SZNID v Minister for Immigration
[2009] FMCA 394
•6 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNID v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 394 |
| MIGRATION – Application for review of the decision of the Refugee Review Tribunal – merits review – no failure to consider relevant facts – no failure to consider the applicant would suffer harm – no failure to exercise jurisdiction – no failure to ignore persecution – no apprehension of bias – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 65, 422B, 425, 441A(4)(c)(ii), 441C(4) Migration Regulations 1994 (Cth), reg.4.35D |
| Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Abebe v The Commonwealth (1999) 197 CLR 510 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 |
| Applicant: | SZNID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 579 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 May 2009 |
| Date of Last Submission: | 6 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms B Griffin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 11 March 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 579 of 2009
| SZNID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application made on 11 March 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 February 2009 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following background may be ascertained:
(1)The applicant is a citizen of India who arrived in Australia on 17 June 2008 and applied for a protection visa on 29 July 2008 (reproduced at CB 1 to CB 34, with annexures).
(2)On 27 October 2008 a delegate of the respondent Minister refused to grant the protection visa (CB 46 to CB 58).
(3)On 21 November 2008 the applicant applied for review of that decision by the Tribunal (CB 61 to CB 64).
(4)The applicant was invited to attend a hearing before the Tribunal and did attend on 22 January 2009. The Tribunal’s account of what occurred at that hearing is set out in its decision record (CB 84 to CB 89). The applicant has not provided any other account or indeed any transcript of the hearing to the Court despite opportunity to do so.
Applicant’s claims to protection
The applicant’s claims to protection in Australia were initially set out in a statement within his application for a protection visa (CB 30 to CB 34). His claims are also contained in the evidence that the applicant gave to the Tribunal.
The applicant’s claims were that essentially he is a Sikh who fell in love with a Hindu girl and that her family “objected” to the relationship on social and religious grounds. However, in spite of this, the relationship continued in secret. That difficulties also arose from his own family. In addition, and that the relationship existed in a context, and against a background of difficulties between Hindu and Sikh communities. Noting that the applicant said that he lived in a Hindu-dominated area of Haryana in India.
The applicant claimed that in April 2007 he was attacked by “unknown persons warning him that Sikhs should not have relationships with Hindus.” He further claimed that his home was attacked, resulting in his parents being assaulted. He claimed that Hindus sought “revenge”, as he said, for the relationship. The applicant noted that he and his family are “BJP” supporters, the “BJP” being a political party in India, whereas the family of the Hindu girl supported the “Congress Party”.
The delegate
The Minister’s delegate found that there were “concerns about” the “credibility” of the applicant’s claims (CB 55.8). But the delegate found that even if he were to accept the applicant’s claims, he was not satisfied that the applicant would face persecutory harm within the “terms of the 1951 Convention,” if he were to return to India.
The delegate also noted that, in any event, “relocation within India is a presumable and viable option for the applicant” (CB 57.6).
The Tribunal
The Tribunal found “that the applicant’s evidence was unreliable and that the claimed harm arising from the relationship was not truthful” (CB 90.3). The Tribunal set out in its decision record seven matters which underpin, and found, that finding (CB 89 to CB 94).
Despite its concerns about the applicant’s credibility, the Tribunal did accept that the applicant had entered into the relationship with the Hindu girl but found that “the applicant’s characterisation” of the responses by the relevant families as being “exaggerated and misrepresented” (CB 91.6). In particular, the Tribunal accepted that a relationship existed, and that the families “frowned upon the relationship though they did not inflict harm” (CB 91.10).
It rejected as “inflated” the applicant’s claim that his father was a local BJP leader (CB 92.3) and found that the applicant’s claim in relation to politics to have been “grafted” on to his claims “in order to give his refugee application a political flavour” (CB 92.4). In all, the Tribunal found that the applicant and his father had not experienced any past harm based on their low level of political support and that there was no real chance of the applicant being harmed on political grounds or being denied state protection or of experiencing persecutory discrimination if he were to return to India (CB 92.6).
It did not accept, with reasons given, that any false case had been brought against the applicant (CB 98.8).
While accepting that there was some discrimination against Sikhs in India, the Tribunal concluded, given the applicant’s evidence, that the “mere fact of being a Sikh” in his hometown did not establish a real chance of Convention related persecution (CB 92.10).
The Tribunal also considered the question as to whether the applicant would face persecution on return as a result of his “combined circumstances”, (CB 93.3) that is as presented by the applicant as being a Sikh supporter of the BJP, family member and a member of an ethnic group and coupled with his relationship with the Hindu girl.
Having already found that the applicant would not face persecutory harm on return to India in relation to each of these claims (CB 93), it found that he would also not face persecutory harm even when these claims were looked at in combination.
The Application before the Court
The applicant has put four grounds before this Court. I note that there are two grounds both numbered paragraph 3 but I saw this merely as a typographical error. These are:
“1.The Tribunal failed to consider that I was discriminated in India and that harm I suffered for my religious belief. The Tribunal also failed to believe that I shall be harmed and persecuted in my country of origin for my relationship with a Hindu girl. The Tribunal ignored my persecution I experienced and also I shall be experiencing on my return back to India for my relationship and religious belief and the Tribunal made jurisdictional error.
2.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to put the adverse materials to me and to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials. If I would be given the opportunity it could have lead to a different decision by the Tribunal.
3.The Tribunal in its decision has mentioned without any valid reason that I will have no problem if I return back to my county of origin, India for my relationship and also for my religious belief. The Tribunal totally ignored my the persecutions though I have explained the reasons at the time of interview. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to accept me as credible witness for my claims.
3.The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such it vitiated the said purported decision. The Tribunal’s failure to consider my fear of persecution is an error of jurisdiction.”
[No particulars were provided.]
Before the Court
At the hearing today the applicant appeared unrepresented. He was assisted by an interpreter in the Punjabi/Urdu languages. Ms B Griffin appeared for the first respondent.
At the hearing today I confirmed with the applicant that no written submissions had been put before the Court and other than the application itself, the applicant had not put anything further before the Court.
The Court also has before it, in addition to the bundle of relevant documents, the Minister's formal Response and written submissions filed on behalf of the Minister.
Before the Court today the applicant complained simply that the Tribunal did not believe him and therefore rejected his application. That the Tribunal did not take his case seriously, by which I understood the applicant to complain about the findings made by the Tribunal and its ultimate conclusion that he was not a person to whom Australia owed protection obligations.
Ground 1
The complaints in ground one are that the Tribunal:
(1)Failed to consider that the applicant suffered discrimination for religious belief.
(2)Failed to believe that he would be harmed because of his relationship with a Hindu girl.
(3)Ignored the persecution he had experienced and would experience, on return, because of his relationship and religious belief.
Any plain reading of the Tribunal’s decision record reveals that the Tribunal did not ignore or fail to deal with any aspect of the applicant’s claims. As I said to the applicant today, the Tribunal’s stated disbelief of some aspects of his claims does not of itself reveal jurisdictional error.
The Tribunal was acting within jurisdiction in making findings of fact, and findings as to the applicant’s credibility. See: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] per McHugh J (“Durairajasingham”).
This is the function of the Tribunal as the relevant decision-maker and, as was described, “par excellence”.
The Tribunal plainly considered whether the applicant had been subject to discrimination because of his religious beliefs. Its conclusion that he would not suffer Convention related persecution merely for being a Sikh was open to it on what was before it. The view that the Tribunal took of the applicant’s circumstances and his evidence in this regard does not reveal jurisdictional error (see CB 92.9 to CB 93.2).
It must be said that on even the most plainest of readings of its decision record, the Tribunal clearly considered the applicant’s claim to fear harm because of his relationship with a Hindu girl, and the role that discrimination played in this. Its findings that he did not experience harm amounting to persecution in the past (CB 91.5), and that there was no real chance of persecutory harm on the basis of his combined circumstances properly dealt with these claims (CB 93).
The Tribunal’s findings were clearly open to it and it gave reasons.
Following again, a plain reading of the Tribunal’s reasons, I can only comprehend the applicant’s complaints that the Tribunal “failed to consider” or “failed to believe” or “ignored” his claims to be a complaint, simply, that the Tribunal did not accept that these claims gave rise to a real chance of persecutory harm. This was confirmed by what the applicant told the Court today. That is, that he disagrees with the Tribunal's findings.
But without anything further, this can only be seen as a request for this Court to engage in impermissible merits review. I say this with reference to relevant authorities, in particular Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”) (citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J and at 291 per Kirby J (“Quin”) Abebe v The Commonwealth (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ (“Abebe”). Such a complaint, without anything further does not assist the applicant before this Court.
Ground 2
Ground two in the application asserts that the Tribunal failed to exercise its jurisdiction and denied the applicant procedural fairness, in that it failed to put “adverse information” to him, and denied him the opportunity to submit explanations and material in reply.
This is a case to which s.422B of the Act applies. This means that the provisions set out in Division 4 of Part 7 of the Act are taken to be the exhaustive statement of the natural justice hearing rule to be applied to this case. That is, of course, absent the issue of bias. There are many by now well-established authorities to support this proposition (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67] (“Lay Lat”), SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] (“SZCIJ”), SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48] (“SZFDE”)).
Bearing these authorities in mind, and looking at the material that has been put before the Court, I cannot see that the Tribunal failed to comply with the procedural code as set out in Division 4 of Part 7 of the Act. In short, I cannot see that the applicant was denied procedural fairness as is alleged.
Relevantly, this complaint requires consideration of s.424A, s.424AA and s.425 of the Act.
Taking each of these in turn, if the applicant is seeking to complain that the Tribunal breached the obligation pursuant to s.424A(1), then I cannot see that any such complaint succeeds.
The Tribunal relied on the following information:
(1)The applicant’s own evidence given in relation to the review. Such information plainly comes within the exception set out in s.424A(3)(b) from the obligation in s.424A(1) as it was clearly given for the purpose of the application for review.
(2)“Independent information” as to the circumstances of Sikhs in the applicant’s home state. Bearing in mind such authorities as Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [71] (“NAMW”), VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14] (“VHAP”), QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22] (“QAAC”), such information comes within the exception contained in s.424A(3)(a).
(3)The information that the applicant gave during the protection visa application process, that is, his written statement, comes within the exception set out in s.424A(3)(ba). I should note any information given to the Minister’s delegate orally clearly does not fall within this exception (CB 52.10 to CB 55.2). However, a plain reading of this material reveals:
(a)This was material that mirrored the applicant’s claims submitted in writing in his detailed written statement accompanying his application for the protection visa,
(b)Further and importantly, this material “did not contain” in “its” terms a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations. I say this with reference to what the High Court said in SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26 at [17] (“SZBYR”).
(4)The Tribunal’s subjective appraisal and its reasoning derived from all of the applicant’s material is not understood to be “information” for the purposes of s.424A(1). (See SZBYR at [18] and the reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 per Finn and Stone JJ at [24] (“VAF”)).
In any event, in the current case the Tribunal is able to rely on s.424A(2A) to relieve it of any obligation pursuant to s.424A(1).
This is a case where s.424AA was available to the Tribunal. The only account, as I said, of what occurred at the hearing that has been put before the Court is the Tribunal’s own account. Again I note that, despite opportunity, the applicant has not put before the Court any transcript of the hearing to challenge the Tribunal’s account.
The Tribunal’s account reports that “the Tribunal put to the applicant the particulars of adverse information and explained the relevance to the review.” This appears in that part of the Tribunal’s decision record reproduced at CB 87.10. What follows (at CB 88) shows clearly that s.424AA and s.424A(2A) were engaged.
In relation to procedural fairness and s.425 of the Act, and bearing in mind what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 at [34]-[35] (“SZBEL”), I note that the applicant was invited to a hearing before the Tribunal and that he attended and gave his evidence (see CB 55).
Following the delegate’s decision, the applicant would have been on notice that the credibility of his account and his claims was at issue. The credibility of the applicant’s factual account was clearly one issue that was dispositive and determinative of the review, particularly as the Tribunal found central elements of the applicant’s account and claims to be exaggerated and unreliable, “unconvincing” and “lacking credibility” and “vague”.
Whatever the situation following the delegate’s decision, the Tribunal’s account reveals that at the hearing the Tribunal gave the applicant the opportunity to set out the factual basis of his claims. It gave the applicant that opportunity, as recorded in its decision record (as reproduced in particular at CB 84.2, CB 84.4, CB 84.7, CB 84.8, and CB 84.9). The Tribunal squarely put to the applicant its concerns with his evidence. In particular, see what is set out at CB 86.1 and 87.3. No other parts of the prescribed code reveal any breach in this case.
I cannot see that ground two is made out.
Ground 3
In ground three the application asserts that the Tribunal “mentioned without any valid reason” that if the applicant returned to India he would not have any problem on the basis of his relationship or religion.
The applicant complains that the Tribunal “ignored the persecution” and failed to accept that he was a credible witness. I note that aspects of this complaint mirror the complaint set out in ground one.
The statutory regime relevant to applications for protection visas is found in s.65 and s.36(2) of the Act. In effect, these sections require the Tribunal to reach a requisite level of satisfaction that the applicant meets the criteria for the grant of a protection visa. In essence, this means that the Tribunal must be satisfied that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the United Nations Refugees Convention. If the Tribunal is unable to reach this requisite level of satisfaction the protection visa must be refused. There is now well-settled authority to support these propositions. (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16] (“SJSB”), NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] (“NAST”), Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”)).
A plain reading of the Tribunal’s decision record reveals that the Tribunal did assess the applicant’s claim to fear persecutory harm on the grounds of claimed discrimination, and his religion, and political opinion, and the claimed relationship with a Hindu girl.
As to the Tribunal’s finding that the applicant’s evidence was exaggerated, as I have already said, this is a finding of fact (which includes a finding of credibility) which is a matter for the Tribunal in its function as the primary decision-maker “par excellence” (Durairajasingham at [67], per McHugh J). There is nothing within the material before the Court to reveal jurisdictional error on this basis. The Tribunal did not ignore the applicant’s evidence in the sense that it failed to deal with his evidence or his claims of persecution.
For reasons which it gave and which were open to it on the material before it, it found the applicant did not face persecutory harm on return to India (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559 (“Kopalapillai”); W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] (“W148/00A”) per Tamberlin and Nicholson JJ). Again this complaint seeks to challenge the merits of the Tribunal’s decision and this ground therefore cannot succeed.
Ground 4
In the fourth ground in the application the assertion is that the Tribunal denied the applicant natural justice because it was biased, or there was an apprehension of bias.
I note relevant High Court and Federal Court authorities in this regard (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 (“Ex parte H”), Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 (“Jia”), SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44] (“SBBS”), Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 (“SBAN”), VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 (“SBAN”)) as to the relevant tests required to establish bias or the apprehension of bias.
I note in particular that such an allegation is a serious matter going to the issue of the integrity of the relevant decision-maker. It is an allegation that should not be made lightly. It requires evidence to support such a claim before such a claim can be established. Beyond mere assertion, the applicant has put no evidence whatsoever before the Court to support this claim.
In particular, and in addition I note that it is, as is said, a rare and exceptional case where bias can be demonstrated solely from the published reasons for the Tribunal's decision (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 688 at [38], per Von Doussa J (“SCAA”). I emphasise for the applicant that an allegation of bias must be distinctly made and clearly proven (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22] (“SZHPD”).
Simply because the Tribunal did not find for the applicant does not indicate, let alone establish, bias or the apprehension of bias. In the absence of any evidence, this ground is simply not made out.
Conclusion
For the applicant to succeed before this Court today, the Court would need to find, at least, jurisdictional error in the Tribunal's decision.
I cannot see such error as is asserted in the application, nor from what the applicant has said to the Court today, nor otherwise.
The application is therefore dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S.Polley
Date: 28 May 2009
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