SZLUZ v Minister for Immigration
[2008] FMCA 465
•11 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 465 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425, 430 |
| Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v Jia (2001) 205 CLR 507 NADH of 2001 v Minister for Immigration (2005) 214 ALR 264 NAHI v Minister for Immigration [2004] FCAFC 10 NARV v Minister for Immigration [2003] FCAFC 262 SBBF v Minister for Immigration [2002] FCAFC 358 SCAA v Minister for Immigration [2002] FCA 668 SZKGP v Minister for Immigration & Anor [2007] FMCA 1756 Xavier Fernandez & Ors v Minister for Immigration [2005] FMCA 960 |
| Applicant: | SZLUZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3964 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 11 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Mafessanti Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,150.
Exhibit A1, being the letter from the Kerala State Muslim Youth League, be returned to the applicant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3964 of 2007
| SZLUZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 4 December 2007.
The applicant is from India and had made claims of political and religious persecution. The background to the applicant's claims and the Tribunal decision on them are set out in the Minister's written submissions filed on 7 April 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 10 of those written submissions:
The applicant is a citizen of India who arrived in Australia on 28 March 2007: court book (“CB”) 13-15.
On 7 May 2007 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship: CB 1-30. On 19 July 2007 a delegate of the Minister for Immigration and Citizenship refused to grant the applicant a protection visa: CB 33-40.
On 13 August 2007 the applicant lodged an application for review of the decision of the Minister’s delegate with the Tribunal: CB 41-44. On 14 September 2007 the Tribunal invited the applicant to a hearing and on 25 October 2007 the applicant attended the hearing and gave evidence in support of his claims: CB 53, 67.
On 8 November 2007 the applicant wrote to the Tribunal and requested one month in which to provide "some evidence" which was to be sent from India: CB 56. The Tribunal refused the request for more time by letter of the same day but informed the applicant that it would nevertheless take into consideration any further evidence submitted prior to the handing down of its decision: CB 58.
On 4 December 2007 the Tribunal handed down its decision to affirm the decision of the Minister’s delegate not to grant a protection visa to the applicant ("Tribunal Decision"): CB 61, 62.
The applicant’s claims
The applicant claimed to have a well-founded fear of persecution in India by reason of his political opinion and religion: CB 19-22, 66. At the Tribunal hearing the applicant affirmed those claims: CB 67-68. In summary, the applicant claimed that:
a)he was elected president of the Indian Union Muslim League ("IUML") and was responsible for developing the contents of party pamphlets and planning local party meetings;
b)he influenced some Hindus to convert to Islam and join IUML;
c)one day he was attacked by supporters of the Communist Party of India (Marxist) ("CPIM"). The leader of CPIM accused him of converting people from Hinduism to Islam;
d)he was beaten in front of villagers and told to convert to Hinduism;
e)he reported the matter to the police but they would not let him lodge a statement;
f)as a result of the influence of the CPIM leader, he was sacked from his job;
g)he decided to leave India with his pregnant wife as he feared harm and even death at the hands of CPIM supporters, politically motivated radical Hindus as well as other political adversaries by reason of having a political opinion which opposed that of the Hindus; and
h)as a member of IUML, he cannot expect protection from the police and government authorities who are all Hindus and hate Muslims.
The Tribunal Decision
The Tribunal:
a)noted that the applicant provided very little evidence to support his claims at the hearing and in his protection visa application: CB 68.4;
b)was not satisfied that the applicant was ever a leading official of IUML or that he was ever physically attacked by CPIM supporters because of his religion and/or political opinion. This finding was based on the fact that the applicant:
i)had not provided evidence supporting his claim to have been the President of the IUML; and
ii)"gave imprecise and conflicting advice on the nature and timing of the alleged attack on him by CPIM supporters": CB 68.4;
c)on the basis of independent country evidence, did not accept that the Applicant's religious and political beliefs would prevent him from availing himself of the protection of the relevant authorities in India. It found that the Indian Constitution provided for freedom of religion which was respected by the national government (CB 68.5-68.6) and that Kerala was a law-abiding state where legal recourse is available to those who feel threatened (CB 68.7).
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of his religious or political beliefs, or for any other Convention reason, if he were to return to India. The Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa: CB 69.
These proceedings began with a show cause application filed on 24 December 2007. The applicant now relies on an amended application filed on 20 March 2008. The grounds in that amended application are conveniently summarised in the Minister's written submissions. I adopt, with minor amendments, paragraph 11 of those submissions:
The applicant alleges that the Tribunal committed jurisdictional error insofar as it:
a)breached s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) by relying upon independent country information (Grounds 1 and 2);
b)did not consider the applicant's request for an extension of time in which to provide evidence that he is President of the IUML (Ground 3);
c)did not consider the applicant's "genuine claim" although the applicant gave adequate evidence that he was physically assaulted on several occasions (Ground 4);
d)"...failed to consider properly ... whether the applicant would suffer serious harm per s.91R(2)(a) of the MigrationAct if he [were] asked to relocate in India" (Ground 5);
e)"...did not use the country information as specific ... but the [Tribunal] was preoccupied and did not have a fresh look. The [Tribunal] failed to consider the country information in a proper way" (Ground 6);
f)"...acted illogically when [it] concluded that the applicant did not have a well‑founded fear of persecution if he were to return to India. The Tribunal failed to properly weigh the fact that the applicant was President of the IUML, had been tortured by CPIM supporters and would not be helped by police because he was a Muslim" (Ground 7);
g)"... failed to see that the applicants satisfy the 4 key elements required [by the] Convention definition [of 'refugee']" (Ground 8);
h)"...failed to analyse properly the 'future harm' the applicant may face if he returned to India" (Ground 9).
Subject to what I say below, I find myself in agreement with the Minister's submissions on the grounds in the amended application. I have reached that conclusion by reference to both the submissions and the available evidence which comprised the court book filed on 20 February 2008 and the applicant's affidavit filed on 24 December 2007.
In his oral submissions, the applicant elaborated on ground three in his amended application concerning the refusal of an extension of time. The court book records that by letter dated 8 November 2007 the applicant wrote to the Tribunal requesting one month to submit additional documents in support of his application: CB 56). The letter did not state what the nature of the additional documents was. A handwritten note on the request, signed by the presiding member on
13 November 2007, states that the request was refused although he would take into account additional evidence received before the decision was handed down. This was confirmed by a letter dated
13 November 2007: CB 58. By letter dated 15 November 2007 the applicant was invited to the handing down of the Tribunal decision on 4 December 2007. That is indeed when the decision was handed down: CB 59 and 69.
There is no substance to ground three for the following reasons. First, the applicant was on notice from at least 19 July 2007 when the delegate made his decision, that his failure to produce evidence to substantiate his claims of senior party membership was an issue he needed to deal with: CB 39. Secondly, the request for the extra time made on 8 November 2007 was, on its face, unpersuasive because it gave no clue as to the nature or significance of the additional documents that he was anticipating. It is also noteworthy that the request for more time was made before the applicant was informed when the Tribunal decision would be handed down.
In my view, given the amount of time the applicant had already had to produce additional information and given the vague terms in which the request was expressed, the Tribunal was entitled to reject it. Even if the request had been granted it would have been anticipated that the Tribunal decision would have been handed down shortly after the additional one month period requested had expired. That would have been some time on or after 8 December 2007. The applicant told me from the bar table that he did not receive the additional information he was expecting until 20 December 2007. In the circumstances, it is extremely doubtful that it would have made any difference if the request had been approved.
The applicant tendered, and I accepted, the additional document he ultimately received. The document bears directly on the question of the applicant's election as president of the Melattur Unit Muslim Youth League in 2006. It is clear that that issue was important to the Tribunal in its decision. In its reasons, at CB 68 the presiding member says:
The applicant has provided very little evidence to support his claims at the hearing and in his protection visa application. While he has provided documentary evidence of his IUML membership, he has not provided evidence supporting his claim to have been IUML president in his local region.
It is unfortunate that the applicant was unable to present the additional document to the Tribunal because it might have made a difference. However, his inability to present the document prior to the decision being made was not brought about by the Tribunal because the letter was not received until after the time he had requested had expired.
The applicant has the opportunity, if he wishes, to present the additional evidence to the Minister's Department and to request the Minister to substitute a more favourable decision. What the Minister chooses to do with such a request is beyond the scope of this proceeding. The Court has no jurisdiction in relation to that exercise of power, or non-exercise of power, by the Minister.
I otherwise incorporate, with necessary amendments, paragraphs 13 through to 33 of the Minister's written submissions:
Ground 1 alleges a breach of s.424A of the Migration Act because the Tribunal relied upon independent country information in two respects, namely as to the prevalence of political persecution in India and the adequacy of state protection offered in India. The applicant relies upon the Full Federal Court decision in NARV v Minister for Immigration [2003] FCAFC 262 ("NARV") in support of this ground of review.
Since s.422B applies to the present matter, the Tribunal’s procedural fairness obligations are limited to those outlined in Pt 7 Div 4 of the Migration Act. There is no breach of s.424A of the Migration Act insofar as independent country information does not fall within the purview of s.424A of the Migration Act, by virtue of s.424A(3)(a) of the Migration Act. Insofar as the applicant relies upon NARV, that decision can be distinguished from the present matter because s.422B of the Migration Act did not apply in NARV.
In respect of any procedural fairness obligations which may arise pursuant to s.425 of the Migration Act, I accept that that the Tribunal put the information to the applicant for comment at the Tribunal hearing (see CB 67) such that, in any event, the applicant was on notice of the determinative issues before the Tribunal.
Ground 3: Refusal of extension of time
To the extent that the applicant's request is not recorded in the Tribunal’s reasons for decision, I accept that s.430 of the Migration Act only requires the Tribunal to set out its findings on any material questions of fact and to refer to the evidence on which the material findings of fact are based. Section 430 does not require the Tribunal to provide detailed reasons in its decision record in relation to the exercise of its discretion: see SZKGP v Minister for Immigration & Anor[2007] FMCA 1756 at [22]; Xavier Fernandez& Ors v Minister for Immigration [2005] FMCA 960 per Smith FM at [18].
Grounds 4, 5, 6, 7, 8 and 9: merits review
To the extent that these grounds challenge several of the Tribunal’s findings they do no more than reflect the applicant’s dissatisfaction with the Tribunal’s decision in this matter. That is not a basis for review, nor a ground which founds jurisdictional error. Findings as to the weight to be accorded to evidence are strictly within the jurisdiction of the Tribunal and cannot be challenged by the applicant.
These grounds seek impermissible merits review: see NAHI v Minister for Immigration [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 - 42.
Ground 4: Failure to consider the applicant's "genuine claim"
Contrary to ground 4, the Tribunal considered the applicant's claim to fear persecution by reason of his alleged role as president of the IUML as well as his religious and political activities. However, the Tribunal affirmed the delegate's decision because it did not accept that the applicant was "ever a leading official IUML or that he was ever physically attacked by IUML adversaries because of his religion and/or political opinion". The fact that the Tribunal ultimately rejected the applicant's claim, does not mean it did not consider his claim.
Grounds 5, 8 and 9
To the extent that Grounds 5, 8 and 9 allege that the Tribunal misapplied the law or legal tests relevant to refugee law, there is nothing to suggest that the Tribunal misunderstood or misapplied those tests. Contrary to the applicant's allegations, the Tribunal:
(a)had regard to the "4 key elements prescribed by the convention definition of "refugee"" but was not satisfied that the applicant had a well-founded fear of persecution (Ground 8);
(b)was not obliged to consider whether the applicant would face serious harm if he were to relocate in India as it had rejected the applicant's claims of harm suffered in the past (Ground 5);
(c)assessed the applicant's fear of future harm. However, having rejected the applicant's claims of past harm, the Tribunal rejected the applicant's claim to have a well-founded fear of persecution if he were to return to India (Ground 9).
There is nothing to indicate any misapplication of the law by the Tribunal. The fact that the Tribunal did not accept the applicant's claims, does not mean that it did not consider the applicant's claims.
Ground 6: "Tribunal did not have a fresh look"
If by this ground, the applicant alludes to a ground of bias, then that allegation ought to be made explicitly and be the subject of evidence: Minister for Immigration v Jia (2001) 205 CLR 507 at [69]. Moreover, it is a rare circumstance where a lack of good faith/bias on the part of the Tribunal will be apparent merely from written reasons: SBBF v Minister for Immigration [2002] FCAFC 358 at [16] per Tamberlin, Mansfield & Jacobson JJ citing SCAA v Minister for Immigration [2002] FCA 668 at [38] per Von Doussa J with approval (see also [36] to [37] of SCAA).
There is nothing on the face of the Tribunal’s decision record which gives rise to any reasonable apprehension that the Tribunal did not bring an impartial mind to bear on the decision: see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14].
Ground 7: Illogicality
Ground 7 alleges that the Tribunal "acted illogically" because it failed to properly assess the applicant's claims. Having regard to the reasons for which the Tribunal rejected the applicant's claims, namely absence of evidence to show that he was president of the IUML and independent country information, it was open to the Tribunal, on the material before it, to reject the applicant's claims to be president of IUML and to have suffered past harm at the hands of CPIM supporters and no illogicality is demonstrated. To the extent that the applicant challenges the Tribunal’s factual findings in respect of these claims, he seeks impermissible merits review.
Other matters
Finally, there is nothing on the face of the Tribunal’s decision record to indicate the applicant was denied procedural fairness. Specifically, the Tribunal’s record of the hearing demonstrates that the applicant was clearly on notice of the issues for determination (see CB 67) in compliance with s.425 of the Migration Act.
I find that the Tribunal decision is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
I will further direct that the exhibit A1, being the letter of the Kerala State Muslim Youth League be returned to the applicant.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,150. The applicant stated words to the effect that he thought any submission by him on costs in the circumstances would be pointless. I am satisfied that costs of not less than $4,150 have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in that amount.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 April 2008
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