SZLQG v Minister for Immigration
[2008] FMCA 621
•14 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 621 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal had regard to all integers of the applicant’s claims – whether Refugee Review Tribunal denied procedural fairness – whether Refugee Review Tribunal complied with s.424A – whether the Refugee Review Tribunal applied the correct tests. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(a); 474; pt.8 div.2 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1985) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510; 162 ALR 1 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 |
| Applicant: | SZLQG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3545 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 May 2008 |
| Date of last submission: | 14 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2008 |
REPRESENTATION
| Applicant appeared in person with a Tamil interpreter |
| Counsel for the Respondent: | Mr P. Silver |
| Solicitors for the Respondent: | Ms D. Attard, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3545 of 2007
| SZLQG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 October 2007 and handed down on 23 October 2007.
The Applicant claims to be from India and of Muslim faith (“the Applicant”).
The Applicant arrived in Australia on 19 April 2007 having departed legally from Channai International Airport on a passport issued in his own name.
On 17 May 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
The Applicant provided a statement in support of his protection visa application, in which he stated that he feared persecution for reason of his Muslim beliefs and his involvement with the Manitha Neethi Paasariai (“MNP”). The Applicant claimed that he was targeted by the “Hindu extremist activity groups” Rashtraiya Swayamsevak Sangh (“RSS”) and Bharathiya Janatha Party (“BJP”) for his charitable work with “the poor and downtrodden and those Hindu extremist’s treated them as untouchable people”. The Applicant claimed that some of the poor Hindu people were converted to Islam for which the RSS and the BJP blamed the Applicant and warned him to cease. The Applicant stated that he and his family were threatened by the RSS and that he was attacked in December 2002 by members of the RSS and BJP. The Applicant stated that he reported the attack to police who took no action and threatened him with filing a false charge against him. The Applicant stated he was attacked again two months later after a meeting with MNP volunteers.
The Applicant stated that on 27 January 2006 he went to Bangkok to escape from India, although returned to India on 26 May 2006, following which he returned to Bangkok after he was told he was being sought and his father’s shop was attacked. The Applicant stated he returned to India on 29 September 2006 and went to Banglore with his family. However, he was unable to find a job. The Applicant stated his Hindu friends told him the RSS and BJP knew where he was and were searching for him in Banglore. The Applicant stated he then returned to Bangkok on 12 November 2006 and then went to China and Hong Kong where he was advised to go to Australia to seek protection.
On 3 August 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 22 August 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of his review application. On 3 October 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 November 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 30 August 2007, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 2 October 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 2 October 2007, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon his written claims. The Tribunal noted in its decision record that it discussed with the Applicant his previous travel outside India; the Applicant’s activities on behalf of the MNP and about the MNP in general; his three years living in Chennai; the Empower India Conference; the Popular Front of India; country information; and the political situation in Tamil Nadu.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“9. In arriving at its decision the RRT:
a) analysed and set out the nature of the relevant law: CB 91-93;
b) took into account all of the information before it, including the Applicant’s statement of his claims set out as an attachment to his application for a protection visa, appearing at CB 27-28: see the RRT’s decision at CB 93-94.
10. The RRT interviewed the Applicant and put to him that it did not believe his assertion that he had been hiding for three years in Chennai with his wife and children, but without earning an income: CB 94 last paragraph – 95 first paragraph.
11. The RRT’s discussion with the Applicant included references to country information, reference to which was made in the RRT’s record of its findings: CB 95-102. Having considered the country information the RRT concluded that :
a) no action had been taken against the MNP for its conversion activities: CB 102/4;
b) the country information did not support the conclusion that the MNP was an extremist organisation and found, to the contrary, that the formation of its affiliate, the Popular Front and the holding of the Empower India Conference occurred without controversy or interference: CB 102/5.
12. The RRT rejected the application on the basis that the Applicant’s claims were implausible and on the basis of an adverse credibility finding against the Applicant. It found the Applicant’s claims implausible for the following reasons:
a) the matters set out in paragraph 11 above;
b) that the BJP and RSS were so weak that they were unlikely to have arranged an attack on him: CB 102/6;
c) there was no corroborating evidence to support his claims: CB 102/6;
d) the Applicant did not have such a high profile that people would seek him out. The Applicant would therefore not have needed to go into hiding in Chennai: CB 102/6. It was not credible that the Applicant could have lived in hiding without employment with a wife and children for three years;
e) the Applicant knew little about affairs of the MNP, which were well known: CB 102/7;
g) it was unlikely that someone genuinely fearing for his life would return to a country where his life was threatened: CB 102 last paragraph.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Tamil interpreter. The Applicant has participated in the Panel Advice Scheme.
The Applicant confirmed that he relied upon the grounds contained in the application filed on 15 November 2007.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
Ground 1 – “That the decision of the Refugee Review Tribunal was effected(sic) by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or ‘integers’ central to the applicant’s claims.”
Ground 1 was not accompanied by particulars, evidence or submissions.
The Court asked the Applicant what were the “relevant considerations or integers” that he contended the Tribunal did not take into account. The Applicant responded that the Tribunal had failed to consider that he could not live in his country and that the Tribunal had said he could live elsewhere in India. The Applicant disagreed with the Tribunal in relation to his ability to relocate because he would have a language problem.
A fair reading of the Tribunal’s decision makes clear that the Tribunal rejected comprehensively the Applicant’s claims, including his claim of being attacked and being forced to live in hiding. The Tribunal had regard to country information which it identified and which disclosed that Muslims do not suffer harm amounting to persecution in Tamil Nadu where the Applicant lived.
In light of the comprehensive rejection of the Applicant’s evidence and claims of persecution, there was no obligation on the Tribunal to consider the issue of relocation and it did not do so (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265).
The Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons. I accept the submission of counsel for the First Respondent that “The basis of the RRT’s decision was that the Applicant lacked credibility and that his claims were implausible”. The Tribunal’s adverse credibility findings are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Otherwise, the Applicant’s complaint is no more than a disagreement with the Tribunal’s adverse findings. Such a complaint invites merits review which this Court cannot undertake (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1985) 162 CLR 24 at [41] per Mason J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
Accordingly, ground 1 is not made out.
Ground 2 – “The Tribunal thereby failed to carry out its review functions and to exercise its jurisdiction.”
The Applicant provided two particulars in support of ground 2.
Particular 2(a) stated that the Tribunal “did not consider the applicant who had been under immense and intimidating pressure from BJP and RSS members because of his involvement with MNP”.
A fair reading of the Tribunal’s decision makes clear that it understood the Applicant’s claims. The Tribunal noted exchanges it had with the Applicant about his evidence and noted the Applicant’s responses to concerns it raised with the Applicant. The Tribunal noted independent country information and found that it did not support the Applicant’s claims. In particular, the Tribunal noted that the MNP recruited Muslim converts in India, however no action had been taken against it. The Tribunal had regard to other organisations related to the MNP and noted that they existed without interference or controversy. The Tribunal noted that the BJP and RSS are “extremely weak in Tamil Nadu” where the Applicant lived. The Tribunal found that the Applicant’s activities with the MNP, “if any, were low key grass roots social assistance in nature and not such as to attract the hostile attention of anyone”.
The Tribunal did not accept that the Applicant feared for his life and, accordingly, was not satisfied that he had a well-founded fear of persecution in India for a Convention-related reason.
In the circumstances, it is clear that the Tribunal did consider the Applicant’s claim of intimidation from members of the BJP and RSS because of his involvement with the MNP and rejected his claims. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.
Particular 2(b) stated that the Tribunal “did not consider the applicant’s claim that the opposition party members would kill him if he returned to India”.
In light of the Tribunal’s comprehensive rejection of the Applicant’s claims, implicit in such an adverse finding is a rejection of the Applicant’s claim that he may be killed if he were to return to India. Such a claim has been subsumed in the Tribunal’s findings of greater generality (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]).
Accordingly, ground 2 is not made out.
Ground 3 – “The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of the Migration Act 1958”
Ground 3 was not supported by particulars or evidence.
The Applicant’s only submission in support of ground 3 was that the Tribunal’s decision was not in his favour.
A fair reading of the Tribunal’s decision makes clear that the Tribunal identified the Applicant’s claims; heard oral evidence from the Applicant at a hearing; explored the Applicant’s claims with him at the hearing; identified independent country information to which it had regard; made findings that were open to it on the evidence and material before it and for which it provided reasons, including that the Applicant did not have a well-founded fear of persecution in India “for reason of his religion or for any other Convention reason”; and, applied the correct law to the facts as it found them to be in reaching its conclusion that it was not satisfied that the Applicant met the criteria for a protection visa.
The Applicant’s submission in support of ground 3 is in the nature of a disagreement with the Tribunal’s findings and conclusions. As stated above in these Reasons, such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 3 is not made out.
Ground 4 – “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 out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.”
Ground 4 was not supported by particulars or evidence.
In support of ground 4, the Applicant submitted that the Tribunal had failed to accept his evidence about the situation in India and did not ask him for documents in support of his review application. Neither complaint discloses a jurisdictional error on the part of the Tribunal.
The Tribunal is entitled to use country information and give it such weight as it thinks fit (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
The Applicant did not suggest that there were documents that he gave to the Tribunal that the Tribunal failed to consider. Rather, his complaint was that the Tribunal did not ask him to provide documents in support of his review application. The Tribunal is under no obligation to do so.
Accordingly, ground 4 is rejected.
Ground 5 – “The RRT member emphasised on some irrelevant questions at the hearing and ignored my minority and political background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.”
Ground 5 was not supported by particulars or evidence.
The Applicant again submitted that the Tribunal did not ask for anything so he did not give anything. This complaint is dealt with above in ground 4.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered all the Applicant’s evidence and rejected it. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.
Otherwise, in the circumstances, ground 5 is no more than a disagreement with the findings of the Tribunal. As stated above in these Reasons, such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 5 is not made out.
Ground 6 – “The Tribunal applied the wrong test.”
In support of ground 6 the Applicant provided two particulars.
Particular 6(a) contended that “The Tribunal left out individual elements of the applicant’s claims and tested weather(sic) they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.”
Particular 6(b) contended that “[b]y requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to(sic) high an onus of proof on the applicant failing to give the applicant the benefit of the doubt.”
The Applicant did not make any submission in support of ground 6 or its particulars.
The Tribunal had regard to the Applicant’s written claims and evidence and identified country information to which it had regard. As stated above in these Reasons, the Tribunal made findings that were open to it on the evidence and material before it and for which it gave reasons, including the adverse credibility findings. The Tribunal applied the correct law to its findings in affirming the decision under review.
It is for the Applicant to satisfy the Tribunal as to whether it has met the criteria for a protection visa (Abebe v the Commonwealth of Australia (1999) 197 CLR 510 at [187]). If the Tribunal is not so satisfied, s.65(1) of the Act mandates that a protection visa is to be refused.
In the circumstances, a fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal placed too high an onus of proof on the Applicant or applied “the wrong test”.
Accordingly, ground 6 is not made out.
Ground 7 – Failure to comply with s.424A
In support of ground 7 the Applicant contended that the Tribunal should have given to him particulars of the “[i]ndependent information” and “[i]ndependent evidence” to which it had regard.
Such a contention is misconceived. Such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 [11] – [16]) in that the “[i]ndependent evidence” and “[i]ndependent information” to which the Tribunal had regard was not specifically about the Applicant and was just about a class of persons of which the Applicant is a member.
Accordingly, ground 7 is not made out.
Ground 8
Ground 8 makes the bare assertion that the Tribunal failed to find that the Applicant satisfied the definition of ‘refugee’ and failed to refer to or find that the Applicant satisfied the four key elements for refugee status.
Ground 8 was not accompanied by particulars, evidence or submissions.
Ground 8 is no more than a disagreement with the findings of the Tribunal. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings. Otherwise, such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 8 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions and affirming the decision under review.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 14 May 2008
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