SZNIJ v Minister for Immigration
[2009] FMCA 601
•17 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNIJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 601 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – breach of the rules of natural justice not demonstrated – no jurisdictional error shown – merits review not available in judicial review proceedings. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZNIJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 594 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 June 2009 |
| Date of Last Submission: | 17 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 594 of 2009
| SZNIJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was a social worker for a Christian organisation. He alleges that while in India he reported the activities of local drug dealers to police and was subsequently attacked and severely beaten.
The applicant claims to fear persecution in India from the same persons who have harmed him in the past.
After his arrival in Australia on 9 July 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 17 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of its decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 6 of the Tribunal’s decision (Court Book (“CB”) pages 67 – 69). Relevantly, they are in summary:
a)the applicant is a Catholic with a tertiary education who had a career as a social worker;
b)he was targeted by the RSS, a Hindu extremist group, who tried to kill him because he worked for the Trivandrum Social Service Society, a Christian organisation;
c)in May 2006 he received complaints from the local community that the RSS was implicated in drug dealing and in June 2006 he reported the matter to the police;
d)in July 2006 the police arrested 10-15 people, including a prominent RSS gangster, Ravi Kunnuvazhi (“Ravi”);
e)on 14 August 2006 the applicant was attacked by RSS members who left him severely injured. He required intensive care treatment and he was in hospital until December 2006;
f)this incident was reported to the police and the applicant gave a statement regarding the attack to the police while he was in hospital. The police arrested the people involved and a case was pending against them. However, at the Tribunal hearing he said that he withdrew the case because otherwise he could not leave India for overseas;
g)when the RSS realised he was still alive, they attacked his wife, mother and father. The applicant claimed he was forced to go into hiding at his sister’s house;
h)in fear of the RSS, he went to Dubai but had work-related difficulties. At the Tribunal hearing he stated that he left for Dubai on 30 September 2007 and returned to India on 5 February 2008. On his return to India he did not return to his home in Kerala. He travelled to Chennai, Madras [sic], Bombay and Calcutta, but did not know the language and suffered a lot. He subsequently returned to Kerala and although nothing happened to him between March and July 2008 he was fearful that he might be attacked again so he came to Australia to seek protection;
i)the applicant said in his written statement to the Minister’s department that after his trip to Dubai and his travels around India he returned to his sister’s house and when the RSS found out about this, they attacked her and her family. At the Tribunal hearing, he stated that this attack occurred some time in mid-2007;
j)the Tribunal noted that the applicant’s evidence at the hearing concerning the dates when he said he was in Dubai and when his sister was attacked appeared to be inconsistent with his earlier claim that his sister and her family were attacked after he returned from Dubai. In response the applicant said that he described his circumstances to a translator who must have misunderstood him; and
k)he stated that while religion was not the obvious source of the conflict and that he was primarily targeted because he reported the drug dealing to the police, the gang were Hindus and he a Christian and religion may have been a factor.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant is a Catholic, that he reported the activities of drug dealers to the police and that he, his sister and her family were subsequently beaten by the drug dealers after their release from prison. The Tribunal also accepted that a case was filed against the persons who attacked him but that this was later withdrawn because the applicant wanted to travel overseas. The Tribunal also accepted that the applicant is now fearful that these persons will attack him again for the same reasons as they did before;
b)after considering information from external sources, the Tribunal was satisfied that citizens of India had access to a reasonable level of protection provided by the state and that the authorities in Kerala provided a reasonable level of protection to the applicant when he was previously attacked by Ravi and his associates. Further, the Tribunal was satisfied that the applicant will have access to a reasonable level of protection in the future if he continues to encounter difficulties with these persons;
c)the Tribunal was not satisfied that religion was a motivating factor in the harm suffered by the applicant in India, or that religion would be an essential and significant motivation for the harm that he anticipates in the future. The Tribunal was satisfied that the applicant was attacked by Ravi and his associates out of revenge because he reported their illegal activities to the police and because as a result the police took action against them, not because he was a Christian and they were Hindus; and
d)after considering information from external sources relating to, in particular, the circumstances of Catholics in Kerala, the Tribunal found that the applicant’s fear that he would be targeted by the RSS or RSS supporters in India was not well-founded. The Tribunal was satisfied that the applicant could freely and safely practise his religion in Kerala without adverse interest from the RSS or their supporters or any other religious group and that the authorities in Kerala provide a reasonable level of protection to Christians at times when there is a heightened risk of communal violence.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)Jurisdictional error
(2) Breach of procedural fairness
(3) Breach of natural justice
At the hearing today the applicant also submitted that he had been telling the truth to the Tribunal, could not understand why it found as it did and said that his life was still in danger.
Turning first to the allegations set out in the application, it should be noted that none of them is particularised. As a consequence, they lack meaningful substance. Moreover, the submissions which the applicant has made today are directed to the merits of his application rather than to the jurisdictional error which I must find before I may set the Tribunal’s decision aside. As a consequence, it is difficult to identify any basis upon which the Tribunal’s decision could be set aside. Nevertheless, I will consider the matters which have been raised.
It is necessary first to observe that in practically every respect, all three of the grounds set out in the application overlap. On the issue of breach of the requirement for procedural fairness or breach of the rules of natural justice, which are the same thing expressed using different terms, this obligation is largely codified in div.4 of pt.7 of the Act. The most important of the provisions in that part are ss.424A and 425. As to s.424A, it relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
The Tribunal’s decision was based on information given to it by the applicant during its hearing, on information given in writing by the applicant to the Minister’s department and on information contained in independent country information sourced by the Tribunal and referred to in its decision. None of this information was required by s.424A(3) to be notified by the Tribunal to the applicant. As a consequence, no breach of s.424A is disclosed in these proceedings.
As to s.425, it provides relevantly:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In this case the Tribunal invited the applicant to its hearing and he attended. Consequently, that aspect of the requirements of s.425 was satisfied.
As to the issues arising in relation to the decision under review, it should be observed that these were properly and adequately canvassed by the Tribunal during its hearing. These issues included the questions of whether the mistreatment which the applicant feared was related to a Convention ground, in this case his religion, whether there was adequate state protection available if the mistreatment was related to his religion and whether the state apparatus in India provided an adequate level of protection for the applicant should he need to be protected from Ravi. As a consequence, no breach of s.425 has been disclosed.
No breach of any of the other provisions in div.4 of pt.7 of the Act has been pressed or otherwise identified. In particular, no allegation has been made that contrary to s.422B(3) the Tribunal failed to apply the provisions of div.4 of pt.7 in a way in which was fair and just.
As to that aspect of the rules of natural justice and the requirements of procedural fairness that require that a party should have an unbiased hearing, nothing has been advanced to suggest bias, actual or apprehended, on the part of the Tribunal.
I now turn to the overarching allegation of jurisdictional error. Nothing has been advanced by the applicant to suggest that the Tribunal committed a jurisdictional error which did not fall within the scope of the other allegations to which reference has already been made in these reasons. This allegation of jurisdictional error was unsupported by any particulars and it cannot be made out in a vacuum.
As to the submissions which the applicant has made today concerning his confusion about why the Tribunal reached the decision that it did given that he had been telling it the truth and his submission that his life remained in danger, what the applicant does by these submissions is invite the Court to reconsider the merits of his visa application. As noted earlier in these reasons, the Court is unable to do that. It is the Tribunal’s role to reach findings of fact and to determine the merits of a visa application and it is the Court’s role to determine whether the Tribunal has applied correct procedures and correctly applied the law when reaching its decision.
For these reasons, the matters which the applicant raised today do not disclose a basis upon which the Tribunal’s decision might be set aside.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 29 June 2009
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