SZLZP v Minister for Immigration
[2008] FMCA 1339
•26 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1339 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLZP”. |
| Migration Act 1958 (Cth), ss.91X, 430 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611 Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 (2004) 222 CLR 1 Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 [2006] HCA 53 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Re Minister for Immigration & Multicultural Affairs, ex parte Cassim [2000] HCA 50 SZBBP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 167 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 |
| Applicant: | SZLZP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 408 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Malayalam interpreter attending by telephone link up. |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 20 February 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 408 of 2008
| SZLZP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a single male from the State of Kerala in Southern India and is of the Muslim faith. He states that he was born in January 1984 and communicates in the Malayalam language with limited knowledge of English. His claims for refugee status are based on his fear of persecution because of his and his father’s political opinion and not because of his Muslim religion. As a student he joined the student wing of the Communist Party of India (Marxist) (CPI(M)).
He states that his father left the CPI(M) and joined the Communist Party of India (Marxist – Leninist) (CPI(ML)) in protest of the corrupt leadership of the CPI(M). The applicant followed his father and also joined the CPI(ML). This resulted in retaliation from members of the CPI(M) who demanded the applicant and his parents leave the CPI(ML) and rejoin the CPI(M). He claims that he fears to return to India because the CPI(M) members will attempt to kidnap him as a coercive strategy to force his parents to rejoin the CPI(M).
The applicant arrived in Australia on 10 April 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 19 April 2007. A delegate of the Minister refused to grant a visa on 17 May 2007 and the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision so the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. It is that decision of T Delfoski (RRT reference number 071491091) signed on 4 January 2007 and forwarded to the applicant on 29 January 2008 that is the subject of this judicial review.
A Court Book (“CB”) prepared and filed by the first respondent solicitors is marked Exhibit “A” and is the only evidence before the Court. An affidavit of Peter Snell, a solicitor employed by Sparke Helmore who has the carriage and conduct of this matter on behalf of the Minister provides a copy of the Tribunal’s decision issued on 2 August 2007. The decision was withdrawn and replaced by the decision signed on 4 January 2008.
At the first court date directions hearing, the applicant indicated to the Court that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of his appeal. The applicant was allocated a panel advisor and the court file indicates that the applicant received advice. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 15 May 2008. The applicant complied with that order and filed an amended application. The applicant was also required to file a short written outline of submissions and list of authorities fourteen days prior to the hearing. The applicant confirmed that he had not complied with that requirement.
Tribunal’s “Findings and Reasons”
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for his political opinion or any other Convention reason if he returned to India. Although he claimed that the Kerala police were not willingly provide protection and that he feared further persecution for his political opinion if he returned to India, the Tribunal found:
a)except for the original claims in his Protection visa application, the applicant provided no additional evidence to support his claims;
b)he had no documentary evidence of his claimed membership of the CPI(ML);
c)there is no documentary evidence of his father’s approach to police from the applicant’s claimed kidnapping by the CPI(M);
d)his claimed kidnapping was vague both as to its nature and timing;
e)the Tribunal was not satisfied that the kidnapping took place;
f)the Tribunal did not accept that the applicant was unable to avail himself of protection of the relevant authorities in India;
g)the Tribunal did not accept that the applicant could not avail himself of protection of the relevant state and judicial authorities; and
h)the Tribunal accepted the advice of the Department of Foreign Affairs and Trade (DFAT) that Kerala is a law abiding state where legal resources are available to those who feel threatened and persecuted.
Consideration
When the applicant was invited to make oral submissions, he in effect repeated his main claims relating to his membership of CPI(M) and subsequent transfer to membership of CPI(ML). He recounted the story of the attack on his small business by members of the CPI(M). He recounted the alleged kidnapping and his detention for two days during which time he suffered physical violence and harassment. He states that as a result of that harassment, he was forced to leave the country to guarantee the safety of his father, mother and brother. He states that since his departure he has received advice from his parents not to return because of the threat of continuing violence. The applicant did not attempt to address any of the claims contained in the amended application.
Ground one
The second respondent fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.
Particular
a. It is not expected that a refugee shall bring the evidence with him while leaving his country of origin. The applicant case as far as this aspect is concerned, was not given any weight, instead they have relied up on the country information provided by the same country from where the applicant escaped to save his life.
This ground appears to imply that there was an onus on the applicant to provide evidence in support of the circumstances for his departure from India. However, there is no such onus placed on the applicant: Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 [2006] HCA 53 per Gummow CJ, Callinan, Heydon and Crennan JJ at [40] where their Honours stated:
[40] This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, (Muin v Refugee Review Tribunal (2002) 76 ALJR 966) and that there is an onus upon neither an applicant nor the Minister (Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22). It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened. This is so, even though, pursuant to s 91V of the Act, the Minister may require an applicant to make or verify a statement on oath or affirmation, and may draw an adverse inference against an applicant if the Minister has reason to believe that "the applicant was not sincere" in complying with the request.
In the Tribunal’s “Findings and Reasons” it states:
The applicant has provided no additional evidence to support his claims at the hearing and in his protection visa application. He has no documentary evidence of his claimed membership of CPI(ML). He has no documentary evidence of his father’s approach to the police following the applicant’s claimed kidnapping by CPI(M) members. His account at the hearing of his claimed kidnapping was vague both as to its nature and timing. Based on the evidence, the Tribunal is not satisfied that the kidnapping took place as claimed. (CB 62)
The process by which the Tribunal was required to reach its decision, namely to achieve a status of satisfaction as to whether the claims of kidnapping took place based on the evidence presented by the applicant. This approach is consistent with the approach required by the Tribunal in reaching other decisions under the Act: Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611 and Abebe v Commonwealth (1999) 197 CLR 510. The applicant does not bear an onus to satisfy the Tribunal that the kidnap did occur: Minister for Immigration & Multicultural & Indigenous Affairs v QAAH. However, it is clear that it is for the applicant to advance evidence or argument that he wishes to be taken into consideration to support of his claim: Abebe v Commonwealth; Re Minister for Immigration & Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9]. I am satisfied that the Tribunal’s findings were open to it for the reasons it has given and that no jurisdictional error arises in this respect. Ground one should be dismissed.
Ground two
The Tribunal failed to ask a question that it was, in the circumstance of this case, legally required to ask.
Particulars
a. Whether the Indian authorities provided standard of protection comparable with international standards.
This ground claims that the Tribunal did not examine whether the Indian authorities provided a standard of protection “comparable with international standards”. The assertion is that the Tribunal failed to ask a question that it was in the circumstances of this case legally required to ask whether the Indian authorities in the State of Kerala provided the standard of protection comparable with international standards. The issue then is did the Tribunal fail to address the relevant test in relation to the issue of state protection. The Tribunal in its “Findings and Reasons” made the following statement:
The Tribunal accepts DFAT’s advice that Kerala is a law abiding state where legal recourse is available to those who feel threatened or persecuted (DFAT Country Information Report No. 303/98, CX31297); and that if supporters of registered parties in India are subject to political persecution from rival political parties or other agents, they generally have recourse through the Indian legal system (DFAT Country Information Report No.368/98, CX32164). (CB 62.6)
Mr Reilly in his written submissions submits that the applicant’s complaint (a complaint that was drafted with the assistance of some other unnamed person) presumably relies upon what was said by the High Court in Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 (2004) 222 CLR 1. The amended application makes no reference to that case but an assertion of whether relevant authorities provide a standard of “protection comparable with international standards” was one of the issues considered in Respondents S152 of 2003. The Court referred to the obligation on a state to take reasonable measures to protect the lives and safety of citizens and concluded that this involves a reasonable, effective, impartial police force and justice system.
During the Tribunal’s hearing, material was put to the applicant that was prepared and supplied by DFAT which provided that Kerala is a law abiding state where legal resources are available to those who feel threatened or persecuted. The Tribunal also put to the applicant DFAT advice that provided if supporters of registered parties in India are subject to political persecution from rival political parties or other agents, they generally have recourse through the Indian legal system. The Tribunal member asked the applicant if he wished to consider this issue of state protection further with an opportunity to make further submissions to the Tribunal on that issue. The Tribunal’s record indicates that the applicant declined this offer.
Mr Reilly submits that the Tribunal’s conclusion (reproduced at [11] above) was to the effect that the Indian authorities provided a standard of protection “comparable to international standards”. He relied upon the decision in SZBBP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 167 at [15] per Wilcox, Branson and Merkel JJ:
[15] In our view, neither criticism of the RRT’s decision is warranted. The RRT addressed and rejected the case the appellant was seeking to make which was that adequate state protection was being denied to Christians in Egypt. In addressing that case, the RRT concluded that state protection was adequate and effective in respect of the kind of harm feared by the appellant. Thus, the RRT addressed the issues it was required to address in order to determine the appellant’s claims. It is also clear that the RRT, in regarding the protection as ‘effective and adequate’, was satisfied that it met the requisite standards. Thus, there is no substance in the criticisms made by the appellant concerning the issue of state protection which, in substance, impermissibly sought to reargue that issue on the merits.
I am satisfied that the Tribunal’s findings that state protection was adequate and effective did not involve jurisdictional error and ground two should be dismissed.
Ground three
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.
This claim is made without particulars or supporting submissions or affidavit material that identifies the ‘integers’ claimed that were not addressed by the Tribunal. The applicant’s claims are recorded in questions in the original Protection Visa Application form which states “Why did you leave that country”?
I was born in Muslim family in Kerala. My parents were members of Communist party and they sacrificed their life for the ideology of communism. I was taught communism by my parents. I came to know that the very idea of the communist party is to bring an end to the suffering of the working class and bring a radical change for the development of the whole society through equality and [eliminating] economic disparities. I was participating in the CPI(M) parties student [illegible] (SPI) during the period of my school studies. After finishing my school I opened a small business. When my father walked out from the CPI(M) party in protest against its leaders who were corrupt and joined the movement of CPI(ML), I also followed him and joined the political movement of CPI(ML) People was group. One day the CPI(M) member came to my shop and took me [to] unknown place and physically tortured and demanded my parents to leave the CPI(ML) party. After two days they released me and warned my parents they will do it again if we continue to support CPI(ML). After that my father forced me to leave the country. (CB 19)
“What do you fear may happen to you if you go back to that country”?
As my father still continues to do work for people war group, the CPI(M) member is looking to hurt him. At this moment my father facing stiff resistance from the CPI(M) party people, but he does not care about that much. He is happy that I am out of the country. I was the only weak part of my parents. My parents are very strong character. They have been involved with politics for long times. The CPI(M) member are looking for me. They do not know that I am in Australia. I fear that if I go back to my country they will kidnap me again to blackmail my parents perhaps this time they will kill me. (CB 20)
“Who do you think may harm / mistreat you if you go back?”
The local CPI(M) party people. As they are very keen to know where I am at this moment. They knew I am the only weak point of my parents. As I am outside of India at this moment, my parents are “sleep well”. (CB 21)
“Why do you think this will happen if you go back”?
As we were the members of Communist party for my time and walked out from CPI(M) party in protest against the leaders who were corrupted. Those leaders know that we know what going on inside eliminating economical / disparities. Those leaders want my father back to CPI(M). When they kidnapped me, I had been told that to tell my father come back to CPI(M). As we joined the political movement of CPI(ML) peoples was group. I believe that if I go back to India they will use me as a weapon to force my father to come back to CPI(M) Party. (CB 21)
“Do you think the authorities of that country can and will protect you if you go back? If not, why not”?
When I was kidnapped, my father went to police station to get help. He had been told by officer in charge that they can’t help unless my father go to the local MCA, who is the member of the CPI(M) party. He is the most corrupt politician among others. Before my father raised [illegible]against him as a leader. He and my father both started politics together. With the help of his illegal income he became MCA of our area. So I believe that if I go back to India police will never help me. My father does not want me to go back. As I mentioned before, I am the only weakness of my father. They will do anything to get my father. I cannot expect any help from police. (CB 22)
The above claims are reproduced in point form in the Tribunal’s decision under the heading “Claims and Evidence”. The decision record indicates that the applicant affirmed that the main points of his written statement of claim were in effect summarised by the Tribunal. The Tribunal’s decision does not expand to any significant effect the contents of that material and in the absence of a transcript of the hearing it is not possible to determine whether the new claims were raised. In the circumstances there does not appear to be any aspect of the applicant’s claims that were not addressed in the Tribunal’s decision record. The applicant also claims that he was stressed and intimidated during the Tribunal’s hearing. Again in the absence of a transcript or any indication as to the length or circumstances of the hearing, it is not possible to determine the circumstances during that period.
However, even if the applicant was able to establish that he felt stressed and intimidated during the course of the hearing, a jurisdictional error is not established on the part of the Tribunal. The proceedings of a Tribunal are inquisitorial in nature and it is required that proceedings test the evidence presented, often vigorously. The need to ensure that a person affected by the decision of the Tribunal is accorded procedural fairness will often require that they be plainly confronted with the matters which bear adversely on their credit or which brings their account into question: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872.
I am not satisfied that these claims contained in ground three can be sustained and the ground should be dismissed.
Ground four
The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular Ground
a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from CPI(M).
b) In relation to above the Tribunal did not consider the applicant claim that he was kidnapped and released after two days because of his parents joint the CPI(ML).
This ground claims that the Tribunal did not address the issue of the applicant being kidnapped by his political opponents. In the Tribunal’s “Findings and Reasons” the following statements are made:
The applicant claims that he was kidnapped by CPI(M) members in order to force him and his father to abrogate their membership of CPI(ML) and return to CPI(M). He claims that the Kerala police are not willing to provide protection and that he fears further persecution for his political opinion if he returns to India.
The applicant has provided no additional evidence to support his claims at the hearing and in his protection visa application. He has no documentary evidence of his father’s approach to the police following the applicant’s claimed kidnapping by CPI(M) members. His account at the hearing of his claimed kidnapping was vague both as to its nature and timing. Based on the evidence, the Tribunal is not satisfied that the kidnapping took place as claimed. (CB 62.3)
Contrary to the second assertion contained in the particulars that the applicant was under “immense and intimidating pressure” that the Tribunal failed to consider in its decision is not evident from the materials contained in the Court Book. The claims contained in the original visa application which are reproduced above at [16]-[20] make no reference to what this alleged claim is. In the circumstances this claim cannot be sustained and this ground should be dismissed.
Ground five
The second respondent in making its determination failed to record its decision in accordance with Section 430 of the Migration Act.
Particulars:
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 reason but did not give reasons for the finding.
c) The Tribunal failed to record the material facts for the reasons referred to above.
d) The Tribunal in finding that the applicant could have recourse to the Indian legal system failed to record whether, having regard to problems complained about by the applicant in the past and about which. The Tribunal did not make any finding, it was reasonable for the applicant to fear such problems in the future should he return to India.
Section 430 of the Act states:
Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(3) Where the Tribunal has prepared the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
This section has been judicially considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [68]-[69]:
[68] S430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s430(1)(c). It was said ([2000] FCA 845) that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
[69] It is not necessary to read s430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s430 statement was not considered by the Tribunal to be material (Repatriation Commission v O’Brien [1985] HCA 10). This may reveal some basis for judicial review by the Federal Court under Pt8 of the Act, or by this Court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error (Craig v South Australia [1995] HCA 58). The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40).
His Honour Gleeson CJ agreed with this view at [1], [9]-[10] as did her Honour Gaudron J at [32]-[34] and his Honour Callinan J at [217].
Mr Reilly in his written submissions submits that there is no basis to suggest that the Tribunal has not complied with this section of the Act. Contrary to the particulars given to this ground, the Tribunal did not find that the applicant had been persecuted and this was not for a Convention reason. Rather the Tribunal did not accept that the applicant had ever experienced persecution, and found that given the availability of state protection his claimed fears of future harm was not well founded. I agree with Mr Reilly’s submissions and I am satisfied that ground five cannot be sustained and should be dismissed.
Conclusion
The applicant in these proceedings is a self represented litigant who appeared with the assistance of a Malayalam interpreter by telephone. The Court provided the applicant with a panel advisor and the applicant filed an amended application in accordance with leave granted at the directions hearing. He did not fully understand the function of this hearing and appears to be under the mistaken belief that it was a further merits review of the Protection visa application. The applicant was assisted in the preparation of the application to this Court. However, when invited to make oral submissions he resorted to a restatement of his original claims as set out in his Protection visa application. He did not appear to understand the function of this hearing.
Mr Reilly of Counsel assisted the Court with both written and oral submissions prepared in response to the applicant’s amended application and I am satisfied that the issues identified in the application have been satisfactorily addressed. I have independently considered the material contained in the Court Book and in particular the Tribunal’s decision. I am satisfied that on a fair reading of the material available to me that no jurisdictional error has been made by the Tribunal. Consequently, the applicant’s claim should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
26 September 2008
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