SZMWU v Minister for Immigration
[2009] FMCA 842
•9 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 842 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal obliged to give applicant opportunity to obtain more evidence or to attend a second hearing – whether breach of s.424A of the Migration Act. |
| Migration Act 1958 (Cth), ss.91R, 424AA, 424A, 425 |
| Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415 |
| Applicants: | SZMWU & SZMWV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2797 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 2 July 2009 |
| Date of Last Submission: | 29 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2009 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2797 of 2008
| SZMWU & SZMWV |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal signed on 11 September 2008 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, who are husband and wife and citizens of India, arrived in Australia in February 2008 and applied for protection visas in March 2008. The first applicant is the applicant wife, (referred to for convenience hereafter as the applicant). She submitted her own claims to be a refugee. Her husband, the second applicant, did not have claims of his own and was included in the application as a member of the first applicant’s family unit. The applicant elaborated on her claims in a statement attached to her protection visa application, at an interview before the Minister’s delegate and at a Tribunal hearing.
The applicant claimed, in essence, to have a well-founded fear of persecution for reasons of her real or imputed political opinion. She claimed that in 1997 she had been active in student politics in the All India Student Federation of the Communist Party of India (CPI). In 2002 she was invited by the Communist Party of India (Marxist) (CPI(M)) to join the Democratic Youth Federation of India, the affiliated youth wing of the CPI(M). She claimed that in September 2005 she was invited by the CPI(M) to contest local elections, she declined and thereafter was sidelined by the CPI(M), which was unhappy that she had refused to cooperate. She ceased her involvement and activities with the CPI(M).
The applicant claimed that later in 2005 she was invited to join the All India Congress Party, but that she refused to do so. However she claimed that the CPI(M) (which won the State elections in March 2006) started to suspect that she was a supporter of the All India Congress Party. She claimed that in July 2007 she obtained a passport to leave India as CPI(M) supporters had harassed her “mentally and physically”.
The applicant married in August 2007. She claimed that in about September 2007 the local Bharathiya Janatha Party (the BJP) approached her to join them. She also declined this invitation, but claimed that rumours spread that she had become a supporter or member of the BJP. She claimed that the CPI(M) made threatening phone calls to her notwithstanding her attempts to explain that she was not a BJP supporter. She claimed that the CPI(M) started to treat her as “their enemy” and that she “complained about the threats to police who took no action as the CPI(M) [was] in power.” She claimed that she “went into hiding in Cannore for safety reasons until [her] departure from India”, but that there were clashes and violence between the BJP and the CPI(M) and as she was afraid to remain in hiding in Cannore she returned to her village and “maintained a low profile”.
At the Tribunal hearing the applicant elaborated on her claims. The only evidence before the Court of the conduct of the Tribunal hearing is in the Tribunal’s reasons for decision.
In its findings and reasons, the Tribunal accepted certain aspects of the applicant’s claims. In particular, it accepted that she was a Hindu and a member of the Ezhava caste. It noted that the applicant did not claim, nor was there any evidence, that she had suffered discrimination in India because of her membership of this caste, having regard to her graduate and post-graduate degrees and the fact that while she did not secure suitable employment thereafter she did not claim this was in any way related to her caste. It also had regard to the fact that she did not claim to have suffered harm in India for reasons of her religion as a Hindu.
In relation to the applicant’s claims based on political opinion, the Tribunal accepted that she became a member of the Democratic Youth Federation of the CPI(M) in 2002 and that she was actively involved in activities of the Youth Federation, including social welfare programs. It also accepted that after she declined an invitation extended by the CPI(M) in September 2005 to contest elections for her village area, the local secretary was displeased and that gradually she was sidelined from party-related activities. It accepted that she eventually withdrew from all party-related activities in 2005.
The Tribunal also accepted that CPI(M) members and supporters were displeased with the applicant for declining the party’s invitation to stand for election and that she was subsequently distanced from party activities by those members and supporters who taunted her and spoke in unfriendly tones. It accepted that low-level verbal threats were made after the events of September 2005, but did not accept that this adverse treatment continued from 2005 until 2008 when the applicant left India. The Tribunal did not accept that the treatment of the applicant by CIP(M) members and supporters amounted to serious harm as contemplated by s.91R of the Migration Act 1958 (Cth). It described the harm complained of by the applicant as “unfriendly comments and petty taunts”.
The Tribunal was of the view that the applicant had exaggerated her treatment by her former political associates to enhance her claims and found that such treatment did not amount to serious harm. In reaching this conclusion it had regard to the fact that notwithstanding the alleged taunts and threats of physical harm, the applicant remained in her family home from September 2005 until she married in August 2007 and thereafter lived in a home owned by a relative of her family some six kilometres away from her family home and travelled regularly to visit her parents. The Tribunal considered it implausible that the applicant would have remained in the local area apart from a brief stay in Cannore, as she claimed to have done, if she feared harm as she claimed. The Tribunal also had regard to the fact that, on the applicant’s own evidence, “no-one from the party ever came to or approached her home seeking to confront her or speak to her”.
The Tribunal had regard to the applicant’s claims that she and her husband went to stay in Cannore (some 300 kilometres away from her home region), that they stayed there for a few days, but “that party people came to know that they were in Cannore and thereafter their host’s attitude towards them altered” and they were told that they were no longer welcome and so decided to return home. The applicant had said that it was her “guess” that party people were involved. The Tribunal found that this was “mere speculation” and that there was otherwise no credible evidence that CPI(M) people knew that the applicant had gone to Cannore, nor any evidence to satisfy the Tribunal that the CPI(M) communicated in any way with the applicant’s host. The Tribunal noted that the applicant said that she had not spoken to the host about her problems in her home area and had regard to the fact that when she left Cannore she returned to live in her former place of residence. The Tribunal concluded that notwithstanding her claim of serious harm in her home area from 2005 the applicant did not fear she would face harm there as she claimed.
The Tribunal reiterated that while it accepted that the applicant “faced taunts and low-level verbal abuse” from September 2005, it did not accept that this amounted to serious harm or that it continued until the applicant left India. The Tribunal had regard to the fact that the applicant ceased all political activities and social welfare from September 2005. The Tribunal expressed some doubt about whether in those circumstances the Congress Party and the BJP had invited the applicant to join them, but was prepared to accept that these approaches were made and that she declined them. However, it found it implausible that the CPI(M) was motivated to threaten and harm the applicant because it believed mistakenly that she supported those parties, particularly when the local CPI(M) had been the entity to distance the applicant from party activities and to sever the relationship from September 2005 and given that the applicant did not in fact join or support either of these parties and undertook no political activities from 2005 to 2007. The Tribunal did not accept that the CPI(M) maintained an adverse interest in the applicant because it suspected that she had transferred her allegiance to any other party.
The Tribunal then addressed the applicant’s claim that she had unsuccessfully complained to police about threats and that they had taken no action. It described her evidence in this respect as “vague” and found it implausible that she would have failed to name the persons who harassed her to the police. It was not persuaded and did not accept that the applicant ever sought police protection against the harm she claimed to fear.
The Tribunal also expressed the view that the applicant had not been “completely forthright” in her evidence about the visitor visas she and her husband had secured to enter Australia. It noted that her evidence was that she and her husband decided after they left Cannore that they would obtain visas through a friend, but that when the Tribunal asked how they set about obtaining the visas, the applicant had said that they handed their passports to an agent shortly after their marriage (in August 2007). When asked what residential address she had provided, the applicant conceded that it was before she went to Cannore, but then said that she did not remember. She subsequently suggested that she had provided the address of her parents.
Hence, while the Tribunal accepted that the applicant was a member and supporter of the CPI(M) in her home area, that her close association with the party ceased in 2005, that thereafter she was marginalised and ceased all activity, was largely ostracised by party members and supporters and was subject to low-level verbal abuse and harassment, it did not accept that the harm she suffered in 2005 or thereafter was serious harm as contemplated by s.91R of the Migration Act.
The Tribunal found that while the threats were made they were not serious threats and that the applicant herself did not view them as such. It had regard to the fact that despite the existence of many opportunities, the applicant was never physically harmed although she largely remained in her home area. It also had regard to the fact that she was unable to state exactly how long she and her husband remained in Cannore or exactly when they were there. Given the applicant’s inconsistent evidence about the timing of this visit in relation to the plan to travel to Australia and the preparation of paperwork for visas, the Tribunal did not accept that the applicant and her husband actually went to Cannore for the purpose of their safety or that they decided thereafter that they must try to get visas for Australia. It found that the applicant’s evidence indicated that they had already made some plans in this regard when they handed documents to an agent after their marriage in August 2007.
The Tribunal also considered whether the applicant would seek to involve herself in politics if she returned to India. Having regard to the applicant’s evidence that she had ceased all political activity in 2005 after being ostracised, that she declined invitations to join other political parties and did not continue to involve herself in her former charitable and social initiatives, the Tribunal found that she would not seek to involve herself in political activities in the future in India as she lacked the interest and motivation to do so.
The Tribunal concluded that the applicant had not suffered any serious harm amounting to persecution by reason of her political activity in India or any other Convention-related reason and found the chance remote that she would suffer such harm if she returned to India in the foreseeable future. It followed that the applicant was found not to have a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal’s decision by application filed in this Court on 29 October 2008. She now relies on an amended application filed on 30 March 2009.
The amended application contains three generally expressed grounds that were repeated in written submissions. The first is that the Tribunal did not sufficiently deal with the applicant’s claim and that she was not given the opportunity after the hearing to obtain more evidence from India in order to substantiate her claim.
The contention that the Tribunal did not sufficiently deal with the applicant’s claim is not made out on the material before the Court. On the contrary, it is apparent that the Tribunal not only explored the applicant’s claims with her at some length in the hearing, but that it dealt with the integers of her claims in its findings and reasons.
Insofar as the applicant takes issue with the Tribunal’s findings, she seeks impermissible merits review. Merits review is not available in this Court. The Tribunal’s findings were open to it on the material before it for the reasons which it gave and no jurisdictional error has been established in the Tribunal’s approach to the applicant’s claims.
Part of this ground is a contention that the applicant was not given the opportunity after the hearing to obtain more evidence from India in order to substantiate her claim. There was no statutory obligation on the Tribunal to provide the applicant with an opportunity to provide more evidence after the hearing. The applicant had the assistance of an adviser in relation to the Tribunal review. She had the opportunity to, and attended, the Tribunal hearing at which time she provided the Tribunal with documentation. The Tribunal’s account of the hearing reveals that it questioned the applicant at some length in relation to her claims, that it raised with her matters of concern in relation to particular aspects of her claims and discussed matters relevant to her claims. There is nothing in the material before the Court to indicate that the applicant sought the opportunity to put further evidence from India before the Tribunal after the hearing. Ground one is not made out.
The second ground is that the Tribunal did not invite the applicant for a second hearing or give her an opportunity to make written comments on adverse information found in the Tribunal’s decision. Again there was no general statutory obligation on the Tribunal to provide a second hearing. It has not been established that the Tribunal failed to fulfil its obligation under s.425 of the Migration Act, as explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairsand Another (2006) 228 CLR 152, to raise dispositive issues with the applicant. This is not a case in which new issues arose such that a second hearing was necessary (see SZBEL and Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [49] – [51]).
It may be that the applicant intended to suggest that the Tribunal should have given her the opportunity at a second hearing to comment on adverse information in accordance with s.424AA of the Migration Act. Such a possible claim should be considered in conjunction with ground three, which is an unparticularised contention that the Tribunal breached s.424A of the Migration Act.
I note first that when the Tribunal is under an obligation under s.424A of the Migration Act, s.424AA provides an alternative way for it to meet its obligation to put information to the applicant (see SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415). However, such an alternative way of putting information to an applicant (which could include orally at a further hearing) would only come into play if there was an obligation on the Tribunal under s.424A(1) of the Migration Act to put to the applicant for comment information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
Having regard to the evidence of the applicant’s claims before the Court, the Tribunal’s questions at the hearing, the applicant’s responses and the Tribunal’s reasons for decision, it must be determined objectively whether there was “information” that in its terms contained a “rejection, denial or undermining”, (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]), of the applicant’s claims within s.424A(1) of the Act, that the Tribunal considered would be part of the reason for affirming the decision under review.
It is well established that the question of whether the obligation under s.424A(1) of the Migration Act is enlivened is to be determined in advance and independently of the Tribunal’s reasoning on the facts of the particular case, such that the need for “unbundling” of the reasons is correspondingly reduced (see SZBYR at [17] and [22]). Nevertheless it has also been held that in determining whether information is within s.424A(1), the Court may have regard to the reasons of the Tribunal, not as a starting point but as material relevant to whether an inference should be drawn that the Tribunal considered particular information would be the reason or a part of the reason for affirming the decision under review (see SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J; SZMPT v Minister for Immigration and Citizenship and Another (2009) 107 ALD 121 at [17] – [18] per Jacobson J; SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 at [31] and now see Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 at [26]). As the Full Court of the Federal Court pointed out in SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578 (at [33]), the obligation under s.424A(1) is only enlivened where the Tribunal forms the opinion that particular information would be the reason or part of the reason for affirming the decision under review.
It is for the court to determine objectively whether the Tribunal considered information to be dispositively relevant such as to come within s.424A(1) of the Migration Act. As the Full Court of the Federal Court observed in SZKLG at [33]:
The conditional nature of the obligation [in s.424A(1)] reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision. Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect. It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence. It is also possible that prior to the hearing, the Tribunal had not fully appreciated the potential significance of the information.
An issue arises as to whether the Tribunal was under any obligation to put to the applicant the content of the visitor visa applications completed by her and her husband. However, having regard to the manner in which the review proceeded, it is apparent that in this case, as in SZKLG, that the Tribunal proceeded on the basis that the importance of any information contained in the visitor visa application could only be assessed after the applicant had given evidence. In the hearing the Tribunal asked the applicant questions concerning the circumstances surrounding the completion of the visitor visa application, such as whether she completed the form, where she was living at the time and what address she gave, in conjunction with questions about whether this was before or after she went to live at Cannore. Her answers fall within the exception to s.424A(1) of the Migration Act in s.424A(3)(b) as information that the applicant gave for the purpose of the application for review.
Such evidence was referred to in the Tribunal finding that it did not accept that the applicants actually went to Cannore for the purpose of their safety. However, viewed objectively, it can be inferred that it was the evidence given by the applicant at the hearing that the Tribunal considered dispositively relevant to this aspect of its decision, as distinct from the actual content of the visitor visa applications.
In the hearing the Tribunal also questioned the applicant about what was in the visitor visa application. It is of significance however, that the applicant said that she did not know what was in it as the agent that she and her husband had used had written it on her behalf. She claimed that she had not read what was written on her behalf and that all the processing was done by the agent. The Tribunal expressed concerns about the applicant’s credibility in light of the fact that on her evidence it would seem that she never contemplated seeking a visa based on her own particulars and details. Since she had been a party to these matters this was said to raise a concern that other things that the applicant had told the Tribunal may not be truthful.
In circumstances where the applicant denied knowledge of the details and information contained in the visitor visa application, it is apparent and both logical and reasonable that the Tribunal formed the view that it would not be appropriate to use the information in that application as the reason or a part of the reason for affirming the decision under review. (Also note that in MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 483 at [27], Heerey J drew a distinction between “evidentiary material or documentation” which of itself would undermine the applicant’s claims and enliven the obligation under s.424A(1) of the Migration Act and information which went only to an applicant’s credibility).
It is apparent from the Tribunal reasons for decision that information in the visitor visa application did not form part of the Tribunal’s reasoning process. While the Tribunal did not accept the applicant’s evidence in relation to the claim that she decided after the visit to Cannore that she must try and get visas for Australia, this was not based on information in the visa applications but on the applicant’s oral evidence. In fact it did not make an adverse credibility finding about the applicant and accepted many aspects of her account about what had occurred in the past.
Viewed objectively I am satisfied that the information in the visitor visa application identified by the Tribunal in the hearing was not information that the Tribunal considered would be part of the reason for its decision and that the obligation under s.424A(1) of the Migration Act was not enlivened in respect of such information. Accordingly no issue of the Tribunal meeting such an obligation in the manner provided in s.424AA arose.
In a post-hearing written submission the applicant referred generally to the Tribunal having stated a number of reasons for affirming the delegate’s decision, suggested that adverse information appeared in its findings and reasons and that the Tribunal was obliged under s.424A of the Migration Act to put such adverse information in writing to her after the hearing or at least to invite her to a second hearing to enable her to comment on the adverse information.
These submissions do not establish jurisdictional error. Insofar as it was contended that the Tribunal should have put its subjective appraisals or thought processes to the applicant for comment, it is well established that “information” in s.424A(1) of the Migration Act does not include the subjective appraisals or thought processes of the Tribunal (see for example, Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109, Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679, as well as the discussion by the High Court in SZBYR of the scope of “information” within s.424A(1) of the Act, in particular at [18] – [22].)
As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated in SZBYR at [18], (after referring with approval to the consideration of the scope of the word “information” by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471), s.424A of the Migration Act does not oblige the Tribunal to give advance written notice of each step in its prospective reasoning process and however broadly “information” be defined, its meaning in the context of s.424A “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”. The applicant’s claims do not establish any failure to comply with s.424A of the Migration Act.
In oral submissions the applicant contended generally that she told the truth in everything. Such a contention seeks merits review which is not available in this Court. She also reiterated that she did not get enough time, that they did not send a letter or extra papers and that she was supposed to get more evidence, but did not get a chance to do so. When asked what she meant by this claim, she stated that she thought she might get one more chance, but that she had told whatever she could at the time when she attended a hearing. She then explained that she did not expect another letter, but thought the Tribunal would give her some more time or one more chance. These claims do not establish that the Tribunal was under an obligation to give the applicant additional time to make any further inquiries or that the Tribunal in any way erred in its procedures or in the manner in which it assessed the applicant’s claims on the material before it.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 9 September 2009
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