SZNRX v Minister for Immigration
[2009] FMCA 1021
•20 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1021 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the decision of the Refugee Review Tribunal denied the applicants procedural fairness – whether the Refugee Review Tribunal was required to consider whether the applicants could relocate within India – whether the Refugee Review Tribunal was obliged to investigate the applicants’ claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R(1)(b); 91R(2)(a); 425; 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 [1999] FCA 719 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 |
| First Applicant: | SZNRX |
| Second Applicant: | SZNRY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1491 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 October 2009 |
| Date of Last Submission: | 20 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr H. Bevan |
| Solicitors for the Respondent: | Ms L. Weston, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1491 of 2009
| SZNRX |
First Applicant
| SZNRY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 May 2009 and handed down on that day.
The first named applicant is the husband of the second named applicant (“the Applicant”). The second named applicant’s claims are dependent on those of the Applicant.
The Applicant claims to be a citizen of India and of Hindi faith and a supporter of the Congress Party in India. The Applicant arrived in Australia on 11 October 2008, having departed legally from Mumbai on a passport issued in his own name, and a tourist visa issued on 19 September 2008.
The Applicant’s protection visa application claims
On 24 November 2008, the applicants lodged an application for protection visas with the Department of Immigration and Citizenship (“the Department”).
In support of the application, the Applicant stated that he was born in Gujarat and lived there until he left India for Australia in October 2008. The Applicant said that he made donations to all political parties, although was a loyal supporter of the Congress Party in India for 20 years. He stated that his support for the Congress Party had angered supporters of the Hindu Nationalist Bharatiya Janata Party (“the BJP”) because he was a Hindu.
The Applicant said that he owned and operated a vehicle repair workshop in Mansa in Gujarat and that he did work for local leaders of both the BJP, Congress Party and other political parties. He stated that he displayed a Congress Party sticker in his shop and that in 2007 he received his first threat from the local BJP during the election campaign in that year.
The Applicant stated that he was continuously harassed and threatened after December 2007, despite the fact that he did not wish to involve himself much in politics because of his business. The Applicant stated that in July 2008 attacks occurred at his workshop and on 9 August 2008 he was warned not to complain to authorities about an assault and abuse he received on that day from a local BJP leader.
The Applicant stated that, thereafter, he regularly repaired cars of BJP supporters and was never paid for the work he did. He stated that he made several unsuccessful attempts to settle in another part of Gujarat and left India because he was fearful for his safety.
On 11 February 2009, the Applicant attended an interview with a delegate of the Department (“the Delegate”). At the interview, the Applicant said that he had been threatened by BJP members a number of times after December 2007, however, had not been physically assaulted by any member of the BJP. The Applicant also confirmed that BJP supporters had threatened to burn his workshop but had not actually done so.
On 20 February 2009, the Delegate refused the applicants’ application for a protection visa on the basis that the applicants are not people to whom Australia has protection obligations.
The Delegate noted that the Delegate discussed various aspects of the Applicant’s claims with him and raised with the Applicant matters of concern arising out of his claims, including the inconsistent statements by the Applicant in relation to an alleged assault by a BJP leader in August 2008.
The Delegate also discussed with the Applicant his inconsistent evidence relating to his attempts to relocate within India and his three week delay in departing India following the grant of his tourist visa. The Delegate also raised with the Applicant a letter provided by the Applicant, in support of his claims, purportedly from a former ex-government minister of India. The Delegate raised with the Applicant the particular concerns it had arising out of this letter, given the poor grammar and spelling in the document. The Delegate found that, as a result of that letter, the Applicant was prepared to fabricate evidence to bolster his claims.
The Tribunal review
On 20 March 2009, the applicants lodged an application for review of the Delegate’s decision with the Tribunal. The applicants did not provide any further information to the Tribunal in support of their claims.
On 2 April 2009, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter went on to invite the applicants to come to a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The letter also invited the applicants to again send any further documents or written arguments or new information that they wished the Tribunal to consider.
On 22 May 2009, the Applicant attended a hearing before the Tribunal at which he gave further oral evidence. The Tribunal’s decision record identifies the written claims made by the Applicant in support of the protection visa application and summarises the further information given by the Applicant in the interview with the Delegate.
The Tribunal’s decision record then provides in some detail the exchanges it had with the Applicant at the hearing. The Tribunal put to the Applicant matters of concern it had arising out of the Applicant’s evidence and material in support of his claims and noted the Applicant’s responses.
The Tribunal’s findings and reasons are accurately summarised by counsel for the First Respondent, Mr Cleary, in his written outline of submissions as follows:
“The Tribunal accepted that the Applicant was the owner of a vehicle repair business in his home town in Gujarat (CB 124 [69]).
The Tribunal did not consider the Applicant’s claims to have been a “well-known, loyal and long-standing supporter” of the Congress party to be plausible. This was because these claims were so inconsistent with the fact that the Applicant had made no enquiries about, and appeared to have no interest in, the outcome for the Congress party in Gujarat in the Indian national elections held in 2009. The Tribunal also referred to the Applicant’s evidence that he had done “nothing much” for the party apart from making donations (as he had also done with other parties) and having a party sticker at his workplace (CB 124 [70]).
The Applicant had also submitted to the delegate a letter purporting to be from the Chairman of the Congress party, and a former minister, in Gujarat (see CB 84-85). The Tribunal did not consider the letter to be a reliable source of evidence. The Tribunal could not be satisfied that the source was an ex-government minister because the letter contained “handwritten corrections”, was “sloppily presented” and was “written in such poor English” (CB 124 [71]).
The Tribunal also did not consider the Applicant’s claims to have been harassed by members of the BJP to be plausible, finding that the Applicant’s account of events contained “irreconcilable inconsistencies”. These inconsistencies were as follows. In his written statement to the department, the Applicant claimed that he was assaulted at his workshop by a local leader of the BJP in August 2008 and was otherwise harassed in 2008. However, in oral evidence to the Tribunal, the Applicant said (unequivocally at one point) that he had not returned to his workshop since December 2007 and had not been threatened since that time. Nevertheless, in further oral evidence to the Tribunal, the Applicant said both that he had continued to work at his workshop and live at his home until October 2008 and that he had done neither of these things because he was in hiding since December 2007 (CB 124 [72]).
The Tribunal also observed that his explanation “lacked cogency” as to why he chose to leave India rather than simply move away from his home town, given that the only people he claimed to fear were from that place (CB 124 [73]).
The Tribunal did not accept that the Applicant was in hiding in 2008, nor that he was harassed or threatened by BJP supporters in or after December 2007 because of a perception of him as a Congress supporter or any other politically-motivated reason (CB 125 [74]).
The Tribunal considered the chance “remote” that the Applicant faced harm in India when he left in October 2008 for reasons of political opinion (CB 125 [75). This had not changed since – the Applicant did not claim otherwise, nor was there any evidence to suggest a greater risk of harm (CB 125 [76]).
The Tribunal found that the Applicant does not have a well-founded fear of persecution for a Convention reason (CB 125 [77]) and affirmed the decision not to grant the Applicants protection visas (CB 125 [78]-[80]).”
On 27 May 2009, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa.
The proceeding before this Court
On 23 June 2009, the applicants filed an application in this Court seeking judicial review of that decision.
The applicants were unrepresented before this Court although had the assistance of a Gujarati interpreter.
By consent, and at the request of the Applicant, the Applicant took part in the hearing by telephone from somewhere in the Northern Territory. The Applicant informed the Court that he appeared on behalf of both applicants and that the claims of his wife, the second named applicant, were dependent on his claims.
The applicants did not comply with directions of the Court in filing and serving any change of contact details and have still not provided to the Court a residential address in the Northern Territory. However, the Applicant has undertaken to the Court this morning that he will file and serve his residential address in the Northern Territory within 48 hours.
The Court was first informed by the Applicant that he had moved to the Northern Territory on 9 October 2009 by fax received on that date. The Applicant had not informed the First Respondent of his move and a copy of that fax was sent by my Chambers to the First Respondent on 9 October 2009. The Applicant’s letter also sought to have this matter transferred to Darwin for hearing. That course was opposed by the First Respondent, who suggested that the hearing today could be conducted by telephone. The Applicant’s request for transfer was unsupported by any other evidence.
On 15 October 2009, the Applicant was informed that the application for transfer was opposed by the First Respondent. The Applicant then sent a fax to the Court requesting that the hearing today be conducted by telephone. Given the agreement of the First Respondent that the hearing today could proceed by way of telephone, and upon the Applicant’s undertaking to file a notice of change of address for service providing his residential address within the Northern Territory within 48 hours, the Court agreed to proceed with this unsatisfactory way of conducting a hearing.
On 4 August 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing. The Applicant was also directed to file and serve written submissions in support of the applicants’ application 14 days before the hearing.
At the directions hearing, I also explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake going to the jurisdiction of the Tribunal. Because the applicants resided in Victoria at the time they made their application to this Court, they were not eligible to participate in the Court’s New South Wales legal panel advice scheme. However, I provided to the Applicant, at the directions hearing, two documents headed in his own language: the first, being the contact details of legal services providers in New South Wales; and, the second, being the contact details of interpreting and translation services.
At the commencement of the hearing this morning, the Applicant confirmed to the Court that no other document had been filed by the applicants, or on their behalf, in accordance with those directions, or otherwise, in support of the application.
The Applicant confirmed that the applicants relied on the grounds of their application, filed on 23 June 2009, as follows:
“1. The Refugee Review Tribunal denied the Applicants procedural fairness by reaching adverse conclusions that the applicants claim were implausible, being conclusions that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters.
2. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
4. The Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicants circumstances and the consequences of the claim.
5. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
6. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 27 May 2009 was effected by actual bias constituting jurisdictional error.”
Each of the grounds was interpreted for the assistance of the Applicant and, the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
The Applicant made no meaningful or relevant submission in support of any of the grounds of the application or in support of the application in general.
Ground 1
Ground 1 makes bare assertions unsupported by particulars, evidence or submissions. The nature of the applicants’ complaint in Ground 1 is unclear. The Applicant was invited to attend a hearing before the Tribunal and, indeed, attended such a hearing, at which he gave evidence and at which the Tribunal explored with the Applicant his claims and evidence in some detail.
The issues raised by the Tribunal with the Applicant, relating to concerns it had about his evidence, included the same inconsistencies in the Applicant’s evidence that had caused the Delegate concern. Similarly, the letter submitted by the Applicant in support of his claims was found by both the Delegate and the Tribunal not to be a reliable source of evidence, having regard to the handwritten corrections, the sloppy presentation and the poor English, in circumstances where the letter was purportedly from an ex-government minister in India.
The Tribunal’s decision record makes clear that the Tribunal raised particular matters of concern with the Applicant, including advising the Applicant of information that the Tribunal considered might be the reason, or part of the reason, for affirming the decision under review. The Tribunal identified that information as the Applicant’s written statement to the Department in which he described a number of problems he had experienced personally at his workshop during 2008; whereas, in oral evidence, he asserted that he had not suffered harm after December 2007. The Tribunal’s decision record noted that the Applicant was invited to comment on the information orally or in writing after the hearing. The Tribunal informed the Applicant that it might infer that he had not been truthful when he claimed he had been at risk from members of the BJP, and so might conclude that he did not need protection from persecution in India. The Tribunal’s decision record noted that the Applicant chose to respond immediately and orally and indicated that he understood what had been put to him by the Tribunal. He reiterated that after he left the garage he had not returned to it and otherwise made no further comment.
Following its exploration with the Applicant of his evidence, the Tribunal noted that it invited the Applicant to tell the Tribunal anything further that he considered important. The Tribunal noted that the Applicant said he wished to submit various documents showing that he had owned a successful vehicle repair business which he undertook to fax to the Tribunal on the day of the hearing, or otherwise to submit by post by 26 May 2009. However no further documents were received from the applicants in support of the review application.
Ultimately, the Tribunal did not find the Applicant’s claims plausible. The Tribunal rejected, comprehensively, the Applicant’s claims of past harassment from members of the BJP, having regard to irreconcilable inconsistencies in the Applicant’s evidence: such as, the fact that, in his written statement to the Department, the Applicant claimed to have been at his workshop in August 2008 when he was assaulted by a local leader; and, yet, in oral evidence, the Applicant said he had not returned to his workshop since December 2007, and had not been harassed or harmed by anyone since that time. The Tribunal also noted that, in other oral evidence, the Applicant stated that he had been working at his workshop until he came to Australia in October 2008, and living at his normal home address; and, in other evidence, stated that he had done neither of those things because he was in hiding from December 2007 to October 2008.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). The Tribunal otherwise complied with its obligation under s.425 of the Act to invite the applicants to come to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The issues arising from the inconsistencies in the Applicant’s evidence and the unreliability of the letter said to be from an ex government minister in India were issues raised by the Delegate, and issues in respect of which the Applicant was aware and on notice (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at 600 – 602; [35], [37] and [47]).
Accordingly, Ground 1 is not made out.
Ground 2
In Ground 2, the applicants complain that the Tribunal failed to properly consider whether the Applicant would suffer serious harm if the applicants were to relocate in India in accordance with s.91R(2)(a) of the Act. The applicants’ complaint in Ground 2 is misconceived, in that s.91R(2)(a) does no more than define “serious harm” for the purposes of s.91R(1)(b).
The Tribunal’s decision record makes clear that the Tribunal was aware that part of its consideration related to whether or not any persecution found to be suffered by the Applicant involved serious harm to the Applicant and systematic and discriminatory conduct. The Tribunal’s decision record referred specifically to some of the definitions of “serious harm” in the Act. In any event, the Tribunal made no finding in relation to whether or not it was reasonable for the applicants to relocate within India because the Tribunal had comprehensively rejected the Applicant’s claims of a fear of persecution for a Convention related reason.
A fair reading of the Tribunal’s decision record, as a whole, shows that the Tribunal itself had no real doubts that the claimed events had not happened. In the circumstances, the Tribunal was otherwise not obliged to consider whether or not the applicants could relocate within India (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 [1999] FCA 719 at [67]).
Accordingly, Ground 2 is not made out.
Grounds 3, 4 and 5
Grounds 3, 4, and 5 are in a form identical to that of other applications before this Court and similarly make bare assertions unsupported by particulars, evidence or submissions. I accept the written submission of counsel for the First Respondent that Grounds 3, 4 and 5, framed as they are, do not identify any relevant or meaningful legal error. For that reason, those grounds are rejected.
Ground 6
Ground 6 also is in an identical form to that of other applications before this Court.
Ground 6 makes the bare assertion that the Tribunal failed to investigate the Applicant’s claims and that, as a result of the Tribunal’s failure to investigate, the Tribunal’s decision was affected by actual bias. There is no duty on the Tribunal to investigate an applicant’s claims.
It is well established that the Tribunal does not have an obligation or duty to make inquiries in respect of claims made by an applicant (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing)). The duty of the Tribunal is to review rather than to inquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In any event, the applicants have not identified which of the particular claims they assert the Tribunal should have investigated. If it was in respect of the letter purportedly from the ex-government minister in India given by the Applicant to the Delegate, no duty arose on the Tribunal to make further inquiries from the purported author or otherwise. As stated above in these reasons, the Tribunal’s findings in relation to that letter were open to it on the evidence and material before it and for the reasons it gave.
Otherwise Ground 6 refers generally to “the grounds of persecution in India”. It is not clear to the Court what other part or parts of the Applicant’s claims the Applicant asserts the Tribunal should have investigated.
Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; accurately summarised the Applicant’s claims; explored those claims with the Applicant at a hearing; put to the Applicant matters of concern that it had arising out of his evidence; and, noted the Applicant’s responses. The Tribunal had regard to all material provided by the applicants in support of their claims.
The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, the contention in Ground 6 that the Tribunal failed to investigate the Applicant’s claims is not made out.
To the extent that Ground 6 also appears to allege bias, that is a serious allegation to make and must be properly supported by particulars and clearly proved. The allegation is not supported by particulars, evidence or submissions. It appears to be based on the allegation that the Tribunal failed to investigate the Applicant’s claims. That complaint is addressed above.
The only evidence before the Court as to what transpired at the hearing is the Tribunal’s decision record. There was no transcript of the Tribunal hearing provided to the Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing, on 4 August 2009, the applicants were given an opportunity to file a transcript of the Tribunal hearing and were also directed to give notice if they wished to rely on recordings of the hearing. However, no step was taken by the applicants to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and the exchanges it had with the Applicant at the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”) at [38] per von Doussa J).
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA at [38]).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
The allegation of bias or apprehended bias is rejected.
Accordingly, Ground 6 is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this court is dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 26 October 2009
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