SZLRI v Minister for Immigration

[2008] FMCA 733

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 733

MIGRATION – Review of Refugee Review Tribunal – whether jurisdictional error – whether Tribunal took into account all integers of the applicant’s claims – Tribunal gave the applicant opportunity to expand on his complaints – application dismissed.

Migration Act 1958 (Cth), ss.422B, 427, 425, 424A, Division 4 of Part 7

Minister for Immigration and Ethnic Affairs vWu Shan Liang(1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs vLay Lat(2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: SZLRI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3615 of 2007

Judgment of: Nicholls FM

Hearing date: 29 May 2008

Date of Last Submission: 29 May 2008

Delivered at: Sydney

Delivered on: 29 May 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 22 November 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3615 of 2007

SZLRI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

Background

1. I have before me an application filed on 22 November 2007, made under the Migration Act 1958 (Cth), seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 8 October 2007 and handed down on 30 October 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The Minister has filed a bundle of relevant documents (the Court Book – “CB”) from which the following relevant background can be discerned.

3. The applicant is a national of India. He arrived in Australia on 11 May 2007 (CB 15.4) and applied for a protection visa on 14 May 2007 (CB 1 – CB 33). In his protection visa application the applicant claimed to have been born in the state of Kerala in India where he claimed that he ran a jewellery business in his home town.

4. The applicant claimed to be a Hindu who nonetheless believed in one God. Following a dispute between Hindus and Muslims, on 13 March 2007 he claimed to have been attacked in his shop, that the Muslims “crushed [his] jewellery shop,” that “they came in [his] house and searched [him] to kill,” that he was fearful, and that he ran away (see in particular CB 27).

5. The applicant claimed that these circumstances forced him to leave his country, fearful for his life, and that he would be killed “by enemies” (CB 28.5) if he were to return to India. The applicant claimed in his statement attached to the protection visa application that he did not have “sufficient time to give all my sufferings which I have face in my life …” (CB 27.8).

6. The application was refused by the Minister’s delegate on 29 May 2007. The delegate’s decision (reproduced in the Court Book) turned on the finding that “the applicant’s claim is devoid of any details and lacks substance” (CB 41.10). Further, the delegate made reference to independent country information, which revealed that Hindus constituted about 80% of the population of the applicant’s home area, and that the State of Kerala was a Hindu dominated area where Muslims were in the minority (CB 42.3).

7. The applicant sought review by the Tribunal on 25 June 2007 (document reproduced at CB 49 to CB 52). He expanded on his claims and appears to have provided new claims in an attached statutory declaration (CB 53 to CB 60). The applicant appeared at a hearing before the Tribunal on 17 September 2007 and gave evidence. The Tribunal’s decision record provides references to what occurred at the hearing (see, generally, CB 78 to CB 83 – the references are included in the Tribunal’s Findings and Reasons).

8. The applicant claimed in his statement that it was not only Muslims, but also Hindus, were against him in his home town because he had sold one of his properties to a Muslim person against the wishes of local Hindus, and it appears that there may have been some expectation that the property would be used for the purpose of a Hindu temple and that he had not joined the Hindu Bharatiya Janata Party (“BJP”), instead belonging to the Indian National Congress which was in opposition to the BJP in his home state.

9. The applicant also claimed that members of the BJP asked for high discounts in his jewellery shop and that his problems were further compounded by members of the Muslim community who had asked to buy items on credit. He claimed that on 21 February 2007 (following the attack on him on 14 February 2008), Muslim league activists molested his sister on her way to school, and that this incident and the earlier incident were reported to police. Further, that on 24 April 2007 he was beaten on his way home from work by what he described as “Muslim miscreants” and again, he reported this attack to the police, but he asserted that the police and judiciary were “powerless before these Hindu Muslim goons.”

10. The Tribunal affirmed the delegate’s decision. The Tribunal accepted that the applicant was a national of India but said that it was satisfied the applicant had sought to “embellish, if not entirely fabricate material claims.” Nonetheless, in its reasoning, the Tribunal dealt with the various aspects of the applicant’s claims. In respect of each of those aspects, it found as follows:

    1.In relation to the applicant’s political/religious opinions and activities, the Tribunal noted that at the hearing that: “it proved difficult at times to elicit responses from the applicant that the Tribunal understood the meaningful to the questions it had passed.” The Tribunal ultimately found in relation to this issue that “based on the evidence before it, the Tribunal is not satisfied the continuing Hindu applicant’s alleged religious beliefs, including that there is one God (contradictory to Hindus in the BJP party) nor his alleged political activities (for the Congress Party) have formed an essential and significant part of the reason he may have been targeted in India,” (CB 79.8) and was further satisfied that the applicant had not been imputed with any religious or political conviction that would give rise to a real chance of persecution should he return to his home state in India (see CB 79).

    2.In relation to the marriage, the applicant claimed (presumably, from the material before the Court, this claim was made for the first time at the hearing before the Tribunal) that five years earlier he had assisted a Hindu cousin who had married a local Muslim girl, the Muslim community had found out that the applicant assisted his cousin, and that the Hindu community had also “turned against” him. The Tribunal found that even if he had assisted his cousin that “there was no evidence of any harm, being levelled at the applicant” and that it was the applicant’s own evidence that up until the 2007 riot, “for the last several years [he] was leading a very normal and peaceful life” (CB 80.3). The Tribunal was not satisfied that this claim invoked refugee protection obligations in Australia.

    3.In relation to the sale of land, the Tribunal accepted that this had caused the applicant  to be subject to abuse, notwithstanding that it had some difficulties with the applicant’s evidence (CB 80.4 to CB 80 .7)

    4.In relation to the claimed assistance the applicant offered to a person, the Tribunal accepted that being seen to have assisted a Hindu man fleeing from a Muslim mob may have caused him some problems (CB 80.8 – CB 81.3). While the Tribunal considered that the sale of land to a Muslim person in February 2006 and hiding a Hindu man fleeing from Muslim rioters in February 2007 may give rise to persecution for an imputed political or religious opinion, it found that the applicant could reasonably and safely relocate to another part of India (CB 81 to CB 82). It was accordingly was not satisfied that the applicant had well founded fear of persecution for a Convention reason in India. On this basis, it was not satisfied that the applicant was a person to whom Australia protection obligations and therefore affirmed the decision under review.

11. The application before the Court puts forward the following grounds:

    “1. That the decision of the ‘RRT’ was effected by jurisdictional error in that the Tribunal did not take into consideration or ‘integers’ central to the applicant claims:

    2. The Tribunal thereby failed to carry its review function and to exercise its jurisdictions”.

[Errors in original]

1. In an affidavit made on 21 November 2007 filed at the same time as the application, and which essentially was for the purpose of putting the Tribunal decision before the Court, the applicant also makes reference to the Tribunal having denied him procedural fairness in that it “failed to investigate my genuine claim with the requirement of Migration Act.”

Hearing Before the Court

1. The applicant appeared before the Court in person. He was assisted by an interpreter in the Malayalam language. Ms R Francois of the Counsel appeared for the first respondent. Despite opportunity given to the applicant at the first court date in this matter on 12 March 2008, the applicant has not filed any further material in support of his application.

2. I note, in particular, (and I say this with respect to the applicant) that what can only be described as very general grounds of complaint are asserted in the application and that these are devoid of any particularity whatsoever. It was for this reason that I particularly made orders at the first Court date which I stressed were made by consent at a time when the applicant appeared in person and again with the assistance of an interpreter in the Malayalam language to provide the applicant with an opportunity to put further material before the Court in support of his application.

3. I note also that at that time, the applicant sought to access the Court’s legal advice scheme and that while some report from the lawyer on the panel of that scheme as to what ensued is on the Court’s file, I particularly note that the Court provided the applicant with the opportunity to provide some particularity to his complaints.  While applicants may ultimately deal with such opportunities ultimately as a matter for each applicant, unfortunately for the applicant before the Court today, nothing further has been put before the Court to give any real shape or substance to his complaints.

4. In addition to the Court Book filed by the first respondent the Minister has also filed a formal response and written submissions prepared by Ms Francois.

5. At the hearing, the applicant stated that while he respected the Tribunal’s decision, he felt that he was not given an opportunity to properly explain his circumstances before the Tribunal because he was only asked questions in such a way as would elicit either a yes or no answer.

6. Further, that he had recently contacted the relevant hospital and police station in India, and was advised that “they were ready,” as he said, “all papers to him.”  I understood the applicant to be saying that he was now in a position to provide documents to support his claims to have been injured and to have reported certain matters to the police.  He also explained that he could not contact the hospital or the police earlier because he relied on a friend to do so, and that it was only recently that the friend was able to make such contact.

7. As I explained to the applicant during the course of the hearing, the Court would need to be able to find at least some jurisdictional error, some error on the part of the Tribunal, in the way that it went about making its decision, if it were to assist him.  That is, in the way that it exercised its powers that have been given to it by the Act.

8. In this regard, the stated grounds in the application assert jurisdictional error on the part of the Tribunal and, at best, appear to be because the Tribunal did not take into account all integers central to the applicant’s claims. Despite opportunity to do so, the applicant does not particularise or say and nor did he say today what integers of these claims were not taken into account.

9. Quite simply, on the material that is before the Court, I cannot see that the applicant’s complaint in this regard can be made out. As I have already said, the applicant’s claims to protection in Australia were contained essentially in the statement attached to his protection visa application, in his statutory declaration provided to the Tribunal and in what he told the Tribunal at the hearing before it. The applicant, despite opportunity, did not put before the Court any transcript of the Tribunal hearing that may perhaps have showed that the Tribunal’s record of what the applicant claimed was deficient in some particular.

10. Ultimately, the Court can only proceed on what is before it. All that is available to the Court in relation to the claims made by the applicant is the documents to which I have referred and the Tribunal’s account of what it reports the applicant to have said at the hearing.

11. The grounds of the application assert jurisdictional error on the part of the Tribunal because the applicant claimed it did not take into account “integers” central to his claims the applicant does not particularise what integers were not taken into account, nor was the applicant able to assist the Court today.

12. On the material before the Court, I cannot see that the applicant’s complaint can be made out. The applicant’s claims were contained essentially in the statement attached to his protection visa application (CB 27 to CB 28), in his statutory declarations provided to the Tribunal (CB 53 to CB 60), and in what he told the Tribunal at the hearing. Despite opportunity, the applicant has not put before the Court any transcript of the Tribunal hearing, and all that is available to the Court in relation to claims made by the applicant at the hearing is that contained and referred to in the Tribunal decision record. Any plain reading of this material, and the Tribunal’s analysis, reveals that the Tribunal comprehensively addressed each aspect and integer of the applicant’s claims. I cannot see that the Tribunal failed in its obligation to address the applicant’s claims and each integer of his claims.

13. It would appear that what the applicant really seeks to complain about is that the Tribunal made findings adverse to the applicant in relation to some aspects of his claims. As such, the applicant seeks impermissible merits review and this Court clearly cannot assist him in this regard (Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259)

14. The applicant also complains (by way of affidavit) that he was denied procedural fairness in that the Tribunal failed to investigate his claims within the requirements of the Act. Again, the applicant was unable to assist as to what further investigation the Tribunal should have conducted. Nor is there anything in the material before the Court to indicate that the Tribunal was otherwise obliged to conduct further investigation.

15. I note that this is a matter to s.422B of the Act applies, making what is set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule absent bias (Minister for Immigration and Multicultural Affairs vLay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). While it is the case that the Tribunal could have sought further information pursuant to s.424, the Tribunal has discretion as to whether it should so act. There is nothing in the material before the Court to indicate that the Tribunal should have exercised the discretion and sought further material in this regard. Further, s.427(1)(d) similarly allows the Tribunal discretion to arrange for investigation to be conducted. But again, there is nothing before the Court now to indicate that the Tribunal should have exercised its discretion available to it.

16. Ultimately, having made his application, the Tribunal invited the applicant to a hearing pursuant to s.425 and subject to additional comments that I will make in a moment provided the applicant with the opportunity to put forward his evidence and to explain further his claims.

17. Taking the applicant’s complaint more broadly as a complaint about a denial of procedural fairness, in that context, the applicant today told the Court that the Tribunal conducted the hearing in such a way that his answers were limited and that therefore he was not given a proper opportunity to explain. The difficulty for the applicant is that he has not put anything before the Court by way of evidence to challenge the Tribunal’s account of what it said occurred at the hearing. And I note again that this lack by the applicant was done in spite of the opportunity that was afforded to him by this Court to provide any such relevant evidence.

18. Therefore, I note what the Tribunal’s account reveals specifically in relation to the applicant’s stated complaint this morning, and I thank Ms Francois for drawing the Court’s attention specifically to these matters (appearing CB 79.2) where the Tribunal said that it is mindful that it need not make an applicant’s case for them, but that it sought to ask open-ended questions to allow the applicant to explain his claims. Further, the Tribunal says (at CB 79.6) that although it allowed the applicant to provide detail about the harm to which he may have been subject, the only incidents of violence, or what the Tribunal might otherwise be satisfied was persecutory or sufficiently serious harm, occurred after the applicant allegedly sold land to Muslim persons in February 2006.

19. What is derived from this (including what precedes and follows this) is that the Tribunal did give the applicant the opportunity to expand on his claims and on the material before the Court, there is nothing to show that the applicant’s opportunity to provide his evidence was limited in the way that he now asserts before this Court.

20. It may be that by making this complaint, the applicant now seeks to explain what the Tribunal found (at CB 79.7) as follows. It proved difficult at times to elicit responses from the applicant that the Tribunal understood were meaningful to the questions it had asked. Importantly, the Tribunal says it therefore repeated its question two or three times, and eventually understood that the applicant agreed that this was correct. I cannot see that the applicant’s complaint that the Tribunal failed to provide him with a proper and meaningful opportunity to present his claims, and give his evidence, can be made out on what is before the Court.

21. Bearing in mind what the High Court said in SZBEL  v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 on the issue of procedural fairness, the determinative issues in this case were that the applicant’s religious and political opinions and activities did not give rise to engaging Australia’s protection obligations, and that the applicant’s problems, which the Tribunal accepted (that is, the sale of land and his helping the Hindu person who had fled from Muslim rioters) were addressed by its finding that the applicant could safely and reasonably relocate within India, and that on that basis, the applicant did not have a well founded fear of persecution for a Convention reason in the whole of that country. The issue of relocation does not appear to arise in the delegate’s decision, and would not have been understood by the applicant as a result of the delegate’s decision to be dispositive of his application to a protection visa.

1. However, as the only references before the Court of what occurred at the hearing before the Tribunal, it is clear that the Tribunal specifically raised this issue with the applicant, and put to the applicant its difficulties concerning the plausibility of his claims in this regard (CB 81.9). But nonetheless, it squarely asked the applicant whether, given that it was satisfied that his fear of harm had arisen from “local problems,” the applicant could relocate to another place in India (CB 81.5). From the Tribunal’s account, the applicant was invited and did address this issue, both as to whether he could safely relocate, and as to whether it was reasonable in all the circumstances to expect him to do so (in particular, regarding the latter, see CB 82.8).

2. Following the hearing, therefore, the applicant would have been squarely on notice that the Tribunal rejected some of his claims relating to his religious and political opinion giving rise to protection obligations, and that further, in relation to what it accepted, as to his “local problems,” that he could reasonably and safely relocate to another part of India. I cannot see that any complaint as to a failure of procedural fairness could succeed in this regard.

3. Further, in terms of s.424A of the Act, the Tribunal relied to some extent on independent country information (see CB 82.4). Such information falls within the exception contained in s.424A(3)(a) from the requirements in s.424A(1), in that it was not in personam information. The applicant’s evidence given at the hearing before the Tribunal (as was the information contained in his written statement to the Tribunal) is information provided to the Tribunal by the applicant for the purposes of the review and squarely fell within the exception contained in s.424A(3)(b) from the obligations set out in s.424(a)(1).

4. Further, to the extent that the Tribunal found that in part, his claims and evidence did not engage protection obligations and in other parts of its reasons contained its objective appraisal is thought processes or determinations, this is not information for the purposes of section 424A(1) a one (see SZBYR  v Minister for Immigration and Citizenship [2007] HCA 26 at [18]).

5. Before the Court, the applicant said that he was in a position to provide relevant hospital and police documents and asked the Court to send his matter back to the Tribunal, so that he could have his matter reconsidered and have the opportunity to now provide those documents for the Tribunal.

6. There is nothing in the material before the Court to show that the applicant sought any such opportunity from the Tribunal. While it is clear that the applicant’s reporting of various claimed attacks to the police did arise during the course of the review before the Tribunal, and while the applicant claimed to have been harmed and injured at one point as a result of some of his problems, I cannot see that there was any request by the applicant for more time to provide such documents, and nor can I see that there was any obligation even without any request from the applicant for the Tribunal to otherwise have sought such documents.

7. I note ultimately that the Tribunal’s decision was not based on any specific rejection of the applicant’s claims to have reported matters to local police, nor indeed does it appear to turn on any issue of whether the applicant may or may not have been hospitalised.

8. I also note that before the Court, the applicant confirmed that he did not seek any such opportunity before the Tribunal. Ultimately, the Court is concerned with whether there is some failure on the part of the Tribunal in the proper exercise of its jurisdiction. In all the circumstances, I cannot see the complaint, or the basis on which the applicant has asked the Court to remit his matter to the Tribunal, reveals any error on the part of the Tribunal.

9. In all, the applicant was given the opportunity to put forward his claims to the Tribunal, both in writing and at a hearing conducted by the Tribunal. Ultimately, while not being satisfied with some aspects of the applicant’s evidence, the Tribunal found that the applicant’s general claims to fear harm because of religious and political opinions and activities did not give rise to protection obligations in Australia, and that in relation to local problems, the applicant could reasonable and safely relocate another part of India.

10. These findings, as well as the findings that underpins these conclusions, were all open to the Tribunal to make on what it was before it and the Tribunal gave reasons. In all, I cannot discern jurisdictional, neither as it is generally said to arise from the applicants application and affidavit, nor otherwise. On this basis, the application is dismissed.

11. There are two broad issues that the Court is required to consider in making an order for costs. The first is whether such an order should be made, and in my view, it is appropriate that an order for costs be made in the circumstances of this case. The applicant’s capacity or incapacity to pay any costs order is not a sufficient reason such as would argue against the making of such an order, and it is the case that it is the general application that the applicant exercised, quite properly, his right to come to this Court and complain about the Tribunal’s decision. But in so doing, there are a number of consequences that follow, one of which is that if an applicant is unsuccessful before the Court, in the normal course of events, he would be called upon to pay some of the Minister’s legal costs.

12. As I said, in the circumstances of this case, I cannot see that there is any reason that a costs order should not be made.  As to the amount, $4,400 is a considerable amount of money, but I note, in considering whether it is nonetheless a reasonable amount in the circumstances of this case, that it is well within the range of what is set out in the relevant Schedule to the Rules of this Court, as applying to matters of this type that have reached a final hearing.

13. While I take the view that I am not strictly bound by what is set out in the Schedule, nonetheless, it is a good indicator or a guide of what may be reasonable.  But ultimately, what I am guided by is the work that has been done by the Minister’s legal representatives. That is, the preparation, filing and serving of multiple copies of the Court Book, attendance by a solicitor on two occasions at Court, the filing of a formal response, counsel’s involvement in preparation of written submissions and counsel’s attendance at the hearing today. All of which, in my view, go to show that the amount sought is a reasonable amount in those circumstances and I will make that order.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy   

Date:  5 June 2008