SZMVT v Minister for Immigration

[2009] FMCA 81

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVT v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 81

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A, 424AA, 425

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration v Rajalingam (1999) 93 FCR 220
Sean Investments v MacKellar (1981) 38 ALR 363
SZBYR v Minister for Immigration (2007) 325 ALR 609

Applicant: SZMVT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2683 of 2008

Judgment of: Driver FM

Hearing date: 10 February 2009

Delivered at: Sydney

Delivered on: 10 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr P Reynolds

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2683 of 2008

SZMVT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on

   
   23 September 2008

   .  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of political and religious persecution. Background facts relating to the applicant's claims and the Tribunal decision on them are summarised conveniently in the Minister's written submissions.  I adopt as background for the purposes of this judgment paragraphs 2 through to 15 of those written submissions:

   On 6 February 2008, the applicant, a citizen of India, arrived in Australia (court book (“CB”) at 103).

   On 20 March 2008, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (CB1-39). 

   On 26 May 2008, a delegate of the first respondent refused to grant the applicant a protection visa (CB66-78).

   On 19 June 2008, the applicant applied to the Tribunal for review of the delegate’s decision (CB79-82).

   On 2 July 2008, the Tribunal wrote to the applicant inviting him to attend a hearing before it (CB86-87), which the applicant attended and at which he gave evidence.  The applicant also submitted a bundle of documents in support of his claims (CB91-160).

   On 23 September 2008, the Tribunal handed down its decision affirming the decision of the delegate to refuse the applicant a protection visa (CB164-187).

   The applicant’s claims

   The applicant’s claims are set out in Part C of the application submitted to the Department (CB19-22).

   In summary, he claimed that:

   a)he was a member of the NDF;

   b)in 2000, a member of the RSS killed Mr Yasar, a Hindu who had converted to Islam.  The killer was later released from jail;

   c)in 2007, 20 Hindus were killed by the NDF (he later stated that 1 Hindu was killed; being the killer of Mr Yasar).  Due to his membership in the NDF, the Applicant was targeted by BJP and RSS members;

   d)on 22 January 2007, the RSS “announced a strike all over the District” which extended to Muslims;

   e)on 23 January 2007, although he “organised for peace”, the RSS and BJP did not participate in the activity;

   f)he was suspected by the RSS of involvement with the incidents and he has been attacked a couple of times (at the hearing he referred to incidents in February and 15 March 2007;

   g)as a consequence he had to “move around” and he left India via the “the other airport”;

   h)he fears that if he was to return to India he faced the risk of being arrested and harassed by Hindu extremists.  The police and politically motivated radical Hindus and other political adversaries would harass and seriously harm or kill him; and

   i)he was perceived as a person with political opinions contrary to the majority Hindus and would be affected by a discriminatory policy towards Hindus.

   These claims were elaborated upon at an interview with the Department and the hearing before the Tribunal.

   The Tribunal’s decision

   The Tribunal’s reasoning is found at paragraphs [68] to [82] (CB182-185). 

   It did not accept that the applicant genuinely feared for his safety if he returned to his home to Kerala now or in the immediately foreseeable future. Although the applicant asserted that Muslims were systematically persecuted in India, it rejected this because, although there were examples of human rights abuses in India that disproportionately affected the Muslim community, it was not systematic persecution such that it could be said that there was a real chance that the applicant would be persecuted by reason of his religion now or in the immediately foreseeable future ([71]).

   The Tribunal did not accept that anyone wanted to attack the applicant, having regard to the evidence in respect of the two incidents described by the applicant as ‘attacks’ upon him. The applicant’s evidence was difficult to believe and did not demonstrate that anyone wanted to attack him ([72]-[73]). The Tribunal also did not give weight to anonymous letters said to contains threats made against him after he left India; it gave greater weight to the problems with the applicant’s evidence ([73]).

   The applicant had remained in India for over a year after the killing of the RSS activist in January 2007, hence the police had ample opportunity to arrest and charge him if they had wanted to do so ([75]).  Further, although the applicant had left India, he nevertheless chose to return at one point ([76]).  These matters suggested that he did not fear problems in India and cast doubt on his claims that:

   a)he had been accused of being involved in the killing of the RSS activist ([76]);

   b)he feared being arrested by the police ([77]); and

   c)he feared being harassed, threatened, attacked or killed by members of the Indian community ([78]). 

   The Tribunal also rejected associated claims.

   Although the Tribunal accepted that the applicant was a Muslim and had changed membership of various political parties, it accepted country information that indicated that defections of members of one party to another were commonplace.  Further, the Tribunal accepted that in Kerala legal recourse was available to people who were threatened or persecuted ([79]).  The Tribunal also found that, in India, human rights abuses were the exception rather than the rule and that India was a secular state that respected religious freedom ([80]).

2. These proceedings began with a show cause application filed on 17 October 2008.  The applicant has had the opportunity to file and serve an amended application but has not taken up that opportunity.

   
   

   I incorporate the grounds of the original application in this judgment:

   1. The Tribunal decision ‘Findings and reasons’ not properly justified by the Migration Act 1958 (Cth) [(“the Migration Act”)]. The Tribunal reject my claims without considering my oral evidence in relation to major issues. The Tribunal did not treat this matter as a s.424A issue as I brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal.

   2. The Tribunal member erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act.  In such circumstances the Tribunal erred in that:

   a. it failed to address the residual question as to how it should hold in the event that its finding that the applicant was not at risk of persecution was wrong; and

   b. it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here, and the Tribunal failed to consider this.

   3. That the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims.

   4. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

   Particular of Grounds

   a. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from RSS because of the applicant involvement with NDF.

   b. In relation to above the Tribunal did not consider that every time I travelled to outside India, I never used any of the Kerala airport which were very [close] to my place, but choose to use Chennai airport to avoid the persecution.

   c. I have given adequate evidence to the Tribunal that the reason I was accused of involved in the killing of RSS activist, Ravi because my truck was used to transport workers and material for the NDF and RSS people had seen my truck in Tirur at the time of RSS activist was killed.

   d. Therefore the applicant submit that the Tribunal failed to analyse properly future harm the [applicant] may face if he return to India.  Hence, due to this failure, the Tribunal had [committed] a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.

   5. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

3. The application is supported by a short affidavit filed with it. I received paragraphs 1 and 2 of that affidavit as evidence and paragraphs 3 and 4 as submissions.  I also have before me as evidence the court book filed on 5 November 2008. 

4. I made orders requiring written submissions in this matter. Only the Minister has filed submissions.  The applicant stated from the bar table that he had not received them.  The parties agreed to a variation to the normal procedure for the conduct of today’s hearing. Counsel for the Minister presented the Minister’s submissions orally first. Those submissions were interpreted for the applicant’s benefit during the course of oral presentation. 

5. I then gave the applicant the opportunity to make oral submissions himself. Those submissions were limited to various questions of detail concerning his claims of persecution. In particular, he sought to fill in what were identified as gaps in his claims as presented to the delegate and the Tribunal. Those submissions may support the proposition that the applicant is better placed now to argue his protection visa claims than he was previously. However, the question for me is not whether the applicant has viable claims for protection but rather whether the Tribunal decision is affected by any jurisdictional error. In my view, it is not.

6. The first ground asserts a failure to consider evidence and issues. On the basis of the record of the Tribunal decision, however, I am satisfied that the Tribunal did consider the issues raised by the applicant and the evidence he presented in support of his claims.  Indeed, on my reading, the Tribunal’s decision is clear, comprehensive and cautious. I agree with the Minister that there is no basis upon which it may be inferred that the Tribunal failed to consider any matters put by the applicant.

7. I agree with the Minister’s submissions concerning the asserted breach of s.424A. I adopt, with minor amendments, paragraph 19 of the Minister’s submissions:

   If the applicant brought the protection visa application to the hearing and gave it to the Tribunal, then s.424A(3)(b) of the Migration Act would apply to exclude it from the scope of s.424A(1). In any event, as information given to the delegate, it would now fall within s.424A(3)(ba) of the Migration Act. Also, the content of the protection visa application does not meet the statutory definition of “information” because it does not in its terms constitute a rejection or denial of the applicant’s claims (SZBYR v Minister for Immigration (2007) 325 ALR 609 at [17]). Finally, the Tribunal engaged and complied with s.424AA, hence it was not obliged to comply with s.424A(1) by the operation of s.424(2A)[1].

   [1] See further discussion on this point at [11]

8. The second ground of review asserts in substance that the Tribunal should have found that there was some doubt whether or not the applicant was a refugee within the meaning of the Convention; that the Tribunal should have considered what the position would be if its adverse conclusion was wrong and that the applicant should have been given the benefit of the doubt.  To the extent that this ground is an attack upon the merits of the Tribunal’s decision and the Tribunal’s reasoning process, it must be rejected.  I otherwise agree with and adopt, with minor amendments, paragraphs 22 and 23 of the Minister’s written submissions:

   The applicant appears to make an allegation that the Tribunal failed to apply the ‘what if I’m wrong’ test explained by Sackville J in Minister for Immigration v Rajalingam (1999) 93 FCR 220 at 241 as follows (emphasis added):

   In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had ‘no real doubt’ (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A ‘fair reading’ of the reasons incorporates the principle that the RRT's reasons should receive a ‘beneficial construction’ and should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’: Wu Shan Liang, at 271–272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

   On a fair reading of the reasons as a whole, it is apparent that the Tribunal had “no real doubt” as to its conclusion that the applicant did not fear persecution, that the applicant’s credibility was to be rejected and that the claimed events did not occur.  Accordingly, the Tribunal was not obliged to entertain the possibility that it was wrong.  It follows that, both the second and third limbs ought to be rejected.

9. The third and fourth grounds in the application assert that the Tribunal failed to take relevant considerations into account.  I agree with the Minister’s submissions on these grounds and adopt, with minor amendments, paragraphs 25 to 30 of the Minister’s written submissions:

   The first particular is that “The Tribunal did not consider the applicant who had been under immense and intimidating pressure from RSS because of the applicant’s involvement with NDF”.  This is to be rejected – it is no more than an allegation on the merits that the applicant had in fact been pursued by the RSS by virtue of his involvement with the NDF.  It is clear that the Tribunal had considered, but had rejected, this claim.

   The second particular is that “In relation to above the Tribunal did not consider that every time I travelled to outside India, I never used any of the Kerala airport which were very closed to my place, but choose to use Chennai airport to avoid the persecution”.  The first hurdle faced by the applicant is that there is no evidence that he put such a claim to the Tribunal (although it should be noted that at CB19 he states “I had to use the other airport to leave my country”).

   Further, this is not a matter that the Tribunal was bound to take into account.  As stated by Deane J in Sean Investments v MacKellar (1981) 38 ALR 363 at 375:

   In a case... where relevant considerations are not specified, it is largely for the decision-maker, in light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.  The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

   (See also Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J at [39]-[42]).

   Further, the matter is insignificant in that it is irrelevant to any of the Tribunal’s concerns with the applicant’s claims.  The manner in which the applicant left India was not an issue in the review.  The Tribunal’s concern was that the applicant remained in India for a year and chose to return to India after having left.  Whether he used the Kerala or Chennai airport to leave India does not bear upon this.  As stated by Mason J in Peko-Wallsend at [40]:

   (c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

   The third particular is that “I have given adequate evidence to the Tribunal that the reason I was accused of involved in the killing of RSS activist, Ravi because my truck was used to transport workers and material for the NDF and RSS people had seen my truck in Tirur at the time of RSS activist was killed”.  This merely presses the merits of the applicant’s claims.

   The fourth particular is that “the Tribunal failed to analyse properly future harm the applicant’s may face if he return to India.  Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.”  This complaint must be rejected – the Tribunal was aware of the correct nature of the tests that it was to apply ([3]-[12]), its conclusion was expressed correctly ([82]) and there is no indication in the findings and reasons that the Tribunal misapprehended the test to be applied.

10. I also reject ground five in the application.  I agree with the Minister that it is not part of the Tribunal’s statutory duties to investigate the genuineness of claims.  The Tribunal has the power to make its own inquiries but it is not bound to do so.  The Tribunal’s obligation is to consider the claims and evidence put to it by applicants.  I accept that the Tribunal effectively discharged its obligations in that regard. 

11. During the course or oral argument a question arose concerning the application of s.424AA of the Migration Act. It appears from page 176 of the court book that the Tribunal purported to go through a process of oral disclosure pursuant to that section. The Tribunal decision records that the applicant requested time to respond to the Tribunal’s concerns. The Tribunal considered that request but rejected it. I see no error in the Tribunal’s approach. In the first place, s.424AA was not engaged because s.424A did not apply in the circumstances of this matter. Secondly, even if s.424AA had been engaged, the Tribunal is not bound to accept any request for time to respond. The Tribunal is bound to consider any request for time and to exercise its discretion in a reasoned matter. That the Tribunal did.

1. I am also satisfied that the Tribunal met its obligations under s.425 of the Migration Act. The Tribunal explained to the applicant during the course of the hearing the essential and significant issues upon which the review would turn. The hearing opportunity afforded the applicant was a real and effective one.

2. I find that the Tribunal decision is free from jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I so order.

3. Costs should follow the event in this case.  Scale costs in this instance would be $5,000.  The Minister seeks costs fixed in the sum of $4,600.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,600. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 February 2009