SZNBL v Minister for Immigration
[2009] FMCA 155
•12 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBL v MINISTER FOR IMMGRATION & ANOR | [2009] FMCA 155 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of India claiming to fear persecution for reasons of his religion – no jurisdictional error – privative clause decision. |
| Migration Act 1958 (Cth), ss.36, 424A, 424A(3)(a), 425, 425A, 474, 474(2) |
| NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZNBL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3291 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 February 2009 |
| Date of Last Submission: | 12 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2009 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,000.00.
I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3291 of 2008
| SZNBL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of India who claims to be entitled to a protection visa because he has a reasonable fear of persecution in India from Maoist guerrillas who cross the border from neighbouring Nepal. He asks the Court to review a decision of the Refugee Review Tribunal that was handed down on 16th October 2008 affirming the decision of a delegate of the Minister not to grant him a Protection (Class XA) visa.
The applicant asks the Court to issue the appropriate writs requiring his matter to be determined by the Tribunal in accordance with law and prohibiting the Minister from enforcing the Tribunal decision until his application to the Court has been finalised. Whilst the application refers to writ of certiorari and mandamus, the function of those writs have been incorrectly set out. However, I have explained to the applicant that if the Court is satisfied that the Tribunal decision is affected by jurisdictional error then the Court will issue the appropriate writs to deal with that situation. However, the Court must be satisfied that jurisdictional error has been made out.
The applicant in his application relies on three grounds:
1)The Tribunal failed to investigate the applicant's claim and fear of persecution properly.
2)The Tribunal failed to take into account properly, country report from US State department and other information provided in support of the applicant's claim.
3)The Tribunal relied upon several country reports and independent information to reach its decision and failed to put that to the applicant for his comments.
The applicant has provided some particulars in support of those grounds.
The background to this matter is that the applicant arrived in Australia on 6th March 2008. On 18th April 2008 he applied for a Protection (Class XA) visa. He accompanied his application with a three‑page typed statement in which he set out that he came from the State of Utter Pradesh, which is a State of India that shares its border with Nepal.
In his statement he set out that his village is close to the Nepalese border. He goes on to claim that terrorist members of the Maoist guerrillas from Nepal have disturbed the peace in neighbouring States and have carried out extortion and several criminal activities.
He claimed for over a period of a few years they had extended their criminal activities to his State, particularly in the district from which he came.
He refers in his statement to extortion by Maoist guerrillas under the threat of force. He complained of having been beaten up severely and complained that there was no police station in the village. The nearest police station he said was some eight kilometres away from his village. He claimed that the police did not attend at times when the village came under threat from the guerrillas from Nepal.
He claimed in his statement to be concerned about the safety and wellbeing of his family and said that they had been in hiding from Maoist terrorists. He claimed that it would not be safe for him to go back to his village for he would be killed.[1]
[1] See Court Book pages 27 through to 29.
A delegate of the Minister for Immigration & Citizenship refused the application for a visa on 30th June 2008. The delegate referred to independent country information and particularly referred to the applicant's claim that he could expect no protection from the Indian government. The delegate said:
The independent country information does not lead to a finding that the applicant would be prevented from availing himself to his legal rights and State protection. The independent country information does not enable a finding that the applicant would face a real chance of Convention based persecution.[2]
The delegate also noted that the applicant had the option of relocating to other areas of India to escape the harm that he feared in the area of his village. The Tribunal referred to independent country information from the United States Department of State and from the Danish Immigration Service. The delegate was not satisfied that the applicant was owed protection obligations under s.36 of the Migration Act.
[2] See Court Book page 90.
After his application for a protection visa was refused, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Court Book shows that the Tribunal received a copy of the application for review on 28th July 2008.[3] The applicant did not provide any further documentary evidence to the Tribunal when he lodged his application. The Tribunal wrote to the applicant on
8th August 2008inviting him to attend a hearing on 8th September 2008. The applicant replied indicating that he wished to attend and that he would like an interpreter in the Punjabi language. That interpreter was duly provided and the applicant attended the hearing and gave evidence. The applicant produced his Indian passport to the Tribunal. The Tribunal handed down its decision on 16th October 2008.
The Tribunal had signed that decision on 24th September in that year.
[3] See Court Book page 93.
In the Tribunal decision the Tribunal set out in some detail the applicant's claims and evidence and noted that the Department had refused the application for a visa and had cited amongst other things independent country information. The Tribunal claimed to have had regard to the evidence contained in the items of country information referred to. The Tribunal noted the applicant's Indian passport issued on 3rd February 2005 and was satisfied that he was in fact a citizen of India. The Tribunal set out in some detail the applicant's evidence to the Tribunal about his case. The Tribunal also put to the applicant for his comments some matters that arose from the applicant's claims.[4]
In particular, the Tribunal put to the applicant that independent evidence indicated that the Indian government can and does take action against Maoist guerrillas in Nepal. The Tribunal referred to background independent information from a variety of sources including the United States State Department Report on India 2007, the BBC, the Indian Telegraph and a variety of other sources.
The Tribunal accepted that the applicant was a national of India and assessed his claims against India as his country of nationality.
The Tribunal summarised the applicant's claim in this way:
The applicant claims that he is an ethnic Punjabi Hindu who resided near the border of Nepal. He has suffered harm from the Maoist Communist Centre (MCC) of Nepal. He is unable to return to India as he will not be able to obtain the protection of the Indian authorities from attack by the Maoists and/or MCC.[5]
[4] See paragraphs 38, 39 and 40 on page 117 of the Court Book.
[5] See Court Book page 121.
The Tribunal did accept that the State of India where the applicant claims to have lived shared a border with Nepal and accepted that there had been ongoing problems in India with both MCC and Maoist guerrillas. It noted that the MCC and Maoist groups were active in India carrying out extortion and criminal activities. However, the Tribunal did not accept that the applicant was generally credible and did not accept that he was a witness of truth. The Tribunal set out its reasons for that credibility finding.[6] The Tribunal went on to find:
On the information before me I am satisfied that the applicant is not a witness of truth. I am satisfied he has created his claims in order to obtain the visa sought.[7]
[6] See paragraphs 48 to 43 on pages 121 and 122 of the Court Book.
[7] See Court Book page 122.
The Tribunal went on to find that independent evidence did not suggest that ethnic Indians did not have the protection of Indian police and authorities if attacked by Maoists or the MCC. Based on the Tribunal's credibility finding in that it did not accept that the applicant was a witness of truth, the Tribunal did not accept that the Maoists or the MCC had political backing from local political parties and money from rich businessmen and landlords and did not accept the applicant's claims that the Maoists or the MCC targeted him and a few of his friends because they were the leaders of a group or that he was harmed by them or that he left his village because of their actions.
The Tribunal was satisfied that the applicant left India without suffering any harm.
The Tribunal went on to consider the situation if the applicant were to return to India in the foreseeable future. The Tribunal referred to the United States State Department Report India 2007 and found that the Indian government generally respected the rights of its citizens, and the Tribunal, whilst it accepted that the Indian government continued to be undermined by political infighting, pervasive criminality in politics, decrepit State institutions and widespread corruption, did not accept that the applicant could not accept the protection of the Indian government in respect of the activities of these terrorists. The Tribunal went on to say:
The independent evidence before the Tribunal is that the police have a complaint system where citizens are able to lodge complaints about its officers. Nor does the evidence suggest that Indians do not receive the protection of the Indian authorities.
I am satisfied that the Indian state has put in place reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system. I also find that if threats or attacks were to be perpetrated against the applicant or his spouse or family for any Convention related reason, there is a functioning police force and an independent judicial system where members of the judiciary are accountable for their decisions on appeal. I have found no independent evidence to support the applicant's claim that he would not obtain State protection in India.[8]
[8] See Court Book pages 124 and 125.
The Tribunal did not accept that the applicant had a well-founded fear of persecution for reason of his real or imputed political opinion or his religion or any other Convention reason if he were to return to India and the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.
The applicant commenced proceedings in this Court for judicial review of the Tribunal decision by filing an application and an affidavit in support on 11th December 2008. The Minister filed a response on
5th January 2009 opposing the orders sought and filed a written outline of submissions on 4th February 2009. I am satisfied that copies of those documents were served on the applicant and that he was aware of their contents. The applicant has not filed a written outline of submissions but attended Court and was able to answer questions about his claims and make a short oral submission. He told the Court that he had a fear of persecution in India and he would like to stay in Australia. He claimed the Tribunal did not consider his refugee claim properly and did not consider properly the evidence that he had submitted.
Turning to the applicant's grounds in his application, he claimed that the Tribunal failed to investigate his claim and fear of persecution properly. He provided particulars of that claim in which he referred to various paragraphs of the Tribunal decision. The particulars of that claim are set out as follows:
Paragraph 24 of the decision claim of extortion, beating old young and children for money.
Paragraph 25 the applicant claims that he sent his family to in laws village because of the fear from the Maoists.
Paragraph 27 claim of killing Dharam Chand and Baghwan Devi the applicant's neighbours and five villagers were injured. The same claim was repeated in paragraph 35 during the interview with the Tribunal:
Paragraph 28 the applicant's claim of kidnapping by the Maoists for two days.
The applicant's second ground claims that the Tribunal failed to take into account properly country report from US State Department and other information provided in support of the applicant's claim. Particulars of that claim are:
Paragraph 19 of the decision of the RRT listed source of that information.
The applicant's ground 3 claims that the Tribunal relied upon several country reports and independent information to reach to its decision and failed to put to the applicant for his comments. Particulars of that claim are:
Paragraph 58 and 59 of the decision gives detail of that information.
Ms Johnson, who appeared for the Minister, submitted that the applicant's claims were essentially a disagreement with the Tribunal's factual findings and noted that the Tribunal had not accepted that the applicant was a witness of truth. She further submitted that the Tribunal did take into account the report of the United States State Department even if the way in which it used that report was not to support the applicant's claim. She further submitted that in respect of the applicant's third ground the applicant was complaining that country information had not been put to him for his comment and insofar as it was a claim of a breach of s.424A of the Migration Act, submitted that the section did not apply but in any event noted that the essential parts of the country information were in fact put to the applicant during the hearing for his comment. Ms Johnson drew the Court's attention to the provisions of paragraphs 39 and 40 of the Tribunal decision at page 117 of the Court Book where the Tribunal noted that independent evidence showed that Indian authorities had sealed the border with Nepal and that that independent evidence did not suggest that an ethnic Indian did not have protection of the Indian police if his village were attacked by Nepalese Maoists, and the Tribunal put to the applicant that independent evidence indicated that the Indian government can and did take action against Maoist guerrillas located in Nepal. The applicant did not agree with those propositions and the Tribunal noted that.
Turning to the applicant's grounds, ground 1 claims that the Tribunal failed to investigate the applicant's claim and fear of persecution properly. I am inclined to agree with the submission by the Minister that this claim is misconceived because the Tribunal was under no obligation to verify or investigate the applicant's claims. I am referred to the decision of NAYU v Minister for Immigration & Multicultural & Indigenous Affairs.[9] It was for the applicant to make out his case before the Tribunal and if the Tribunal is not satisfied on the basis of the material presented that the claims are genuine, the Tribunal does not have a duty to make its own further inquiries. Ground 1 appears to be a request for the Court to undertake merits review, which of course is not available on judicial review. The fact is that the Tribunal did consider the applicant's claims and did consider and refer to the evidence upon which the applicant relied. However, the Tribunal rejected the applicant's claims on the basis of credibility. The Tribunal made it quite clear that it did not regard the applicant as a credible witness. It did not regard the applicant as a witness of truth.
The finding of the credibility or otherwise of any witness before the Tribunal is essentially a function of the administrative decision-maker, in this case the Tribunal member. It is well established by decisions such as Re Minister for Immigration & Multicultural Affairs, ex parte; Durairajasingham[10] that this is the function of the Tribunal and provided that there is evidence upon which it is open to the Tribunal to make such a finding, like any factual finding, then there is no opening for the Court conducting judicial review to interfere. In my view, the applicant's first ground does not establish any jurisdictional error and should be rejected.
[9] [2004] FCA 528 at [18]–[21]
[10] (2000) 168 ALR 407; [2000] HCA 1
The applicant's ground 2 claims that the Tribunal failed to take into account properly country report from US Sate Department and other information provided in support of the applicant's claims. Clearly, the Tribunal did consider the United States State Department Report India 2007 and did consider other independent country information.
The applicant's claim certainly as articulated at the hearing is a complaint that the Tribunal did not accept the evidence upon which he relied. It is well established that country information is a factual matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs)[11] but it is also the case that it is for the Tribunal to assess and give weight to evidence in the way that the Tribunal thinks appropriate. Provided that the Tribunal considers the evidence, what weight, if any, that it gives to a particular piece of evidence is a matter for the Tribunal because it is the Tribunal which is the fact finder, not the applicant. In this case the Tribunal made a clear finding that the applicant was not a credible witness.
[11] [2004] FCAFC 10 at [11]-[13].
The applicant's ground 3 complains that the Tribunal relied upon several country reports and independent information to reach its decision and failed to put those to the applicant for his comments.
If that is a claim for breach of s.424A of the Migration Act it cannot succeed because independent country information falls under the exception to information in sub-s.424A(3)(a). The Tribunal had no obligation to put that material to the applicant for its comments. In any event, however, as Ms Johnson has pointed out to the Court today, the Tribunal did during the hearing orally put material to the applicant from independent country information that was adverse to his case and gave him the chance to comment on it or reply to it. The applicant took that opportunity. He did not agree with the matters in the independent country information and the Tribunal records the applicant as saying in paragraph 40 of the decision:
The Indian authorities will not protect him as they do not protect members of public and they are useless.[12]
Quite clearly, the Tribunal did put material to the applicant. It gave him the opportunity to comment. It took note of his comments but in arriving at its decision did not accept the applicant's claims. That is entirely a matter for the Tribunal.
[12] See Court Book page 117
I am mindful of the fact that the applicant is not legally represented in these proceedings. I have considered the Tribunal decision and supporting material in order to ascertain whether any discernable arguable ground of jurisdictional error may be seen. There is no breach of s.424A of the Migration Act. I am not satisfied that there is any breach of s.425 of the Act. The Tribunal wrote to the applicant, invited him to attend a hearing and invited him in a way that complied with s.425A of the Act. The Tribunal provided the applicant with the services of an interpreter in the language of his choice. The applicant was able to give evidence. The issues dealt with by the Tribunal did not depart from the matters dealt with by the delegate. The delegate did not accept the applicant's claim that he could not rely on the Indian authorities for protection and this was a matter that the Tribunal considered at the hearing and arrived at the same decision. I am not of the view that any jurisdictional error has been made out.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Under s.474 of the Act, a privative clause decision is not subject to orders in the nature of certiorari or mandamus or prohibition and accordingly the decision of the Court can only be that the application is dismissed.
There is an application for costs on behalf of the Minister.
The applicant has been unsuccessful in his claim and in my view it is appropriate for an order for costs to be made. The amount sought is $3,000.00, which is a relatively modest sum and well within the scale allowed by the Federal Magistrates Court Rules. Against this, however, the applicant has said that he is not able to meet that amount because he is not working and has not been able to work since he arrived in Australia. In the circumstances I am prepared to accept that the applicant would not be able to pay the sum of $3,000.00 or anything like that over the next 28 days. It is not a reason for not making an order for costs but it is a matter to take into account when assessing time to pay. I will allow four months to pay.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 23 February 2009
0
3
1