SZLXU v Minister for Immigration - [2008] FMCA 607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLXU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 607

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of India claiming fear of persecution on the ground of political opinion – no reviewable error.

Migration Act 1958 (Cth), ss.424A, 476

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 10,
Chan Ye Kin v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 412 at 420

Applicant:

SZLXU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 220 of 2008

Judgment of:

Scarlett FM

Hearing date:

5 May 2008

Date of Last Submission:

5 May 2008

Delivered at:

Sydney

Delivered on:

5 May 2008

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3500.00 and I allow 4 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 220 of 2008

SZLXU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant him a protection visa. The Tribunal decision was signed on 3 December 2007 and handed down on 3 January 2008.
The applicant claims that the Tribunal has fallen into jurisdictional error and asks the Court to issue a writ of certiorari quashing that decision.

Background

The background to this matter is that the applicant arrived in Australia on 7 March 2007. On 18 April in that year he applied for a Protection (Class XA) visa. He applied on the basis that he had a fear of persecution for reason of his political opinion. He claimed that he was an active worker; first of the Muslim Students’ Federation and later as a member of the Indian Union Muslim League. He claimed to fear persecution from Hindu terrorists. In particular, he claimed that from 1997 he had been the subject of violence and that he went to Muscat in the Sultanate of Oman in 2001 in order to escape the persecution that he claimed. He returned to India in 2003 so he left India and went back to Muscat in 2004. He claimed to have been obliged to return to India in 2006 so he left for Australia in 2007.
A delegate of the Minister for Immigration & Citizenship refused his application for a protection visa on 6 July 2007. The delegate noted the Convention ground of religion as the essential and significant reason for the harm feared. The delegate noted the applicant's claims to have worked for the Muslim Student Federation and the Indian Union Muslim League but considered that the applicant had failed to provide any specific detail of the nature of the work that he undertook. The delegate noted the applicant's claims to have been threatened with death, both by Hindu terrorists and the police but again the delegate felt that the applicant had not provided specific details.
The delegate noted that the applicant had travelled and worked in Oman but had returned voluntarily on several occasions which the delegate did not consider to be consistent with his claim to fear persecution in India. The delegate found that the applicant did not have a genuine fear of persecutory harm occurring in India and went on to find that even if he did that the applicant could safely and reasonably relocate to another part of India to escape this harm.

Refugee Review Tribunal Application

The applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received his application on 2 August 2007. The applicant submitted several pieces of documentation to the tribunal with his application, including a letter and a copy of his original statement which had been made with his application for a protection visa. He also provided a copy of the delegate's decision and a copy of his passport.
The Tribunal wrote to the applicant the next day and acknowledged receipt of the letter. The applicant also then wrote to the Tribunal on 6 August enclosing a certified copy of his police clearance from Oman. He undertook to provide the original of that document at the hearing date should that be required.
The Tribunal again wrote to the applicant on 13 August 2007 and invited him to attend the hearing to take place on 10 October. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Malayalam language.
The applicant wrote to the Tribunal on 30 October 2007 asking for an extension of time to provide more supporting documents. The Tribunal replied the next day refusing to grant the extension of time. The applicant then faxed to the Tribunal a copy of a document said to be from the sub-inspector of police in a district of Kerala showing that some criminal proceedings were settled out of Court through the attention of some mediators.
The Tribunal then wrote to the applicant on 9 November 2007. The letter was clearly intended to comply with the provisions of s.424A of the Migration Act. The letter invited the applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response that he might make, be the reason or a part of the reason for affirming the decision under review. The letter set out what that information was. The letter told the applicant that the Tribunal had obtained the report from the Department of Foreign Affairs and Trade concerning a document which he said was a newspaper article about him and the injury that he claimed to have suffered in May 2006. The report, according to the Tribunal, stated that the article that he submitted was not a genuine article published in the newspaper concerned. The editor of the newspaper advised the Department of Foreign Affairs & Trade that the newspaper had never published such an article and the letter told the applicant that the suggestion was that the document had been forged. The letter went on to set out why the Tribunal considered the information to be relevant; pointing out to him that the Tribunal could conclude that he had knowingly provided a forged document to the Tribunal. The letter went on to say:
Your inability to provide the original newspaper page from which you claim the copy you submitted was taken could support such a conclusion. A conclusion that you provided a false document could seriously undermine your overall credibility and lead to the tribunal rejecting other claims made by you[1].
[1] See Court Book at page 170 - 171
The applicant replied on 26 November in a letter advising that when he applied for the tourist visa to get to Australia he did not have the newspaper article with him. He said he first asked his father to get it but due to his father's age and ill-health the father was unable to do so. The applicant said he then contacted a friend in India who provided the document. The applicant agreed that he had paid the friend some money but said that he had never told the friend to forge any documents. The applicant claimed that his father had been in contact with him and said that the friend had in fact absconded and no-one knew his whereabouts.

Refugee Review Tribunal Decision

The Tribunal handed down its decision on 3 January 2008. A copy of the Tribunal decision record can be found in the Court Book at pages 180 through to 200. In the decision record the Tribunal sets out the applicant's claims and evidence both in his application for a protection visa and in his application to the Tribunal. The Tribunal noted that when the applicant applied to the Tribunal he enclosed a copy of the undated and unsigned statement he had submitted to the department.
The Tribunal decision record also sets out a summary in some detail of the applicant's evidence given at the Tribunal hearing. The Tribunal also set out, under the heading "Post Hearing Submissions", a summary of the correspondence between the Tribunal and the applicant since the hearing and referred particularly to the letter written to the applicant on 9 November 2007 under the provisions of s.424A of the Migration Act.
The Tribunal's findings and reasons are set out on pages 196 through to 200 of the Court Book. The Tribunal noted the applicant's claims to fear persecution in India at the hands of Hindu extremists because of his Muslim religion and his earlier involvement in Muslim based political organisations. The Tribunal accepted that the applicant was a citizen of India, that he was a Muslim and that he had had a past association with both the IUML and the MSF, Muslim Student's Federation.
The Tribunal noted that it had independently verified that the applicant had been the subject of a police charge arising out of an incident on 18 July 1997 but the Tribunal went on to note that all charges were dismissed on 29 August 1997. The Tribunal noted that this had been discussed with the applicant at the hearing. The Tribunal noted that it asked the applicant to provide details of acts of harm or threats directed at him in India and noted the documents that the applicant provided.
The Tribunal noted that the applicant provided it with three documents in support of his claim about an alleged attack on him in May 2006. They were a medical certificate, a police document and a copy of a newspaper report. The Tribunal noted the applicant had not provided the original of the alleged newspaper report which of course was the subject of correspondence. The Tribunal noted that the medical certificate did not indicate the cause of the applicant's injury and did not corroborate the applicant's claim to have been injured in a criminal attack. Accordingly, the Tribunal gave that document little weight.
The Tribunal noted the advice from the Department of Foreign Affairs & Trade that the newspaper article was not a genuine one and had not been published. The Tribunal went on to find that the article presented by the applicant was a fabrication designed to enhance his claims. The Tribunal found:
This undermines the applicant's overall credibility and in particular the credibility of the police document and the medical certificate[2].
[2] See Court Book at page 198
The Tribunal did not accept the police document as genuine and set out its reasons for those doubts.
The Tribunal went on to find:
Given that the applicant did not mention the police document, the alleged newspaper article or the medical certificate document in his protection visa application forms in the places where provision was made for that purpose, the Tribunal had doubts about the genuineness of those three documents[3].
[3] See Court Book at page 198
The Tribunal went on to note that its doubts were increased by the finding that the newspaper article was a fabrication. The Tribunal found that the applicant was not attacked in May 2006 because of his religion or his political opinion as he claimed. The Tribunal accepted that one incident did take place some ten years previously and even though the applicant may have suffered injuries on that occasion, found that the incident was minor. The Tribunal noted evidence that suggested that on that occasion the Indian authorities afforded him the sort of protection that the Tribunal would expect in a democratic country.
The Tribunal went on to note that the applicant had a long-term visa entitling him to remain and work in Oman but that he returned to India on a number of occasions. The Tribunal found from that that the applicant had no genuine fear of persecution in India.
The Tribunal went on to find that it was clear that the difficulties that the applicant did face were in the immediate vicinity of his home village. The Tribunal found that if there were any real risk of harm in his local district the applicant would be able to live and find work in one of the larger cities in Kerala where he would have no language difficulty and that it would be reasonable for him to do so.
The Tribunal found that the applicant did not have a well-founded fear of persecution in India and affirmed the decision not to grant him a Protection (Class XA) visa.
The applicant commenced proceedings for judicial review by means of an application and an affidavit in support filed on 31 January 2008. His claims at this hearing are set out in his amended application filed on 2 April. He sets out a total of eight grounds. The grounds are essentially as follows:
(1)The Tribunal failed to consider taking into account that the applicant did not manufacture the newspaper article; it was received from India.
(2)Tribunal decision page 19 stated the police document is not in the form of FIR document dating from 1997 which the Tribunal does accept is genuine. This is a jurisdictional error.
(3)The Tribunal found that if the medical certificate was genuine, any injury the applicant may have experienced in May 2006 the Tribunal has not considered a natural justice.
(4)The genuinely[sic] of the paper reports searched by DFAT I came to know through my friends the DFAT authorities threaten me: "Sudinam" Daily Newspaper. So the Tribunal has taken the wrong decision of the paper report.
(5)I cannot give the details of the police documents and the aligned newspaper article or the medical certificate in the protection visa application because I did not have enough time to receive from India before the application given to the DIMA.
(6)In the page 20 the Tribunal notes that I have travelled on a number of occasions to India from Oman and I lived in my sister's village because the Indian Courts and police want me to attend there.
(7)In the hearing the Tribunal asks me for any other points I wish to make. I was fear with the tribunal member so I cannot answer the reality.
(8)I am ready to submit the newspaper article other that "Sudinam" if the Federal Magistrates Court consider.
The applicant's grounds are, in the main, attempts to cavil at the Tribunal's factual findings. The finding that the newspaper article was forged was a finding open to the Tribunal based on the information given to it by the Department of Foreign Affairs and Trade. That finding was open to the Tribunal on the evidence. It is not susceptible to judicial review and I am referred to the decision of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 10 at [10].
The claim that the Tribunal’s finding about the police document was a jurisdictional error is, in my view, no more than an attack on the Tribunal's factual findings and I am satisfied that there was evidence before the Tribunal upon which such a finding was open to it.
The third ground relating to the medical certificate has been described by the solicitor for the Minister as incapable of meaningful comprehension. It is difficult to see why the applicant claims not to have received natural justice and I note that the applicant declined to make any oral submissions and relied purely on his amended application.
The fourth ground again refers to the report from the Department of Foreign Affairs and Trade about the genuineness or otherwise of the newspaper report. The applicant claims that he came to know through his friends that the Department of Foreign Affairs & Trade had threatened the newspaper. The applicant provides no evidence of that and even if it were true; it does not disclose any jurisdictional error.
The applicant complained that he did not give details of police documents, newspaper article or medical certificate when he applied for his protection visa application because he did not have enough time to receive them from India. That may well be the case but that does not make out any jurisdictional error.
The applicant in ground six refers to the Tribunal's comment that the applicant had travelled to India from Oman on a number of occasions when he had a long-term visa entitling him to remain and work in Oman. The applicant is of the view that the Tribunal made an error but in my view this is no more than an attempt to cavil at the Tribunal's factual findings.
In ground seven the applicant claims that he feared the Tribunal member and was not able to provide any further information. There is no evidence in support of that; certainly not in the decision record or in any other way. This does not constitute a jurisdictional error.
The solicitor for the Minister, Ms Nandagopal, submits that if the ground should be interpreted as an allegation of bias, that allegation has not been made out and points out that allegations of bias must be distinctly made and clearly proven. She refers the Court to a decision in Minister for Immigration & Multicultural Affairs v JIA [2001] 205 CLR 507 at 69. I am not of the view that it is an allegation of bias. It is no more than a claim that the applicant, through nervousness or fear was unable to provide further evidence to the Tribunal. It does not establish any jurisdictional error.
The eighth ground is a claim that the applicant was ready to submit other newspaper articles if the Court should consider it necessary. I have already explained to the applicant that the Federal Magistrates Court when conducting judicial review of a decision of the Refugee Review Tribunal is not in a position to consider fresh evidence relating to an applicant's claim to be a refugee. The Court is not in a position to conduct merits review of an applicant's claim. See Chan Ye Kin v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 412 at 420.
The applicant's eight grounds of review do not establish any jurisdictional error. I have read through the Tribunal decision independently of the applicant's claims and of the Minister's submissions and I am unable to discern any jurisdictional error.
It follows that the decision of the Tribunal is a privative clause decision and the application for review therefore must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $3500. This is an appropriate matter for a costs order as the applicant has been unsuccessful in his claim. The applicant has indicated that he would seek to pay by instalments. Certainly the amount of $3500 which is claimed is, in my view, an appropriate figure.
I propose to order that the applicant is to pay the first respondent's costs fixed in the sum of $3500. Rather than making an instalment order I will allow four months to pay.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 13 May 2008