SZNJR v Minister for Immigration
[2009] FMCA 654
•1 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 654 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – the Court cannot review the Tribunal’s factual findings in, or conclusion on the merits of, the application which was before it – Tribunal not required to consider a claim not made to it unless it is one which, although unarticulated, is reasonably apparent from an applicant’s case – Tribunal’s discretion to proceed to decision did not miscarry in circumstances where the applicant did not request a delay in order to obtain further evidence. |
| Migration Act 1958, ss.424AA, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 |
| Applicant: | SZNJR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 732 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 July 2009 |
| Date of Last Submission: | 1 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 732 of 2009
| SZNJR |
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 initially claimed, he had involvement with a left-wing form of Catholicism which attracted serious harassment from political opponents. He subsequently alleged that while in India he aligned with the Catholic church and that subsequently he faced harm from a faction of the Maoist movement.
After his arrival in Australia on 6 July 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 3 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 the Tribunal’s 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 – 11 of the Tribunal’s decision (Relevant Documents (“RD”) pages 114 – 121).
In a statement attached to his application for a protection visa, the applicant claimed that:
a)he was a Catholic who became attracted to liberation theology which he described as a “perfect blend of Christianity and Communism”. He observed church practices and also taught the poor to fight exploitation by the rich and privileged;
b)in 1995 he was actively involved with the CPI-Maoist Party and was a key member of the People’s War Group;
c)he travelled to Singapore in 2001 where he worked for a construction company and organised a workers’ strike. The Singapore police arrested him and others. He had to appear in court and was forced to resign his job and leave Singapore;
d)he implied that he was placed under surveillance in India, that he could not have a normal life or find work and that he had to go to Chennai to start a new life;
e)he had employment difficulties and returned to Kerala in 2007 where he found a job as a lifeguard. One day the local police were called to a matter where he was also called. He claimed that the policeman who arrested him in Singapore arrived and arrested him “for all the pending cases” which had caused him to lose his job in Singapore; and
f)the applicant claimed that if he returns to India he will be gaoled by police and subject to new charges.
In an interview with the Minister’s department, the applicant identified the police as the source of the harm he feared. When a delegate of the Minister queried how a Singaporean policeman could have played a direct role in the claimed harassment in Kerala in 2007, the applicant said that the person who translated his written claims made a mistake. He implied that the Indian police in Kerala were his persecutors.
On 11 February 2009 the applicant appeared before the Tribunal to give evidence and present arguments, making the following additional claims:
a)he came to Australia as he was fleeing persecution in India due to his involvement with the Communist Party of India, specifically the “CPI-Maoist” which began in 1995;
b)he first joined the “student union” of the party during his studies and formally joined the CPI-Maoist in 1993 but was not issued a membership card until 1995;
c)when the Tribunal asked when he first left India he said “2001” and, when the Tribunal noted that this was about six years after his claimed problems began in 1995, the applicant said that he went to many other places before he left India, indicating that he did this to keep ahead of anyone trying to harm him;
d)the applicant gave various responses to questions put to him by the Tribunal concerning the Maoists, including:
i)he considered himself a Maoist and he joined the Maoists for “religious reasons”;
ii)he said that the Maoists have no religion and from the Maoists he came to Catholicism at which point his problems started;
iii)he identified a Maoist faction which began to give him problems in 1999;
iv)he was unable to identify from whom the Maoists took their name but said that they were involved in “getting from the rich and giving to the poor”. He also said that he did not know the name of the person who inspired the Maoists because he was not interested; and
v)he fled to Singapore to get away from the Maoists because he became Catholic;
e)when the Tribunal put to the applicant that he claimed to have been a Catholic before he became a Maoist, he said that after he became a Maoist the Church would not communicate with him, so he returned to the Church and apologised. The applicant then confirmed that the only harm he feared was from the “Maoist group” in India;
f)the Maoists followed him to Singapore, however, they caused him problems and he reluctantly quit his job and fled to Malaysia;
g)when the Tribunal put to the applicant that his claim that Maoists opposed or pursued him in the past was a new claim, whereas his application for a protection visa referred to him fearing persecution from anti-Maoists, the applicant said that this was the fault of his original translator;
h)the Tribunal then put to the applicant pursuant to s.424AA of the Act that it appeared that he was making a set of claims to the Tribunal entirely different from those made to the Minister’s department, giving rise to the impression that his claims were substantially inconsistent. The applicant responded variously stating that:
i)the Tribunal had never asked him to talk about the workers’ strike in Singapore;
ii)he must have forgotten to mention the Maoists to the delegate;
iii)he only referred to Maoists in answer to the Tribunal’s questions about his source of harm in India because he was mindful of the Tribunal’s suggestion at the beginning of the hearing that if it asked a question on a particular subject he should just address that subject; and
iv)he disagreed that he had had an opportunity during the hearing to identify the various persons or parties targeting him for harassment;
i)when asked when the CPI-Maoist was formed the applicant firstly stated that he joined in 1995 and was given a membership card in 1997. When the Tribunal pointed out to him that this information was inconsistent with what he had said earlier in the hearing, he replied that he joined in 1993 and was given a card in 1995. He stated that the card was not the “real card”, which he received in 1997;
j)when the Tribunal pointed out that independent country information indicated that the party specifically named “CPI-Maoist” was not formally established until 21 September 2004, the applicant said that if there is a group emerging it can make membership cards to use and show to people; and
k)when asked about the details of Maoist doctrine or teaching, the applicant variously stated that:
i)Maoists teach that if one has a problem one should solve it;
ii)Maoists take from the rich and give to the poor;
iii)the model for the operation of a state or a state’s economy is “President, Secretary, Treasurer, Organising Secretary”; and
iv)Maoists teach the poor to escape from the rich and that the poor have to fight.
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 was overwhelmingly convinced that the applicant was an unreliable witness with no externally perceptible political interest at all. It did not accept that he would either be imputed to be a Maoist or be imputed by Maoists to be a political foe or traitor, noting that:
i)he performed very poorly in response to all questions regarding Maoist teachings even after the Tribunal tried to give him hints as to the kind of information it was seeking from him;
ii)the year he claimed to have joined the CPI (Maoist) party was inconsistent with the year in which he supposedly obtained his membership card; and
iii)independent country information before the Tribunal stated that the party did not exist under the name given by the applicant until 2004 and his explanation as to how he could have joined a party by that name in the 1990s struck the Tribunal as a poorly-contrived improvisation;
b)the Tribunal did not accept that the applicant’s inconsistency as a witness could reasonably be attributable to an idiosyncratic interpretation of the Tribunal’s suggestion that he try to address questions on their particular points, noting that the Tribunal had asked the applicant a number of supplementary questions inviting him to expand on some of the responses he had given. Further, the Tribunal noted that the applicant confirmed more than once that the Maoists were the only people trying to harm him;
c)the Tribunal did not accept that the applicant faces charges, false or otherwise, anywhere in India, noting that he was able to travel out of and back into India on a valid passport, giving weight to the conclusion that he is not and would not be of any relevant interest to the Indian authorities; and
d)the Tribunal did not accept that the applicant went to Singapore to escape relevant harassment and found that he travelled to Singapore and different parts of India to find or take up employment. The Tribunal noted that the applicant claimed he was followed to Singapore by Indian Maoists who gave him trouble there and that he subsequently quit his job and fled, however, this was inconsistent with what he had said to the Minister’s department. Further, the Tribunal found the applicant was unconvincing about having fled to Malaysia for any reason at all because he twice returned within days to Singapore which added to the Tribunal’s overall impression that the applicant was a highly unreliable witness.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)I am refugee and unable to go back to my country due to political problem.
(2) Due to changing my religion, I have come under pressure from political member.
(3)Due to being a particular race, I am constantly under a threat of harm from major races.
At the hearing today the applicant also submitted that the Tribunal had failed to give him adequate time to marshal documents in support of his application and, in any event, the presentation of his case at a stage prior to the Tribunal hearing had been affected by translation difficulties.
Grounds pleaded in the application
The first two grounds set out in the application filed on 27 March 2009 invite the Court to review the merits of the applicant’s application for a protection visa. The Court is unable to do this because relevantly the task of determining matters of fact and the merits of a visa application is reposed solely in the Tribunal. The Court’s role is to determine whether the Tribunal has correctly applied the law in arriving at its decision and has applied correct procedure during the course of its review. As the first and second grounds pleaded in the application only raise matters touching on the merits of the application and not on questions which could suggest jurisdictional error on the part of the Tribunal, they do not raise any matters which would justify the Court setting the Tribunal’s decision aside.
As to the third ground pleaded in the application, this claim was not made either to the delegate or to the Tribunal. As a general rule, an applicant cannot raise in a judicial review proceeding a matter which he or she has not raised with the Tribunal. While it might be possible for the Tribunal to discern from an applicant’s case an arguable claim which had not been adequately articulated by that applicant, the authorities demonstrate that the Tribunal is under no obligation to seek out claims which are not reasonably apparent on the face of the applicant’s case: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695. It cannot be said that the matter raised by the third ground pleaded in the application falls into that category or that the Tribunal erred by not identifying such a claim.
As a result, the third ground pleaded in the application does not justify a finding of jurisdictional error on the Tribunal’s part.
Submissions today
The applicant submitted that the Tribunal had, in effect, denied him the opportunity to gather additional documents to put before it by providing him with insufficient time within which he could lay his hands on those documents. In this connection, the applicant sought to tender today some documents which he said came from India and related to the circumstances the subject of his claim. But, as he conceded that these documents had not been before the Tribunal, the tender was rejected.
In connection with the allegation that the Tribunal denied the applicant sufficient time within which to obtain documents to support his claim, regard should be had to the letter to the Minister’s department, reproduced at RD 44, where the applicant referred to some documents and said to the Minister’s department that he hoped the department would “get me all the copyies[sic] and advise me”.
At p.9 of his decision record (RD 61), the Ministerial delegate noted that the applicant had not provided any document or other form of evidence in support of his claim other than freely available country information.
After the applicant lodged his review application with the Tribunal, the Tribunal wrote to him on 17 December 2008 inviting him to a hearing on 11 February 2009 and enclosing a “Response to Hearing Invitation” form. In its letter of 17 December 2008, amongst other things, the Tribunal said this:
Please use the form or attach additional information if there are any requests or new information you wish the Tribunal to consider. Any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator.
It is not apparent from a copy of the “Response to Hearing Invitation” form reproduced at RD 79 that any documents were forwarded by the applicant to the Tribunal with that form.
It appears that after the Tribunal hearing took place, the applicant requested a copy of the Tribunal’s audio recording of the hearing. By letter dated 16 February 2009, the Tribunal wrote to the applicant explaining that technical difficulties meant that a tape recording was not available, although it supplied a copy of the presiding member’s notes of the evidence at the hearing. In that letter of 16 February 2009, amongst other things, the Tribunal said this:
If there is anything further you wish the Tribunal to consider before it makes its decision, please provide it to the Tribunal by close of business 27 February 2009. (RD 102)
The Tribunal’s decision was published on 3 March 2009 and there is nothing in the bundle of relevant documents or anything which was put by the applicant today which suggests that the applicant asked the Tribunal to delay the making of its decision pending receipt by him of further documents from India. A review of the documents contained in the bundle of relevant documents and, in particular, the Tribunal’s decision record, does not support a conclusion that the Tribunal was at any time aware that the applicant wished to produce further documents to it and that he needed additional time in order to do so. As the Tribunal was not invited to delay the making of its decision, there can be no question of a miscarriage of discretion in the fact that it proceeded to make its decision when it did, and without having received the documents which the applicant now tells the Court he wished the Tribunal to have.
The applicant also raised an issue regarding interpreter services provided to him at a stage of his visa application prior to the Tribunal review. This was a matter considered by the Tribunal and addressed by it, most relevantly at para.126 of its decision record where it stated that it gave no weight to the applicant’s claims to have been disadvantaged by prior interpreter services.
Generally
As a final observation it should be noted that the Tribunal’s decision was based on a rejection of the credibility of the applicant. Its concerns on this score were clearly put to the applicant during the course of the Tribunal hearing, most particularly in the exchange summarised at para.109 of the Tribunal’s decision which states:
The Tribunal put to the Applicant that this seemed a fanciful scenario. The Tribunal disclosed to the Applicant that, overall, his claims appeared inconsistent and fabricated. The Tribunal invited the Applicant to respond. The Applicant said all his claims were true.
It might also be noted that the Tribunal had also put certain matters to the applicant pursuant to its obligations under s.424A of the Act.
Looking at the Tribunal’s decision as a whole, jurisdictional error cannot be discerned.
Conclusion
As jurisdictional error on the part of the Tribunal has not been made out, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 10 July 2009
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