SZNLU v Minister for Immigration - [2009] FMCA 686

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 686

MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – claim of well-founded fear of persecution being a member of a particular social group where a family member is part of that social group – no reviewable error shown.

Migration Act 1958 (Cth), ss.91S, 424A, 425, 474

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592; 81 ALJR 515 [2006] HCA 63

Applicant:

SZNLU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 879 of 2009

Judgment of:

Scarlett FM

Hearing date:

13 July 2009

Date of Last Submission:

13 July 2009

Delivered at:

Sydney

Delivered on:

13 July 2009

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4800.00 and I allow 6 months.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 879 of 2009

SZNLU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant in this matter seeks review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 18 March 2009. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant seeks a declaration that that the Tribunal’s decision is invalid, and seeks a writ of certiorari quashing the decision of the Refugee Review Tribunal. It has been explained to the applicant that in order for the Court to make orders of that type the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error. The applicant in his application claims that the decision is affected by jurisdictional error, in particular a breach of procedural fairness and a breach of natural justice.
The first respondent, the Minister for Immigration and Citizenship has filed a response opposing the orders sought.

Background

The applicant is a citizen of India. He comes from Kerala and his language of choice is Malayalam. He is a Christian by religion. On 9 July 2008 he arrived in Australia, and 22 August 2008 he applied for a Protection (Class XA) visa. Attached to his visa application was a six-page typed statement. A copy of that statement can be found at pp.27-33 of the Court book.
In the statement the applicant has set out a number of matters relating to claims of persecution of Christians in India generally, and particularly in Kerala. He claims in his statement that he is a refugee and says in particular:
I wish to emphasise that as far as the submissions in respect of race, religion and nationality, membership of a particular social group, or political opinion, are concerned I submit that for the most part they are indistinguishable from each other[1].
[1] See Court Book at page 30
The applicant’s statement details his family background and, in particular, his troubled relationship with his brother. His elder brother is apparently a criminal in India and he claims that the brother served a sentence of six months imprisonment due to his involvement in the death of a policeman. The applicant claimed that the police in India had detained and persecuted him in an attempt to get to his brother. In particular, he claimed that some of the police involved were themselves corrupt and feared being exposed by the publication of photographs of them taken by his brother.
A delegate of the Minister interviewed the applicant on 17 November 2008. The delegate refused the application for a protection visa the following day. The delegate’s reasons were that the delegate had doubts about the credibility of the applicant’s claims, and was not satisfied that the harm feared by the applicant at the hands of the police was for a reason connected to the Refugees Convention[2].
[2] See Court Book at page 65

Application to the Refugee Review Tribunal

After the application for a protection visa was refused the applicant applied to the Refugee Review Tribunal on 16 December 2008 seeking a review of the delegate’s decision. The Tribunal wrote to the applicant on 19 January 2009 inviting him to attend the hearing scheduled to take place on 24 February 2009. The applicant attended at the premises of the Refugee Review Tribunal on that morning.
A file note in the Court book shows that the applicant complained to be feeling unwell, and wished to go to seek medical attention. The note stated that the applicant had back pain and had been in pain for a number of days. The writer of the memorandum discloses that he discussed the matter with the Tribunal member who advised him that the hearing would still ahead as scheduled. The Tribunal officer set out in the memo that he advised the applicant that the Tribunal would do its best to accommodate his condition:
I advised we could find him a chair that may be more comfortable or a pillow. I also advised that the Tribunal wouldn’t have a problem with granting regular breaks throughout the hearing if that is what he felt he needed. I informed him that if he felt he could not continue with the hearing then he should advise the member of this during the hearing[3].
[3] See Court Book at page 78
The Tribunal officer recorded the applicant as saying:
That sounded reasonable and he would wait for the hearing to commence and see how he felt during the hearing.
The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Malayalam language. During the hearing the Tribunal member asked the applicant a number of questions about his case.

The Refugee Review Tribunal Decision

The Tribunal signed its decision on 18 March 2009 affirming the decision not to grand the applicant a Protection (Class XA) visa. The Tribunal posted a copy of the decision to the applicant on 19 March 2009.
In its decision record the Tribunal set out the applicant’s claims from his application for a protection visa, a summary of the applicant’s interview by the delegate on 17 November 2008, and a summary of the applicant’s evidence at the Tribunal hearing. In its findings and reasons the Tribunal noted that there were a number of discrepancies between the applicant’s claims as presented to the Department and the evidence he gave to the Tribunal. Despite those discrepancies the Tribunal said this:
However, having regard to the difficulties of proof faced by applicants to refugee status the Tribunal gives the applicant the benefit of the doubt and, irrespective of the fact that he initially confirmed the accuracy of his written claims, the Tribunal accepts his statement to the Tribunal that his oral evidence at the hearing represents the true version of his claims. The Tribunal therefore is prepared to rely on the applicant’s oral evidence in assessing his claims and does not draw any adverse inference from the inconsistencies between the applicant’s written claims and his oral evidence[4].
[4] See Court Book at page 103
The Tribunal noted that the applicant essentially claimed to have been taken, detained and mistreated by the police because they wanted to use him to reach or capture his brother. The Tribunal noted the applicant also feared harm from criminal gang members who were rivals to his brother. The Tribunal noted the applicant’s claim that his brother supported the Congress Party but was not satisfied that this perceived political connection provided any linkage to a Convention reason. The Tribunal was satisfied that the applicant’s fears were not essentially and significantly Convention related.
The Tribunal went on to consider whether the applicant’s membership of a particular social group was the essential and significant reason behind the harm that he suffered, and the harm that he feared in the future. The social group concerned was the applicant’s membership of his brother’s family. The Tribunal considered the effect of s.91(S) of the Migration Act and stated that it disregarded the applicant’s past experiences of harm, and his fear of future persecution, because they all flowed from the applicant’s brother’s non-Convention related fears. The Tribunal found there was no evidence to suggest that the treatment levelled against any other member of the applicant’s family was essentially and significantly motivated by any other Convention reason.
The Tribunal referred to the applicant’s claim about his involvement with the closure of a factory which emitted pollution in the area, but found itself unable to find anything to suggest that the applicant was directly involved or affected by these events, let alone harmed by them. The Tribunal found there was no essential or significant link to a Convention reason and found that the applicant did not have a well founded fear of persecution for the reason of the events preceding or during or following the factory’s closure. The Tribunal went on to note the fact that in the application for a protection visa the applicant had referred to news articles and reports about the situation of Christians in India.
The Tribunal did not find that there was any evidence to suggest that the applicant had suffered any harm in the past, or was fearful of returning to India for reasons of his Christian faith, and found:
The implication is clear in that the applicant has suffered no harm and fears no persecution for the reason of his religion if he were to return to his locality in India[5].
[5] See Court Book at page 105
The Tribunal also considered that there was nothing in the applicant’s evidence or demeanour in the course of the hearing to indicate that he was experiencing difficulties in understanding and responding to the Tribunal’s questions because of his back ache or any discomfort he might have felt as a result. The Tribunal was satisfied that the applicant’s state of health did not affect his ability to give oral evidence. The Tribunal was satisfied that the applicant’s fear of persecution in India for a Convention reason was not well founded and therefore found that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee’s Convention. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.

Application For Judicial Review

The applicant commenced proceedings in this Court on 16 April 2009 by filing an application and an affidavit. The affidavit sets out the applicant’s history of applying for protection, and annexes a copy of the Refugee Review Tribunal decision. The application claims a declaration that the Tribunal’s decision is invalid and asks for a writ of certiorari quashing the decision. The grounds of the application, as I said, are:
i)Jurisdictional error;
ii)Breach of procedural fairness; and
iii)Breach of natural justice.
The applicant has not filed any written submissions but has attended Court today and made oral submissions in support of his claim.
The applicant pointed out to the Court that he was not represented by a migration agent or by a solicitor. That of course is unfortunate but that is the situation that many applicants for protection visas find themselves in when they are applicants for review in this Court. That is one reason why the Refugee Review Tribunal sponsors a legal advice scheme for applicants. The applicant did have the benefit of a conference with a barrister on the legal advice panel, and was provided with written advice. I accept that he was not legally represented at the hearing today.
The applicant complained that he had initially consulted a migration agent, but said that the migration agent charged him money but did not provide him with proper assistance. I advised the applicant that if he had a complaint about the migration agent he could complain to the Migration Agents Registration Authority. The applicant has been provided with contact details of that authority so that he may pursue his claim.
When asked to elaborate on the grounds of his application the applicant told the Court that his attention had been distracted from the Tribunal hearing due to the pain and discomfort that he suffered from the back ache that he had incurred. He told the Court that he had asked the Tribunal for a postponement of the hearing but that had not been granted. He said that he was in pain at the hearing. The applicant did not provide any medical evidence to show that he had obtained medical or hospital advice before the hearing, and did not produce any to the Tribunal.
He told the Court that the Tribunal member, during the hearing, asked him if he might need a rest because of his back pain. He said that he told the Tribunal that he preferred to continue so that he could complete the hearing and go home and rest. The applicant also told the Court that the situation back in India was against him, and it was not safe for him to return. He referred in his submission in reply to difficulties between religion groups in India, and noting the fact that he is of the Christian religion.
The Minister filed a written submission and made oral submissions. It was put by Mr White for the Minister that the applicant’s purported grounds of review amounted to no more than bare assertions of jurisdictional error. In the absence of particulars they could not succeed but in any event, it was submitted, the Tribunal’s findings did not disclose jurisdictional error. It was submitted further that the Tribunal considered the applicant’s claims and, in particular, considered whether a Convention nexus had been established because the applicant was a member of a particular social group, being his brother’s family.
It was submitted, however, that the Tribunal had regard to the terms of s.91S of the Migration Act and correctly identified that that section required it to disregard any fear of persecution, or persecution that his brother had experienced for a non-Convention reason, and to disregard any fear of persecution, or persecution that the applicant and any other family member had ever experienced, where it was reasonable to conclude that that fear or persecution would not exist if it were assumed that the fear of persecution of his brother had never existed. It was put in fact that s.91S was fatal to the applicant’s claim.
It was also put that the Tribunal did not fall into error in dealing with the applicant’s claims arising out of his back pain, and acted correctly when it proceeded with the hearing. It was also submitted that the applicant did not suffer from any breach by the Tribunal of s.425 of the Act, and that s. 424(A) of the Migration Act did not apply. In short, the Minister submits that the Tribunal did not fall into jurisdictional error and the application should be dismissed.
The applicant’s claims of jurisdictional error are indeed bare assertions without particulars. The claim agitated at the hearing before the Court today is that of a breach of procedural fairness by the Tribunal in requiring the applicant to proceed with the hearing, notwithstanding the fact that he was in pain from having sustained a back injury. In this regard I note that the applicant was not able to produce any medical evidence which would have supported an application for an adjournment.
The Tribunal officer’s memorandum or case note, set out on pp.77-78 of the Court book, shows that the Tribunal officer advised the applicant of ways that the Tribunal could assist him in being comfortable during the hearing. The case note records the applicant as saying that he would wait for the hearing to commence and see how he felt during the hearing. The Tribunal dealt with this very issue in its decision record. The Tribunal said:
Immediately before the hearing the applicant notified a Tribunal officer that he was suffering from back pain. At the outset the Tribunal asked the applicant about the nature of his back pain. He said he works in a meat factory and started experiencing back pain three days ago. The Tribunal asked him what the most comfortable position for him was. He said he was most comfortable when standing up. The Tribunal asked him if he was able to give evidence whilst standing up. He said he was. The Tribunal requested that he make it known if he felt pain or discomfort at any point during the course of the hearing. He said he would do so. The Tribunal also offered him regular breaks if he felt the need to take them[6].
[6] See Court Book at page 100
The applicant told the Court in his submissions that whilst he was offered a rest during the hearing he said that he preferred to continue. In my view there is no evidence to show that the Tribunal acted unfairly or unreasonably in continuing with the hearing.
The Tribunal invited the applicant to attend the hearing as required by s.425 of the Migration Act. The Tribunal provided the applicant with an interpreter in the Malayalam language. The applicant gave evidence at the Tribunal hearing, and the Tribunal was satisfied that the applicant was not prevented from doing so because of his back ache or any discomfort arising from the earlier injury. The issues discussed with the applicant at the hearing were the same as those that the delegate had referred to in refusing the application for a visa.
The delegate was not satisfied with certain aspects of the credibility of the applicant’s claims, and was not satisfied that there was a Convention nexus with the difficulties that the applicant had suffered from the police, arising out of his brother’s criminal activities. In my view there was no issue raised at the hearing which would have taken the applicant by surprise, and there is certainly no breach of s.425 in the way identified by the High Court of Australia in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[7] at [42] – [44]. I am satisfied that no breach of s.425 of the Act generally has been disclosed.
[7] (2006) 231 ALR 592; 81 ALJR 515; [2006] HCA 63
It is also a factor in this matter that the Tribunal made its decision based on the applicant’s claims and evidence. The Tribunal considered the applicant’s statement in his application for a protection visa, just as it considered the matters raised by the applicant at the interview with the delegate, and at the Tribunal hearing. Indeed, where there was a discrepancy the Tribunal preferred the matters raised by the applicant at the Tribunal hearing. In the end the Tribunal was not satisfied on the applicant’s evidence that he had made out a well founded fear of persecution for a Convention reason. As all of this material came from the applicant himself it is clear that no issue arises of any breach of s. 424A of the Migration Act.
It is also noteworthy that the Tribunal considered all of the applicant’s claims arising out of the fact situation that he presented to the Tribunal. The Tribunal, in my view, did not fall into error when it considered the operation of s.91S of the Migration Act. That section says:
For the purposes of the application of this Act, and the regulations, to a particular person (the first person) in determining whether the first person has a well founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution or any persecution that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol and
(b) disregard any fear of persecution or any persecution that,
(1) the first person has ever experienced or,
(2) any other member or former member (whether alive or dead) of the family has ever experienced where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in para.(a) had never existed.

In other words, where a person claims fear of persecution as a member of a particular social group where that particular social group is the applicant’s family if the family member suffered a fear of persecution or a fear of persecution for a non-Convention reason, then that fear of persecution or persecution must be disregarded when considering the applicant’s position. The Tribunal considered the facts relating to the applicant’s brother who, apparently, has an extensive criminal record and was satisfied that the applicant’s brother’s fear from the police must be disregarded under s.91S of the Migration Act.
The applicant’s brother did not have a fear of persecution for a Convention reason, so the Tribunal correctly reasoned and correctly applied s.91S by finding that the applicant could not claim a fear of persecution by reason of being a member of that social group, namely the family of his brother.
In my view no jurisdictional error has been made out. The applicant, as I said, did have the benefit of legal advice from a barrister under the RRT legal advice panel scheme. That being said it is clear that the application commencing these proceedings was not drafted by the barrister who gave the advice. The first order sought seeking a declaration that the protection visa is invalid is a standard form order which is somewhat confused in its wording and does not appear to have been prepared by a legal practitioner at all. It was necessary to have some discussion with the applicant at the hearing in order to be clear what sort of declaration the applicant actually sought.
However, I am satisfied that the Tribunal did not fall into jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision. Under s.474 of the Migration Act privative clause decisions are final and conclusive and are not subject to declarations by the Court or orders in the nature of certiorari. It follows that the application must be dismissed and I make that order.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim and an order for costs will normally follow the event. The amount sought is $4800 and I am satisfied that that is an appropriate figure. The applicant has put to the Court that that is a figure that is high and he would have some difficulty meeting those costs. He is in employment, however, I am satisfied that an amount of $4000 is a substantial figure to meet. It is a reasonable inference that the applicant would not be able to pay that amount within 28 days. I am satisfied that it is an appropriate order to make but I will allow six months to pay.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 21 July 2009