SZNJG v Minister for Immigration
[2009] FMCA 616
•18 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 616 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no denial of procedural fairness shown – jurisdictional error not proved. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZNJG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 693 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 June 2009 |
| Date of Last Submission: | 18 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr M. Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 693 of 2009
| SZNJG |
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 involved in the Students Federation of India (“SFI”) and the Kerala Catholic Youth Movement (“KCYM”). He alleges that while in India he was involved in a strike against a factory and that his family home was subsequently set on fire.
The applicant claims to fear persecution from political opponents because of his association with the Communist Party in India, however, it is noted by the Refugee Review Tribunal (“Tribunal”) at para.39 of its decision (Court Book (“CB”) page 99) that he does not claim that he was or will be persecuted in India because of his religion.
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 27 October 2008. The applicant then applied to the 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 the Tribunal’s decision.
In these proceedings the Court’s 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 pp.4-8 of the Tribunal’s decision (CB 95-99).
In a statement attached to his application for a protection visa, the applicant claimed that:
a)his family belongs to the Latin Catholic community and are traditionally communist;
b)during his engineering studies he joined the SFI, the students’ Communist Party. He was elected as the Pallithura Branch Secretary of the Democratic Youth Federation of India (“DYFI”) and after his studies he was “an active member of the communists”;
c)in 1998 he joined the KCYM and with the influence of the communist party in 2000 he became supervisor of a named construction company and was nominated as “the member of the party in that year”;
d)once, while attending a meeting, members of the Congress Party threw bombs and people were injured. After that, the applicant ceased his party activities and concentrated on his KCYM activities;
e)in 2004 he was elected joint secretary in the Pallithura unit and in 2006 he was elected as a member of the central committee of the KCYM;
f)in 2006 he rejoined the communist party and in December he and others were again attacked by Congress members. He was injured and hospitalised for four days;
g)this attack was avenged and the villages became violent so he went to Bangalore for three months. He returned to his home town after his problems were “partially solved” and was elected secretary of the Kazhakuttom area committee of the DYFI;
h)in confrontations with the BJP the applicant’s hands were severely injured and he was hospitalised for four days;
i)in 2007 he protested against the pollution from a clay factory and subsequently his house was set on fire, killing his two brothers. After this, a bomb was thrown at the applicant while he was riding his bike and he was hospitalised for 12 days. He was attacked again while in hospital, his family was threatened and he had death threats made against him; and
j)after this he went to Chennai for five months where he was told about World Youth Day in Australia. He went home to farewell his parents but on his return the rebels were waiting for him so he took refuge at the police station and went back to Chennai.
The applicant appeared before the Tribunal on 6 February 2009 to give evidence and present arguments. He made the following additional claims:
a)before he came to Australia he was living in Pallithura, his home town, but left in September 2007 to go to Bangalore because of his problems;
b)he lived in Bangalore for six to seven months, he went to Chennai during this time for two months because he did not have a job and he returned to Pallithura for two weeks just prior to his departure for Australia;
c)he worked as a civil engineer in his home town before he left for Bangalore and when the Tribunal asked the applicant why he left his job, he variously stated that he left because there was a chance of coming to Australia and that he left because of problems with the factory and his life was threatened;
d)when he was in his home town he lived with his parents in the family home where they currently reside;
e)he made the decision not to return to his family in India in December 2008 after he made his application for protection in August 2008. He did not come to Australia as part of World Youth Day although he knew about it as he is a Latin Catholic and practises his religion in Australia;
f)he came to Australia because of a strike he was involved in that started in July 2007 concerning a factory near his house;
g)he said that the first time he had trouble in India was in 2000 when a bomb was thrown at a function and the next time when he was driving to hospital in 2006. In 2006 there was a strike when the factory was to be closed and BJP members threw a bomb. He was hospitalised for 12 days. The applicant said he did not have trouble between 2000 and 2006 because there was a different Ministry;
h)his house was burned in September 2007 because he went to the Ministry about the cancellation of the factory’s licence;
i)the main building of the house was burned, his two brothers died and his father was attacked. He said that his parents moved from the family home so they now lived in the outhouse and also that they moved from the family home to a smaller place. He also said that until he came to Australia they were in a rented place because there was a “case” going on in relation to the fire and that in the two weeks prior to leaving India he lived in the outhouse at the family home with his parents;
j)he was hospitalised twice, once in 2000 for three days and once in 2006 for 12 days;
k)he had no difficulties in Chennai or Bangalore but he left there because he found out people were looking for him;
l)when the Tribunal asked the applicant whether anything happened to him in the two weeks prior to his departure for Australia, he variously stated that:
i)he returned to his home town for Christmas 2007 and, although he planned to stay for two weeks, he left after four days because he was followed;
ii)he returned to his home town despite his fear of harm because he wanted to see his mother and father; and
iii)when he returned in June 2008 he only stayed with his parents for one day because he was followed again so he went to Chennai and Calcutta;
m)when asked how long he stayed in Chennai altogether, the applicant said it was two months. When the Tribunal noted that in his statement to the Minister’s department the applicant mentioned that he was in Chennai for five months on one occasion, the applicant said that this was wrong and that his friend may have made a mistake when helping him prepare his application; and
n)when asked by the Tribunal what would happen to him were he to return to India, the applicant said that he did not know and he could not live there because the strike was going on. When the Tribunal noted that the applicant’s political party was in power in Kerala, he said that the national party had control over the factory and the authorities could not protect people against harm as they were not in control of some individuals.
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)although the Tribunal accepted, with some doubt, that the applicant supported the Communist Party in India and was a member of the Kerala Catholic Youth Movement, it did not accept that he had or has the political profile he claimed in Kerala, that he organised a strike, was attacked and injured by his political rivals and hospitalised as a result, that his family home was burnt and his brothers killed or that he went into hiding. The Tribunal made these findings noting that the applicant gave confused and inconsistent evidence about important aspects of his claims, leading it to conclude that he was not being truthful about his claims. In this regard, the Tribunal noted the inconsistent evidence the applicant gave concerning his travel and different living circumstances in India, in which he gave various responses, including:
i)at the Tribunal hearing the applicant said he went to live in Bangalore in September 2007 for six or seven months, returned to his home town and lived with his parents for two weeks before coming to Australia in July 2008;
ii)when the Tribunal asked him what happened when he returned to his home town he said that he returned at Christmas 2007. When reminded that this was not what he had previously stated, the applicant said that he stayed for four days at Christmas but returned to Bangalore because he was followed; and
iii)when the Tribunal later questioned him again whether anything happened in his home town before he came to Australia he said that he did not stay for two weeks but left after one day because he was followed and went to Chennai and Calcutta. The Tribunal noted to him that his earlier oral evidence was that before coming to Australia he had stayed for two weeks with his parents in the family home or part of it;
b)the Tribunal considered that if the applicant was genuinely concerned about his safety in his home town as he claimed he would not have returned twice, once at Christmas 2007 and again just before he came to Australia in July 2008, even if he did want to see his parents as he claimed;
c)the applicant gave inconsistent information when he said in his written statement that he was in Chennai for five months and later in his oral evidence when he said that altogether he spent two months in Chennai. The Tribunal did not accept that this inconsistency was because his friend may have made a mistake when he prepared the visa application as the applicant told the Tribunal at the beginning of the hearing that his friend had read it back;
d)the Tribunal did not accept that the applicant’s family home was burnt in September 2007 as claimed, noting that at the beginning of the hearing he said that his parents lived in the family home in his home town in India but later in the hearing said that the family home was burnt. When reminded by the Tribunal of his earlier statement, the applicant said that his parents lived in an outhouse of the house and that he lived there with them when he returned to his home town. He then later said that until he came to Australia his parents were in a rented place because a case was going on in relation to the fire;
e)the Tribunal did not accept that the applicant was injured by political opponents and hospitalised for his injuries as claimed, noting the inconsistent details the applicant gave about when and for how long he was hospitalised and injured, including that:
i)in his written statement to the Minister’s department he indicated he was injured in August by Congress Party members and hospitalised for four days. He also stated that following the fire at his house in 2007 he was attacked when bombs were thrown at him and he was hospitalised for 12 days and again attacked in hospital; and
ii)in his oral evidence to the Tribunal he said that in 2006 there was a strike against the factory and that was when he was hospitalised for 12 days. He also said that he was in hospital twice, once in 2000 for three days and once in 2006 for 12 days when a bomb was thrown at him; and
f)the Tribunal did not accept that the applicant was a witness of truth, finding that he modified his evidence to explain difficulties and inconsistencies which the Tribunal raised with him and that his evidence was unreliable.
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
None of the allegations made by the applicant has been particularised. In those circumstances, they lack the sort of substance that gives them any real meaning. Further, nothing has been said today by the applicant which would have put flesh on the bones of those allegations. Even so, it is appropriate to consider whether any conduct of the sort alleged by the Tribunal can be discerned from the evidence.
Dealing first with the second and third grounds pleaded in the application, it should be noted that procedural fairness and natural justice are in the context of these allegations the same thing, being simply different terms for the same concept. That concept has two elements. The first is that a person has a right to have a hearing which is fair in the procedures which are applied. The second is that the hearing should be fair in that it is not tainted by bias.
As to the requirements on the Tribunal to give the applicant a fair hearing, these are codified in div.4 of pt.7 of the Act. The most important provisions of that division are ss.424A and 425. Section 424A 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 information which the Tribunal relied upon in reaching its decision in this case was independent country information which is information not specifically about the applicant or another person, information which the applicant gave to the Tribunal for the purposes of its review and information contained in a written statement provided by the applicant to the Minister’s department as part of his visa application.
All that information falls within the exceptions found in s.424A(3) with the consequence that it was not required to be notified to the applicant pursuant to s.424A(1). Consequently, no breach of that section is disclosed in these proceedings.
Section 425 relevantly provides:
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.
The obligations which s.425 of the Act imposes on the Tribunal are that, unless the Tribunal can make a finding in favour of the applicant on the papers, it must invite the applicant to a hearing in order that he or she can present arguments and evidence and it must ensure that an applicant is aware of the issues which are going to be determinative of the review.
In this case, the applicant was invited to a Tribunal hearing and he attended that hearing. In relation to the issues that were determinative of the review, the applicant has not identified to the Court any issue which the Tribunal should have raised with him but failed to. But in any event, the Tribunal’s decision was one based on its assessment of the applicant’s credibility and a review of the Tribunal’s decision makes it clear that on more than one occasion the Tribunal raised with the applicant its concerns with the inconsistencies in his evidence and thus with the general credibility of the account that he was giving.
Moreover, at the end of the hearing the Tribunal allowed the applicant further time in which to send additional information in support of his case or in which to comment on the inconsistencies in his evidence. It is clear that the principal determinative issue in this matter, namely the credibility of the applicant’s account, was clearly raised with him by the Tribunal at various stages during the hearing.
For these reasons, I do not conclude that the Tribunal breached its obligations under s.425.
No breach of any other provision of div.4 of pt.7 has been identified or addressed in oral submissions today. For instance, it has not been suggested, nor is it apparent, that the Tribunal failed to apply the provisions of div.4 pt.7 in a way which was fair and just as is required by s.422B(3).
Returning to the first allegation set out in the application, the applicant has not identified any issue which might justify a finding of jurisdictional error apart from what was pressed in the second and third allegations which I have already considered. In the absence of a particularised claim being made under this very general allegation of jurisdictional error, it cannot, independently of the allegations of breach of procedural fairness, support a conclusion that the Tribunal’s decision must be set aside.
Conclusion
For these reasons, I find that the Tribunal’s decision is not affected by jurisdictional error and consequently the application must be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 1 July 2009
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