed, that the Tribunal was affected by actual or apprehended bias. There is no evidentiary basis for such a claim on the material before the Court.
Ground three may be intended to be read with ground two in that it is claimed that the Tribunal did not consider that the applicant, who had been under immense and intimidating pressure from opposition members, “because of my involvement with the NDF” and in relation to this did not consider the applicant’s claim that “the opposition party members will kill him if he returns to India.”
However, as set out above, the Tribunal did not accept that the applicant had had any significant contact with the NDF. Nor did it accept that he had any significant links with the IUML or its student wing. It did not accept that his absences from Kerala were due to persecution, or that he came to Australia to seek protection from persecution or as a response to facing persecution in India, finding him to be an unreliable witness. It was not satisfied that he faced a real chance of Convention-related persecution in India. It is apparent reading the Tribunal reasons fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259), that the applicant’s claims of involvement in the NDF and IUML were rejected and hence that the Tribunal did not accept his claims to fear being killed on either of those bases. This ground is not made out.
The fourth ground is that the Tribunal made an error in its treatment of relocation and that it failed to consider properly whether the applicant would suffer serious harm if he was asked to relocate in India. However the Tribunal made no finding based on relocation, not being satisfied that the applicant had a well-founded fear of persecution anywhere in India.
The fifth ground is that: “The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used 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”.
Insofar as the applicant takes issue with the Tribunal’s interpretation of country information, that is a factual matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 and NBKT ).
The applicant contended in particular that the Tribunal failed to consider the Amnesty International country information. It is not clear what this is intended to refer to, as there is no indication on the material before the Court that the applicant submitted any country information, let alone country information from Amnesty International to the Tribunal. In any event, it is for the Tribunal to determine what country information to have regard to in reaching its decision.
The applicant also contended that the Tribunal “was preoccupied and did not have a fresh look.” There is nothing in the material before the Court to indicate that the Tribunal’s findings were not open to it for the reasons that it gave on the material before it or that it was affected by bias or apprehended bias. This ground is not made out.
The sixth ground is that the Tribunal failed to ask whether state protection in India met international standards. However, the Tribunal found the applicant’s claims of past harm not to be true and did not accept that he feared harm on that basis. Hence it was not necessary to consider issues of state protection such as are raised by this ground.
The seventh ground is that the Tribunal "acted illogically when concluding that it did not accept that the applicant had had any significant links to the IUML or the student wing which he could not name correctly or significant contact with the NDF.” It was contended that the Tribunal failed to weigh properly the effect of the following:
“(a) I was the active member of IUML.
(b) I have been attacked by the opposition member.”

However, as set out above, the Tribunal did not accept that the applicant had or had had any significant links to either the IUML or the NDF and on that basis clearly did not accept that the applicant had suffered harm or, indeed, had a fear of harm based on his claims about membership or involvement with those organisations. The Tribunal has not been shown to have acted illogically in reaching this conclusion, let alone to have acted in a manner which constitutes jurisdictional error.
This ground can be seen to be seeking merits review. The Court cannot review the merits of the Tribunal’s decision. Moreover, insofar as this ground contends that the Tribunal made a factual error, there is no error of law let alone jurisdictional error in the Tribunal making a wrong finding of fact.
The amended application contains a further ground which is also numbered seven which sets out the elements of the definition of refugee in the Refugees Convention and claims that the Tribunal failed to take note of the fact that the applicant met these elements.
The Tribunal properly set out the elements of the Refugees Convention at the beginning of its reasons for decision and insofar as was necessary (given the findings that it made) addressed the elements of that definition. Otherwise this aspect of this ground seeks impermissible merits review.
The applicant also contended, by reference to the meaning of “serious harm” in the Migration Act, that the Tribunal failed to analyse properly the future harm he may face if he had to go back to India. However, as indicated, the Tribunal did not accept the applicant’s claims of past harm or his claims of involvement with or membership of the organisations with which he claimed to have had involvement or to have been a member. It was on that basis and having regard to his lack of reliability in relation to his evidence, that the Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in India and found that his claimed fear was not well-founded.
No jurisdictional error is established in the manner in which the Tribunal made those findings.
In oral submissions today the applicant referred to his circumstances in India. However merits review is not available in this Court. He claimed that he had medical problems and had recently obtained a report, although there was no suggestion that this was material before the Tribunal which it failed to consider. The applicant claimed that he was unable to provide documents to the Tribunal because they were destroyed in his home. This does not establish that the Tribunal fell into jurisdictional error on the material before it at the time of its decision.
The applicant also claimed generally that there was some misunderstanding or miscommunication in the Tribunal hearing on his part and on the part of the Tribunal and that the Tribunal asked some questions that were misleading. However, as indicated, the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision and those reasons for decision are not such as to establish that the Tribunal misunderstood the applicant’s claim or that there was miscommunication such as to establish jurisdictional error in or arising out of the manner in which the Tribunal conducted the Tribunal hearing.
As no jurisdictional error has been established, the application must be dismissed.

RECORDED NOT TRANSCRIBED

The applicant has been unsuccessful. There is nothing in the circumstances of the present case to warrant a departure from the general principle that the unsuccessful applicant should meet the costs of the respondent. The applicant’s lack of employment and the fact that he may be slow to be able to pay any costs order may be a matter to be taken into account by the Minister in determining when and how to seek to recover any such costs, but it is not a reason for not awarding costs. The amount sought is appropriate in light of the nature of this and similar matters.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 September 2008