SZMZL v Minister for Immigration

[2010] FMCA 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 243

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in India on several bases – principal applicant believed in part – whether the Tribunal breached ss.424A or 425 of the Migration Act 1958 (Cth) considered – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.36, 424A, 425

SZBEL v Minister for Immigration (2006) 228 CLR 152

First Applicant: SZMZL

Second Applicant: SZMZM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3159 of 2009

Judgment of: Driver FM

Hearing date: 7 April 2010

Delivered at: Sydney

Delivered on: 7 April 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,474.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3159 of 2009

SZMZL

First Applicant

SZMZM
Second 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 made on 3 December 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants, a husband and a wife.  The relevant protection visa claims were made by the applicant husband.

2. The following description of background facts relating to the applicants’ claims and the decisions of the delegate and the Tribunal is derived from of the Minister’s written submissions filed on 31 March 2010.

3. The applicants are husband and wife and are both Indian nationals. They arrived in Australia on 4 March 2008. They applied for protection visas on 17 April 2008 under s.36 of the Migration Act 1958 (Cth) (“the Migration Act”). The second applicant did not make any separate refugee claims herself. She made a family unit claim under s.36(2)(b) of the Migration Act.

The first applicant’s claims

1. In his protection visa application the first applicant claims to fear persecution in India because of his political activities, opinion, his religious beliefs and membership of a particular social group.  

2. In particular the first applicant claims to fear persecution in India by reason of his activities as a Christian in that country and as a member of the Kerala Student’s Union, being the student wing of the Indian National Congress Party.

Delegate’s decision

1. On 3 July 2008 a delegate of the Minister refused to grant the applicants protection visas.  The delegate found the first applicant did not have a well-founded fear of persecution.[1]

   [1] Court Book (“CB”) at 59-67.

Review in the Tribunal

1. On 30 July 2008 the applicants lodged an application for review of the delegate’s decision with the Tribunal.[2]

   [2] CB at 72-74.

2. On 15 October 2008 a differently constituted Tribunal affirmed the delegate’s decision.  The applicants’ sought judicial review of that decision in the Federal Magistrates Court and on 29 April 2009 this Court dismissed that application. 

3. The applicants appealed to the Federal Court of Australia from the decision of this Court, and on 17 August 2009 the Federal Court set aside the decision of the Federal Magistrate and remitted the matter to the Tribunal.

4. On 17 November 2009 the first applicant attended an oral hearing before the Tribunal and gave evidence with the assistance of an interpreter.  The second applicant was not present.[3]

   [3] CB at 144.

The Tribunal’s decision

1. On 3 December 2009 the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.

2. In coming to its decision to affirm the decision of the delegate the Tribunal reviewed at length the written and oral claims and evidence provided to it.  First, it reviewed the applicable law.  It then set out the first applicant’s claims and evidence.  Finally, it set out its findings and reasons.

3. The Tribunal accepted the applicants were Indian nationals and made the following findings:[4]

   [4] CB at 190-195.

   a)the Tribunal accepted that the first applicant was a Roman Catholic who supported the Congress party;

   b)the Tribunal accepted that the first applicant was involved in student party politics;

   c)the Tribunal accepted that in addition to opposing the erection of a shrine, the first applicant was involved in religious and social work for the church;

   d)the Tribunal accepted that the first applicant had a profile with his local church but gave no “weight” to this profile because it found that it did not result in any significant adverse treatment before, during or after the time he had worked overseas in the Gulf;

   e)the Tribunal found that the independent country information suggested there was no sustained or systematic violence towards Christians in Kerala;

   f)the Tribunal accepted that the first applicant belonged to a particular social group, namely ‘persons with money, or ‘business people in India’ or ‘returnees to India from abroad’;

   g)the Tribunal was not satisfied that the first applicant faced a real chance of persecution in India on the basis that:

   i)it found that the first applicant had given inconsistent evidence;

   ii)it did not accept that the first applicant’s business was harmed by CPI(M) supporters up to the time he came to Australia and;

   iii)it did not accept his claims as to the source of the harm.

   h)the Tribunal found that it did not accept that pressure from CPI(M) supporters or the authorities was the reason why the first applicant applied for a visa for Australia.

4. The Tribunal found that the applicants were not persons to whom Australia owed protection under the Migration Act.

The present application

1. These proceedings began with a show cause application filed on 24 December 2009. There are three purported grounds in that application, but the third is simply a promise to provide further material. In substance, the application asserts breaches of ss.425 and 424A of the Migration Act. The applicants continue to rely on that application. The application is supported by a short affidavit by the first applicant, which I received.

2. I also have before me as evidence the court book filed on 19 January 2010.  Both the applicants and the Minister took the opportunity to file and serve written submissions and also made oral submissions.  I note that the applicants’ written submissions were apparently prepared by the second applicant.  She is apparently a student and did not attend today’s hearing.  The first applicant told me that he was appearing on behalf of both himself and his wife. 

3. There is no substance to the asserted breaches of ss.424A and 425. In relation to s.424A, the applicants appear to believe that they are entitled to some written notification from the Tribunal of its view on the evidence presented orally by the first applicant at the most recent hearing before the Tribunal. In particular, they appear to believe that they are entitled to an opportunity to be notified in writing of the Tribunal’s view that some of the evidence given by the first applicant was inconsistent with other evidence. There is no obligation under s.424A of the Migration Act for the Tribunal to disclose its thought processes. The Tribunal decision was based upon information that the applicants gave during the review process. The Tribunal paid particular regard to information provided by the applicants in their written documents and in the hearings conducted by the Tribunal. The Tribunal did have regard to independent country information but neither that information, nor the information provided by the applicants, was required to be disclosed pursuant to s.424A[5].   

   [5] See ss.424A(3)(ba), (3)(b) and (3)(a).

4. Neither was there any breach of s.425. Both applicants were invited to attend an oral hearing before the Tribunal following the remittal of the matter to the Tribunal by the Federal Court. The first applicant took up that opportunity and attended an oral hearing on 17 November 2009. The second applicant elected not to attend. The first applicant was assisted at the Tribunal hearing by an interpreter. There was nothing in the available record of what occurred at that hearing which would have warranted or obliged the Tribunal to invite the applicants to a second hearing. The case is clearly distinguishable from the decision of the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152. The first applicant himself conceded in oral argument before me today that he considered the hearing opportunity afforded him on 17 November was adequate.

5. The applicants are understandably concerned that they were unsuccessful before the Tribunal.  Their concern focuses on the Tribunal’s findings of inconsistency in certain of the first applicant’s evidence.  Simple disagreement with the Tribunal’s reasoning, however, is insufficient to establish jurisdictional error. 

6. The first applicant’s claims were in part based upon his Catholic religion, in part based upon asserted problems with members of the CPI(M), and in part based upon asserted membership of one or more particular social groups.  The Tribunal had difficulty in drawing out from the first applicant, at the hearing on 17 November 2009, a clear and consistent exposition of his claims.  He appeared to have conflated the particular social group claim with the political opinion claim.  At paragraph 102 of its reasons[6] the Tribunal accepted that the particular social groups, which the applicant claimed to be a member of, were all particular social groups for the purposes of the Convention.  Those particular social groups were persons with money in India, business people in India and returnees to India from abroad.

   [6] CB 193

7. The Tribunal noted that the implied significance of the last group was that such people are assumed to have a quite enviable wealth.  It is noteworthy that while the Tribunal was prepared to accept, at least as a hypothetical possibility, that the first applicant was harassed by criminals as part of an extortion racket, there was no political nexus with that harm if it occurred.  If the first applicant had clearly articulated a particular social group claim based simply on wealth and not on any political association, the Tribunal would have needed to consider that claim without reference to any political nexus.  It appears, however, from the Tribunal’s reasons, that the applicant himself had conflated two claims and the Tribunal considered the claims as put.  The Tribunal found no political nexus with the harm asserted by the applicant.  In oral argument before me from the bar table, the applicant told me that he did not in fact know who was threatening to harm him.  I confess that, like the Tribunal, I had some difficulty in drawing from the applicant a clear expression of his arguments.

8. While the Tribunal found that the applicant was inconsistent, and indeed, evasive and opportunistic, it does not appear from the Tribunal’s reasons that he was regarded as a wholly untruthful witness.  The Tribunal, in fact, accepted some of the factual claims.  The Tribunal found that either the events that occurred were not serious harm for the purposes of the Convention, or did not have a necessary Convention nexus. 

9. There are, in the Tribunal’s reasons, several references to particular claims or evidence not being given weight.  The Tribunal makes a finding of no weight in realtion to the religious claim at paragraph 99 of its reasons[7] and in relation to the political or particular social group claim at paragraph 118 of its reasons[8].  References to claims or evidence being given weight or no weight are apt to confuse if the Tribunal does not make clear what it means.  Evidence may be given no weight if it is put to one side by the Tribunal for some proper reason.  I do not think that is what the Tribunal was intending to say in this instance.

   [7] CB 192

   [8] CB 195

10. As I read the Tribunal’s reasons, the Tribunal, in saying it gave no weight to certain claims or evidence, was saying that it was not satisfied that the claims or evidence as put established an entitlement to protection visas.  In other words, the factual claims while accepted as, at least in part true, did not assist the applicants. It would be preferable if the Tribunal’s reasoning in that regard had been more clearly expressed, but inadequate expression in reasons is not in itself a jurisdictional error.

11. The applicant expressed dissatisfaction with the Tribunal’s reasons, but the reasons are otherwise comprehensive and clear.  I find no jurisdictional error in the Tribunal’s reasons.  I find that the Tribunal decision is free from jurisdictional error.  It is therefore, a privative clause decision and the application must be dismissed.

12. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $4,474.  The first applicant did not wish to be heard on costs.  I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,474.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 April 2010