SZLRO v Minister for Immigration
[2008] FMCA 256
•21 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 256 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India claiming fear of persecution for reason of political opinion and because of his caste – no reviewable error. |
| Migration Act 1958 (Cth) ss.424A, 425 |
| Applicant: | SZLRO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3639 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 February 2008 |
| Date of Last Submission: | 21 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Buchanan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3639 of 2007
| SZLRO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant him a Protection (Class XA) visa.
The Applicant had applied for a visa on the basis that he was a victim of persecution in India both for his political beliefs and also because of his Caste background. He was born in a Scheduled Caste family in West Bengal and claimed to have been persecuted in the form of discrimination, systematic harassment and interference.
The Applicant claims that the Tribunal fell into error when it made its decision in that:
a)The Tribunal failed to exercise its jurisdiction under the Migration Act by not considering the possibility that he could be disadvantaged and discriminated against because of his membership of a Scheduled Caste; and
b)The Tribunal failed to consider the question of persecution on the basis of his political affiliation, particularly his activities with the Trinamool Congress.
The First Respondent, the Minister for Immigration & Citizenship, has filed a Response denying the Applicant's claims and claims that the application has not raised an arguable case for relief.
Background
The Applicant arrived in Australia on 17th March 2007. He applied for a Protection (Class XA) visa on 26th April 2007. He sought protection on the basis of his political affiliation and his membership of a Scheduled Caste. A delegate of the Minister for Immigration & Citizenship refused his application for a visa on 15th May 2007.
Application to the Refugee Review Tribunal
On 7th June 2007 the Applicant applied to the Refugee Review Tribunal for review of that decision. The Applicant did not provide any additional documentary evidence with his application.
The Tribunal wrote to the Applicant on 6th July 2007 and invited him to attend a hearing of the Tribunal on 14th August 2007. The Applicant acknowledged receipt of the invitation and indicated that he wished to attend. He asked for an interpreter in the Bengali language. The Applicant attended the hearing on 14th August. He brought with him his Indian passport.
The Applicant gave evidence with the assistance of a Bengali interpreter and told the Tribunal about his history in India. He obtained the degree of Bachelor of Arts but found difficulty in obtaining a job. He eventually went to work with his brother in a clothing business and became involved in a road construction business. After a dispute with his partner in 2005 he left the business and worked in another business for a couple of years. The Applicant became involved in politics, having joined the CPI(M) in 1995 and then left and joined the Trinamool Congress in 1997.
The Applicant told the Tribunal that he was scared of their behaviour towards him and thought that they would kill him if he returned to India. The Tribunal asked the Applicant a number of questions about his political involvement, and the Applicant told her that he had on one occasion been beaten up and hospitalised. Eventually the Applicant decided to travel to Australia in 2007.
The Tribunal signed its decision on 22nd October 2007 and handed that decision down on 1st November. A copy of the Tribunal decision record can be found at pages 80 through to 98 of the Court Book. In the decision the Tribunal sets out the Applicant's claims in evidence taken from his protection visa application. The Tribunal also set out in some detail a summary of the Applicant's evidence to the Tribunal at the hearing.[1]
[1] See Court Book pages 85 to 89
The Tribunal also considered an amount of Independent Country Information relating to India. Apart from considering the general political situation in India, the Tribunal looked at political parties in West Bengal, including the Communist Party of India (Marxist) - the CPI (M) - and the West Bengal Trinamool Congress. The Tribunal also considered information about Caste-based discrimination from a number of sources. The Independent Country Information is set out in the Tribunal decision record at page 89 to 94.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons can be found in the Court Book at pages 94 to 98. The Tribunal accepted that the Applicant is a citizen of India and assessed his claims against that country. The Tribunal first considered the Applicant's claims to fear persecution from activists from the CPI (M) in West Bengal because of his involvement with the Trinamool Congress, and noted that the police would not protect him, and noted that he claimed to have been mistreated by CPI (M) activists in the past.
The Tribunal did not accept the evidence of the Applicant that he had ever been a member of the CPI (M) because the Applicant could not give detailed information about the policies or organisations of that party. The Tribunal accepted that the Applicant may have supported for the CPI (M) and voted for it. The Tribunal did not accept that the Applicant became a member of the Trinamool Congress because the Applicant could not describe with any particularity the politics of the party or his activities in detail.
The Tribunal did not accept that the Applicant had been beaten or mistreated for reasons of any association with the Trinamool Congress or any other political reason, nor did the Tribunal accept that the Applicant had any false cases lodged against him as he had claimed. The Tribunal looked at the Applicant's evidence about a terrorist group called Amal Bahini, which the Applicant claimed to fear. The Tribunal did not accept that he had faced any targeted harm from that group for reason of his political associations.
The Tribunal did not accept that the Applicant had been a member of the political parties of which he claimed to have been involved and did not accept that he had suffered any mistreatment for reasons of his political opinion. Accordingly, the Tribunal did not accept that the Applicant faced any harm if he were to return to India, at the time of the hearing or in the foreseeable future, for reasons of his political opinion. The Tribunal went on to find:
“The main thrust of the applicant's claims at hearing appeared to relate to his political activities. In his written claims the applicant had also raised the issue of caste based discrimination. Even though he did not raise this claim at hearing, I asked the applicant whether he claimed that he continued to suffer discrimination or harm for reasons of his membership of a Scheduled Caste. Although he did not resile from this claim, he did not appear to press this claim with the same strength as his claim of persecution for reasons of political opinion. Nevertheless, I have considered whether he would suffer any discrimination amounting to persecution for reasons of his membership of a Scheduled Caste if he returned to India.”
The Tribunal then reviewed the evidence relating to the Applicant's membership of a scheduled caste, including the country information. The Tribunal said:
“The country information suggests that cast -based discrimination exists but is not a significant problem in West Bengal and that the government has introduced a series of measures to overcome problems in land distribution, education and employment for the Scheduled Castes.”
The Tribunal considered other country information about the Scheduled Castes, and eventually found that it did not accept that the Applicant faced a real chance of persecution for reasons of his membership of a Scheduled Caste if he were to return to India. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for any Convention-related reason, and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 26th November 2007. He filed an amended application on 4th February 2008. In that amended application he asks the Court to issue:
i)A writ of certiorari to quash the decision of the Refugee Review Tribunal.
ii)A writ of mandamus directed to the Tribunal, requiring it to rehear and redetermine his application for review, according to law.
iii)A writ of prohibition directed to the Minister, preventing the Minister from acting upon or giving effect to the Tribunal decision.
Ground 1 – Failure to consider the Applicant’s claims regarding his Scheduled Caste
As I indicated, the Applicant relied on two grounds. The first ground claims that the Tribunal failed to exercise its jurisdiction under the Act by not considering the possibility that he could be persecuted because of his membership of a Scheduled Caste.
The Applicant took exception to the Tribunal's statement that it did not accept that discrimination would be serious enough to constitute persecution within the meaning of the Convention, and he claimed that the Tribunal totally ignored his involvement with a group called the “Mathua Sammelon” which promoted the rights of scheduled castes in India.
The fact is that the Tribunal did consider whether the Applicant had a well-founded fear of persecution for reasons of membership of a Scheduled Caste. The Tribunal specifically referred to that in the findings and reasons, even though the Applicant did not raise the claim at the hearing. The Tribunal decision record makes it clear that the Tribunal raised the issue with the Applicant. It is clear from the decision that the Tribunal considered the Applicant's membership of a Scheduled Caste, and whether he faced persecution as a result.
Contrary to the Applicant's claim that the Tribunal ignored his involvement with the “Mathua Sammelon’, the Tribunal did refer to that claim, although the Tribunal did not specifically mention the organisation by name. The Tribunal said, however:
“He claimed that he was a member of an organisation which promoted the rights of the Scheduled Castes and I accept that he may have been involved with such a group however, other than an assertion in his written claims; there is no other information to indicate that he would face any harm for reasons of his membership of this group.”[3]
[3] See Court Book at page 97
I am satisfied that the Tribunal did indeed consider the Applicant's claim of a fear of persecution for reason of his membership of a Scheduled Caste. It follows that the Applicant's first ground does not succeed.
Ground 2 – Failure to consider the Applicant’s claims regarding his political activities
The Applicant's second ground claims that the Tribunal failed to consider his claim of a well-founded fear of persecution on the basis of his political affiliation, and his activities with the Trinamool Congress. Contrary to the Applicant's claim, the Tribunal did consider that claim in some detail. The Tribunal's consideration of that issue can be found at pages 95 through to 97 of the Court Book.
The Applicant sets out in the particulars of his claim that the Tribunal made wrong assumptions when it made these comments:
“i) I do not accept that he suffered any mistreatment for reasons of his political opinion; and
ii) I do not accept that he faces any harm if he returned to India now or in the foreseeable future for reasons of his political opinion.”
The Applicant is, in effect, challenging the Tribunal's findings based on its factual conclusions. This is an invitation to the Court to conduct what is known as merits review and it is not open to an applicant in an application for judicial review. The Tribunal's factual findings are not subject to judicial review if there is evidence upon which the Tribunal could have made a factual finding of that nature.
It matters not whether the Court, in considering that same evidence, would have arrived at a different conclusion. The Court does not decide the factual matters, the Tribunal does. I am satisfied that there was evidence before the Tribunal upon which it was possible for the Tribunal to make the factual findings that it did, and reach the conclusions that it did based on those factual findings. Consequently, the Applicant's second ground fails.
Conclusions
The Applicant did not file a written outline of submissions, but he attended Court and made oral submissions to the Court. Those submissions were in fact a recital of his history and his factual claims for a protection visa. They were, in fact, material which had already been considered by the Tribunal. The Applicant's oral submissions did not argue any jurisdictional error, but in effect argued that the Tribunal had made the wrong factual decision based on the evidence. No jurisdictional error is shown there.
The Applicant is not legally represented in these proceedings. When he appeared at Court on 17th December 2007 he filled in the form to indicate that he wished to obtain legal advice from a lawyer on the RRT Legal Advice Panel. The Applicant told the Court this morning that, whilst he had been in touch with the lawyer to whom he was referred on a couple of occasions, it had not been possible to arrange a time for a consultation. The Applicant told the Court that he had last been in touch with the lawyer about the middle of January.
The Applicant sought an adjournment to obtain further legal advice. That adjournment was opposed by the solicitor for the Minister. Her opposition to an adjournment was on the basis that there had been sufficient time for the Applicant to seek legal advice, as the matter had been listed for hearing slightly more than two months after the First Court Date.
Even allowing for the fact that the Christmas/New Year holiday period has intervened, I am satisfied that a sufficient period of time has elapsed for the Applicant to have obtained legal advice. Accordingly, I refuse the application for an adjournment.
However, I am conscious of the fact that the Applicant is not legally represented and has not had the benefit of legal advice. He has, however, been able to file an amended application within time, which contained a clear argument of his claims. I have read through the Tribunal decision and the supporting documents in the Court Book independently of either the Applicant's claims or the First Respondent's submissions. I have done so in order to satisfy myself that no other arguable case for a jurisdictional error can be made from the material. I have not been able to discern any arguable case for a jurisdictional error.
Because there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Under sub-section 474(1) of the Act, a privative clause decision is final and conclusive. It is not subject to orders in the nature of certiorari or mandamus or prohibition. It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $3,400.00. The Applicant has not been successful in his claim and in my view it is an appropriate matter for a costs order in favour of the successful Respondent. The amount sought by way of costs is $3,400.00. That is within the range envisaged by the Federal Magistrates Court Rules. I propose to make that order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 5 March 2008
[2] See Court Book at page 97
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