SZLTG v Minister for Immigration
[2008] FMCA 835
•19 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 835 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming delegate's decision not to grant protection visa – applicant a citizen of India claiming fear of persecution as a member of a particular social group – credibility – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether denial of procedural fairness – whether denial of natural justice – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCA FC 61 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 |
| Applicant: | SZLTG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3807 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 June 2008 |
| Date of Last Submission: | 19 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Mr O'Brien |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3807 of 2007
| SZLTG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal that was signed on 30th October 2007 and handed down on 20th November 2007. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant filed an application on 12th December 2007 in which he asks for the following orders:
i)That the application be allowed and the decision of the RRT is void and not in effect.
ii)That there be an order in the nature of certiorari to quash the decision of the Refugee Tribunal and the Minister for Immigration and Multicultural Affairs.
iii)That there be an order in the nature of mandamus requiring the Refugee Review Tribunal to review according to law and its principles.
iv)That the Respondent will pay the costs in this matter.
The Applicant claims that the Tribunal fell into jurisdictional error for three reasons:
i)Its decision was in breach of the provisions of s.424A(1) of the Migration Act 1958 (Cth) and that the Tribunal did not disclose information in accordance with sub-section 424A(1).
ii)That the Tribunal made error of law and lack of procedural fairness and therefore committed jurisdictional error.
iii)That the Tribunal made denial of natural justice because the Tribunal was wrong in concluding that the applicant's claims were not Convention related, such as significant financial hardship.
Background
The background to this matter is that the Applicant arrived in Australia on 5th April 2007. He applied for a Protection (Class XA) visa on 17th May 2007. He applied for a protection visa claiming a fear of persecution arising out of incidents that had occurred in India. He claimed that he was a builder and contractor doing business with his father. There was an accident on a particular site in which a wall collapsed and two employees were killed by falling bricks. The families and the community of the employees sought money from the Applicant and threatened the Applicant when that money was not forthcoming.
There were Court proceedings commenced which resulted in a verdict finding that the circumstances of the deaths of the two individuals were accidental, and which exonerated the Applicant. Nevertheless, he claimed that he had been threatened and attacked by the relatives and community of the deceased employees. They were from a lower class caste known as Dalits, and they had the strong support of a politician who supported the Dalits. The Applicant claimed that he reported the matter to the police but they did nothing other than ask for money for themselves and did not assist him.
A delegate of the Minister considered the application and noted that whilst the Applicant may hold a subjective fear of returning to India, the delegate noted that the claim by the Applicant had no connection with one of the five reasons given under the Refugees Convention. The delegate considered that the only Convention ground that may be applicable to the Applicant was that of a well founded fear of being persecuted for reasons of membership of a particular social group. However, the delegate noted correctly that the membership of a particular social group ground would not be made out if the claimed fear of persecution was the sole defining element in the formulation of identification of the group.
The delegate noted that while the Applicant claimed that he feared persecution because of his role as an employer, he was not being persecuted solely for being an employer. The delegate noted that the Applicant had had a Court ruling in his favour, finding that the incident that killed the two men was an accident. Whilst the delegate noted that members of the police force had not assisted the Applicant, the delegate did not consider that that was reflective of the police force or the authorities as a whole in India.
The delegate was not satisfied that the lack of protection provided to the Applicant by the police was not for a Convention reason, and there was no Convention nexus on the part of the State. The delegate refused the application for a protection visa on 9th July 2007.
Application for Review by the Refugee Review Tribunal
The Applicant then applied to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal received the Applicant's application on 4th August 2007. No documents in support were provided with the application.
The Tribunal wrote to the Applicant on 15th August 2007 and invited him to attend the hearing on 11th September. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Gujarati language. He produced his Indian passport to the Tribunal.
The Tribunal noted that the Applicant had attempted to produce documents, being police reports relating to the accident. The Tribunal, however, declined to accept them on the basis that they were unnecessary. The Applicant has also told the Court today that the documents at the time were in Gujarati and there was no English translation available.
After the hearing the Tribunal wrote to the Applicant on 14th September 2007. A copy of the Tribunal's letter can be found at pages 89 to 91 of the Court Book. The letter was headed "Invitation to Comment on Information in Writing," and invited the Applicant to comment on information that the Tribunal considers would, subject to any comments he made, be the reason or a part of the reason for affirming the decision that was under review.
The Tribunal's letter set out what that information was:
“There are contradictions and inconsistencies between what is stated: in your visitor visa application lodged on 9 January 2007 (the visitor visa application); in your protection visa lodged on 17 May 2007 (the application); in your handwritten statement provided with the application (the statement); and what you stated at the hearing before the Refugee Review Tribunal on 11 September 2007 (the hearing), as follows.”[1]
[1] See Court Book at page 89.
The letter then set out the specific details of the information referred to. The letter then went on to tell the Applicant why the inconsistent statements were relevant, saying:
“The inconsistent statements are relevant to the review as they indicate that your claims that you were threatened by the relatives of dead workers and politicians and that three attempts were made on your life by tampering with your car brakes, shooting at you and slashing you with a sharp object may not be true. The inconsistent statements are also relevant as they indicate that you may not be a truthful witness and that you may not have told the truth in the information provided to the Department, the Tribunal and at the Tribunal hearing in support of your protection visa and that your claims in relation to being a refugee may have been made for migration purposes. If the Tribunal makes these findings it may also find that you do not meet relevant criteria for the grant of a protection visa.”[2]
[2] See Court Book at page 90
The Tribunal invited the Applicant to provide written comments to that information by 9th October 2007. The Applicant did provide comments to the Tribunal by means of a five-page written statement received by the Tribunal on 9th October 2007.
The Tribunal signed its decision on 30th October 2007. It handed its decision down on 20th November 2007. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found in the Court Book at pages 110 through to 125.
The Tribunal set out the Applicant's claims and evidence based on his evidence at the hearing, his application for a visitor's visa, and his application for a protection visa. The Tribunal considered the Applicant's evidence to the Tribunal at the hearing. The Tribunal also considered the Applicant's response to the s.424A letter. The Tribunal then went on to consider country information about Dalits and about events in Gujarat. That information is reproduced at pages 120 and 121 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out at pages 121 to 125 of the Court Book. The Tribunal accepted that the Applicant was a national of India. The Tribunal noted the Applicant's claim that he had suffered harm in India due to a building accident that happened on his building site. However, the Tribunal did not find the Applicant to be a credible witness. It set out its reasons, saying:
“In particular there are a number of inconsistencies and contradictions in the statements made by the applicant, both in writing and orally, to the Department and the Tribunal which are of such magnitude that it indicates that the applicant did not suffer the harm he claimed he suffered in India. At the hearing the applicant stated that he wrote his statement and he completed his application.”[3]
[3] See Court Book at pages 121 and 122.
The Tribunal then set out the statements that the Applicant made and why it disbelieved them. The Tribunal went on to find:
“On the above evidence and for the above reasons, particularly the inconsistencies in the applicant's statements, the Tribunal finds that the applicant is not a truthful witness and his statements, both oral and in writing, both to the Department and to the Tribunal lack credibility. Also for the above reasons and as the Tribunal has found out that the applicant is not credible, the Tribunal also finds that it is not satisfied that the applicant: has been threatened by relatives of dead workers and politicians in relation to a settlement prior to the conclusion of Court proceedings; had his brake leads tampered with so that he had an accident; was shot at or stabbed on the building site.”[4]
[4] See Court Book at page 123.
Because the Tribunal found that the Applicant was not a truthful witness, it was not satisfied that the Applicant and his family would suffer harm from the relatives of the dead workers or politicians due to the claimed accident in the reasonably foreseeable future if he were to return to India. The Tribunal went on to consider the Applicant's claim that the police did not assist him. The Tribunal did not accept the Applicant's explanation and said:
“The Tribunal is aware that there is corruption in the Indian police force, however, as discussed with the applicant at the hearing, country information which is set out above, suggests that low caste Indians, such as Dalits, are more likely to be persecuted against than being responsible for persecution. As a higher caste Hindu it is unlikely that the applicant would not get protection from the police. Further, contrary to the applicant's claims, country information indicates that Dalits are under represented in the police force in India and that they are unlikely to be in senior positions.”[5]
[5] See Court Book at page 124.
The Tribunal found there was no plausible evidence that the Applicant had suffered persecution in India because of his political opinion, his imputed political opinion, his membership of a particular social group, his religion, or for any other Convention reason. The Tribunal affirmed the decision not to grand the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court for judicial review on 12th December 2007. The application came before the Court on its First Court Date on 14th January 2008. The application was originally listed for hearing on 17th April 2008 but had to be adjourned through no fault of the Applicant until today.
The Applicant sought to tender certain documentary evidence that he said he'd been unable to tender to the Tribunal, but I refused the tender on the basis that the Court had no jurisdiction to consider fresh evidence relating to a review of the merits of the Applicant's factual claims. The Applicant sought an adjournment to obtain advice from a migration agent. That application was refused. The Applicant has set out three grounds, relating to:
i)A breach of s.424A(1) of the Migration Act.
ii)An error of law and lack of procedural fairness.
iii)A denial of natural justice because the Tribunal was wrong in concluding that the Applicant's claims were not Convention related, such as significant financial hardship.
Submissions
The Applicant did not file a written outline of submissions but made some brief oral submissions.
Ground 1 – Section 424A
The Applicant claimed that the Tribunal had not heard him very well and had not seen any of his documents, which were rejected. He told the Court that at the time the documents were in Gujarati and had not then been translated into English. He indicated that he had read in a book about s.424A of the Migration Act and considered that that may be appropriate. He did not provide any particulars of any information which he said should have been provided to him but was not. He did not provide any particulars of his claim that the Tribunal made an error of law and did not accord to him procedural fairness. He did not provide any particulars of any denial of natural justice. He relied on his application which said the Tribunal was wrong in concluding that his claims were not Convention-related, such as significant financial hardship.
The Minister for Immigration & Citizenship submitted that there was no breach of s.424A of the Migration Act. The submission is that:
“This is a matter to which s.424A applied in its amended form, and in particular s.424A(3)(ba) applied to exempt from s.424A obligations information that the Applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department.”
In any event, it is submitted the Tribunal's adverse credibility findings were based upon its appraisals of the consistency of the Applicant's oral and written evidence.
The inconsistencies identified by the RRT were not information for the purpose of s.424A and the Minister relied on SZBYR v Minister for Immigration & Citizenship[6]. Indeed, it was submitted that the Tribunal exceeded its statutory obligations when it wrote to the Applicant, purportedly pursuant to s.424A, putting to him the inconsistencies in his evidence.
[6] [2007] HCA 26 at [18].
Ground 2 – Error of law and denial of procedural fairness
As to the error of law and denial of procedural fairness that was alleged in ground two, the Minister submitted that the Tribunal correctly stated the principles applicable to determining whether or not the Applicant satisfied the requirements of the Refugees Convention and determined that there was significant inconsistencies in his evidence which precluded it from accepting his claims to have a well founded fear of persecution.
It submitted that the Tribunal's obligations to afford procedural fairness are set out in Division 4 of Part 7 of the Act, and relied on the provisions of s.424B of the Migration Act. The Minister referred the Court to the decisions of Minister for Immigration & Multicultural Affairs v Lay Lat[7] and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor[8].
[7] [2006] FCAFC 61
[8] [2006] FCAFC 62
Ground 3 – Denial of natural justice
As to the denial of natural justice, the Minister submits that the Tribunal did not conclude the Applicant's claims were not Convention related, and even if it had that would not of itself establish a denial of natural justice.
Considerations
Ground 1
The Applicant has not, in his first ground, pointed to any information upon which the Tribunal found was the reason or part of the reason for affirming the decision under review that was relied upon in breach of s.424A(1) of the Migration Act.
The Tribunal wrote a letter to the Applicant setting out the items of information upon which it relied and the inconsistencies between it. That letter was certainly intended to comply with s.424A of the Migration Act. Whether or not the Tribunal exceeded its statutory obligation, the fact is that the Tribunal did give the Applicant the opportunity to comment on information, or inconsistencies in the information, whether it was necessary to do so or not.
The Applicant in fact did make comments in writing which the Tribunal considered. There is no breach of s.424A of the Migration Act.
Ground 2
The Applicant's claims of error of law and lack of procedural fairness are unparticularised and have not been made out. When asked about the error of law, the Applicant referred to s.424A of the Migration Act which comprised his first ground. This is a matter where the Tribunal wrote to the Applicant and invited him to attend a hearing under the provisions of s.425 of the Migration Act.
The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Gujarati language. There were no issues raised at the Tribunal hearing that the Applicant would not have expected as a result of the delegate's decision. The Applicant did not complain about the ability or otherwise of the interpreter to assist in the hearing. In my view that Tribunal complied with its obligations under s.425 of the Migration Act in providing the Applicant with a hearing and no lack of procedural fairness is shown. No error of law is shown.
Ground 3
The Applicant claims a denial of natural justice because the Tribunal was wrong in concluding that the Applicant's claims were not Convention-related. This is, in effect, an attempt by the Applicant to re-argue the merits of his factual claims before the Tribunal. It is well established that merits review is not available in applications for judicial review.
Conclusion
The Tribunal rejected the Applicant's case on the basis of credibility. The Tribunal was not satisfied that the Applicant was a credible witness. It was a comprehensive rejection of the Applicant's credibility, and the assessment of credibility is a factual matter that is purely a matter for the Tribunal. In my view there was sufficient evidence available to the Tribunal to enable it to form the decision that it did. The Applicant is not legally represented. My examination of the Tribunal decision does not disclose any arguable case for a jurisdictional error.
In my view, in the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. As such, it is final and conclusive and is not open to orders in the nature of Certiorari or Mandamus as the Applicant seeks. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The amount sought is $3,250.00. This is an appropriate matter for a costs order as the Applicant has been unsuccessful in his claim. The amount sought, $3,250.00, is to my mind an appropriate figure for costs bearing in mind the Court scale. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,250.00.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V .Lee
Date: 23 June 2008
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