SZNOR v Minister for Immigration & Anor (No.2)
[2009] FMCA 726
•16 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 726 |
| 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 is a citizen of India claiming fear of persecution on grounds of political opinion – credibility – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R, 424, 424A, 424AA, 425, 474 |
| SZNOR v Minister for Immigration & Anor [2009] FMCA 639 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 401; 74 ALJR 405; [2000] HCA 1 |
| Applicant: | SZNOR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1118 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 July 2009 |
| Date of Last Submission: | 16 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondents: | Ms Dinihan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,630.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1118 of 2009
| SZNOR |
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 asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal made its decision on 9th March 2009 affirming a decision not to grant him a Protection (Class XA) visa.
The Applicant seeks orders:
i)Quashing or setting aside the decision of the delegate made on 11th November 2008.
ii)A declaration that the decision made by the Tribunal on 9th March 2009 was null, void and of no effect.
iii)An order remitting his application to the Tribunal for rehearing in accordance with law.
iv)A writ of prohibition restraining the First Respondent, the Minister for Immigration and Citizenship, from acting on the decision of the Tribunal and from acting on the purported decision made by the delegate on 11th November 2008.
v)The Applicant seeks an order restraining the Minister from serving removal orders pending the determination of this application.
The first point to be made is that the orders sought relating to the decision of the Minister’s delegate on 11th November 2008 are orders outside the jurisdiction of the Court. The Court has no power under s.476 of the Migration Act to deal with primary decisions, which is what the delegate’s decision is. It is a matter of no consequence, however, because the delegate’s decision has been reviewed by the Tribunal, and it is the Tribunal decision which is the decision under review today.
The Applicant relies on three grounds of review in his application, and two separate grounds of review in a submission filed on 13th July 2009. It may be that the submission was intended to be an amended application but for more abundant caution I propose to deal with all of the grounds in the Applicant’s application and submission.
Background
The background to this matter is that the Applicant arrived in Australia on 7th August 2008. He applied for a Protection (Class XA) visa on 25th August 2008. The basis of his application can be found in his answers to questions 41 through to 45 in the protection visa application. They are reproduced on pages 22-23 of the Court book.
The application claims to have been a strong supporter of the Congress Party which had been in power in the Punjab from where he came. He claimed to have been a very active member and to have attracted unfavourable attention from members of an opposition party, the Akali Party. He claimed that after the elections in the Punjab in 2007 that the local Akali members attempted to kill him. He claimed that for the safety of his life he organised a visa to enter Australia, and left India on 6th August 2008.
He claims to fear that local Akali Party workers would kill him if he returned to his country, and to have a genuine fear of persecution. He is also a supporter of one Dera Baba Gurmeet Ram Rahim Singh. He claims that his support for that person and his movement would also render him in danger of being killed by Akali Party workers. In reply to question 45 in the application as to his view of whether the authorities in India could and would protect him if he went back the Applicant said:
I have no faith and confidence on the authorities which may protect me from any attack from the Akali supporters.[1]
[1] See Court Book at page 23.
The Department of Immigration & Citizenship wrote to the Applicant on 8th October 2008 inviting him to attend an interview scheduled for 1:00pm on Tuesday 11th November 2008.
The Applicant did not attend the interview. The delegate of the Minister refused his application for a visa that same day. I note through what is apparently a typographical error the Protection (Class XA) visa decision record appears to be dated 11th November 2007, but from the context it is clear that that is an error.
The delegate noted:
As the applicant has chosen not to attend an interview to discuss his serious claims, his fear of persecution upon return to India cannot be critically examined. Subsequently I cannot be satisfied as to the veracity of the applicant’s claims. I am not satisfied that the claims that have been made are true claims, or that the Convention reason stated, i.e., political opinion, is the reason for which the applicant does not wish to return to India.[2]
[2] See Court Book at page 89.
Application to the Refugee Review Tribunal
After his application for a visa was refused the Applicant applied to the Refugee Review Tribunal for a review of that decision. That application for review was received by the Sydney registry of the Tribunal on 8th December 2008. The Tribunal wrote to the Applicant on 14th January 2009 inviting him to attend a hearing of the Tribunal scheduled for 16th February 2009.
The Applicant attended that hearing and gave evidence to the Tribunal with the aid of an interpreter in the Hindi language. Coincidentally, it is the same interpreter who has assisted the Applicant at the proceedings before the Court today.
The Applicant submitted a document to the Tribunal after the hearing. That document was dated 26th February 2009 and a copy of it can be found at pages 123 and 124 of the Court book. The Tribunal signed its decision on 9th March 2009 confirming a decision not to grant the Applicant a Protection (Class XA) visa.
In the Tribunal decision record the Tribunal set out the Applicant’s claims from his protection visa application and considered Independent Country Information about the Shiromani Akali Dal Party, which is the main political organisation of India’s Sikh community concentrated in the Punjab.
The Tribunal also considered the principles of a group known as Dera Sacha Sauda. The Applicant has claimed that his adherence to this group has also given him a well founded fear of persecution. The Tribunal also considered the result of the 2007 India state election. The Tribunal set out a detailed summary of the Applicant’s evidence to the Tribunal.
The Tribunal’s Findings and Reasons
In its findings and reasons the Tribunal found that the Applicant was a citizen of India, noting that he had produced his Indian passport. However, the Tribunal was not satisfied that the Applicant was a credible or reliable witness, and it noted that that finding was made on the basis of the information that was put to the Applicant at the hearing.
The Tribunal recorded several instances of inconsistencies between the Applicant’s written statement with his protection visa application and his evidence at the hearing. The Tribunal noted also that the Applicant lacked knowledge about events and people relevant to his claims, that he was unable to articulate the principles of the Dera although he claimed to have been a member of it for years and had practised regularly. The Tribunal noted the Applicant’s post-hearing written submissions which did not address the Tribunal’s concerns put to the Applicant at the hearing but reiterated his original claims.
Based on its adverse credibility finding the Tribunal was not satisfied that the Applicant was threatened or harmed by the Akali Dal in December 2006 or January 2007. It was not satisfied that the Applicant was a supporter of either the Congress Party or a follower of the Dera.
It found that the Applicant would not face harm in India because of any imputed political opinion or religious beliefs, and found that he did not have a well founded fear of persecution for a Convention related reason.
Accordingly, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review in this Court
The Applicant commenced proceedings in this Court on 8th May 2009, and it was necessary for him to seek leave to commence proceedings out of time. That extension of time was granted after a hearing on 17th June 2009 (see SZNOR v Minister for Immigration & Anor[3]).
[3] [2009] FMCA 639
The Applicant has filed a written submission which sets out two grounds that are not identical to the grounds set out in his application. I have chosen to deal with all of the grounds in both documents and I have heard submissions from the solicitor for the Minister on all of the grounds. The Applicant relied on his written documentation and chose not to make an oral submission to the Court. That of course is his right and no adverse conclusion is drawn from that fact.
Grounds of Review
The grounds in the Applicant’s application are these:
i)The Applicant submit the Tribunal erred in making findings of well-founded fear: the RRT erred in adopting an unduly harsh approach to the well-founded fear;
ii)The Applicant submit that the Tribunal has misconstrued the test; has failed to carry out the ‘real chance’ test as required by the law.
Particulars: The Tribunal did not accept any oral or written evidence with regard to the fear of persecution or harm;
iii)Tribunal made the decision on the basis of the unreliable information. The Tribunal should have made an investigation before making the decision, though the Tribunal has the power, the Tribunal did not make it, which amounts to denial of procedural fairness.
The two grounds of review set out in the Applicant’s written submission are these:
i)The Refugee Review Tribunal made a jurisdictional error when it misapplied the express and implied meaning of the term “well founded fear” and “refugee” from the UN Convention. The Applicant’s claim that the Tribunal erred in adopting an unduly harsh approach to the well-founded fear.
I would comment that that ground is similar to Ground 1 in the original application.
ii)The Tribunal identified wrong issue, asked itself wrong question, failed to consider relevant and did not accept any oral and written evidence.
That ground bears some resemblance to the particulars of the second ground in the original application. My view is, however, is, as I said, that I should deal with all of the grounds.
The solicitor for the Minister, Ms Dinihan, relied on a written outline of submissions in respect of the three original grounds, and made oral submissions in respect of the grounds in the Applicant’s outline of submissions. I would comment that the Applicant’s outline of submissions was filed late and, indeed, filed so late that the Minister’s solicitor was unaware of the document until after she arrived at Court. A photocopy was made of the Court copy and time was given to allow for reading of that document.
It is submitted for the Minister that the basic reason that the Tribunal did not accept the Applicant’s claims was that it did not believe him. Consequently there was no need to consider the test referred to by the Applicant set out in s.91R(1)(a) of the Migration Act. It was further submitted that there was no evidence that the Tribunal Member asked questions in a way that the Applicant could not understand, there was no evidence of bias, and as far as the Applicant’s beliefs were concerned the Tribunal had put propositions to the Applicant at the hearing relating to religious matters for him to comment upon.
Ground 1
The first ground, and to some extent the first ground in the outline of submissions, claims that the Tribunal erred in making findings of well-founded fear, it erred in adopting an unduly harsh approach to that test.
The fact is that the Tribunal made serious wide-ranging findings about the Applicant’s credibility. It did not accept the credibility of the Applicant’s account. That finding led to comprehensive findings that the Applicant had not been threatened or harmed by the Akali Dal in 2006 or 2007, that he was not a supporter of the Congress Party or a follower of the Dera, that he would not face harm in India because of any imputed political opinion or religious beliefs. Clearly those findings had to leave the Tribunal to a finding that it was not satisfied that the Applicant had a well-founded fear of persecution for a Convention related reason.
The question of credibility is a matter for the primary decision maker, in this case the Refugee Review Tribunal. Provided that there is evidence upon which an adverse credibility finding can be made this is a matter that remains entirely within the province of the Tribunal member, and it is not appropriate for a Court conducting judicial review to intervene.
The Applicant in his submissions makes a number of statements in which he cavils with the basis for the Tribunal finding that it did not accept him as a witness of credibility.
The fact is that it is up to the Tribunal to give what weight it considers appropriate to the evidence before it in making a factual finding, and credibility findings are factual findings, as is well established. (See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[4]).
[4] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 per McHugh J at [67]
In my view the first ground in the Applicant’s application has not been made out. That ground is essentially the same as Ground 1 in the outline of submissions, even though particulars are added with a quote from s.91R(1)(a) of the Migration Act:
Persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution and fear.[5]
[5] See Court Book at page 132 at [15].
In my view the Tribunal set out correctly its understanding of the law in this area, and Ground 1 set out in the outline of submissions has not been made out, just as the other version of Ground 1 in the application has not been made out.
Ground 2
Ground 2 in the application claims that the Tribunal misconstrued and failed to carry out the “real chance” test as required by law. Particulars of that are that the Tribunal did not accept any oral or written evidence with regard to the fear of persecution or harm. It has been submitted on behalf of the Minister, and I believe correctly, that this ground seeks merits review by taking issue with the Tribunal’s failure to accept the Applicant’s evidence.
The Tribunal set out in its decision its understanding of the real chance test. There is no error in the Tribunal’s statement in that regard. The Tribunal said:
A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it, but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[6]
[6] See Court Book at page 132 at [16].
The Tribunal did not err in its understanding of the real chance test and it stated that it was not satisfied that the Applicant would face a real chance of persecution for a Convention-based reason if he were to return to India.[7]
[7] See Court Book at page 142 at [87].
In my view there was a firm basis for the Tribunal’s finding in that regard. The Applicant complains that the Tribunal did not accept his evidence about his fear of persecution or harm. As I have said before, the weight given to evidence is a matter for the Tribunal. (See Lee v Minister for Immigration & Multicultural & Indigenous Affairs[8].)
[8] [2005] FCA 464
It was up to the Tribunal to give such weight to the Applicant’s evidence as it felt appropriate, and the fact that the Tribunal did not accept the Applicant’s evidence in this regard is not a ground for jurisdictional error.
Ground 2 in the application has not been made out.
Ground 2 from the Applicant’s Outline of Submissions
Ground 2 in the Applicant’s outline of submissions claims the Tribunal ‘identified wrong issue, asked itself wrong question, failed to consider relevant, presumably relevant material, and did not accept any oral and written evidence’.
In support of that the Applicant claims that during the hearing he gave evidence about a real chance of danger from Akali Dal supporters. He claims that he could expect no protection from the authorities. The Applicant claimed that to reject those claims that the Tribunal selected only adverse information from the Internet but did not give any details of current situation with regards to the killings of Dera members in the Punjab or overseas, or whether any Dera Sacha Sauda member was killed recently.
As I have indicated earlier it is for the Tribunal to decide what Independent Country Information it will consider, and it is for the Tribunal to give what weight it considers appropriate to the evidence before it.
The Applicant claims that the Tribunal only asked questions to discard all of the oral and written evidence. He further claims that the Tribunal’s initiative and intention to reject the oral evidence was against procedural fairness. If that is a claim of bias there is no evidence to support it and it has not been made out.
The Applicant claims that the Tribunal Member misinterpreted the meaning of his understanding of religion by means of the questions that were asked when he set out what he believed the principals of Dera Sacha Sauda were. The Tribunal decision contains Independent Country Information about Dera Sacha Sauda taken from the Dera Sacha Sauda website[9].
[9] See Court Book at pages 134-136.
In my view it was within the Tribunal’s power to accept that information and use that as a means of ascertaining the Applicant’s knowledge of the principles of the group which he claimed to follow. In my view there is no evidence of misinterpretation by the Tribunal, and no error appears on that score. Again, the ground claims that the Tribunal did not accept any oral and written evidence. I have already dealt with that. The weight given to evidence, and whether it is accepted or not, is a matter for the Tribunal.
Ground 3
The third ground alleges that the Tribunal made the decision on the basis of unreliable information, the Tribunal should have made an investigation before making the decision. The Tribunal has the power to do so but did not make an investigation, and the Applicant claims that that amounts to a denial of procedural fairness. The Tribunal does not have a duty to conduct its own investigation (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[10]).
[10] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32
The Tribunal certainly has a power under s.424 of the Migration Act but there is no obligation on the Tribunal to conduct its own investigations as a general rule. There was nothing put to the Tribunal in this case that would raise the suggestion that it was at all appropriate for the Tribunal to conduct an investigation.
As for the claim that the Tribunal made the decision on the basis of unreliable information, that clearly is a challenge to Independent Country Information referred to in the Tribunal decision. Again, that is a matter for the Tribunal. It is the Tribunal which decides which Independent Country Information that it will accept. It is for the Tribunal to decide what weight it gives to that evidence.
In my view there is no basis for Ground 3 in the application and it has not been made out.
Conclusion
There is no evidence of any relevant material put to the Tribunal that the Tribunal did not consider. It is noteworthy that the Applicant was challenged at the Tribunal hearing by the Tribunal Member. The Tribunal appears to have sought to comply with the procedures set out in s.424AA of the Act during the hearing. At [58] of the decision the Tribunal said:
The Tribunal explained again the significance of the various inconsistencies and omissions already drawn to his attention. He was asked whether he wished to respond orally or in writing and he asked for time to respond in writing. After some discussion about the time required, the Tribunal allowed until 2 March 2009 to provide any written comments.[11]
[11] See Court Book at page 139 at [58].
The Applicant did provide a written statement on 26th February 2009. The Tribunal considered that statement but clearly did not consider that it dealt with the concerns about the Applicant’s evidence raised by the Tribunal. There is no breach of procedural fairness in that regard.
I am mindful of the fact that the Applicant has not been legally represented in the hearing today, although he was most ably represented by Mr Kumar of Counsel at the extension of time hearing before me on 17th June of this year. I am certainly of the view that the written submission and the Applicant’s application do not show any indication that they were prepared by Counsel and I would take it that they were not.
What the Court has to consider is whether any other arguable case for jurisdictional error can be made out. In my view there was no obligation on the Tribunal to comply with s.424A of the Migration Act. The Tribunal made it clear that its rejection of the Applicant’s claims arose from the Applicant’s own evidence. It also consulted Independent Country Information. The material that came from the Applicant and Independent Country Information are excluded from the operation of subsection 424A(1) by subsections 424A(3)(a),(b) and (ba) of the Migration Act. There is no breach of s.424A.
I do not believe that there is a breach of s.425 of the Migration Act. The Tribunal complied with the Act by inviting the Applicant to attend a hearing. The letter of invitation complied with the requirements of s.425A. The Applicant was given sufficient time to attend the hearing and attend he did. He was provided with the services of a capable and experienced interpreter in the Hindi language and it appears that he was able to give evidence freely. He claims that the Tribunal asked questions that he did not understand but there is no evidence of that whatsoever.
The delegate had not been satisfied about the veracity of the Applicant’s claims. It was that issue, the question of the Applicant’s credibility when he did attend the hearing, that formed the basis of the Tribunal’s rejection of the Applicant’s claims. Accordingly, there is no breach of s.425 of the Migration Act in this regard, certainly not in the way set out by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[12].
[12] (2006) 231 ALR 592; [2006] HCA 63
In my view there is no breach of s.425, there is no jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by Subsection 474(2) of the Migration Act. Section 474 of the Migration Act provides that privative clause decisions are final and conclusive and are not subject to prohibition, declaration, certiorari mandamus or other relief, and it follows therefore that the application must be dismissed. I dismiss the application.
There is an application for costs on behalf of the First Respondent Minister in the sum of $3,630.00. That amount covers the First Court Date, the extension of time hearing, and the application before the Court today. It is an appropriate case to make a costs order, and the amount sought is far from excessive.
The Applicant, however, says he has no job, does not have permission to work, and has not worked since 15th June. Whilst that is not a reason not to make a costs order it is a matter that the Court must take into account when looking at a person’s capacity to pay. In the circumstances I will allow four months to pay.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 5 August 2009