SZNLQ v Minister for Immigration
[2009] FMCA 774
•5 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 774 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of denial of procedural fairness not proved – miscarriage of discretion not proved – merits review unavailable in juridical review proceedings. |
| Migration Act 1958, ss.422B, 424, 424AA, 424A, 425, 427, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 |
| Applicant: | SZNLQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 874 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 August 2009 |
| Date of Last Submission: | 5 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 874 of 2009
| SZNLQ |
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 the president of the Kerala Catholic Youth Movement (“KCYM”) in the Trivandrum Archdiocese. He claims that, as the KCYM’s president, he was accused by Hindu extremists of converting Hindus to Christianity. He claims that, as a consequence, he was attacked on numerous occasions by his opponents.
The applicant claims to fear persecution in India because of his Catholic faith and because of his involvement in the KCYM.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
12 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 – 13 of the Tribunal’s decision (Court Book (“CB”) pages 109 – 118). Relevantly, the applicant alleged:
a)he was born into a Roman Catholic family;
b)he joined the KCYM in the Trivandrum Archdiocese in 2004 and was elected president at a stated point in time. His work included providing welfare to dalits (untouchables) and fishermen;
c)as president of the KCYM, he was accused by the RSS and Hindu extremists of converting people to Christianity. In April 2006 he and some colleagues were attacked by members of the RSS while working in a village. He suffered bruising but was not seriously injured;
d)the applicant suffered further attacks in May and August 2006 and his parents received anonymous telephone threats indicating that he would be killed if he did not stop converting people;
e)on each of these occasions he approached the police for protection but there was no effective follow up. As for the KCYM and the Trivandrum Social Services Society (“TSSS”), they reacted cautiously as they did not want to incite communal tensions. He later added that the KCYM and TSSS organised a rally to protest the May 2006 attack;
f)the church advised him to avoid confrontation with the RSS as they were concerned that complaints or resistance could provoke further attacks, however, they took the precaution of having someone accompany him during his further activities;
g)in September 2006 he fled to Tamil Nadu. However, the RSS followed him there and one day threw chilli powder in his face while he was riding a motorcycle with his sister and niece. All three suffered injuries and were hospitalised. He then fled to Bhopal but the RSS learned of his whereabouts and threatened him so he travelled to Bangalore. However, he was attacked once again and so fled to Mumbai and then to Maharashtra;
h)the director of the TSSS, Fr. Gomez, told him about a group travelling to World Youth Day and about the prospect of securing protection in Australia. When he returned to Kerala in March 2008 to get married, with Fr. Gomez’s help he had already set in train his plans to visit Sydney. He did not take steps to visit any other country;
i)he attracted attention from opponents because of his public speaking: unlike others, he was outspoken and he held meetings in public venues so as to capture a wider audience. He was recognisable in parts of India beyond Kerala because of TV and print media coverage of his activities;
j)he was not sure whether others in the KCYM, or similar groups, suffered from similar problems; and
k)if he returned to India he would resume his activities with the KCYM. He is not safe anywhere in India and his assailants continue to ask after him. The Indian authorities will not help him because he is a Christian and belongs to a social group.
At the hearing on 10 February 2009 the Tribunal put to the applicant, pursuant to s.424AA, particulars of information which it considered adverse to his review application. That information covered the following:
a)country information indicating, amongst other things, that Christians in Kerala enjoy relative safety and that the BJP and other extremist groups are not considered a serious threat to Christians or other minorities. In response, the applicant stated that there were many reports to prove that he had been attacked and that the RSS might not have political power in Kerala but they can still attack anyone;
b)information from the Kerala Public Service Commission indicating that on 18 November 2006 the applicant successfully sat an examination in Malappuram for recognition as a junior health inspector, casting doubt on his claim that he was hiding in Tamil Nadu from September 2006. The applicant stated that he was indeed hiding in Tamil Nadu at the time but was able to return to Kerala by direct train. He confirmed the Tribunal’s information but said that he relied on coursework which he had done in 1998 and never actually took up any work as a health inspector; and
c)a bank statement attached to the applicant’s visitor visa application for the period June 2007 to April 2008 showing regular deposits and withdrawals, including ATM transactions. The Tribunal indicated to the applicant that this appeared consistent with a person who was present and using the account in a normal fashion. The applicant variously stated that the large deposits were commissions he had earned while working in Bangalore; that he handed over his account details and PIN to people in Kerala who operated the account on his behalf; and that Fr. Gomez had advised him that he should have an active bank account in his own name in order to obtain an Australian visa.
After the hearing, the Tribunal received the following information from the Department of Foreign Affairs & Trade (“DFAT”):
Fr. Jaison Kollannur (KCYM State Director) confirmed that the applicant was the past President of the Trivandrum Archdiocese KCYM … He stated that the applicant was also a bank employee and worked in a cooperative bank, in addition to being the Youth President. Fr. Kollannur described the youth development and training programs that the applicant had been involved in. DFAT advised that it was not aware from its discussions of any factors arising from the applicant’s work or involvement with the Archdiocese of the KCYM why the applicant could not return to Kerala or India.
The Archbishop of Trivandrum, Rev. Dr. Pakiam did not recognise the applicant’s name. He said that his office had provided letters to a number of people attending WYD, and he was aware that some had stayed in Australia.
The applicant appeared before the Tribunal for a second time on
18 March 2009and, with respect to the information received from DFAT, made the following comments, principally in response to what appears to have been a second s.424AA notification:
a)both Archbishop Pakiam and Fr. Kollannur knew him but for “some reason” did not tell the Australian authorities about his activities or his risk of persecution. He suggested that, having authorised his travel to Australia for World Youth Day, Archbishop Pakiam and Fr. Kollannur were perhaps now more concerned about the reputation of their New Delhi-based organisation than with his safety. He also suggested that they were less concerned about him because he is a layman. The applicant provided the Tribunal with two photographs showing him and the archbishop;
b)Fr. Kollannur may have relied on file information from 2006 and therefore might not be aware of his activities and experiences past this point. The applicant implied that Fr. Kollannur, as State Director of the KCYM, did not necessarily know all that was going on at a local level; and
c)he urged the Tribunal to give weight to the advice of local church representatives and presented a letter dated 16 March 2009 which he claimed to have received from Fr. Gomez via email. The letter stated, amongst other things, that the applicant remained at risk from his enemies.
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)in the Tribunal’s view, the applicant’s narrative was confused and piecemeal and he was markedly evasive about his activities beyond 2006. The Tribunal found that the applicant’s comments and responses to the matters put to him by the Tribunal concerning evidence it had obtained regarding his employment history was unconvincing and it did not accept them. In the Tribunal’s opinion, the applicant’s evidence as to his past residency and employment was unreliable, calling into question his overall credibility;
b)nevertheless, the Tribunal accepted that the applicant was the president of the KCYM in the Trivandrum Archdiocese during an identified period and that he held this position or was otherwise active in the KCYM and TSSS during a second identified period. However, given “conflicting signals” the Tribunal received about the significance and relevance of his position, it found that the applicant’s profile did not extend beyond the Catholic youth community in Trivandrum;
c)the Tribunal’s serious concerns about the applicant’s claims of past harm in India led it to conclude that he had not suffered persecution or any related harm in the past and that his refugee claims were not truthful, on the basis that:
i)the Tribunal considered it highly unusual that a local leader who had experienced the targeting claimed by the applicant would not know of, or at least make enquiries about, the experiences of his colleagues or counterparts and, in this respect, found that the applicant’s account lacked significant relevant context. The Tribunal was left with a strong impression that the applicant did not turn his mind to these issues until they were raised at the hearing because his claims of past harm were not true;
ii)the Tribunal did not believe the applicant’s claims and evidence about his flight from persecution in Trivandrum and his attempted resettlement in other Indian states. The Tribunal noted that these locations were separated by large distances and populations and it did not accept, based on the available material, that the applicant was so well known throughout India that he was discovered by RSS activists or that he chanced upon people who recognised him;
iii)the Tribunal found that there was strong evidence that the applicant continued to live in Kerala right up until the time of his departure from India. In this connection:
· he sat a junior health inspector examination in Kerala in November 2006 and this cast doubt on his claim to have been living in Tamil Nadu at the time. The Tribunal found that the applicant’s evidence on this matter was unsatisfactory and was more consistent with someone with ongoing work and career interests in Kerala;
· his bank statement showing deposits and withdrawals from mid-2007 appeared consistent with the normal use of a transaction account rather than with the finances of a person in hiding in different parts of India. In the Tribunal’s view, the applicant’s explanations were offered in a somewhat improvised manner and did not dispel its impression that the applicant himself was using the account in Kerala for his day-to-day needs; and
· the Tribunal placed weight on Fr. Kollannur’s advice that the applicant was working and at the same time involved in the Catholic church, implicitly without interruption until his departure from India. The Tribunal also found it significant that neither Archbishop Pakiam nor Fr. Kollannur gave any hint of concern about the applicant’s welfare and, given country information about the relative safety of the Catholic community in Kerala, considered that persecution of a Catholic youth leader would, contrary to the applicant’s assertions, generate concern and support from prominent persons such as Archbishop Pakiam and Fr. Kollannur. The Tribunal also had regard to the letter from Fr. Gomez but found that this did not displace its serious concerns about the credibility of the applicant’s claims;
iv)the Tribunal found that the applicant’s claimed “return” to Kerala in March 2008 to get married was inconsistent with his claim to have a genuine fear of persecution from the RSS, particularly given his claim that the RSS had pursued him in three different states outside Kerala; and
v)in the Tribunal’s opinion, the timing and nature of the applicant’s travel to Australia was pre-planned and unhurried and was inconsistent with the urgency that would indicate a genuine flight from persecution. The Tribunal noted the applicant’s claim that he was trying during 2007 and early 2008 to relocate safely in India. However, the Tribunal found that he was living in Kerala throughout this period and therefore did not accept that the applicant made attempts to relocate in India and thus this could not be used to explain his delayed departure from the country;
d)in light of these concerns, the Tribunal concluded that the applicant’s refugee claims were not truthful and that he did not experience serious harm or threats from the RSS or anyone else in India;
e)the Tribunal accepted that the applicant’s activities as president of the KCYM might have had the potential to arouse tensions with other organisations. However, given the applicant’s personal circumstances and also country information about the treatment of Catholics in Kerala, including the very limited influence of the RSS there, the Tribunal found that the applicant experienced no such problems and could return to Kerala and resume his engagement with the Trivandrum Archdiocese’s religious and social welfare services with no real chance of Convention-related persecution; and
f)finally, the Tribunal found that the applicant had never sought the assistance of the Indian police because there was no need for him to do so. It was satisfied that adequate and effective state protection was available should the applicant require it in the future.
Proceedings in this Court
Allegations
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
In his oral submissions today the applicant raised further matters touching on the Tribunal’s fact finding and its conclusion on the merits of his application. He also raised the possibility of the Tribunal’s discretion having miscarried in connection with further inquiries which the applicant submitted the Tribunal should have made.
Turning first to the allegations set out in the application, it should be observed that none of them is particularised nor, with the exception of the issue concerning the possible miscarriage of discretion, has the applicant said anything today to give the allegations appearing in the application any particular substance.
Denial of procedural fairness /natural justice
Dealing first with the second and third allegations, it should be noted that they raise the same issues. The expressions “procedural fairness” and “natural justice” are simply different terms for the same concept; a concept which has two parts. The first part is that a person is entitled to have a hearing which is fair in the procedures which are applied. The second part is that a person is entitled to have a hearing that is not tainted by bias.
In the context of a review by the Tribunal, an applicant’s right to a fair hearing is codified in div.4 of pt.7 of the Act. The sections most commonly considered in the context of div.4 of pt.7, as potentially giving rise to jurisdictional error on the Tribunal’s part, are ss.424A and 425. In his submissions today, the Minister has also raised the question of whether any breach of the Tribunal’s obligations under s.424 can be discerned.
As to the possibility of any breach by the Tribunal of its s.424A obligations, it should first be noted that relevantly s.424A provides:
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.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(2A)...
(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 record discloses that its conclusion on the applicant’s review application was based on conclusions arising out of information which the applicant gave to the Tribunal, including in response to two s.424AA notifications and independent country information. Such information either falls within the exclusions found in s.424A(3) or arises out of the Tribunal’s satisfaction of its obligations under s.424A(1) by way of its oral notifications pursuant to s.424AA.
For these reasons, I find that no breach of the Tribunal’s obligations under s.424A is apparent and I also conclude that the Tribunal’s decision record discloses that in giving its s.424AA notifications the Tribunal complied with that section’s procedural requirements.
As to the Tribunal’s s.425 obligations, it must first be recorded that the Tribunal invited the applicant to a hearing which he attended. Further, the Tribunal put to the applicant those issues arising in relation to the decision under review in respect of which he had to be given an opportunity to give evidence and present arguments. The most important of these issues was the applicant’s overall credibility. The question of whether his allegations should be believed was squarely put to the applicant on more than one occasion by the Tribunal. Issues were also raised by the s.424AA notifications and it should also be observed that the applicant was afforded a second hearing after the Tribunal received further information from India.
As to the possibility that the Tribunal breached its obligations under s.424, an issue which relates to its inquiries through DFAT, it is to be noted that prior to those inquiries which are recorded in the Supplementary Court Book, no information had been received by the Tribunal from that department in connection with this review. Thus, it could not be said that the information sought or provided was “additional information” as that term is understood for the purposes of s.424. Moreover, the word “person” where that is used in s.424 means a natural person rather than a government department: SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51.
For these reasons, I do not conclude that any breach of s.424 is apparent from the Tribunal’s decision record or the other evidence before me.
Nor can it be said that any other section found in div.4 of pt.7 has been shown to have been breached by the Tribunal including s.422B(3). For these reasons, I conclude that no breach of the Tribunal’s obligation to provide the applicant with procedural fairness and natural justice in connection with the procedures employed at the hearing have been disclosed.
As to the possibility that the Tribunal’s decision was tainted with bias, nothing to this effect has been advanced by the applicant nor is any such inference available from the evidence before the Court. For these reasons, I conclude that the second and third allegations set out in the application are not proved.
Allegation of jurisdictional error
Turning to the first allegation made in the application, the overarching allegation of jurisdictional error. With the exception of the matter concerning the possible miscarriage of the Tribunal’s discretion, nothing has been advanced in support of this ground other than the matters which I have already considered in these reasons. As already noted, none of the allegations made in the application have been particularised and thus the first allegation lacks content and substance.
Miscarriage of discretion
A matter which has been raised today in the applicant’s oral submissions is whether the Tribunal should have made inquiries of
Fr. Gomez who, the applicant submits, could have corroborated his allegations. Implicitly, the applicant submits that the Tribunal erred in the exercise of its discretion whether to exercise its powers under ss.424 or 427 to obtain from Fr. Gomez information additional to that contained in the letter from him to the applicant which the latter supplied to the Tribunal.
However, there is no evidence before me to suggest, nor did the applicant submit, that he had asked the Tribunal to make contact with Fr. Gomez. Nor is it apparent that anything else connected with the review even suggested to the Tribunal that it should exercise the discretion, let alone that it should exercise it in the manner now suggested by the applicant.
In this regard, it should be noted that the Tribunal clearly gave consideration to Fr. Gomez’s letter but found that it could not overcome the weight of the other evidence leading the Tribunal to reach a conclusion adverse to the applicant. In the circumstances, I do not conclude that jurisdictional error is demonstrated by the fact that the Tribunal did not make inquiries of Fr. Gomez.
Merits review
The other matters raised today by the applicant in his oral submissions raised questions touching on the Tribunal’s factual conclusions and the decision which it made as to the merits of the applicant’s application for a protection visa. These are not areas into which the Court can trespass. It is the Tribunal’s role to make findings of fact and to reach conclusions on the merits of review applications and it is the Court’s role to determine whether the Tribunal has erred in the procedures which it followed and in its application of the law when reaching its conclusion.
For these reasons, these matters raised today by the applicant do not disclose any basis upon which the Court might set aside the Tribunal’s decision.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 August 2009
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