SZLVU v Minister for Immigration
[2008] FMCA 708
•30 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 708 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to take into account “integers central to the applicants’ claim” – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal had regard to the applicants’ claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 474; pt.8 div.2 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 Minister for Immigration and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 SZIWK v Minister for Immigration and Citizenship [2007] FCA 168 |
| First Applicant: | SZLVU |
| Second Applicant: | SZLVV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 7 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 May 2008 |
| Date of last submission: | 22 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Mr G. Johnson, DLA Phillips Fox Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 7 of 2008
| SZLVU |
First Applicant
| SZLVV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 November 2007 and handed down on 11 December 2007.
The applicants claim to be from India and of Catholic faith. The first named applicant (“the Applicant”) is the husband of the second named applicant. The claims of the second named applicant are entirely dependent on the claims of the Applicant.
The Applicant arrived in Australia on 9 April 2007 having departed legally from Cochin International Airport on a passport issued in his own name and a visitor visa issued on 5 March 2007.
On 10 April 2007, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 5 June 2007, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for a protection visa
On 2 July 2007, the applicants lodged an application for review of the Delegate’s decision with the Tribunal.
On 19 November 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 January 2008, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s claim in his protection visa application
In his protection visa application, the Applicant stated that he was a member of the Democratic India Congress Party and previously a member of the Kerala Student Union (“KSU”). The Applicant stated that he feared persecution by the Communist Party of India (Marxist) (“CPI(M)”) and a person, Mr B, who the Applicant claimed had been trying to kill him and his family for the last 30 years. The Applicant stated that Mr B became a member of the Legislative Assembly of the applicants’ home state of Kerala.
The Applicant claimed that he was attacked when riding on a bicycle in 1990 by “CPI(M) Goondas”, against whom police filed a criminal charge. The Applicant claimed that he and his wife were both attacked again in June 1996 whilst driving on a scooter and again the police charged CPI(M) Goondas. The Applicant stated that both cases are still pending. The Applicant stated that his home was attacked on 16 October 2006 by CPI(M) Goondas and the local leader of the CPI(M) was charged but later absconded.
The Applicant stated that he and Mr B had studied at university together and supported differing political parties. The Applicant stated that both he and Mr B studied law, during which Mr B was an active member of the Students Federation of India and the Applicant was an active member of the Kerala Students Union. The Applicant also referred to fights in 1983 and 1986 between opposing student political parties, resulting in serious injury and the death of some members.
The Applicant stated that he could not return to Kerala because of past attacks by CPI(M) Goondas and the failure of the police to successfully prosecute them. The Applicant stated he could not live in other states because he did not speak the language Hindi.
The Applicant stated that he was not sure that the Congress Party would protect him because he had been a supporter of the Democratic Indira Congress, the leader of whom was “sacked from Indian National Congress by the President Mrs Sonia Ghandi.”
The Delegate’s Decision
On 5 June 2007, the Delegate of the First Respondent refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate was not satisfied that any acts of past persecution or attacks on the Applicant or his family were for a Convention related reason. The Delegate expressed doubt about the Applicant’s claim of an attack against his home in 2006, given that he had lived at the one address since 2000. The Delegate was not satisfied that the Applicant had a well-founded fear of persecution for a Convention related reason if he were to return to Kerala.
The Tribunal decision
On 2 July 2007, the Applicant lodged an application for review of the Delegate’s decision with the Refugee Review Tribunal.
On 26 July 2007, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 3 September 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence. The second-named applicant did not attend and the Applicant told the Tribunal she was unwell.
Following the hearing on 3 September 2007, the Tribunal wrote to the applicants (“the s.424A Letter”) identifying various inconsistencies in the Applicant’s statement in support of his protection visa application and oral evidence given by him at the hearing and inviting comment.
The Tribunal’s the s.424A Letter also referred to information before it that another applicant had made claims similar to those of the Applicant. The s.424A Letter noted that this other applicant lived at the Applicant’s previous address. The s.424A Letter also informed the applicants that the handwriting used in the application of the other applicant and the present applicants were very similar. Both applications used similar phrases. The s.424A Letter noted that at the hearing the Applicant stated he was not aware of any other person with a claim of for persecution at the hands of Mr B.
The Applicant responded to the s.424A Letter by letter dated 12 November 2007. The Applicant’s letter stated that, in relation to inconsistencies in his evidence, he sometimes lost his memory following surgery on his throat and so was unable to furnish “the exact details at the time of the hearing as I have given in the protection visa application.” The Applicant also recanted his evidence to the Tribunal that he did not know of any other applicant and said he gave such evidence to the Tribunal because he feared he may otherwise cause trouble for his friend.
In its decision record, the Tribunal noted in detail the claims made by the Applicant in his protection visa application. The Tribunal noted independent country information to which it had regard, including information about Mr B. The Tribunal also had regard to country information relating to “treatment of returnees”.
The Tribunal noted evidence given by the Applicant at the hearing and noted exchanges it had with the Applicant about his evidence. The Tribunal noted that it put to the Applicant various inconsistencies in the Applicant’s oral evidence with those made in his protection visa application. The Tribunal also noted that it put to the Applicant its concerns about the credibility of the Applicant’s claims and noted the Applicant’s responses.
The Tribunal also noted in detail the s.424A Letter and the Applicant’s response to that letter.
The Tribunal found the Applicant not to be a credible witness and comprehensively rejected his claims of past persecution. Further, the Tribunal did not accept the Applicant’s explanation about inconsistencies in his oral evidence with those claims made in his protection visa application on the basis of memory loss caused by surgery. The Tribunal noted that the Applicant had been asked at the hearing to provide medical records and police statements to the Tribunal in support of his claims, however, he was unable to do so.
The Tribunal noted that it accepted the Applicant’s explanation about his response about his denial of knowledge of any similar protection visa application by his friend and stated that it had “not relied adversely on the fact.”
In particular, the Tribunal found that the Applicant had not suffered any harm in the past arising from his relationship with Mr B or because of his political opinion or any political opinion imputed to him. The Tribunal rejected the Applicant’s claims of being attacked by the CPI(M) Goondas in 1996 and 2006. The Tribunal did not accept that the CPI(M) Goondas under the direction of Mr B would continue to threaten the Applicant or his family or that they would do so if the Applicant returned to Kerala and continued to participate in political activities.
The Tribunal was not satisfied there was any real chance in the reasonably foreseeable future of any serious harm being suffered by the Applicant by reason of any attack on Mr B or the Applicant’s political opinion or imputed political opinion if he were to return to Kerala and become involved in political activities.
The Tribunal found that, whilst the Applicant did not claim a fear of persecution by reason of his Christian religion, independent country information before it indicated that Kerala has the largest Christian population in India and that the constitution of India provides for freedom of religion and that the national government generally respects that right. Accordingly, the Tribunal rejected that the Applicant had a well-founded fear of persecution now or in the reasonably foreseeable future by reason of his religion or for any political opinion imputed to him because of his religion.
The Tribunal found that any fear of persecution held by the Applicant was not well-founded and had not factual or objectives basis.
The Tribunal found that, in light of its findings, it was not necessary to consider the issue of relocation and it had not done so.
The Tribunal affirmed the decision under review.
The proceeding before this Court
The applicants were unrepresented before this Court although had the assistance of a Malayalam interpreter. The applicants have participated in the Panel Advice Scheme. The Applicant confirmed that he was appearing for himself and the second-named applicant.
The Applicant confirmed that the applicants relied on the grounds contained in an amended application filed on 3 April 2008.
The grounds of the amended application are somewhat difficult to understand and appear to combine, submissions, grounds and particulars. Counsel for the first respondent summarised the grounds in her written submissions. The Court had the interpreter interpret for the Applicant the summary of the grounds prepared by counsel for the First Respondent. The Applicant confirmed that counsel for the First Respondent’s submissions accurately summarised the grounds upon which the applicants relied.
The grounds as summarised by counsel for the First Respondent are as follows:
“2. The complaints raised in the amended application are (as paraphrased by the first respondent):
a. The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant (‘Ground 1a’).
b. The Tribunal found that the applicants do not have a well-founded fear of persecution for reasons of political opinion or imputed political opinion, but did not give reasons for the finding (‘Ground 1b’).
c. The Tribunal failed to comply with s 424A of the Migration Act 1958 (‘the Act’) by failing to give the applicants information about the history of Kerala politics prior to the hearing (‘Ground 2’).
d. The Tribunal failed to ask whether the Indian authorities provided a standard of protection comparable with international standards (‘Ground 3’).
e. The Tribunal failed to take into account integers central to the applicants’ claims, in that the applicant spent a long time being questioned without a break and felt stressed and intimidated (‘Ground 4’).
f. The Tribunal failed to carry out its review function, in that the Tribunal did not consider the applicant who had been under ‘immense and intimidating pressure from CPI(M) toughs and goons’ (‘Ground 5’).
g. The Tribunal did not consider the applicant’s claim that his political activities resulted in threats by CPI(m) members. The Tribunal also failed to acknowledge that his family members also suffered in political conflict (‘Ground 6’).
h. The Tribunal failed to find that the applicant satisfied the definition of Refugee (‘Ground 7’).
i. The Tribunal failed to analyse properly the ‘future harm’ the applicant may face and to assess or carry out the ‘real chance’ test (‘Ground 8’).”
Ground 1a and Ground 3
Counsel for the First Respondent agreed that the Tribunal did not make a finding as to the extent or nature of persecution suffered by the Applicant; and did not ask whether the Indian authorities provided a standard of protection comparable with international standards.
However, there was no obligation on the Tribunal to consider such matters in light of the Tribunal’s adverse credibility findings and its comprehensive rejection of the Applicant’s claims of past persecution.
At the heart of the Tribunal’s rejection of the Applicant’s claims and evidence were the inconsistencies in the Applicant’s oral evidence with his written claims and the Tribunal’s finding that it was not satisfied by the Applicant’s explanation about the inconsistencies. The Tribunal had put its concerns to the Applicant both at the hearing and in the s.424A Letter written to the applicants after the hearing. The Applicant’s credibility was an issue before the Delegate and the Applicant should have been aware that it was an issue in the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). In any event the Tribunal’s concerns about the Applicant’s credibility were put to him squarely at the hearing and again in the s.424A Letter.
As is discussed below, a fair reading of the Tribunal’s decision makes clear that the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, grounds 1a and 3 are not made out.
Ground 1b – “The Tribunal found that the applicants do not have a well-founded fear of persecution for reasons of political opinion or imputed political opinion, but did not give reasons for the finding”
A fair reading of the Tribunal’s decision does not support the contention in ground 1b that the Tribunal did not give reasons for finding that the Applicant did not have a well-founded fear of persecution for reasons of political opinion or imputed political opinion.
The Tribunal found that “there was no factual or objective basis” for the Applicant’s claim of a fear of persecution.
In reaching that conclusion, a fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims made by the Applicant; considered all evidence provided by the Applicant in support of his claims; noted in detail independent country information to which it had regard; noted exchanges it had at the hearing with the Applicant about his claims; noted matters of concern about the Applicant’s evidence that it put to the Applicant and noted the Applicant’s responses. The Tribunal took the cautious step of giving to the applicants the s.424A Letter in which the Tribunal identified inconsistencies in the Applicant’s oral evidence with claims made by him in his protection visa application. The Tribunal considered the Applicant’s response to the s.424A Letter.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings, as referred to in paragraph 43 above in these Reasons. Matters of credit are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Otherwise ground 1b is no more than a disagreement with the findings and conclusions made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Accordingly, ground 1b is not made out.
Ground 2 – “The Tribunal failed to comply with s 424A of the Migration Act 1958 (‘the Act’) by failing to give the applicants information about the history of Kerala politics prior to the hearing”
Information about the history of Kerala politics prior to the hearing is general country information that is not specifically about the Applicant. In the circumstances, such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]).
Accordingly, ground 2 is rejected.
Ground 4 – “The Tribunal failed to take into account integers central to the applicants’ claims, in that the applicant spent a long time being questioned without a break and felt stressed and intimidated”
To the extent that ground 4 contends that the Tribunal failed to take into account integers central to the Applicant’s claims, such a contention is not supported by a fair reading of the Tribunal’s decision.
As referred to above in these Reasons, a fair reading of the Tribunal’s decision makes clear that the Tribunal identified in detail all the claims made by the Applicant at the hearing and noted the exchange it had with the Applicant about his evidence; put to the Applicant matters of concern about his evidence and noted the Applicant’s responses. As stated above in these Reasons, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings.
The applicants have not identified any particular integer which they contend the Tribunal failed to consider and none is apparent on a fair reading of the Tribunal’s decision.
To the extent that ground 4 alleges that the Applicant spent a “long time being questioned without a break and feeling stressed and intimidated”, the Applicant provided no evidence in support of such an allegation. As disclosed in Exhibit 1R, the hearing lasted 3 hours with a 20 minute break during the hearing. A fair reading of the Tribunal’s decision record does not disclose any complaint made by the Applicant at the hearing about any feeling of stress or intimidation.
The Court is entitled to have regard to the Tribunal record as accurate in the absence of any other evidence (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]; SZIWK v Minister for Immigration and Citizenship [2007] FCA 168 at [15]).
Accordingly, ground 4 is not made out.
Ground 5 – “The Tribunal failed to carry out its review function, in that the Tribunal did not consider the applicant who had been under ‘immense and intimidating pressure from CPI(M) toughs and goons’”
Ground 5 appears to contend that the Tribunal failed to consider that the Applicant had been under “immense and intimidating pressure from CPI(M) toughs and goons”, however, a fair reading of the Tribunal’s decision does not support such a contention.
The Tribunal noted with particularity the Applicant’s claims of attacks by CPI(M) Goondas and the threat made by them and Mr B that they would kill his family as they had attacked them for the last 30 years. However, the Tribunal did not accept the Applicant’s claims in this regard. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.
Otherwise, ground 5 is no more that a disagreement with the Tribunal’s adverse findings. Such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 5 is not made out.
Ground 6 – “The Tribunal did not consider the applicant’s claim that his political activities resulted in threats by CPI(M) members. The Tribunal also failed to acknowledge that his family members also suffered in political conflict”
A fair reading of the Tribunal’s decision makes clear that the Tribunal did consider whether or not the Applicant was threatened by CPI(M) members as a result of his political activities and rejected the Applicant’s evidence in this regard.
A fair reading of the Tribunal’s decision also makes clear that the Tribunal had regard to the Applicant’s claims that his family members had also “suffered in political conflict”. The Tribunal again rejected such evidence. In the course of doing so, the Tribunal specifically identified and rejected the Applicant’s claims of injury to his wife in 1990 and 1996, based on inconsistencies in the Applicant’s oral evidence, written claims and his failure to satisfactorily explain the inconsistencies.
The Tribunal specifically rejected the Applicant’s claims about threats to the Applicant and his family from CPI(M) members
As stated above in these Reasons, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for which it gave reasons, including its adverse credibility findings.
Otherwise ground 6 is no more than a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review, which this Court cannot undertake.
Accordingly, ground 6 is not made out.
Ground 7 – “The Tribunal failed to find that the applicant satisfied the definition of Refugee”
It is for the Applicant to satisfy the Tribunal that he meets the criteria for being a refugee. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to its findings in reaching its conclusion that it was not satisfied that the Applicant was a refugee. The Tribunal, having not been satisfied that the Applicant met the relevant criteria for being a refugee, is bound to affirm the decision under review in accordance with s.65(1) of the Act.
Otherwise ground 7 is no more than a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review, which this Court cannot undertake.
Accordingly, ground 7 is not made out.
Ground 8 – “The Tribunal failed to analyse properly the ‘future harm’ the applicant may face and to assess or carry out the ‘real chance’ test”
The Tribunal stated that it found that the material before it did not indicate “any factors that give rise to a real chance of prospective persecution for reasons of [the Applicant’s] political involvement if [the Applicant] were to return to India.”
A fair reading of the Tribunal’s decision makes it clear that the Tribunal did understand the Applicant’s claims, however, was not satisfied that they were credible. Indeed, as stated above in these Reasons, the Tribunal comprehensively rejected the Applicant’s evidence of past harm by reason of any political opinion, imputed political opinion or religion. Those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Otherwise, ground 8 is no more than a disagreement with the ultimate findings and conclusions made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 8 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the Applicant; had regard to all evidence provided by the Applicant, both written and oral; put to the Applicant concerns it had about his evidence and noted his responses, including giving the applicant the s.424A Letter about its concerns regarding inconsistencies in the Applicant’s evidence and inviting the applicants to comment. The Tribunal made findings that were open to it on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on its findings and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 30 May 2008
10
2