SZNKK v Minister for Immigration
[2009] FMCA 607
•18 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 607 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of India claiming a fear of persecution because he is a Christian and also for reason of political opinion – credibility issues – no reviewable error. |
| Migration Act 1958 (Cth), ss.422B, 424, 424A, 424AA, 425 |
| Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407;[2000] HCA 1 |
| Applicant: | SZNKK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 799 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 June 2009 |
| Date of Last Submission: | 18 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Mr Baird |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,700.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 799 of 2009
| SZNKK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of India who seeks judicial review of a decision of the Refugee Review Tribunal. The decision is dated 10th March 2009. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
In his application the Applicant seeks three orders:
(1)An order or declaration that the notification by the delegate and the Tribunal to refuse to grant a protection visa invalid and has no effect to section 44c of the Judiciary Act 1903.
It would appear that this order sought is misconceived as the Court is not reviewing the decision of the delegate and there is no issue as to whether the Applicant was correctly notified of the Tribunal decision.
The further orders that the Applicant seeks are:
(2)A writ of certiorari quashing the decision of the Refugee Review Tribunal.
(3)An order that no action is taken to remove the Applicant from Australia while a decision is pending.
I have discussed the orders sought with the Applicant and he conceded that he was seeking an order in the nature of certiorari setting aside the Tribunal decision and an order in the nature of mandamus remitting his application for a visa to the Tribunal for determination according to law. It is has been explained to the Applicant that in order to make the orders sought the court would need to be satisfied that the Tribunal decision is affected by jurisdictional error.
In his application the Applicant has set out three grounds of review. They are:
i)jurisdictional error,
ii)breach of procedural fairness and
iii)breach of natural justice.
The orders are opposed by the Minister.
Background
The Applicant comes from Kerala in India and he left India on 7th July 2008. He arrived in Sydney by air on 9th July 2008. On 19th August 2008 he applied for a Protection (Class XA) visa. In a typed statement accompanying his application for a visa he claimed to be a follower of the Catholic Church in Kerala and to have been a member of the Students Federation of India (SFI), which is a student body of the Communist Party of India (CPI-M). He claimed to fear persecution after having been attacked by Hindu extremists and has made a claim of a well-founded fear of persecution for the Convention reasons of political opinion and religious belief.
The Applicant came to Australia and took part in the World Youth Day celebrations in Sydney. He seeks to remain in this country.
The delegate of the Minister wrote to the Applicant on 9th September 2008 inviting him to attend an interview. That interview was scheduled to take place on Friday, 10th October 2008. The Applicant attended the interview which was conducted with the assistance of a Malayalam interpreter. The delegate of the Minister refused the application for a visa on 11th November 2008.
In the delegate's Protection (Class XA) visa Decision Record the delegate was critical of what he described as the Applicant's "evasiveness" in answering a number of questions. The delegate was also critical of inconsistencies and discrepancies between the claims made in the Applicant's statement and the answers that he gave at the interview. The delegate noted the Applicant's explanation for this:
The applicant confirmed at interview that he dictated his statement in Malayalam, over the phone, to a former classmate in India and he, subsequently, dictated the statement back to him in English. The applicant then put the information in the statement of claims in English. Thus, if there was a mistake it was due to the classmate translator's mistake.[1]
[1] See Court Book at page 61.
The delegate did not accept that explanation. The delegate's reasons showed that the delegate did not regard the Applicant as a credible witness. The delegate gave various reasons as to why he questioned the Applicant's credibility and the veracity of his claims. The delegate noted that the Applicant had provided false and misleading documentation in relation to his application for a protection visa.
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The application was received by the Tribunal on 4th December 2008. The application was accompanied by a photocopy of some of the pages of the Applicant's passport.
The Tribunal wrote to the Applicant on 8th January 2009 inviting the Applicant to attend a hearing to take place on 24th February 2009. On 15th January 2009 the Tribunal wrote to the Applicant seeking information from him. The letter was headed "Invitation to comment on or respond to information in writing and Invitation to provide information in writing". The text of the letter is set out on pages 84 to 87 of the Court Book. It is clear that the first pages of the letter, which appear on pages 84 to 86 of the Court Book, are intended to comply with the provisions of s.424A of the Migration Act. The letter begins:
You are invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be a reason or a part of the reason for affirming the decision that is under review.[2]
[2] See Court Book at page 84.
The Tribunal then set out particulars of various pieces of information, including statements of inconsistent evidence given by the Applicant at the Departmental interview and a new claim made at the interview that had not previously been advised to the Department.
The letter sought the Applicant's written comments or response by 10th February 2009. The latter part of the letter is clearly intended to comply with the provisions of s.424 of the Migration Act. It contains the sub-heading "Invitation to provide information in writing". That part of the letter noted that the Applicant had not attached copies of a number of pages of his passport and sought an explanation for that. The letter also drew the Applicant's attention to a failure to complete certain parts of the application for a protection visa. That additional information was also required to be provided by 10th February 2009.
The Applicant replied to that letter, at least in part, by a letter dated 9th February 2009. It is clear, however, that it was only a response to the latter part of the Tribunal's letter. The letter was headed "Re: Invitation to provide information in writing" and began:
In response to your letter dated 15/01/2009 related to my RRT application, I have been asked to provide following additional information in writing.[3]
[3] See Court Book at page 89.
The letter then set out the questions asked of the Applicant in the Tribunal's letter that can be found at page 86 of the Court Book and provided answers to those questions. Enclosed with the letter were copies of the missing pages of the Applicant's passport. The Applicant also provided some other documentation including school record and a newspaper account of the murder of a 34-year-old man called Vishnu who is described as a Communist Party of India (Marxist) worker. The Applicant provided also a reference from Father Paul Roberts of the Catholic parish of Granville dated 23rd February 2008.
The Tribunal hearing record shows that the hearing commenced at
10:00amand went for a period of three and a half hours. The interpreter is shown to have completed his task at 19 minutes past 1 on that day. The Tribunal in its decision dated 10th March 2009 affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
A copy of the Tribunal decision record can be found at pages 139 to 164 of the Court Book. The Tribunal set out in the decision a summary of the Applicant's claims in his protection visa application and it also refers to the Applicant's interview with the Departmental officer and the letter sent to the Applicant under ss.424A and 424 and the Applicant's reply.
The Applicant's evidence to the Tribunal is summarised at some length in the decision record and appears at pages 146 through to 155 of the Court Book. The Tribunal also considered background information about religious freedom in India, about political coalitions in Kerala, Christians in Kerala, the Kerala Catholic Youth Movement, the attack on the Pattoor Church, Kerala's Christian Mukkuva community, relocation, the Malayalam language and the Democratic Youth Federation of India (DYFI).
Tribunal’s Findings and Reasons
In its findings and reasons the Tribunal accepted that the Applicant was a national of India based on the fact that he holds a valid passport issued by the Republic of India. However, the Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention-related reason.
The Tribunal then set out reasons why it came to that conclusion which can be found at pages 161 to 163 of the Court Book. The Tribunal considered the Applicant's claims of a fear of returning to India because of:
i)his religious and political enemies and
ii)a fear of harm from a money lender to whom the Applicant had previously referred.
The Tribunal in dealing with the money lender issue queried whether there was a Convention connection and noted that the Applicant had stated that the money lender was an extremist member of the BJP. The BJP is a political party opposed to the Applicant's political and religious views. The Tribunal did not accept that there was a Convention nexus with the Applicant's claim to fear the money lender. The Tribunal said:
The Tribunal does not accept that the moneylender was a BJP extremist. The Tribunal considers that the applicant attempted to change his evidence in an attempt to bring the claim about the money lender within a Convention ground so as to strengthen his claim to be a refugee. The Tribunal considers that his evidence on this issue reflects adversely on his credibility generally.[4]
[4] See Court Book at page 161.
The Tribunal then went on to consider the Applicant's claims to have a well-founded fear of persecution for reasons of political and religious beliefs. The Tribunal rejected these claims on the basis of credibility. It set out reasons why it had formed an adverse view about the Applicant's credibility. Those reasons can be found in [97] to [99] of the Tribunal's findings and reasons on pages 161 and 162 of the Court Book. The Tribunal went on to find at [100]:
Based on the above-noted evidentiary concerns, the Tribunal finds that the applicant is not a credible witness and that he has embellished his claims in order to support his application for a protection visa.[5]
[5] See Court Book at page 162.
The Tribunal accepted that the Applicant and his wife were members of the Latin Catholic Church in Kerala, but did not accept that the Applicant was an activist in the church or did not accept that he was a political activist who had faced persecution for that reason. The Tribunal based on its adverse credibility findings did not accept the Applicant's claims to have been attacked in 1996 or 2008 when he has claimed and because it did not accept that he was an activist of the Catholic Church or that he was an activist in the DYFI or the CPI-M, it did not consider that he would join religious or political activist activities if he were to return to India. The Tribunal gave this reason:
The Tribunal considers that he would not do this, not because of fear of persecution, but because he is not a religious or political activist.[6]
[6] See Court Book at page 163.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings on 6th April 2009 by filing an application and an affidavit in this Court. He has since filed an affidavit on 4th June 2009 to which he has annexed a number of documents. The solicitor for the Minister objected to the documents being received into evidence on the grounds of relevance and after a perusal of the documents, which appeared to be fresh evidence going to the merits of the Applicant's refugee claim, I excluded those documents but allowed in the covering affidavit and an annexed document entitled "Elaboration about the RRT Decision". I accepted that latter document as a submission.
Grounds of Review
The Applicant has attended Court today and was asked to expand on his claims relating to the ground of review set out in his application. The three grounds, as will be recalled, are:
i)jurisdictional error,
ii)breach of procedural fairness,
iii)breach of natural justice.
In respect of the general ground of jurisdictional error, the Applicant told the Court that the Tribunal asked mostly about the politics matter and not much about his own application or his own case. He complained that the Tribunal did not allow him more time to produce more documentary evidence. In answer to a question from the Bench, the Applicant indicated he was not sure whether he had requested more time from the Tribunal or not. He complained that the Tribunal did not accept his oral evidence.
In respect of his second ground claiming a breach of procedural fairness, the Applicant reiterated his claim that he had difficulty in obtaining documents from India to support his claim and considers that the Tribunal should have given him more time to do so.
In respect of the third ground, that the Tribunal decision involved a breach of natural justice, the Applicant told the Court that he assumed that the Tribunal Member had not looked into his case properly and had not proved that he was wrong. He reiterated his claim that he was not able to provide more documents and submitted that the Tribunal Member should have been more sympathetic. The Applicant said that he was nervous at the Tribunal hearing and had stage fright.
Submissions
In an oral submission made to the Court the Applicant claimed that when he presented his case to the Tribunal things happened so fast that he was not able to turn his mind to a logical way of presenting his case. He claimed that mistakes had been made in translating his original statement from Malayalam into English.
Mr Baird, who appeared for the Minister, submitted that the Applicant had provided insufficient particulars in his application to identify any reviewable error and submitted that it was clear from the Court Book that the Tribunal had neither breached s.424A or s.425 of the Migration Act. He also submitted that the Tribunal Member had clearly attempted to follow the procedure set out in s.424AA of the Act and noted that the Tribunal Member at [72] of the decision had asked the Applicant whether he wanted further time.
It is clear that the Tribunal decision rested on the Tribunal's adverse findings about the Applicant's credibility. This of course is a matter for the administrative decision-maker, in this case the Tribunal. I am referred to Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham[7].
[7] (2000) 168 ALR 407; [2000] HCA 1 at [67]
Considerations
In my view, there was sufficient material before the Tribunal to allow the Tribunal to reach the decision that it did about the credibility of the Applicant's evidence. I am satisfied that the Tribunal complied with s.424A of the Migration Act. The Tribunal wrote to the Applicant before the hearing putting certain information before the Applicant and seeking his comments or responses. That letter also contained a request for further information under s.424.
The Applicant replied to the request for information under s.424 of the Act, but did not make any comments or response in respect to the matters referred to under s.424A of the Migration Act. This appears to have been due to a misunderstanding on the Applicant's part. Whilst that is unfortunate, it does not indicate any failure by the Tribunal to comply with s.424A of the Act. In any event, the Tribunal decision record sets out efforts by the Tribunal Member to comply with s.424AA of the Act. This can be seen at [48] in particular where the Tribunal asked the Applicant about the DYFI Kerala State District Committee. The Tribunal says:
The Tribunal explained that the Tribunal could come to the conclusion that the applicant was not involved in DYFI as he had claimed because he did not seem to know the names of the people in the State organisation. The Tribunal could come to doubt his claim and his credibility generally. If it did this it may decide to confirm the decision to refuse the visa.[8]
[8] See Court Book at page 148.
Similarly, the Tribunal put other matters to the Applicant which are set out in [49] and [50] of the Court Book which shows that the Tribunal was putting matters to the Applicant and seeking his comments or response. Further on the Tribunal sets this out at [72]:
The Tribunal asked the applicant if he needed more time to comment or respond to information that he was given in the course of the hearing that the Tribunal considered would be a reason or part of a reason for affirming the decision to refuse the protection visa. The applicant did not request any further time.[9]
[9] See Court Book at page 155.
To my mind, this appears to be a bona fide attempt by the Tribunal to comply with s.424AA of the Migration Act. In my view, there is no breach of s.425 or s.424A of the Migration Act. The Tribunal invited the Applicant to attend a hearing. It wrote to him by letter dated 8th January 2009 inviting him to attend a hearing to take place on 24th February. The Applicant attended that hearing and was provided with an interpreter in the Malayalam language. The Applicant had sought a Malayalam interpreter in his response to hearing invitation.[10]
[10] See Court Book at page 88.
It is also clear that the issues raised at the Tribunal hearing were those of the inconsistencies in the Applicant's statements and the overall credibility of his evidence. These were matters that the delegate had found to be the reasons for refusing the grant of a protection visa in the first place. In my view, the Applicant would have been aware that those issues at the hearing were the issues to which he turned his mind. In my view, there is no breach of procedural fairness, which, in any event, is covered by s.422B of the Migration Act.
There is no breach of natural justice. There is no jurisdictional error.
Conclusion
I am mindful of the fact that the Applicant is not legally represented in these proceedings, although he had the assistance of a barrister on the RRT legal advice panel scheme.
I in my own independent reading of the Tribunal decision and the supporting documents am unable to identify any arguable case of jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Privative clause decisions are not subject to the orders in the nature of certiorari or mandamus as the Applicant seeks. It follows that the application will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 29 June 2009
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