SZLZK v Minister for Immigration
[2008] FMCA 1391
•14 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1391 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – failure to comply with s.430 does not amount to jurisdictional error – in the circumstances a failure to seek further information from the applicant did not amount to jurisdictional error. |
| Migration Act 1958, ss.91R, 425, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Ragunathan v Minister for Immigration & Multicultural Affairs [2001] FCA 1142 |
| Applicant: | SZLZK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 366 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 September 2008 |
| Date of Last Submission: | 19 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 366 of 2008
| SZLZK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where he claims he was a member of the Tamil Nadu Muslim Munnetera Kazhagam (“TMMK”) party. He alleges that while in India he engaged in social work and helped to convert poor people to Islam and that this subsequently to him being threatened and assaulted by the RSS. The applicant left India for Bangkok in 2003 and, after six return visits to India, he landed in Australia on 23 July 2007.
The applicant claims to fear persecution in India because of his association with the TMMK.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
5 November 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 14 of the Tribunal’s decision (Relevant Documents (“RD”) pages 91 – 101). Relevantly, they are in summary:
a)the applicant became involved with the TMMK in 1998 to help people and from 1999 until 2002 he held the position of District Secretary;
b)he did social work for the poor and the downtrodden, imparting basic education and providing them with medicines, clothes and food provided by the TMMK;
c)he first came to the attention of the RSS in 1999 after he had converted 11 people to Islam. He was warned to stop but he did not take it seriously and continued to convert people to Islam;
d)in November 1999 four people came to assault him with a weapon but he was able to run away from them and return home. He complained to the Sembanar Kovil and Mayiladuthurai police but they did not accept his complaint. They abused him, told him to stop social activity and chased him away. The police belonged to the ruling DMK party and some police were fanatics who belonged to the RSS;
e)the applicant made differing statements about what happened following various threats and assaults that allegedly took place in August 1999, including that:
i)he continued to work for the downtrodden in a limited capacity for six months and in about March or April 2003 he stopped completely;
ii)he continued to work for the TMMK while in hiding and resigned as District Secretary in early 2002; and
iii)he stopped working completely in 2000;
f)the RSS attempted to murder the applicant and although he escaped, he was injured and admitted to hospital. A few days later he went home and a police constable informed him that he was on the RSS hit list. The policeman asked the applicant to hide in another place or another country;
g)the applicant left India to go to Bangkok in 2003. Following that move he made six return trips to India for various reasons including:
i)his father was sick and then died in April or May 2004. The funeral was held in their village and the applicant remained in India until July 2004;
ii)he returned to India again because he was told that he needed to get a visa. It took three months because he had problems and could not leave the one room for three months;
iii)he returned for the third time in October 2004 because he required money for his living expenses in Thailand. He spent two months in India and contacted people from TMMK and got money from them;
iv)the fourth time that he travelled to India was in November 2005 for his marriage and he lived there for five months and constantly had to move from place to place;
v)he returned for the fifth time in November 2006 with the intention of securing peace and remained there for 24 days; and
vi)he last returned to India in April 2007 to collect money for various requirements to come to Australia and he remained in India for about three months;
h)the applicant’s mother died during his last or second last visit to India;
i)during his visits to India the applicant stated he lived in various places including Coimbatore, Panjavur district, a friend’s house in his own district and his wife’s house; and
j)he cannot live in another part of India as RSS members are found everywhere and even when he is at the airport or when he lives in another place they find out.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was not a credible witness. He appeared to the Tribunal to be evasive and often unresponsive and on some occasions when inconsistencies were pointed out to him claimed that he forgot the information or that he did not know that he would be questioned. The Tribunal noted that:
i)the applicant initially alleged that he did not receive assistance with his protection visa application but said later that somebody else completed the paperwork for him;
ii)he admitted to providing false information relating to his employment on the protection visa application without a satisfactory explanation as to why he had done so;
iii)he provided inconsistent information as to the time when he ceased working for the TMMK;
iv)the description of the work the applicant had performed for the TMMK was broad and his description of what he told people about Islam was generalised and vague; and
v)the applicant was unable to provide a coherent or satisfactory explanation as to why he continued as District Secretary for two years after giving up work;
b)although the Tribunal was prepared to accept that the applicant had been a member of the TMMK, his inability to state when the TMMK was formed caused the Tribunal to question his claimed senior position in the party;
c)although the Tribunal was also prepared to accept that the applicant had been involved in some social work for the TMMK, in light of its finding that the applicant was not an honest or credible witness, it rejected his claim that he became a target of the RSS due to his involvement in the TMMK, because he converted people to Islam or for any other reason; and
d)the Tribunal considered the applicant’s conduct to be inconsistent with his claimed fear of persecution, noting that:
i)the applicant claimed to be first assaulted in 1999, was beaten by the RSS several times and on a few occasions escaped death, yet he remained in India until 2003. Although the applicant stated he was in hiding for several years the Tribunal found it implausible that he would remain in hiding while continuing his employment and his activities for TMMK and making no effort to depart the country in the face of such threats and harassment;
ii)the applicant claimed to have returned to India on six occasions after he travelled to Thailand in 2003. The Tribunal did not accept that the explanations given by him were of such significance as to necessitate or justify his returns to India. The Tribunal further noted that when in India on the occasion of the burial of his mother, the cremation of his father and his wedding, the applicant went to his home or his village where he would have appeared in public and not been in hiding as he claimed; and
iii)the applicant chose not to travel to Switzerland because he expected a better quality of life in Australia and travelled here several months after his visa was granted. This delay, coupled with the applicant’s initial delayed departure from India for Bangkok following the final alleged assault and his several return visits to India from Thailand, indicated to the Tribunal that the applicant did not have a genuine fear of persecution in India.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The second respondent fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.
(2)The second responded misconstrued the requirement of
s 91R(1)(a) of Migration Act.
(3)That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant claims; because the applicant was being questioned for number of hours without a break and felt stressed and intimidated.
(4)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
(5)The second respondent in making its determination failed to record its decision in accordance with Section 430 of the Migration Act.
(8)The Tribunal failed to determine the chances of the applicant being persecuted should he return to India.
At the hearing in this Court the applicant also alleged that during the course of the Tribunal’s hearing the Tribunal had said that if it needed additional information it would telephone him or write to him.
Dealing with each of these grounds in turn:
Findings made by Tribunal not open to it on the evidence
The first ground in the application mounts a challenge to the Tribunal’s fact finding in that it alleges that the Tribunal made findings which were not open on the evidence. The allegation was particularised in the following terms:
There was no basis on which find that if the Applicant was not involved in the TMMK, the applicant claim that he had been tortured and with and harassed by the RSS was fabricated.
The particulars misrepresent the Tribunal’s findings. Contrary to what is contained in those particulars, the Tribunal did accept that the applicant was a member of the TMMK, as recorded above at [7(b)]. The Tribunal rejected the applicant’s claim to have been a target of the RSS because it found him to be a witness who was not credible and it did not accept that he had been honest in his description of events in India.
As a result the first ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Tribunal misconstrued the requirement of s.91R(1)(a)
The second ground pleaded in the application is particularised as follows:
The Tribunal held incorrectly that there is no real chance applicant would suffer persecution in India for ‘membership of the particular social group.’
The particulars of the allegation raise a second dispute with the Tribunal’s fact finding. Findings of facts such as those referred to in the particulars are matters solely within the jurisdiction of the Tribunal. Acting within the law, its obligation is to make findings of fact and to reach conclusions on the merits of the review applications which come before it. The Court cannot review the Tribunal’s conclusions on such matters. The role of the Court is to declare and enforce the law which governs the Tribunal’s operations. If, operating within the law, the Tribunal arrives at an incorrect finding of fact, that is not a matter reviewable by the Court. As a result, the matters raised in the particulars to the second allegation do not disclose jurisdictional error on the part of the Tribunal.
As to the third allegation generally, the Tribunal referred, without error, to s.91R(1)(a) at page 3 of its decision (RD 90). But in any event, given that the applicant’s factual claims were rejected by the Tribunal there was no need for it to consider the application of s.91R(1)(a) to this case.
Tribunal failed to take relevant considerations or “integers” into account
The applicant has not particularised those relevant considerations or integers central to his claims which, in the third ground pleaded in his application, he alleges the Tribunal failed to take into account. But in any event, the applicant’s claim failed because he was not credible and the Tribunal concluded that he was not truthful, not because the Tribunal failed to consider any element of his claim.
As to the allegation that the applicant was questioned for hours without a break and felt stressed and intimidated, the “RRT Hearing Record” reproduced at RD 79–80 discloses that the Tribunal hearing lasted
2 hours and 40 minutes. That is hardly an excessive period of time for a person to be asked to put his case to the Tribunal and to address its queries. Further, the applicant did not submit that the length of the hearing prevented him from putting to the Tribunal the evidence and the arguments which he wished it to have. Nor did he suggest that he made any complaint to the Tribunal at the time of the hearing, or afterwards, that his presentation at the Tribunal hearing was in any way compromised. It might be noted that there is nothing in the Relevant Documents which would support such an allegation.
For these reasons, the third ground pleaded in the application does not disclose a basis upon which the Tribunal’s decision might be set aside.
Tribunal failed to exercise its jurisdiction
The particulars of this allegation were as follows:
(a)The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu fundamentalist group RSS.
(b)In relation to above the Tribunal did not consider the applicant claim that his distinguishable position as a TMMK activist.
The first particular appears to say that the Tribunal did not consider that the applicant had been pressured by the RSS. This is not correct. The Tribunal did consider this issue but rejected it for the reasons given above at [7(c)].
As to the second particular, again the Tribunal did consider the matter which the applicant particularises but rejected it for the reasons which it gave.
As to the fourth allegation generally, the Tribunal’s decision record discloses that it considered all the applicant’s claims and allegations and dealt with them by rejecting most of them as untruths. The Tribunal received the applicant’s evidence and arguments, considered what was before it, made findings on those facts and reached a conclusion on the merits of the application based on those findings. In those circumstances it cannot be said that the Tribunal failed to carry out its function or to exercise its jurisdiction.
Tribunal failed to comply with s.430 of the Act
The fifth allegation pleaded in the application was particularised as follows:
a.The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.
b.The Tribunal however found that any persecution suffered was not for any convention reasons but did not give reasons for the finding.
c.The Tribunal failed to record the material facts for the reasons referred to above.
As to the first particular, the Tribunal had no obligation to make a finding as to the nature or extent of the applicant’s claimed persecution. Its role was to determine whether it was satisfied that the applicant had a well founded fear of persecution for a Convention reason and satisfied the criteria of the Convention in the context of the Act and, in particular, s.91R. This it did.
The second particular to the fifth allegation misrepresents the Tribunal’s finding. Far from finding that the applicant suffered persecution for a reason which was not a Convention reason, the Tribunal was not satisfied that the applicant had suffered any persecution in India or had a well founded fear of such persecution in the future were he to return to India.
As to the third particular, the summary of the Tribunals’ findings set out above at [7] demonstrates that the Tribunal did set out its findings on material questions of fact. It had no duty to make findings on facts which it did not consider material: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
As to the allegation more generally, any deficiencies which the Tribunal’s decision record discloses are not breaches of s.430 which sound as jurisdictional errors: Yusuf’s case; Ragunathan v Minister for Immigration & Multicultural Affairs [2001] FCA 1142. Rather, the issue is whether the expression of the Tribunal’s decision disclose jurisdictional error in its decision-making process. In other words, it is erroneous to conclude that a Tribunal decision which appears to fail to meet the requirements of s.430 should, for that reason, be set aside. Rather, it is the underlying deficiencies which such a decision record evidences which would be the basis for a finding of jurisdictional error.
Tribunal failed to determine applicant’s chances of persecution
The final ground pleaded in the application assumed that the Tribunal accepted important elements of the applicant’s claims. Such an assumption is implicit because unless some such factual allegations were accepted there would be no basis for the Tribunal to turn its mind to whether those facts demonstrated that the applicant had a chance of being persecuted if he returned to India. In this case, the applicant’s allegations were rejected by the Tribunal because they were considered untruthful. As a result, the Tribunal did not need to consider whether the applicant faced a real chance of persecution if he returned to India. Consequently, the eighth ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Tribunal failed to seek further information from the applicant
In his submissions to the Court the applicant said that the Tribunal had told him during the course of its hearing that it would contact him and seek further information but failed to do so. He advanced no evidence to support this allegation and there is nothing in the Tribunal’s decision record which corroborates it. Also significant is the fact that the applicant has not alleged that he was dissuaded by the Tribunal from giving evidence or making arguments on any particular point because it would make contact with him later if it had any queries. Nor is there any suggestion that the Tribunal failed to raise with the applicant any matters which s.425 of the Act required be put to him. Therefore, even if the Tribunal had made the statement to the applicant which he alleges, for which there is no evidence and which I conclude it did not make, its failure to do so would not have amounted to jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 14 October 2008
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