SZLXA v Minister for Immigration
[2008] FMCA 406
•31 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 406 |
| MIGRATION – Visa – Protection visa (Class XA) – application for review of decision of Refugee Review Tribunal to affirm delegate’s decision not to grant a protection visa – applicant a citizen of India claiming fear of persecution as a Sikh in Haryana state in India – relocation – state protection – credibility – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.424A, 476 |
| Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 referred to SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 |
| Applicant: | SZLXA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 105 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 March 2008 |
| Date of last submission: | 31 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Quinn |
| 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 $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 105 of 2008
| SZLXA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant has brought an application for review of the decision of the Refugee Review Tribunal signed on 5th December 2007 and handed down on 3rd January 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa. The Applicant now seeks orders:
(a)quashing the Tribunal decision; and
(b)referring the application back to the Tribunal for reconsideration.
Background
The Applicant is a national of India who arrived in Australia on 21st June 2007 and applied for a Protection (Class XA) visa 6 days later, on 27th June. In his application he claimed that he was tortured in India and would submit a statement shortly. He submitted a statement in which he claimed he had come from a village which was part of Punjab until 1966, when Prime Minister Indira Gandhi formed a new State called Haryana, which had a Hindu administration. The Applicant claimed to have suffered from discrimination as a result.
A delegate of the Minister refused the application for a protection visa on 1st August 2007. The delegate did not accept the Applicant’s claims of having been assaulted and did not accept that he was not allowed to complain to the Police about the alleged assaults. The delegate did not accept that the state of Haryana was unable to provide adequate protection for the Applicant against the criminal behaviour of individuals against him.[1]
[1] Court Book at 44
The delegate, whilst accepting that the Applicant had a subjective fear of persecution by Hindu Jats in Haryana, was not satisfied that in the Applicant’s particular circumstances it would be unreasonable for him to relocate within India to find meaningful protection from the individuals who he claimed were persecuting him.[2] The delegate referred to the decision of Randhawa v Minister for Immigration & Local Government & Ethnic Affairs[3].
[2] Court Book at 45
[3] (1994) 52 FCR 437
The Applicant sought a review of that decision by the Refugee Review Tribunal by means of an application lodged on 28th August 2007. He did not provide any additional documentary evidence with his application.
Application to the Refugee Review Tribunal
The Tribunal invited the Applicant, by letter dated 6th September 2007, to attend a hearing to take place on 11th October 2007. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Punjabi language. He produced his Indian passport to the Tribunal. He later posted an Indian medical certificate dated 8th September 2006 to the Tribunal.[4]
[4] A copy of the certificate appears at pages 72 and 73 of the Court Book.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 5th December 2007 and handed the decision down on 3rd January 2008.[5]
[5] A copy of the Tribunal Decision Record appears at pages 79 to 95 of the Court Book.
The Tribunal noted the Applicant’s claims and evidence from his protection visa application at pages 82 and 83. The Tribunal also referred to Independent Country Information on a number of topics, under the following headings:
(a) Division of Punjab State
(b) Sant Bhindrawala and the Khanistan[6] movement
(c) Violence between Sikhs and Hindus in Haryana
(d)Dera Sacha Sauda and discrimination against Sikhs in Haryana
[6] This appears to be a typographical error, as it is clear that the Tribunal was referring to the “Khalistan” movement
(e) Congress party and Sikhs
(f)Gurudwaras and the Shiromani Gurdwara Parbandhak Committee.[7]
[7] Court Book at 84-87
The Tribunal summarised the Applicant’s evidence to the hearing in some detail, under the following headings:
· Accuracy of protection visa application
· Residence
· Travel to Australia
· Education and family
· Claims for protection
· Hindu Jats and Dera Sasha Sauda
· Discrimination in Haryana
· Relocation
· Temple Committee
· Father’s involvement in the JSB movement
· Further information
· Address for correspondence.[8]
[8] Court Book 87-92
The Tribunal noted the document submitted by the Applicant on 29th November 2007. The Tribunal stated
The document noted the applicant as patient and while difficult to read appeared to note ‘six stitches’ and ‘leg pain’.[9]
[9] Court Book at 92
The Tribunal’s Findings and Reasons
The Tribunal’s Findings and Reasons[10] accept that the Applicant is a national of India, based on his Indian passport.
[10] Court Book 92-95
The Tribunal considered the Applicant’s claims about conflict between Sikhs and Hindus in Haryana and noted from the Independent Country Information that there had been violence which had resulted in reprisal mob attacks on Sikhs, leading to several deaths. However, the Tribunal was not satisfied that there continued to widespread conflict between Sikhs and Hindus in Haryana of the type and magnitude that had occurred when the JSB or Bhindrawala movement were active.
The Tribunal found:
The Tribunal is satisfied that there is not a real chance that the applicant could be harmed now due to the acts of Sikh separatist groups, or on the basis of any imputed political opinion due to the past actions of his father or his grandfather who passed away over 10 years ago.[11]
[11] Court Book 93
The Tribunal then considered the Applicant’s claim arising out of the fact that he and his father were elected presidents of a Sikh temple. The Applicant had complained they were assaulted by Hindu Jats in 2006 but the police would not investigate their complaints. He also complained that his father and his grandfather’s brother had received death threats directed at him.
The Tribunal was not satisfied that the Applicant’s claims about these incidents were credible, stating:
As a result, the Tribunal finds that there is not a real chance that the applicant will be persecuted if he returns to India on the basis of his involvement with the Sikh temple committee or his opposition to the involvement of any Hindu Jats in the affairs of the Sikh temple or its committee.[12]
[12] Court Book at 94
The Tribunal then considered the Applicant’s more general claims of discrimination because of being a Sikh. The Tribunal stated:
The applicant’s more general claims of mistreatment by Hindus because he is a Sikh, for example by being forced to speak of a language[13] other than his mother tongue and the police not pursuing complaints by Sikhs against Hindus because the police and ruling Congress Party government is Hindu Government, are also not supported by the independent country information.[14]
[13] sic
[14] Court Book 94
The Tribunal found that there was not a real chance that the Applicant would suffer serious harm from Hindus or the police if he returned to India. The Tribunal was not satisfied that the Applicant had a well founded fear of persecution if he returned to India for reasons of his political opinion, imputed political opinion, religion, membership of a particular social group or for any other Convention reason.
The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings on 15th January 2008 by filing an application and affidavit in support. On the First Court Date, 11th February 2008, directions for hearing were made by consent. The Applicant was granted leave to file any affidavit or an amended application by 3rd March, but he has chosen not to do so. The Applicant was directed to file and serve a written outline of submissions 14 days before the hearing, but he has not done so.
The solicitors for the Minister were directed to file and serve a short written outline of submissions and list of authorities 7 days before the hearing. The submission was filed on 25th March 2008.
The application sets out the following grounds of review:
(1) The Tribunal Member has not understood my claims. The Member has mis-interpret my claims. The Member has no knowledge of Sikh problems & cannot analyse my claims properly.
(2) I was attacked and was going to be killed. Threats against my life were made yet the member says that I do not have chance that I will suffer serious harm if I return back to my country.
The Applicant’s affidavit in support, to which he has annexed a copy of the Tribunal decision, makes these claims:
(1)My claims made in the application to Federal Magistrate Court are genuine and true.
(2) I shall be persecuted if I return back to India.
(3)The Tribunal Member is wrong to state that I will not suffer any harm if I return to India.
(4)The Tribunal Member is wrong to say that Sant Jarnail Singh Bhindrawala wanted to create a new state Khalistan.
(5)The Tribunal has not given me any information which he has used against me.
Submissions
The Applicant’s Submissions
The Applicant attended Court and made oral submissions. He said that the Tribunal could not understand his problems because he belonged to the Sikh community. He also sustained injuries but somehow he managed to escape. If he goes back to India he will be killed by the people who injured him. He said that their family had that problem that had been going on since it started in 1984. They were associated with the Sant Bhindrawala Movement. His grandfather was arrested by the police, later on he was killed. The police allege that he was killed in an encounter.
The Applicant said that his father became the president of the Sikh temple in his area in 2004. He said he was sitting down one day with other committee members in the Sikh temple and other people asked him what they were doing there. He said that they slapped him and started beating his father up. They said that if they saw us again outside the Sikh temple that they would not be spared. He said they lodged a complaint with the police. The police did not take any action.
One day the Applicant was returning home on his motorcycle and four people in a car attacked him and started beating him up. By chance a bus stopped and some people got off. He was dragged onto the bus and taken to a clinic. At the clinic they rang his brother who came to the clinic and took the Applicant back home. The Applicant said that his brother went to the police to lodge a complaint but the police did not take any action.
The Applicant said that there was a meeting in the village and at the meeting it was suggested that another report should be lodged with the police. But again no action was taken by the police. The Applicant said that threats were made to his family members. His father suggested that it would be better for the Applicant to move out of the country. He said that he stayed away from home for 12 to 15 days and then he left the country.
The Applicant told the Court that if he went back to India, then his enemies would not spare his life; he would be killed. Because his father was the president of the Sikh temple committee and his father did not allow these other people to become members of the committee, those people had turned on him.
The First Respondent’s Submissions
In reply to a submission by Ms Quinn for the Respondent Minister that the Applicant was merely repeating his factual claims that he had made to the Tribunal and the Court had no power to intervene on findings of fact, the Applicant told the Court that he had attended the Tribunal hearing but the Tribunal did not understand his claim. He repeated that if he returned home he would be killed.
For the Minister Ms Quinn submitted that the grounds in the application went entirely to the merits of the Tribunal decision. She said that the Applicant was complaining about the Tribunal's findings and was not complaining about any legal or jurisdictional error in the Tribunal's decision-making process.
Ms Quinn submitted that the Tribunal decision rests on findings that the Applicant's claims were untrue based on their inconsistency with country information and lack of supporting evidence. The Tribunal's finding of adverse credibility where such findings are reasonably open on the evidence before it is properly the function of the decision-maker and generally not susceptible to judicial review by the Court.
In short, she submitted there was no error in this decision. The Tribunal invited the Applicant to a hearing and he gave evidence. He was not entitled to relief on the basis that the Tribunal did not accept his evidence as true. Ms Quinn submitted that there was no jurisdictional error made out and the application should be dismissed with costs.
Conclusion
The Tribunal decision was based largely on its rejection of the Applicant's claims based on credibility. Findings of credibility are factual matters and so long as there is evidence upon which the Tribunal can make those findings, then it is not open to the Court to interfere. As the Tribunal's findings were based on the Applicant's evidence to the Tribunal, I am satisfied that it was open to the Tribunal to make a decision itself based on the Applicant's credibility.
The Applicant's claims relate very much to a restatement of his factual claims but it is no part of the Court's function to conduct what is known as merits review. As Gyles J said in SZHCJ v Minister for Immigration & Multicultural Affairs[15]:
Insofar as the Federal Magistrates Court is concerned, it has no role to second-guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
[15] [2007] FCA 205 at [3]
The Applicant claimed in his affidavit that the Tribunal had not given him any information which it had used against him. Insofar as this is a claim of a breach of s.424A of the Migration Act, in my view, no breach has been made out. The Tribunal's decision was based on the Applicant's own evidence to the Tribunal and Independent Country Information. Both of those matters come within s.424A(3) of the Act and therefore are not covered by s.424A(1).
Accordingly, there was no obligation on the part of the Tribunal to put information to the Applicant in writing for his comments. The claim of a breach of s.424A of the Migration Act is therefore rejected. The Tribunal complied with s.425 of the Migration Act in that it invited the Applicant to a hearing and provided him with an interpreter in his own language so the Applicant had the opportunity to give evidence about his claim to the Tribunal. There were no fresh issues raised by the Tribunal which had not been canvassed in the delegate's decision. So the Applicant was not caught by surprise.
The Applicant claimed that the Tribunal had not understood his claims or misinterpreted them. My reading of the Tribunal decision shows that the Applicant's claims were given a detailed analysis under various headings by the Tribunal. The Tribunal considered relevant Independent Country Information about the very matters that formed the subject matter of the Applicant's claims. There is no evidence before me which would lead the Court to the conclusion that the Tribunal did not understand the Applicant's claims or did not consider any relevant piece of evidence.
The Applicant has not satisfied the Court that any jurisdictional error has been made out. The Applicant is not legally represented and I have read through the Tribunal decision independently of either the Applicant's case or the respondent's case in order to ascertain whether any other arguable jurisdictional error may be found. I am satisfied that no jurisdictional error can be discerned.
The Tribunal decision, therefore, is a privative clause decision as defined by s.474(2) of the Migration Act. Accordingly, it is final and conclusive and is not subject to orders in the nature of certiorari or mandamus that the Applicant seeks. It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The amount sought is $3,500.00. The Applicant says that he is unable to pay those costs at present as he is not currently in employment. Whilst that is not a ground for not making a costs order, it is a matter to be taken into account when considering time to pay.
The amount of $3,500.00 which is sought is an appropriate figure. I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00 and I will allow four months to pay.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 8 April 2008
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