SZNBT & Anor v Minister for Immigration & Anor
[2009] FMCA 207
•3 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 207 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant applicants protection visas – Applicants are citizens of India claiming fear of persecution for reasons of political opinion – merits review – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 474 |
| SZLFS v Minister for Immigration & Citizenship [2009] FCA 75 SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641 followed Kioa v West (1985) 159 CLR 550 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; (2006) 231 ALR 592 SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83 SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119 |
| First Applicant: | SZNBT |
| Second Applicant: | SZNBU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3351 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 March 2009 |
| Date of Last Submission: | 3 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2009 |
REPRESENTATION
| Applicant: | Applicant in Person |
| Solicitor for the Respondent: | Ms Hooper |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,200.00.
I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3351 of 2008
| SZNBT |
First Applicant
| SZNBU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants are a husband and wife who are citizens of India. They have applied to the Court for review of a decision of the Refugee Review Tribunal that was handed down on 1st December 2008. That decision affirmed a decision by a Delegate of the Minister not to grant the Applicants Protection Class (XA) visas.
The Applicants seek a review of that decision and in particular seek writs of certiorari to quash the Tribunal's decision, prohibition to restrain the First Respondent, the Minister, from acting upon the Tribunal's decision, and mandamus remitting their application to the Tribunal to be determined according to law.
Background
The background to this matter is that the Applicants arrived in Australia on 18th June 2008. They applied for Protection Class (XA) visas on 30th June 2008. The application relies on the claim of the First Applicant, the husband, to have a well founded fear of persecution. The Second Applicant who is the wife is a Part D Applicant. This means she claims as a member of the First Applicant's family unit and does not have a separate claim to be a refugee.
The basis of the First Applicant's claim is that he left India because of fear of harm from a local Muslim gang leader called Abdul Kadar and his political supporters. In a statement attached to the application for a visa the Applicant sets out that he was interested in politics and was a member of a major party in India called the BJP. His claims arise from his membership and his activities with the BJP. A copy of the Applicant's statement is set out in the Court Book at pages 33 and 34.
A delegate of the Minister for Immigration & Citizenship refused the application on 29th August 2008. The Delegate accepted that the First Applicant may have been an active supporter of the BJP in Gujarat but did not accept that he was subjected to physical harassment by a Muslim gang led by Abdul Kadar without the protection of the authorities and the local police.
The delegate consulted Independent Country Information about India and found that the government of Gujarat could protect its citizens, especially Hindus, from unlawful acts of violence perpetrated by certain groups thus the delegate assessed that the Applicant could avail himself of the effective protection of the State. The delegate also expressed concerns about the credibility of the First Applicant.
Application to the Refugee Review Tribunal
After the application for the protection visa was refused the Applicants then applied to the Refugee Review Tribunal on 18th September 2008 for a review of the delegate's decision. The Tribunal invited the Applicants to attend a hearing and the First Applicant attended the hearing on 11th November 2008. The Second Applicant did not attend the hearing.
In its decision the Tribunal considered the Applicant's claims as set out in the Departmental file and considered the written material provided by the First Applicant. The Tribunal considered the record of an interview between a Departmental officer and the First Applicant that took place on 27th August 2008. The Tribunal also considered the First Applicant's evidence at the Tribunal hearing on 11th November.
At that hearing the Tribunal asked the First Applicant a number of questions and put to him its concerns about certain aspects of his evidence. The Tribunal had obtained the Departmental file documents relating to the Applicant's application for a visitor visa. In the course of the hearing the Tribunal Member put to the First Applicant its concerns about inconsistencies between what was in his application for a protection visa and what had been in his application for a visitor's visa which included, but was not restricted to matters relating to his financial status. The Tribunal set out some of its concerns and said:
I explained Section 424AA of the Act for the applicant. I mentioned to the applicant that in his Protection Visa Application he had stated that he had collected funds for the BJP Party yet at the hearing he said he did not collect funds or provide any financial support to the party. He said other people were responsible for the funds.[1]
[1] See Court Book at page 112 [48].
The Tribunal went on to set out other matters and then put to the Applicant:
I mentioned to the applicant that his Protection Visa Application indicated that he was suffering financial troubles, yet his Visitor Visa Application indicated that he had a lot of money in India. The applicant stated that he never suffered any financial problems. He just had political problems. The applicant stated that he was suffering mental stress and he did not know what to do. He said he was working in Griffith but he was most taking care of his wife. He sometimes finds farm work such as picking lemons.[2]
[2] See Court Book at page 112 [50].
The Tribunal then described how the Applicant asked for further time to comment:
The applicant said he did not wish to comment and/or respond at the hearing or orally and would like some time to think about it. The applicant stated that he would like to respond and/or comment in writing. I mentioned to the applicant that he could respond in writing by close of business on 21 November 2008.[3]
[3] See Court Book at page 112.
The Tribunal noted in its findings and reasons that the Applicant did not forward any response or comments in writing by or at any time after the deadline on 21st November 2008.
The Tribunal’s Findings and Reasons
In its findings and reasons the Tribunal accepted that the Applicants are citizens of India. The Tribunal noted the claims by the First Applicant, of his fear of persecution, but did not accept certain parts of the First Applicant's evidence about the role that he played with the BJP. The Tribunal did not accept that the Applicant was targeted or suffered any harm because of that involvement. The Tribunal went on to find:
The Tribunal did not find the applicant to be credible on some key aspects of his claims and the following inconsistencies, contradictions and implausibility led the Tribunal to conclude that the applicant is not a reliable witness in relation to certain aspects of his claims.[4]
[4] See Court Book at page 113.
The Tribunal then set out the various matters that it considered to consist of inconsistencies and contradictions and implausibility. Those matters included material from the Applicants’ Visitor's Visa Application. The Tribunal found that there was no credible evidence on which it could be satisfied that the First Applicant stood at risk of suffering serious harm in the reasonable foreseeable future if he returned to India and was not satisfied he had a well founded fear of persecution for a Convention reason on his return to India. The Tribunal affirmed the decision not to grant the Protection Class (XA) visas.
Application for Judicial Review
The Applicants commenced proceedings for judicial review in this Court by filing an application and an affidavit on 18th December 2008. The Applicants filed an amended application on 16th February 2009 and the First Applicant relied at that document at the hearing. The Minister filed a Response on 24th December and an affidavit of Katherine Nicole Hooper, solicitor, on 22nd January 2009. The Minister also filed a written outline of submissions on 24th February 2009.
The amended application seeks orders in the nature of certiorari, prohibition and mandamus. It was explained to the Applicant at the hearing that in order to make those orders the Court would need to be satisfied that the decision was affected by jurisdictional error. The amended application contains grounds alleging error by the Tribunal. The First Applicant told the Court that he did not read or write English and that another person had assisted him in preparing the application.
The Second Applicant did not attend Court and the First Applicant told the Court that he had authority to speak on her behalf.
The grounds of the amended application are somewhat idiosyncratically numbered as they are numbered 1(b), 5, 6, 7, and 7. I note that Ms Hooper who appears for the Minister has chosen to refer to the grounds somewhat more prosaically, perhaps, as grounds one to five inclusive. In my view it would be easier to understand if they were referred to in that way.
Ground 1
The Applicant's first ground claims that the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to find that the First Applicant was a refugee within the meaning of the Act. In particular it is claimed that the Tribunal 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.
Ground 2
The Applicants’ second ground, which was referred to as number five in the amended application is that:
The Tribunal erred in law amounting to jurisdictional error in finding that the applicants do not have a well-founded fear of persecution and the first applicant did not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Ground 3
The third ground, number six in the amended application, claims that:
The Tribunal Member failed to consider all the material readily available and/or accessible and the Member continued an erroneous approach to the applicant's claims and failed to address the applicants' mind and material questions arising out of those materials.
Ground 4
The fourth ground, numbered seven, claims that:
The Tribunal exceeded its jurisdiction or constructively failed to take into account a relevant consideration being the applicant's well founded fear of persecution for being a member of the BJP. The claim is that the Tribunal failed to analyse properly the future harm that the applicant may face if he returned to India and that this was a serious jurisdictional error because it was a failure to assess the real chance test.
Ground 5
The fifth ground, also numbered seven, claims that:
The Tribunal failed to find that the applicant satisfied the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention. To go further the Tribunal failed to see that the applicant satisfied the four key elements that were required to satisfy the Convention definition. Although the Tribunal referred to them.
The ground sets out the four elements of the definition and the First Applicant claims he fulfils all four.
Submissions
The First Applicant attended Court and told the Court that he was speaking on behalf of his wife who could not come today. He wished to rely on the material set out in his amended application. When the question of the Tribunal giving him until 21 November to make written comments in reply to the matters that the Tribunal raised, the Applicant said that it was not possible to get any material from India within the time limit.
He said that he could have got more information from India but it would take time and he was not able to provide the information by 21st November. For that reason he did not make any written comments to the Tribunal.
Considerations
Ground 1
In dealing with these grounds first of all I turn to ground one, the claim of failing to find the First Applicant was a refugee within the meaning of the Act, by failing 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.
This is, as has been submitted by Ms Hooper for the Minister, an attempt at merits review. Merits review is not available where a Court if conducting a judicial review of an administrative decision. It is the administrative decision maker who makes the findings of facts and provided that there is evidence upon which those findings can be made it is not open to a Court conducting judicial review to interfere.
Whilst the Applicant claims that the Tribunal entertained the possibility that the Applicant's claims were plausible that is not the case in this decision. As Ms Hooper submitted the Tribunal did not expressly or implicitly indicate any doubt about its rejection of the Applicant's credibility and his material claims. There is no legal principle that requires the Tribunal to give an applicant the benefit of the doubt. (See SZLFS v Minister for Immigration & Citizenship[5]).
[5] [2009] FCA 75 at [23]
In particular this issue has been addressed in SZHIS v Minister for Immigration and Multicultural Affairs[6] where Jacobson J held at [10]- [11] that:
The first ground [of appeal] is that the Tribunal committed a jurisdictional error because it did not afford the appellant the benefit of the doubt when there was no material to the contrary of that which the appellant asserted. However, it is clear in my view that this ground of appeal cannot succeed because it is contrary to the well established principles that apply to the provisions of s.65 of the Migration Act.
[6] [2006] FCA 1641
In my view, the decision in SZHIS is binding on this Court. It is an appeal from a decision of the Federal Magistrates Court and in my view it is clearly binding and it is definitive of the issue. The Applicant's first ground must fail.
Ground 2
The Applicant's second ground numbered five in the amended application claims a jurisdictional error in finding that the Applicants did not have a well founded fear of persecution and did not satisfy the criterion set out in s.36(2)(a) of the Migration Act.
There are no particulars provided of that ground; it is merely an assertion of error and it is in fact a cavilling of the Tribunal's factual findings. That of course amounts to merits review which is not available in an application for judicial review and it follows that ground two cannot be made out.
Ground 3
The third ground numbered six in the amended application claims that the Tribunal failed to consider all the material readily available or accessible and the member continued an erroneous approach to the Applicant's claims and failed to address the Applicant's mind of the material arising out of those materials. The Applicant does not set out what material it was that the Tribunal did not consider and in any event it is for an applicant to provide evidence in order to support his or her claim.
As was submitted it is no part of the task of the Refugee Review Tribunal to make out the applicant's case for him. (See Kioa v West[7]). The Applicant was on notice of determinative issues arising on the review because the Tribunal put all those issues to him at the hearing and certainly from the decision record attempted to comply with the requirements of s.424AA of the Act.
[7] (1985) 159 CLR 550 per Mason J at 587
The Tribunal sets out that they put these matters to the First Applicant, offered him the opportunity to comment either orally or in writing and gave him until the 21st November 2008 to make written comments. As it turns out the Applicant did not do so. I am also of the view there is no breach of s.425 of the Migration Act especially considered in the light of SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[8]. In my view, the third round must fail.
[8] (2006) 228 CLR 152; (2006) 231 ALR 592
Ground 4
The fourth ground claims the Tribunal failed to take into account a relevant consideration being the Applicant's well-founded fear of persecution for being a member of the BJP. The claim is that the Tribunal failed to analyse properly the future harm that the Applicant may face if he returns to India. I am not satisfied that this has been made out. I am satisfied the Tribunal did consider the aspects of the First Applicant's claims and did address the question of whether the First Applicant had a well-founded fear of persecution upon his return to India. The Tribunal found that he did not. The Applicant's fourth ground must fail.
Ground 5
The fifth ground also numbered seven, claims that the Tribunal failed to find that the Applicant satisfied the definition of "Refugee" as defined in the Refugee's Conventio and again failed to analyse properly the future harm that the Applicants may face if they have to return to India. In my view this is clearly an attempt at merits review and as such that ground cannot be made out.
Conclusion
The Minister acting as a model litigant has raised with the Court whether there is any issue as to compliance with s.424(3) of the Migration Act arising out of the Tribunal's email request to the Department of Immigration & Citizenship for the provision of the Applicant's Sub-class 676 visa file. That request was sent by email to the Department and is referred to in the Court Book at page 88 and is also covered in material annexed to the affidavit of Katherine Nichole Hooper of 22nd January 2009.
The submission is that no issue as to compliance with s.424(3) of the Act arises or in the alternative if there was a technical breach, it does not establish jurisdictional error and it is further submitted that relief should be refused in an exercise of the Court's discretion. The submission is that the circumstances are distinguishable from those in SZKTI v Minister for Immigration & Citizenship[9] and SZKCQ v Minister for Immigration & Citizenship[10].
[9] [2008] FCAFC 83
[10] [2008] FCAFC 119
It is submitted that these cases can be distinguished because there is no evidence that suggests that the Tribunal sought to invite a person to give additional information as opposed to issuing a general request for the file which is more appropriately characterised as evidence or documents rather than information. The Tribunal did not seek information from a specific person but made a general administrative request for documents. The Tribunal is entitled to make general enquiries under s.424(1) thus the request by the Tribunal for documents did not enliven s.424(2) or any obligations under s.424B of the Act. In my view this submission is correct.
It is also submitted that this case can be distinguished from the decisions in both SZKTI and SZKCQ because the request was not made to an identified person who had previously given information to the Tribunal in the course of the review but was simply made to an area within the Department, thus is it was not a request that fell within the concept of an invitation for additional information. I am not of the view that there is any technical breach of s.424B of the Act. I am not of the view that jurisdictional error has occurred in that way.
During the course of the hearing I raised with the solicitors for the Minister concerns about whether an obligation under s.424A of the Migration Act arose in respect of the Tribunal's request for and perusal of the Applicant's visitor visa application file. The importance of this was that it appears that the Tribunal relied on inconsistencies between material in the application for a Visitor's visa and material in the application for a Protection visa.
It was put to the Court that the Tribunal's reliance on inconsistency between that material was in fact a thought process and did not enliven any obligation. It was further put that an obligation under s.424A was not enlivened at all by the perusal of the material in those files, particularly the financial information.
The Tribunal did, as I have said, put to the First Applicant matters that are set out in s.424AA of the Act. Paragraph 48 of the Tribunal decision sets out that the Tribunal Member explained s.424AA of the Act to the Applicant and paragraph 50 refers to the Applicant telling the Tribunal that he wished to have some time to think about the material, he would like to respond or comment in writing and was given until 21st November 2008 to do so. The Tribunal also in its findings and reasons set out this at [61]:
At hearing, the Tribunal's concerns were put to the applicant and s.424AA was explained to the applicant. He requested that he address those concerns in writing and agreed to do so by 21 November 2008. The applicant did not forward any response and/or comments in writing to the Tribunal.[11]
[11] See Court Book at page 114.
Whilst it may appear that the Tribunal covered in a somewhat sketchy and general fashion the concerns that were put to the Applicant particularly referring to documentary matters the Tribunal decision record is the only information before the Court as to what was put. The Applicant has not challenged this process and has certainly not produced a transcript of hearing. In my view I am obliged to accept the Tribunal's description of what was put to the Applicant for his comments or response under s.424AA of the Act and the terms in which it was put.
It is quite clear that in those circumstances if the Tribunal complies with s.424AA that the Tribunal can then rely on s.424A(2A) which says:
The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
In my view the Tribunal on the evidence before me has done so and as such the provisions of s.424A(2A) applies and I am satisfied that there is no s.424A issue in the Tribunal decision. My independent perusal of the Tribunal decision and supporting material noting as I have that the Applicants are not legally represented in the proceedings before me is that no arguable case of jurisdictional error has been made out.
I note that the Applicants did indicate that they wished to take advantage of the RRT Legal Advice Panel Scheme and a referral was made to Mr David Prince, solicitor, who is a member of that panel. Mr Prince, according to the Court file, was not able to contact the Applicants on the telephone number provided and indicates that the Applicant did not respond to his letter or SMS messages left on the mobile telephone however Mr Prince provided a written advice to the Applicants on 24th February 2009. Nevertheless the Applicants were not legally represented at the hearing before me but I am satisfied no jurisdictional error can be discerned.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Under s.474(1) the privative clause decisions are not subject to orders in the nature of certiorari, prohibition or mandamus in any Court and it follows therefore that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $3,200.00. This is an appropriate matter for a costs order and I note that the Applicants are not in a financial position to pay what the Applicant has described as "such a big amount" at this time. I will allow four months to pay.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 March 2009
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