SZMVE v Minister for Immigration
[2009] FMCA 173
•6 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 173 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91S; 414; 425; 474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NACB v Minister for Immigration [2003] FCAFC 235 NATC v Minister for Immigration [2004] FCAFC 52 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 219 ALR 27 |
| First Applicant: | SZMVE |
| Second Applicant: | SZMVF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2597 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 February 2009 |
| Date of last submission: | 11 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| Applicants appeared on their own behalf |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2597 of 2008
| SZMVE |
First Applicant
| SZMVF |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 September 2008 and handed down on 25 September 2008.
The applicant claims to be a citizen of India, to have lived in Bahrain and to be Tamil ethnicity and Hindu faith and fear persecution by reason of religion (“the Applicant”). The second named Applicant is the husband of the Applicant and his claims are dependent on those of the Applicant (“the Applicant Husband”).
The applicants arrived in Australia on 22 February 2008 having departed legally from Chennai on a passport issued in their own names. The Applicant entered Australia on a visitor visa issued on 12 February 2008.
On 3 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 15 April 2008, the Applicant Husband lodged an application for a member of the family unit to an application for a protection visa.
On 19 May 2008, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas.
On 22 May 2008, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 4 September 2008, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 9 October 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
On 3 April 2008, the Applicant lodged an application for protection. The Applicant claimed that at the age of 10 years she and her family converted to Islam. The Applicant claimed that in 2001 she fell in love and married her husband who is a Hindu. She stated that she left her village because of threats from Muslim communities and her parents. The Applicant stated that for the past 5 years she was living with her husband in Bahrain free from problems and able to practice Hindu religious customs. The Applicant stated that in 2007 a Muslim fanatic reported her story to the local Iman in Bahrain. The Applicant stated that her husband’s employer told him to leave Bahrain or both the Applicant and her husband would be killed. The Applicant stated that they left Bahrain and returned to Tamil Nadu in India. The Applicant claims to fear harm from Muslim fanatics in her village and Muslim communities around her state and country as well as her parents and relatives.
The Delegate’s decision
On 19 May 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate found the Applicant’s claims to be “devoid of any details and lacks substance and provided no evidence in support of her claims.” The Delegate had regard to independent country information which stated that Hindus constituted eighty percent of the population in Tamil Nadu and there was no evidence of communal clashes between Hindu and Muslim residents in Tamil Nadu.
The Delegate noted that the Applicant did not claim to have any problems anywhere outside her home area of Tamil Nadu in India. The Delegate did not find the Applicant’s claims credible.
The Tribunal’s review and decision
On 22 May 2008, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal. In her review application the Applicant claimed that the Department had not called her for an interview and only had regard to country information without giving her an opportunity to explain her story.
On 14 August 2008, the Tribunal received a statutory declaration from the Applicant dated 5 August 2008 in which she expanded upon her claims and provided some further material to support her claims.
On 15 August 2008, the Applicant attended a hearing before the Tribunal. At the hearing the Tribunal explored the Applicant’s claims with her and put to her concerns it had about various aspects of her claims. Following the hearing, the Tribunal sent a letter to the Applicant, dated 18 August 2008, in which the Tribunal put in writing matters of concern it had with the Applicant’s evidence and inviting the Applicant’s response by 29 August 2008. On 29 August 2008, the Tribunal received a written response from the Applicant.
In its decision record, the Tribunal quoted in full the correspondence referred to above that it had with the Applicant.
The Tribunal did not find the Applicant to be a witness of truth. The Tribunal found that the Applicant omitted significant details of oral claims she made at the hearing from her written claims. The Tribunal also had found there to be major inconsistencies between her written statement and oral evidence in the hearing.
The Tribunal considered in detail each aspect of the Applicant’s claims and made findings in respect of each of the aspects. The Tribunal noted the Applicant’s explanations to matters of concern put to it by the Tribunal.
Ultimately, the Tribunal rejected the Applicant’s claims of having converted from Islam and then to Hinduism and found that she had not suffered any past harm as a result of any Convention based persecution from fundamentalist Islamic groups. The Tribunal did not accept that the Applicant had done anything in the past “that could even remotely been seen as a challenge to Islam.” The Tribunal concluded by stating “as previously stated, the Tribunal’s overall observation of the applicant is that she will say or do anything regardless of the truth.”
Having comprehensively rejected the Applicant’s claims, the Tribunal affirmed the decision under review.
In relation to the Tribunal’s reliance of country information in rejecting the Applicant’s claims, the Tribunal’s decision is accurately summarised by the written submissions of the First Respondent as follows:
“The Tribunal accepted that the applicant's parents may have converted to Islam, but did not accept that it followed that she would have been perceived to have also converted. Even if there were such a perception, the Tribunal did not accept that she suffered any harm in the past or that there was a real chance of serious harm in the future, for the following reasons:
a) Country information indicating that Hindus greatly outnumber Muslims in Tamil Nadu and that the current political leadership in Tamil Nadu is non-religious; and
b) Although it considered the newspaper reports submitted by the applicant, the Tribunal did not accept that the applicant had done anything to challenge Islam in the past or that she would do so in the future.”
The proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Tamil interpreter. The Applicant appeared on behalf of both applicants.
On 22 October 2008, the applicants attended a directions hearing before this Court and were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. No further application or evidence was filed by or on behalf of the applicants.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained the consequences that would follow for them if a costs order was made against the applicants. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicants’ ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that the applicants wished to continue with their application.
At the commencement of the hearing in this Court, the Applicant confirmed that the applicants relied on the grounds contained in an application filed on 9 October 2008.
The grounds of the application are expressed to be as follows:
“1.That the decision of the second respondent was affected by jurisdictional error;
2.That second respondent failed to complete the exercise of its jurisdiction because it did not address the totality of the applicant’s claims”
In support of her application the Applicant filed an affidavit, affirmed 8 October 2008, in which she made the following complaints:
“1 That the decision of the second Respondent was affected by Jurisdictional error. The reasoning adopted by the Tribunal was not logical and misapplied so that the factual result was perverse and the decision was unreasonable (Parramatta city council v Pestell (1972), (Prasad v Minister and Ethnic Affairs) (1985).
2. That second Respondent failed to afford the application procedural fairness. At the RRT hearing I was denied the opportunity to explain fully why it was that I believed that the harm arose as a result of selective systematic harassment and my imputed political and trade union activities.
3. That the second Respondent failed to comply with s 425 AND/OR complete the review under s414 of the Migration Act.”
Each of the grounds and the paragraphs of the affidavit were interpreted for the assistance of the applicants and the applicants were invited to make submissions in support of each of the grounds and in support of their application generally. The applicants confirmed that they had filed no evidence or submissions in support of their application.
Ground 1
Ground 1 is a bare assertion that the Tribunal’s decision was affected by jurisdictional error and is not supported by particulars.
The applicants made no meaningful submission in support of Ground 1. The Applicant told the Court that she had submitted everything to the Tribunal but that they did not give her a correct decision. Such a complaint appears to be no more than a disagreement with the decision. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
Accordingly, Ground 1 is rejected.
Ground 2
Ground 2 is also in general terms and unsupported by particulars.
In support of Ground 2, the Applicant stated that the Tribunal finished the hearing quickly and provided no further time to the Applicant to obtain more information about her claims. When asked by the Court what were the claims that she made that the Tribunal had not considered, the Applicant responded that she gave all the information to the Tribunal but that they did not address it. When the Court asked the Applicant what was the information that was not addressed, the Applicant responded that the Tribunal asked her where she lived on her two trips to Chennai and that she gave the Tribunal all the details correctly but that the Tribunal “did not do justice”.
The Applicant did not provide a transcript of the hearing before the Tribunal in support of her allegation that she was not afforded an opportunity by the Tribunal to support her claims. At the directions hearing, the Applicant was directed to file and serve her evidence, including any transcript of the Tribunal hearing by 10 December 2008. The applicants were also directed to file and serve a notice if they wished to rely on the hearing tapes by 10 December 2008. Nothing was filed on behalf of the applicants in accordance with these directions or otherwise. In the circumstances I accept as accurate the Tribunal’s decision record of what transpired at the hearing and its summary of the claims and evidence before it.
A fair reading of the Tribunal’s decision record makes clear that it considered that Applicant’s claims, explored those claims with the Applicant, put to the Applicant both at the hearing and in writing the concerns it had about her claims and considered her responses. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including the Tribunal’s adverse credibility findings. Credibility findings are a matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
At the heart of the Tribunal’s rejection of the Applicant’s claims were its adverse credibility findings.
In relation to the Applicant’s complaint that the Tribunal failed to give her a further opportunity to provide more detailed information, such a complaint is not made out. The Tribunal wrote to the Applicant post hearing putting to the Applicant in writing the concerns it had expressed at the hearing and providing a further opportunity for the Applicant to respond. The Applicant did respond and the Tribunal had regard to those responses. However, the Tribunal was not satisfied that the responses adequately dealt with its concerns about the Applicant’s credibility and claims. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
In relation to the Applicant’s complaint about the hearing time, the Tribunal’s hearing record shows that the hearing commenced at 11:30am and concluded at 1:15pm. That hearing time is unremarkable and does not support a contention that the Applicant was not given an opportunity to put to the Tribunal all matters that she wished in support of her claims.
Accordingly, Ground 2 is not made out.
Paragraph 1 of Applicant’s affidavit
Paragraph 1 of the Applicant’s affidavit appears to complain that the Tribunal was “not logical and misapplied so that the factual result was perverse and the decision was unreasonable”. Again the complaint was not supported by particulars. A fair reading of the Tribunal’s decision does not support such a contention. Further, I accept the First Respondent’s submission that “illogicality does not of itself establish jurisdictional error” (NACB v Minister for Immigration [2003] FCAFC 235 at [29]; NATC v Minister for Immigration [2004] FCAFC 52 at [27]).
The Applicant’s complaint that the decision was unreasonable is in truth no more than a disagreement with the findings of the Tribunal. Such a complaint invites merits review which, as stated above in these Reasons, this Court cannot undertake.
In relation to the Applicant’s allegation that the Tribunal was “perverse”, a fair reading of the Tribunal’s decision does not support such a complaint. As stated above in these Reasons, the findings of the Tribunal were open to it on the evidence and material before it and for the reasons it gave.
Accordingly this complaint is without foundation.
Paragraph 2 of Applicant’s affidavit
Paragraph 2 of the Applicant’s affidavit appears to complain that the Tribunal failed to consider a claim by the Applicant of a fear of persecution by reason of her imputed political opinion. However, a fair reading of the Tribunal’s decision does not support an allegation by the Applicant that she made a claim of a fear of persecution by reason of an imputed political opinion nor did she claim to have been involved in political or trade union activities. Such a claim was not squarely raised by the Applicant and did not clearly arise on the evidence and material before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 219 ALR 27 at [60]).
Accordingly this complaint is without foundation.
Paragraph 3 of Applicant’s affidavit
Paragraph 3 makes general unparticularised allegations that the Second Respondent failed to comply with s.425 of the Act and failed to complete its review under s.414 of the Act. Again, there is no error alleged capable of review by this Court in support of those allegations. The complaints are entirely unparticularised. I accept the submission of the First Respondent that without more they do not identify any error. The Tribunal invited the Applicant to attend a hearing, which the Applicant did. As referred to above in these Reasons, the Tribunal explored with the Applicant the claims that she made and put to her concerns it had arising out of her evidence both at the hearing and after the hearing in writing. The Tribunal had regard to the Applicant’s explanation and was not ultimately satisfied.
It is for the Applicant to satisfy the Tribunal that she meets the criteria required for being a refugee. If the Tribunal is not so satisfied, then pursuant to s.65(1)(b) of the Act the Applicant must be refused a protection visa.
Accordingly this complaint is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants; had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence both at the hearing and in writing after the hearing and noted the applicants’ responses. The Tribunal also put to the applicants independent country information before it and invited the applicants to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 6 March 2009
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