SZLUC v Minister for Immigration

Case •

[2008] FMCA 625

•

8 May 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 625
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 on ground of Christian religion – credibility.
Migration Act 1958 (Cth), ss.36, 424A, 430, 474
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
Applicant: SZLUC
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3888 of 2007
Judgment of: Scarlett FM
Hearing date: 8 May 2008
Date of last submission: 8 May 2008
Delivered at: Sydney
Delivered on: 8 May 2008

REPRESENTATION

Applicant: In person
Solicitor for the Respondent: Ms Nanson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3888 of 2007

SZLUC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of India. He asks the Court for orders which would set aside a decision of the Refugee Review Tribunal and send his application for a protection visa back to the Refugee Review Tribunal for determination.  He claims that the Tribunal made a number of mistakes in dealing with his application. 

  2. The First Respondent, the Minister for Immigration & Citizenship, has filed a Response claiming that the application filed by the Applicant has not raised an arguable case for the relief claimed. 

Background

  1. The Applicant arrived in Australia on 11th May 2007.  Three days later, on 14th May 2007, he applied for a Protection (Class XA) visa.  The basis of his application is that he fears persecution on the grounds of religious belief.  He claimed to have been born into an orthodox Hindu family and was involved with a Hindu organisation called the Rashtriya Swayamsevak Sangh, known as the RSS. He met people involved with a Christian mission called the Pentecost Mission and became involved with the mission and started working with them. 

  2. As a result of his movement away from the Hindu religion towards the Christian religion, the Applicant claims to have suffered physical violence and threats from members of Hindu organisations, particularly his former colleagues in the RSS.  He claimed that not only was he threatened, but that his family was threatened and on 14th September 2006 he was attacked, assaulted and hospitalised.  He claims that his complaints to the police about these attacks did not result in any police action.

  3. A delegate for the Minister for Immigration & Citizenship refused his application for a protection visa on 2nd July 2007. The delegate referred to the Applicant's claims under the Convention grounds of political opinion real or imputed and religion. The delegate was not satisfied with the strength of the Applicant's claims and refers to the fact that he had made "a series of general and unsubstantiated claims"[1]

    [1] See Court Book at page 53.

Application to the Refugee Review Tribunal

  1. After the Minister's delegate refused the application for a visa on 2nd July 2007, the Applicant then applied to the Refugee Review Tribunal on 23rd July 2007 for a review of the delegate's decision. The Tribunal wrote to the Applicant on 20th August 2007 informing him that it had considered the material before it, but was unable to make a favourable decision on that information alone.

  2. The Tribunal invited the Applicant to attend a hearing on 20th September 2007. The Applicant attended the Tribunal hearing. He gave evidence with the assistance of an interpreter in the Malayalam language. The Tribunal asked him a number of questions about his claim and allowed him an extension of time to obtain a translation of a document described as a police report and to send that translation to the Tribunal. The Tribunal allowed the Applicant until 13th October 2007 to produce this material and on 11th October 2007 the document with the relevant entries translated into English was provided to the Tribunal. 

  3. The Tribunal signed its decision on 23rd October 2007 and handed that decision down on 27th November 2007. The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) visa.  A copy of the Tribunal decision record can be found at pages 94 to 105 of the Court Book.  In the decision the Tribunal summarised the Applicant's claims and evidence taken from the Departmental file and from the Applicant's evidence before the Tribunal on 20th September 2007. The Tribunal also referred to the documents supplied by the Applicant to the Tribunal after the hearing. 

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out at pages 102 to 105 of the Court Book.  The Tribunal accepted that the Applicant was a citizen of India and accepted the Applicant's claims of his identity. The Tribunal relied on the Applicant's Indian passport which he had produced to the Tribunal.  However, the Tribunal did not accept on the evidence before it that the Applicant suffered the harm in India that he claimed for the reasons he had claimed, namely that he was a member of a Hindu organisation, that he withdrew his support from that organisation, that he joined the Pentecost Mission and became a Christian and was attacked or threatened by members of Hindu organisations, including the RSS, or that he was in hiding in India prior to leaving for Australia. 

  2. The Tribunal did not accept as true that the Applicant feared that he would be harmed or killed or threatened in India if he returned there or that he left India because of that harm or that he feared to return to India because of the fact that he feared persecution.  The Tribunal said:

    “The reason that the Tribunal finds against the applicant in relation to these matters is that it does not accept that he is a witness of truth.”[2]

    [2] See Court Book at page 103

  3. The Tribunal then set out on pages 103 and 104 why it did not accept the truthfulness of the Applicant's claims and evidence.  The Tribunal referred to Independent Country Information about document fraud in India and on the basis of its credibility findings the Tribunal found that the documents he had submitted in support of his claims were not reliable evidence of the fact contained in those documents. 

  4. The Tribunal did not accept the Applicant's claims that his family members had been threatened in India and set out why.  The Tribunal found that there was no plausible evidence before it that the Applicant had suffered or would suffer harm from members of Hindu organisations, including the RSS, or anyone else in his country because of his political opinion, his imputed political opinions, his religion or any other Convention reason. 

  5. Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution in India within the meaning of the Convention and found, therefore, that he did not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for a protection visa.

Application for Judicial Review

  1. The Applicant then on 19th December 2007 applied to this Court for judicial review of the Tribunal's decision. The Applicant filed an amended application on 19th March 2008 in which he set out in more detail the particulars of his grounds for review. 

  2. In that document the Applicant claimed that the Refugee Review Tribunal did not accept all his claims made in his application for a protection visa and at the hearing.  He claimed that the Tribunal made a number of mistakes.  In particular, he claimed that the Tribunal should have invited him to make comments on the information which was adverse to him which appeared in the Tribunal decision.  He said that the Tribunal's findings and reasons contained adverse information which should have been given to him in writing before the Tribunal made its decision.  Because it did not do so, the Applicant claimed that the Tribunal was unfair to him and showed bias towards him. 

  3. The Applicant also claimed that the Tribunal did not understand his claims for a protection visa.  He said that the Tribunal did not explain to him why his application lacked hard information and why it did not accept any of his claims, except that he was a citizen of India. He claimed that no letter was sent to him in respect of those matters after the Tribunal hearing.

  4. In effect, the Applicant is claiming that the Tribunal failed to comply with the requirements of s.424A of the Migration Act. Also, that the Tribunal was biased towards him and did not understand the nature of his claims for a visa.

The Applicant’s Submissions

  1. Whilst the Applicant did not provide any written submissions, he attended Court and made oral submissions. He claimed that the Tribunal did not look into his case.  He said that the threat that he was likely to face on his return to India was one that the Tribunal did not look into properly.  He told the Court that the Tribunal did not inquire in any detail or at all about the nature of his case.  He asked the Court to provide him with protection and referred to the fact that his wife and children in India required support and that he has to work here in Australia in order to support them.  He also told the Court that the Tribunal did not give him enough time to provide documentary evidence and sought to produce documentary evidence in support of his claim to the Court.  I explained to the Applicant that the Court on judicial review does not accept fresh evidence relating to an applicant's claim for a protection visa. 

Ground 1

  1. The claim of the Applicant that the Tribunal did not accept all of his claims is in effect a challenge to the Tribunal's findings on the evidence.  It is a claim for merits review of the Tribunal decision.  But a Court conducting judicial review of a decision of an administrative decision-maker cannot conduct merits review.  This is established by a number of authorities, including Minister for Immigration & Ethnic Affairs v Wu Shan Liang[3]. 

    [3] (1996) 185 CLR 259 at 272

Ground 2

  1. Turning to the Applicant's claim that the Tribunal failed to comply with the requirements of s.424A of the Migration Act, it is clear that the Tribunal decision was based on its rejection of the credibility of the Applicant's claims. The material that the Tribunal considered was the Applicant's own evidence to the Tribunal, both oral evidence and documentary evidence. It is the case that evidence given by the Applicant to the Refugee Review Tribunal for the purpose of the application is specifically excluded by sub-section 424A(3) of the Migration Act.

  2. The Tribunal also considered Independent Country Information about document fraud in India. That information too is covered by sub-section 424A(3) of the Migration Act. There was no other information that the Tribunal relied upon, certainly not in an adverse sense, when it proceeded to affirm the delegate's decision. When the Tribunal refers to claims made by the Applicant but does not rely on that information in any adverse sense as being the reason or part of the reason for affirming the decision, there is no breach of s.424A. (see SZBYR v Minister for Immigration & Citizenship[4]).

    [4] [2007] HCA 26 at [17]-[18]

Ground 3

  1. The Applicant claims that the Tribunal was unfair and biased towards him.  It is well-established that a claim of bias or bad faith, whether actual or apprehended, is a serious allegation. It must be strictly alleged and strictly proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[5]).  There is no evidence of bias.

    [5] [2002] FCAFC 361

  2. The fact that the Tribunal made adverse findings as to the Applicant's credibility does not establish bias. The decision was a decision about credibility and a credibility finding is a factual finding which is the province of the administrative decision-maker (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[6]).  So long as there is evidence upon which a finding can be made, there is no jurisdictional error and a Court conducting judicial review will not interfere. 

    [6] (1999) 168 ALR 407 at 423

Conclusion

  1. In this case the Tribunal set out in its findings and reasons at page 103 of the Court Book why it did not accept the Applicant's claims and why it did not accept that he was a witness of truth. The Applicant has claimed that the Tribunal did not understand his claims for a protection visa.  It is difficult to see why it is that such a claim has been made.  The Tribunal set out the basis of the Applicant's claim in its findings and reasons:

    “Essentially the applicant claims that he left his country and fears to return there because he feared/fears harm from members of Hindu movements/organisations, including the RSS, because of his political opinion and his religion; he claims that he has left the Hindu organisations and the Hindu religion to become a Christian and has promoted Christianity.  He claims that he was and will be targeted by members of these groups, including the RSS, in his country for these reasons if he returns and will be “traced” by them.  He claims that he cannot get protection from the harm that he fears in India.”[7]

    [7] See Court Book at page 102

  2. The Tribunal also considered the Applicant's claims about threats to his family members and said:

    “To the extent that the applicant is claiming that his family members were/are threatened in India, the Tribunal does not accept that this is true.  The applicant told the Tribunal that his wife is living with her parents in Trivandrum and that one of his children is at school and the other is getting medical treatment in Trivandrum.”[8]

    [8] See Court Book at page 103

  3. I am satisfied that the Tribunal did understand the nature and extent of the Applicant's claims and considered those claims. 

  4. The Applicant complains that the Tribunal did not explain to him why his application lacked hard information and why it did not accept his claims. There was no obligation on the Tribunal to provide a running commentary on the Applicant's claims during the hearing and, in my view, the Tribunal's decision record complies with the requirements of s.430 of the Act and sets out exactly the Tribunal's reasons for rejecting the Applicant's claims. The Tribunal found that there was no plausible evidence before it, that the Applicant had suffered or would suffer harm from members of Hindu organisations or anyone else because of his political opinion actual or imputed or his religion or for any other Convention reason.

  5. I am of the view that the Applicant's claims of jurisdictional error have not been made out. Mindful of the fact that the Applicant is not legally represented, I read through the Tribunal decision and supporting material and I am unable to discern any other arguable case for jurisdictional error. 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. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari and mandamus. It follows that the application must be dismissed with costs.

  6. There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim. This is a proper matter for a costs order. The amount sought is $3,600.00. That is an amount that is well within the scale envisaged by the Federal Magistrates Court Rules. I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $3,600.00. I will remove the application from the list of cases awaiting finalisation.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V .Lee

Date:  12 May 2008


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SZLUC v Minister for Immigration & Anor [2009] FMCA 378