SZNBM v Minister for Immigration - [2009] FMCA 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 315

MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – claim of well-founded fear of persecution because of political opinion – no reviewable error shown.

Migration Act 1958 (Cth), ss.424A, 474

Applicant:

SZNBM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3298 of 2008

Judgment of:

Scarlett FM

Hearing date:

1 April 2009

Date of Last Submission:

1 April 2009

Delivered at:

Sydney

Delivered on:

1 April 2009

REPRESENTATION

The Applicant:

In Person

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 $4500.00 and I allow six months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3298 of 2008

SZNBM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant, who is a citizen of India, asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal handed down its decision on 21 November 2008 affirming a decision by a delegate of the Minister not to grant the applicant a Protection (Class XA) Visa. The applicant commenced proceedings in this Court on 12 December 2008 seeking judicial review and in particular he asks for writs of certiorari prohibition and mandamus.
He asks the Court to quash the Tribunal decision, issue a writ prohibiting the Minister from acting upon the Tribunal decision and remitting his application back to the Tribunal to be considered and re-determined according to law. The applicant filed an amended application on 6 February 2009 in which he set out seven grounds of review.

Background

The background to this matter is that the applicant arrived in Australia on 17 April 2008. He applied for a Protection (Class XA) visa on 6 May 2008. He is a man from Kerala in India who claims that he was born and brought up in that State which is well known for the fact that the Communist Party came to power there in 1957. In the statement attached to his application the applicant made a number of claims about the undemocratic way in which the Communist Party in Kerala has acted, particularly towards people who do not support its aims and views.
The applicant claimed to have become an active member of the Kerala Students Union which was an organisation of students opposed to the Communist rule. He claimed to have been harassed because of his involvement and fears that if he returns to Kerala he will be imprisoned and tortured. He claimed that he has earlier been in prison and that several false police cases have been brought against him.
A delegate of the Minister refused his application for a visa on 25 July 2008. On 18 August 2008 the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal invited the applicant to attend a hearing to take place on 29 September 2008. The applicant provided certain documents to the Tribunal including a further statement and attended that hearing.
However, at the hearing he told the Tribunal member through an interpreter in the Malayalam language that his mental condition was disturbed because of the recent death of his grandmother. He said that it was traditional for him to be in mourning for a period of 10 days. The Tribunal offered the applicant the opportunity to postpone the hearing until another day. The applicant accepted that offer. The hearing was postponed until 13 October 2008.
The applicant however applied to the Tribunal on 3 October 2008 seeking a postponement of that later hearing. The Tribunal declined that request. The applicant attended the hearing and gave evidence with the assistance of an interpreter. According to the Tribunal hearing record the hearing commenced at 8.49 am and concluded at 12.46 pm. After the hearing the Tribunal wrote to the applicant on 21 October 2008. The letter was headed, "Invitation to comment on or respond to information in writing."
It was clearly intended to comply with the provisions of s.424A of the Migration Act. The letter set out a number of items of information and invited the applicant to comment on or respond to that information in writing by 13 November 2008. The applicant forwarded some photographs and other documents to the Tribunal and wrote a handwritten letter to the Tribunal on 22 October 2008 seeking an extension of time in which to submit further evidence. The Tribunal replied the following day declining that request but said,
However, please note that the Tribunal is willing to take into account any further submissions you provide up until a decision is made. The Tribunal notes that a letter was sent to you on 21 October 2008 and this means that the Tribunal will not make a decision until after the date for you to respond as given on that letter[1].
[1] See Court Book at page 131
The applicant forwarded a further handwritten letter to the Tribunal along with some further documents. The Tribunal signed its decision on 19 November 2008 and handed the decision down on 21 December 2008. The Tribunal decision record can be found in the Court Book at pages 149 through to 175. In its decision record the Tribunal set out under the heading, "Claims and Evidence," a detailed summary of the applicant's refugee claims and a summary of a number of documents that the applicant had provided to the Tribunal once he had lodged his application
It also sets out a summary of the applicant's evidence to the Tribunal at the hearings on 29 September 2008 and 13 October 2008. The Tribunal also referred to the post hearing correspondence with the applicant and summarised the contents of those letters and noted the additional documents that were provided. In its decision record the Tribunal also set out independent evidence on the political situation in Kerala, political protests in Kerala and the issue of passports.

RRT decision

The Tribunal's findings and reasons can be found in the Court Book at pages 168 to 175. The Tribunal noted that the applicant had provided a copy of his Indian passport to the Tribunal and accepted that he was a national of India and assessed him against India as his country of nationality. The Tribunal noted that the applicant had made general claims in relation to the political situation in Kerala and had claimed police and Communist Party there harassed and victimised people who opposed the Communist Party.
The Tribunal summarised the applicant's claims and was prepared to accept a number of matters including the fact that he was injured when he was 14 years of age in a clash between students and was prepared to accept that he did attend university and had some involvement in the Kerala Students Union and the Indian Youth Congress.
However, the Tribunal went on to make this finding which had a significant effect on the applicant's claim:
However, the Tribunal does not accept that this involvement was at the level claimed by the applicant and does not accept that the applicant has a political profile in Kerala which has resulted in him being targeted by the Communist Party or that he is the subject of any ongoing interest from the Indian authorities or the Communist Party. Nor is the Tribunal satisfied that the applicant's involvement occurred recently or that he left India as a result of this involvement. The Tribunal does not accept that the applicant is a truthful witness and does not accept that he has given a truthful account of his experiences[2].
[2] See Court Book at page 169
The Tribunal set out at pages 169 through to 175 a detailed assessment of the applicant's evidence. The Tribunal made a number of criticisms of the applicant's evidence noting that his evidence at the hearing was often vague and that he had difficulty providing details relating to when events occurred and he exhibited a lack of awareness of the content of documents that he had provided to support his claims.
The Tribunal noted the applicant's claim that he had a head injury which affected his memory and his ability to recall dates. The Tribunal did not accept that explanation. The Tribunal said,
The Tribunal is strongly of the view that the applicant has manufactured the claim to have memory problems as a result of his inability to recall dates and details in relation to specific incidents[3].
[3] See Court Book at page 170
The Tribunal set out a number of reasons as to why he did not accept his evidence including his evidence about the manner in which he left India and the fact that he was able to obtain a passport without any difficulties. The Tribunal accepted that the applicant had some level of involvement in Indian politics in the past but did not consider that he had given truthful evidence about that involvement or about any harm that he had suffered in the past.
Accordingly, the Tribunal did not accept the applicant's claims of detention, arrest or false cases against him or that he had any significant political profile that had resulted in his being subjected to serious harm in India. The Tribunal did not accept that the applicant would suffer serious harm for a convention reason in the future and found that he did not have a well-founded fear of persecution if he were to return to India at that time or in the reasonably foreseeable future.
As a result of that decision the applicant has sought judicial review of the Tribunal decision. His amended application contains what are numbered as seven grounds but appear to be more. First, the applicant claims that the Tribunal decision was affected by jurisdictional error and that it did not take into account certain relevant considerations or integers central to his claim.
He also claimed that he spent four hours being questioned without a break and felt stressed and intimidated. I note that the applicant did tell the Court that he was able to have one break during the four hours or so of the hearing in order to visit the bathroom. The applicant's second ground is that the Tribunal failed to carry out its review function by not considering that he had been under immense and intimidating pressure from the Communist Party and did not consider his claims to have had a position as the block president of the Indian Youth Congress.
The applicant claimed that the Tribunal ought to find it was open on the evidence that he was a refugee within the meaning of the Act and in particular the,
(a)Failed to address 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)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 were plausible, which was the case here.
The applicant claimed the Tribunal erred in law amounting to jurisdictional error in finding that he did not have a well-founded fear of persecution and did not satisfy the criterion in subsection 36.2(a) for a protection visa. The applicant claimed the Tribunal member failed to consider all the material readily available or accessible and failed to address his mind to the material questions arising out of those materials.
He claimed in the first ground numbered 7 that the Tribunal failed to take into account relevant considerations of his well-founded fear of persecution being a leader of the Indian Youth Congress whilst it had accepted certain factual claims but did not accept that his political profile had resulted in his being targeted by the Communist Party which he claimed were conclusions not obviously open on the known material presumably without giving him the opportunity to be heard in respect of those matters.
In the second ground numbered 7 the applicant claimed that the Tribunal failed to find that the applicant satisfied the definition of a refugee as defined in Article 1A.2 of the Convention as set the four elements of that and claimed that the Tribunal therefore failed to analyse properly the future harm that he might face if he had to go back to India which was a serious jurisdictional error by failing to assess or carry out the real chance test before dismissing his claim.
The applicant did not file any written outline of submissions but addressed the Court and complained that he had submitted certain papers to the Tribunal before the decision. The Tribunal did not consider that material and returned the material to him unread. He also raised the concern that the interpreter had not properly translated his evidence to the Tribunal member. The applicant reiterated his request that he his case should be returned to the Refugee Review Tribunal for consideration.
Mr White, who appeared for the Minister, told the Court that the applicant's claims had been considered by the Tribunal and the Tribunal had noted the applicant had made a number of requests for extensions of time in order to provide various materials. As to the complaint about the level of the translation by the interpreters at the hearing, Mr White pointed out that no evidence had been provided with that and I note that nothing appears in the decision record to show any concern about the standard of the interpreter. In reply the applicant reiterated his claim to have his application remitted to the Refugee Review Tribunal.
In dealing with the applicant's grounds I note first of all in ground 1 that the applicant complained that the Tribunal failed to take certain relevant considerations or integers of his claim into account. No particulars have been provided of this claim and the applicant has not made clear to the Court what relevant considerations were not considered. The Tribunal decision was quite comprehensive in its reference to the applicant's claims and on the face of the decision record I am unable to discern any aspect of the claim that was not taken into account by the Tribunal.
As to the second part of ground 1 where the applicant claimed that he was stressed and intimidated by being questioned for four hours by the Tribunal without a break; that clearly refers to the second Tribunal hearing on 13 October 2008 as the applicant himself told the Court. The first hearing on 29 September 2008 took just over an hour and I note that the Tribunal offered the applicant the opportunity of an adjournment which he took due to his understandably distress over the recent death of his grandmother.
The applicant did tell the Court that he was able to take one break during the hearing on 13 October 2008 and whilst I accept that attending Court or attending a Tribunal hearing can be a stressful experience for an applicant there is no evidence before the Court to show that the affect on the applicant was any more severe for any reason than any other applicant would face in the circumstances.
There is no evidence before the Court to show that the applicant was in some way unduly susceptible to stress arising out of a hearing of some four hours. The applicant's ground 2 claims that the Tribunal did not consider the applicant who had been under immense and intimidating pressure from the Communist Party and did not consider the applicant's claims about his position as block president of the Indian Youth Congress.
In my view the Tribunal did consider both of those claims but did not accept them, and did not accept them on the basis of its adverse findings as to the applicant's credibility. Clearly, the question of the credit of a witness is a matter for the Tribunal. It is a factual decision and provided there is evidence upon which a Tribunal can make an adverse finding of credibility. There is no scope for a Court conducting judicial review to intervene. In my view the second ground has not been made out.
The third ground claims the Tribunal failed to address the residual question as to how it should hold in the event that its finding was not at risk of persecution was wrong and failed to give the applicant the benefit of the doubt. This appears to be a claim that the Tribunal failed to apply the real chance test and in my view the Tribunal clearly rejected the applicant's claims because it did not find them credible.
The claim that the applicant should have been given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that his claims were plausible cannot succeed because the Tribunal comprehensively rejected the applicant's claims. The next ground in the amended application is numbered 5 and that claimed that the tribunal erred in law amounting to jurisdictional error in finding that the applicant did not have a well-founded fear of persecution and did not satisfy the criterion set out in subsection 36.2(a) for a protection visa.
That is no more than a challenge to the Tribunal's factual findings and it is expresses the applicant's dissatisfaction with the fact that the Tribunal found against him. However, the claim goes no further than that and no jurisdictional error has been made out.
The next ground numbered 6 claims that the Tribunal member failed to consider all material readily available or accessible. The applicant did not provide any particulars of this claim and certainly my reading of the decision record shows that the applicant's claims were considered in great detail by the Tribunal.
True it is that certain parts of the applicant's claims were accepted by the Tribunal but in considering the applicant's evidence as a whole the Tribunal did not accept that he had made out a well-founded fear of persecution for a Convention reason. This is purely a matter for the Tribunal. It is the Tribunal which is the finder of fact and it is the Tribunal to give whatever weight it considers necessary to in the evidence before it.
It is certainly well established that the Tribunal has no obligation to conduct its own independent investigations of an applicant's claim or any aspects of the applicant's claim. The applicant claims in the second ground numbered 7 the Tribunal failed to find that he satisfied the definition of a refugee as defined in Article 1A(2) of the convention. That of course is a challenge to the Tribunal's main finding and in effect it is an impermissible attempt to ask the Court to undertake merits review of the Tribunal finding.
True it is that the Tribunal did accept certain parts of the applicant's claim but not sufficiently to be satisfied that he made out a well-founded fear of persecution. The applicant claims that the Tribunal failed to analyse properly the future harm that he might face if he has to go back to India. In its decision record the Tribunal rejected the applicant's claims to have suffered harm because of the political profile that he had claimed and did go on from there to find that the applicant would be the subject of serious harm for a convention reason in the future and did find that it did not accept that he or his family would be the subject of adverse attention from the authorities upon his return to India or that he would be the subject of adverse attention from the Communist Party.
In my view the Tribunal did consider the applicant's future if he were to return to India and was not satisfied that he would suffer harm for a convention reason if he did so. As to the claims raised by the applicant today there is no evidence of a failure by the interpreter at either Tribunal hearing and it is up to an applicant claiming an interpreting failure to produce evidence. There is nothing in the decision record to indicate any complaint by the applicant of difficulty in understanding the proceedings and indeed the claim of difficulty by the interpreter appears to be merely speculative.

The applicant's claim that the material that he submitted to the Tribunal prior to the Tribunal decision not being considered has not been made out. The Tribunal did refer to post-hearing correspondence and considered the matters contained therein. Unfortunately for the applicant the Tribunal was not persuaded that what the applicant had sent in was sufficient to establish a well-founded fear of persecution.
I am mindful of the fact that the applicant is not legally represented in these proceedings. However, I have considered the applicant's claims and I have considered the Tribunal decision and supporting material independently from the applicant's claims and indeed independently from the Minister's submissions. I am not able to distinguish any arguable case of jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by ss.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 whilst the applicant has sought that his claim be sent back to the Tribunal for determination according to law I am not satisfied that he has established a basis for doing so. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent minister in the sum of $4500. The applicant has asked for the costs to be reduced on the basis that he is not working and has not been working for three months. The first thing the Court must consider is whether a costs order is appropriate and I am satisfied that it is an appropriate order to make as the Minister has been legally represented. The amount of $4500 is within the amount provided in the scale in the Court Rules.
The fact that an applicant is not in employment and does not have the funds to meet the costs order is not a reason not to make an order for costs. However, it is a matter to be taken into account in deciding whether or not time to pay should be allowed. I am certainly of the view that the applicant should be allowed time to pay. There is nothing to suggest that the applicant is in fact in employment and I accept that $4500 would be an onerous imposition upon him.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 22 April 2009