SZMFL v Minister for Immigration
[2008] FMCA 1571
•26 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1571 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming fear of persecution on the ground of political opinion – claim of association and activities with the LTTE in Tamil Nadu – where applicant claimed to have been stateless – where applicant claimed to have been born in Sri Lanka – where Tribunal found that he was a national of India and assessed his claims against that country – credibility – whether the Tribunal failed to take a relevant consideration into account – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.430. |
| Migration Act 1958 (Cth) ss.430, 474 |
| Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; (2001) FCA 1802 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 followed Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALJR 1; [2001] HCA 30 NAOA v Minister for Immigration [2003] FMCA 572 |
| Applicant: | SZMFL |
First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1136 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 November 2008 |
| Date of Last Submission: | 13 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1136 of 2008
| SZMFL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of India, asks the Court to set aside a decision of the Refugee Review Tribunal made on 10th April 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant asks the Court to issue a writ of certiorari quashing the decision. He also asks that no action be taken to remove him from Australia while the decision is pending. It was explained to the Applicant that in order to make the orders he seeks the Court would need to be satisfied that the decision was affected by jurisdictional error.
The Applicant relies on five grounds of review:
a)The Tribunal did not take into account relevant considerations or integers central to the Applicant’s claims.
b)The Tribunal failed to carry out its review function and to exercise its jurisdiction.
c)The Tribunal exceeded its jurisdiction by failing to consider the threat to his life and liberty and failed to consider the impact on him because of his membership of the LTTE.
d)The Tribunal’s decision was not properly justified by the Migration Act 1958 as the Tribunal rejected the Applicant’s claims without considering his oral evidence.
e)The Tribunal failed to record its decision in accordance with section 430 of the Migration Act.
The Minister has filed a Response claiming that the application does not establish any jurisdictional error and does not raise an arguable case for the relief claimed.
Background
The Applicant arrived in Australia on 5th August 2007. He applied for a Protection (Class XA) visa on 10th September 2007, claiming to have been born in Sri Lanka. In his statement submitted with his application for a protection visa the Applicant claimed:
I am not a citizen of India or Sri Lanka. I have obtained my Indian passport through my travel agent with my original name and date of birth.[1]
[1] See Court Book at 26
He claimed that his father had been under suspicion from Indian authorities and was detained for three years. His father was later taken away by police in 1996 and was not seen again. The Applicant claimed to have worked for the Liberation Tigers of Tamil Eelam (LTTE) and to have been involved with them since 1997.
A delegate of the Minister refused the application for a visa on
27th November 2007. The delegate found the Applicant to be a citizen of India but was not satisfied that he would face persecution if he were to return there. The delegate found that the Applicant had not provided any evidence to substantiate any aspect of his written claims.[2] The delegate also noted that the Applicant applied for refugee status five weeks after his arrival, which called into account the genuineness of his fears, saying:
I cannot accept that someone who fled his country due to being persecuted for his political opinion would not claim a refugee status soon after arriving in Australia.[3]
[2] Court Book 40
[3] Court Book 41
The delegate refused the application for a visa on 27th November 2007 and the Applicant then applied to the Refugee Review Tribunal on
14th December for a review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Tribunal wrote to the Applicant on 8th January 2008, inviting him to attend a hearing on 7th February 2008. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Tamil language. He produced his Indian passport at the hearing. He also produced some other documents, including an X-ray report relating to his left leg.
The Tribunal adjourned the hearing until 7th March 2008. On
12th February 2008the Tribunal wrote to the Applicant, inviting him to comment on or respond to certain information, saying:
The Tribunal undertook to provide you with its concerns about the evidence you gave at the hearing on 7 February 2008. The following is the Tribunal’s record of that evidence. You are invited to comment or respond to that record as set out, including whether your recollection accords with that of the Tribunal’s or whether its understanding of your evidence accords with your own.[4]
[4] Court Book 79
The Tribunal asked the Applicant to provide his comments or response by 7th March 2008, the next hearing day.
The Applicant attended the Tribunal on 7th March 2008. He provided a number of photographs, a letter from the Pastor of a church in Chennai, Tamil Nadu, about the Applicant’s mother and a certificate showing that the Applicant’s mother had completed a Bible study course. The Applicant gave evidence at the hearing on 7th March.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 19th March 2008 and handed the decision down on 10th April. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The Tribunal’s Findings and Reasons
The Tribunal set out in its decision record a summary of the Applicant’s claims, taken from his departmental file. It also referred to Independent Country Information about the Liberation Tigers of Tamil Eelam (LTTE), a proscribed terrorist organisation under India’s Unlawful Activities (Prevention) Amendment Ordinance, 2004.
The Tribunal summarised the Applicant’s evidence at the two hearings, on 7th February and 7th March 2008. The Tribunal dealt with the Applicant’s claim to be stateless:
The Tribunal noted that his passport indicated he was born in Tamil Nadu yet he claims in his application that he was born in Sri Lanka. The applicant claimed that he got his passport with the assistance of a travel agent who provided the Indian authorities with an affidavit that he was born in Tamil Nadu. The Tribunal put to the applicant that despite his claim that he was stateless, his passport indicated that he was an Indian citizen and he was therefore recognised by the Indian authorities as an Indian citizen. The applicant conceded that was the case.[5]
[5] Court Book 102-103
The Tribunal found that the Applicant was a citizen of India, referring to advice from the Department of Foreign Affairs and Trade that the holder of an Indian passport would be considered an Indian national and not stateless. The Tribunal noted that the Applicant was making claims against India and, in regard to Sri Lanka, said:
The Tribunal questioned the applicant as to whether he wished to make claims of persecution against Sri Lanka and he claimed that he did not.[6]
[6] Court Book 106
In my view, the Tribunal’s approach was clearly correct. The Applicant is not stateless. The Tribunal found he was a national of India and assessed him against that country.
The Tribunal then went on to consider the Applicant’s credibility. The Tribunal did not accept the Applicant as a witness of truth and went on to say:
The Tribunal is not satisfied that any of the applicant’s material claims to invoke protection obligations are true.[7]
[7] Court Book 107
The Tribunal set out why it did not accept the Applicant’s claims, rejecting them in their entirety as “vague, contradictory and implausible”[8]. The Tribunal considered the various aspects of the Applicant’s claim under these headings:
· Membership and activity with the LTTE
· Arrest and detention
· Other incidences of past harm
· Future harm
[8] Ibid
The Tribunal was not satisfied that the Applicant was a member of the LTTE or had been involved with them in any way. As far as the Applicant’s claims of arrest and detention were concerned, the Tribunal was not satisfied that the Applicant was arrested and detained, as he had claimed, or that there were charges pending against him, or that he was of adverse interest to the authorities. As to claims that the Applicant was targeted and attacked by “rowdies”, the Tribunal found that if the Applicant and his family were attacked as he claimed, “then these were random acts of violence and not Convention-related”.[9] The Tribunal considered the Applicant’s claim that he would be persecuted both by the LTTE and the Indian authorities if he were to return to India. As the Tribunal found that the Applicant and never had been a member of the LTTE or associated with them, the Tribunal found that the Applicant would not be of adverse interest to either the authorities or the LTTE if he were to return to India in the reasonably foreseeable future. The Tribunal found that the Applicant did not have a well founded fear of persecution from the Rowdies because it had found that the basis of the attacks by them were random acts of violence and unrelated to any Convention reason.
[9] Court Book 108
Under the heading “Relocation” the Tribunal went on to make this finding:
His claims of fear of further attack by the Rowdies are equally not Convention-related. That said, if the applicant has a genuine fear, which the Tribunal does not believe, it appears reasonable for the applicant to relocate to another part of the country where the Rowdies, or at least that particular group of Rowdies, is not active.[10]
[10] Court Book 109
Under the heading “State Protection”, the Tribunal noted the Applicant’s claim that the police could not protect him from the LTTE or the Rowdies. The Tribunal reiterated that it had found that the Applicant was not and never had been a member of the LTTE and would not, therefore, be in need of the protection of the authorities. The Tribunal found that there was no evidence that the State would withhold protection from the applicant for a Convention-related reason.
The Tribunal found that the Applicant did not have a well-founded fear of persecution within the meaning of the Convention and, therefore, was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and affidavit in support on 6th May 2008. The Minister filed a Response on 29th May 2008.
The Applicant’s Grounds of Review[11] are:
[11] summarised and with certain spelling and grammatical errors corrected
(1) That the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take into account relevant considerations or ‘integers’ central to the applicant’s claims.
(2) The Tribunal failed to carry out its review function and to exercise its jurisdiction, in that it did not consider the applicant had been under immense and intimidating pressure from Tamil Nadu Q Branch police because of his LTTE membership.
(3) The Tribunal exceeded its jurisdiction by:
(a) failing to take into account the threat to his life and/or liberty; and
(b) failing to consider the impact on him because of his membership of the LTTE.
(4) In the Tribunal decision the findings and reasons were not properly justified by the Migration Act 1958. The Tribunal rejected the applicant’s claims without considering his oral evidence in relation to major issues.
(5) The Tribunal, in making its determination, failed to record its decision in accordance with section 430 of the Migration Act, in that:
(a) The Tribunal made no finding as to the nature and extent of the persecution suffered by the applicant.
(b) The Tribunal found that any persecution suffered was not for any Convention reason but did not give reasons for this finding.
(c) The Tribunal failed to record the material facts for the reasons referred to above.
Submissions
The Applicant did not file any written outline of submissions. He attended Court and made an oral submission with the assistance of an interpreter in the Tamil language. He told the Court about his interview with the Minister’s delegate. He said that when he went to the Tribunal hearing he was afraid, so he could not talk. He also said that the Tribunal did not give consideration to his oral evidence at the hearing. In particular, the Applicant could not tell the Tribunal about what had happened to his father. He said that because he was afraid, he could not talk.
Ms Clegg of counsel, who appeared for the Minister, relied on her written submissions. She submitted that the Applicant’s oral submissions did not take his case any further than that which was set out in his application.
Ms Clegg submitted that:
a)The Applicant’s first ground complains of a failure to consider relevant integers of the Applicant’s claim without particularising those integers; it is not possible to discern an integer of the claim that the Tribunal overlooked (see Htun v Minister for Immigration and Multicultural Affairs[12]).
b)The Applicant’s second ground is a complaint about the Tribunal’s findings of fact and is an attempt to re-agitate the merits of the Applicant’s case.
c)The allegation that the Tribunal’s findings and reasons were not properly justified by the Migration Act and oral evidence was rejected is not particularised, nor is it possible to discern an aspect of the oral evidence that was overlooked. The Applicant bears the evidentiary onus of establishing that a matter was overlooked or ignored (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs[13] at [21]) and without an evidentiary basis, the claim is unsustainable.
d)As to the Applicant’s complaint that there was a breach of s.430 of the Migration Act, Ms Clegg submitted that there was no merit to the complaint that the Tribunal did not give reasons. In any event, a breach of s.430 does not amount to jurisdictional error (Minister for Immigration and Multicultural Affairs v Yusuf[14] at [1], [34], [68], [144], [217]).
e)The Tribunal was not required to make a finding as to the extent or nature of the persecution suffered by the Applicant when it did not accept that the Applicant suffered Convention-related persecution.
[12] (2001) 194 ALR 244; [2001] FCA 1802
[13] [2004] FCAFC 241
[14] (2001) 206 CLR 323; 180 ALJR 1; [2001] HCA 30
Conclusions
The Tribunal rejected the Applicant’s claims because it did not find him to be a witness of truth. It comprehensively rejected the Applicant’s material claims to invoke protection obligations based on the Applicant’s lack of credibility.
The Applicant’s Ground 1 claims that the Tribunal did not take into account relevant considerations or integers central to the Applicant’s claims. Nowhere does the Applicant set out what relevant considerations or integers the Tribunal failed to take into account, and it is not possible to discern any from the Tribunal’s comprehensive Decision Record. The Applicant’s oral submissions did not throw any further light on this claim, as his submissions went no further than to claim that the Applicant was afraid at the Tribunal hearing and could not talk.
The Applicant has not established any relevant consideration or integer that the Tribunal failed to take into account and this ground has not been made out.
The Applicant’s Ground 2 claims that the Tribunal failed to carry out its review function and exercise its jurisdiction because it did not consider that the Applicant had been under immense and intimidating pressure from Tamil Nadu Q Branch police because of his LTTE membership. The short answer is that the Applicant’s claim is, as counsel for the Minister submitted, a complaint about the Tribunal’s finding of fact. It is well-established that a court conducting judicial review of an administrative decision cannot undertake merits review.
In any event, the Tribunal considered the Applicant’s claim to have been under pressure from the Q Branch police because of his membership of the LTTE. The Tribunal rejected his claim to have ever been a member of the LTTE:
The Tribunal does not accept that the applicant is or was a member of the LTTE or involved with them in any way.[15]
[15] Court Book 108
The Applicant’s second ground has not been made out.
The Applicant’s Ground 3, which appears to have suffered from a number being left out, claims that the Tribunal exceeded its jurisdiction by failing to take into consideration the threat to the Applicant’s life and liberty and failed to consider the impact on the Applicant because of his membership of the LTTE.
This is really no more than a challenge to the Tribunal’s factual findings and, as Counsel for the Minister submits, is really an attempt to re-agitate the merits of the Applicant’s case. The fact is that the Tribunal did not accept that the Applicant was at any time involved with the LTTE. This is a finding that was open to the Tribunal on the evidence.
There is no error and the Applicant’s third ground has not been made out.
The Applicant’s Ground 4 complains that the Tribunal’s findings and reasons were not properly justified by the Migration Act 1958 and that the Tribunal rejected the Applicant’s claims without considering his oral evidence in relation to major issues. The Applicant has not provided any particulars of that claim.
The Tribunal’s summary of the Applicant’s oral evidence at the two hearings goes from page 102 to page 106 of the Court Book. It appears to be quite comprehensive. The Findings and Reasons section of the Decision Record extends from page 106 to page 110 of the Court Book, and the Tribunal has set out its findings in a methodical manner under these headings:
· Credibility
· Membership and activity with the LTTE
· Arrest and detention
· Other incidences of past harm
· Future harm
· Relocation
· State Protection
The Decision Record shows that the Tribunal considered the Applicant’s claims thoroughly and made findings on each issue. After the first hearing on 7th February 2008 the Tribunal wrote to the Applicant and invited his comments on a number of pieces of information taken from his own evidence to the Tribunal. The Applicant provided some documents and photographs in reply to the Tribunal’s letter.
The Tribunal was not under any obligation under s.424A of the Migration Act to invite the Applicant to comment on his own evidence, much less provide its own notes for the Applicant’s perusal and comments. The Tribunal’s letter set out the conclusions the Tribunal might draw from the evidence. It appears that the Tribunal was making an effort to give the Applicant every possible opportunity to state his case and explain the matters that were causing the Tribunal concern.
Counsel for the Minister submits that the Applicant bears an evidentiary onus of establishing that some matter was overlooked or ignored and he has not done so. Ms Clegg referred the Court to the decision of the Full Court of the Federal Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs[16], where Beaumont, Merkel and Hely JJ said at [21]:
On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below). The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.
[16] supra
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs is an appeal from a decision of the Federal Magistrates Court (NAOA v Minister for Immigration[17]) and is binding on this Court. In the present case, the Applicant gave no evidence, either orally or on affidavit, about any matter that was overlooked or ignored, nor has he provided a transcript.
[17] [2003] FMCA 572 (Driver FM)
I am not satisfied that the Applicant has shown any evidential basis for the ground that the Tribunal’s findings and reasons were “not properly justified” by the Migration Act or that the Tribunal did not consider any part of his oral evidence.
The Applicant’s fourth ground has not been made out.
The Applicant’s Ground 5 complains that the Tribunal, in making its determination, failed to record its decision in accordance with s.430 of the Migration Act. The particulars of that claim are that:
a)The Tribunal made no finding as to the nature or extent of the persecution suffered by the Applicant;
b)The Tribunal did not give reasons for its finding that any persecution suffered was not for a Convention reason; and
c)The Tribunal failed to record the material facts for those reasons.
First, s.430(1) of the Migration Act provides:
Section 430 - 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.
In my view, the Tribunal Decision Record, at pages 96 and 106 to 110 of the Court Book (inclusive) clearly does exactly that.
As to the particulars of the Applicant’s claim, the Tribunal did not accept that the Applicant had suffered any persecution for a Convention-related reason[18] and it was not required to make any finding about the nature and extent of any persecution that was not related to a Convention reason. The Tribunal did give reasons for that finding, at pages 108 and 109 of the Court Book. Finally, the Tribunal’s findings and reasons appear to set out the material facts upon which it relied, and the Applicant has not pointed out any failure to record any material fact.
[18] Court Book 107-109
The Applicant’s final ground fails.
I am mindful that the Applicant is not legally represented, and I have read the Tribunal Decision Record and supporting documents in order to make an independent assessment as to whether there is any other jurisdictional error. I have not discerned any jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision (s.474(2)). Consequently, it is final and conclusive, cannot be reviewed or quashed, and is not subject to the orders in the nature of certiorari or prohibition which the Applicant seeks in his application (s.474(1)).
The application will be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 November 2008
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