SZNSZ v Minister for Immigration
[2010] FMCA 317
•10 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSZ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 317 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNSZ”. |
| Migration Act 1958 (Cth), ss.36(2), 65, 91X, 424, 424AA, 424B |
| Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZKTI & Anor (2009) 258 ALR 434 NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841 SZNSC v Minister for Immigration & Citizenship [2009] FMCA 945 |
| Applicant: | SZNSZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1653 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2010 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the assistance of a Malayalam interpreter. |
| Solicitors for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application filed on 13 July 2009 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA ATSYDNEY |
SYG 1653 of 2009
| SZNSZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant was born in Nileshwer, in the state of Kerala in October 1973. He states that he has completed 13 years of schooling and communicates in Malayalam and reads English. He was married in July 2005 and has a daughter. In a statutory declaration attached to his protection visa application, the Applicant claims to fear persecution in India on account of his political opinion. He states that he became involved in politics while he was studying, becoming a member of the KSU (the student wing party of the Indian National Congress). The Applicant claims that in 2004 he was elected to the position of General Secretary in the District of Kasaragod and became involved in promotional activities for the party. As a result of his work, the Applicant became known to the members of the opposing Communist Party of India (Marxist) (CPI (M)) and was attacked by members of the organisation on a number of different occasions. During an attack in June 2004, his leg was hit with a blunt and he was seriously injured. After a further attack in March 2008, the police charged the perpetrators and the Applicant was summonsed to give evidence at that trial. Although the perpetrators were remanded in custody, they hired someone to kill the Applicant so that he could not give evidence against them. The Applicant’s wife and parents also received daily telephone calls warning the Applicant that he would be killed if he turned up in Court. The Applicant claimed that he was in hiding in Bangalore before departing India for Australia. He states that he had no other option but to leave India to save his life and now he is worried about his young family and parents because they are also under threat.
The Applicant arrived in Australia on 28 July 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 4 September 2008. A delegate of the Minister refused to grant the visa on 3 December 2008 on the basis that the Applicant was no a person to whom Australia had any protection obligations under the Refugee Convention. The Applicant applied to the Refugee Review Tribunal (“Tribunal”) on 30 December 2008 for review of the Delegate’s decision. The Tribunal in its decision dated 17 June 2009 by Tribunal member Jennifer Ciantar (RRT case number 0809096) affirmed the Delegate’s decision not to grant the Applicant a protection visa. It is this decision that is the subject of this review.
A Court Book (“CB”) was prepared by the First Respondent’s solicitors and marked Exhibit “A”. This is the only evidence before this Court. At the first court date directions hearing, on 12 August 2009, the Applicant indicated that he wished to participate in the Court’s sponsored legal advice scheme and a panel advisor was allocated. The Applicant attended a conference with this advisor and received written advice. The Applicant was also granted leave to file an amended application which fully set out his particularised grounds, however the Applicant could not avail himself of this opportunity and relied upon the grounds originally pleaded in his application filed on 13 July 2009.
The proceedings before the Tribunal
The Applicant appeared before the Tribunal on 2 March 2009. During that hearing, the Applicant further elaborated on his claims to fear harm (CB 111 at [35] – [67]). In particular, the Applicant affirmed that he had travelled to Singapore, Malaysia and Dubai because of his fear of harm in Kerala and could not work or apply for refugee status because he only held a visitor’s visa and did not know he could apply (CB112 at [40] and CB 116 at [62]). The Applicant claimed that the CPI (M) first attacked him on 10 June 2004, cutting his leg which resulted in his hospitalisation for three months. He provided the Tribunal with a doctor’s certificate in support of that claim (CB 113 at [45] – [46]). The Applicant confirmed that he had not reported this attack to the police (CB 113 at [48] and CB 114 at [51]). The Applicant elaborated on this claim to have been attacked again on 18 March 2008 (CB 113 at [48]) however, this did not result in hospitalisation after this attack (CB 114 at [51]). He confirmed that this was a major incident that resulted in the arrest of 28 people and subsequently threats had been made against his life.
On 2 April 2009 the Tribunal sent a request to the Department of Foreign Affairs and Trade (DFAT) for information on the Applicant’s membership of the Indian National Congress Party (CB 94 – 95). The Tribunal was entitled to take this step pursuant to its general power in s.424(1) of the Migration Act 1958 (Cth) (“the Act”), to gather any information it considered relevant: Minister for Immigration and Citizenship v SZKTI & Anor (2009) 258 ALR 434 at [37] – [48]. On the 17 April 2009, DFAT responded stating that they had spoken to two INC office bearers who advised that they were not aware of the Applicant, nor had he been an office bearer in the INC during the past 10 years. DFAT also informed the Tribunal that there were 17 general secretaries in Kasaragod and provided a website address that listed their names and advised that the CPI(M) provided support to the ICN between 2006 and 2008 (CB 177 at [55]).
After receiving this material from DFAT, the Tribunal invited the Applicant to a second hearing on 19 May 2009 which the Applicant attended. At that hearing, the Tribunal put to the Applicant for comment, information that it had considered would be the reason, or part of the reason, for affirming the decision under review in accordance with the provisions of s.424AA (CB 117 at [67] – [86]). The Tribunal put to the Applicant, information from the two office bearers in the DFAT response dated 17 April 2009. The Tribunal gave the Applicant clear particulars of the information in accordance with s.424AA(a) (CB 117 at [69]). It explained the relevance of the information in accordance with s.424AA(b)(i) when it told the Applicant that reliance on the information might lead the Tribunal not to be satisfied that the Applicant was secretary general of Kasaragod District Committee of the INC as he claimed, and that this could result in the Tribunal refusing to grant him a protection visa (CB 117 at [69] and CB 119 at [78]).
The Tribunal invited the Applicant to comment on the information (s.424AA(b)(ii)) and advised him that he could seek additional time to comment or respond (s.424AA(b)(iii)) (CB 117 at [68] and CB 120 at [81] and [84]). When the Applicant could not decide whether he wanted further time, the Tribunal adjourned the review until 26 May 2009 to seek further time to respond to the information (s.424AA(b)(iv)). When the Applicant failed to make contact with the Tribunal, it proceeded in making its decision (CB 120 at [84] – [86]).
Tribunal’s ‘Findings and Reasons’
I have relied upon the written submissions submitted by Ms Johnson and I have either paraphrased or quoted directly from those submissions in summarising the essential points of the Tribunal’s decision. I have not made further attributions as this would make the summary unwieldy and the information is provided to assist in the understanding of the nature of the application before the court and not to establish any evidentiary point. On the basis of strong adverse credibility findings, the Tribunal did not accept any of the Applicant’s claims (CB 123 at [94] and 127 at [106]).
The Tribunal’s findings were:
a)On the basis of the information provided by DFAT, the Applicant had never been a secretary general of Kasaragod District Committee of the INC and found that the letter from the INC president stating that the Applicant was a district secretary, was false (CB 123 at [25]).
b)The Applicant’s account of the composition of the Kasaragod District Committee of the INC was inconsistent with independent information obtained from the INC website, which led it to reject the Applicant’s claim that he was a member of the Kasaragod District Committee of the INC (CB 124 at [96])
c)That the Applicant had ever been a district secretary of the INC and rejected that he had been involved in promotional activities for the party which brought him to the attention of the CPI(M). The Tribunal was not satisfied that the Applicant was ever threatened or targeted because of membership of the INC, or that he travelled overseas and went into hiding for this reason (CB 124 at [97] – [98].
d)The Applicant’s claim that he was attacked and injured in early 2005 was rejected. This claim was inconsistent with information in his passport which indicated that he had been overseas at the time (CB 125 at [90]). The Applicant had given inconsistent evidence to the Department and the Tribunal in relation to the dates this attack occurred (CB 125 at [100]) and the length of time he was hospitalised as a result of the attack (CB 126 at [102]).
e)With regard to the doctor’s certificate the Applicant provided in support of his claim to have been attacked and injured in early 2005 (CB 125 at [101]) the Tribunal noted that the certificate did not provide the specific date that the Applicant was injured and treated. It also noted that based on the date of the certificate, the Applicant had delayed six months before he provided this evidence in support of his claim. On the basis of these concerns with the certificate, the Tribunal afforded it no weight.
f)With regard to the summons provided by the Applicant (CB 126 at [103]) the Tribunal accepted that the summons was a genuine document that called the Applicant as a witness before a Court. However, the Tribunal found that the summons was to the Applicant as a witness and not as a victim. On the basis of this observation, coupled with its earlier finding that it did not accept that the Applicant was ever threatened or targeted because of his membership of the INC, the Tribunal did not accept that the document established that the Applicant was harmed by CPI(M) members in March 2008, or that he was a victim in any related Court proceedings (CB 126 at [103])
g)That the Applicant’s claim that he had sought protection from the police in 2008 when his party was not in power, but not in 2004 after more serious attacks when his party was in power, was not credible (CB 126 at [104] – [105]).
h)On the basis of the above concerns about the Applicant’s claims and evidence, the Tribunal concluded that he was “not a witness of truth” and that his Refugee Claims were “completely unreliable” (CB 127 at [106]). Accordingly, the Tribunal comprehensively rejected all of the Applicant’s claims to fear harm and refused to grant him a protection visa (CB 127 at [106] – [110]).
Consideration
At the first court date directions hearing, the Applicant was requested to prepare submissions, supported by any authorities, to be filed in Court 14 days prior to the hearing. The Applicant failed to comply with this order, however when invited to make oral submissions, he proceeded with a number of statements in respect of relocation. He indicated because of the difficulties with language and employment, it was not practical for him to relocate. He stated that the CPI (M) operated throughout India and that he would not be immune from further attacks by relocating. Being a Christian as he said he was, he claims he was easily identifiable among the Muslims and would be subject to further attacks. He stated that he had a young family and did not wish to put them at risk. He indicated that he had gone to other countries but because he did not understand their system, he was unable to seek protection. I note that the issue of relocation was not the basis of not granting a protection visa, and importantly, the issue of relocation was not referred to in the Tribunal decision record.
The Applicant indicated that he was unable to collect any further information in respect of his claims and presumably this is a reference to the Tribunal’s invitation providing him with additional time to respond to the adverse information obtained from DFAT and its offer to the Applicant for more time in which to address these issues. He indicated that the risk would be too high to ask any of his family members to attempt to obtain further evidence to assist him.
Significantly, the Applicant was found to be “not a witness of truth” and that his refugee claims are completely unreliable. The Tribunal’s adverse credibility findings were factual matters which were solely for the Tribunal to determine and do not come within the scope of this Court’s jurisdiction: Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]. The Tribunal did not accept the Applicant’s documentary evidence which he provided. It did not simply reject the documents on the basis of an adverse credibility finding, but assessed them independently and relied upon identified inconsistencies in the contents of the documents and other evidence given by the Applicant. In determining whether an Applicant has a “well founded” fear of persecution, the Tribunal is entitled to resolve questions of credit, attribute weight to particular evidence, and consider the inherent probability of events: Minister for Immigration, Local Government andEthnic Affairs v Wu Shan Liang (supra) at 281. On the material before this Court, which is limited to the contents of the Court Book, and on a fair reading of that material, this is the approach taken by the Tribunal and no error in this approach is apparent. However, the Applicant has pleaded five grounds of review, which are formulaic in form and bear little relationship to the central issues contained in the Tribunal’s decision record.
Ground One
The Tribunal failed to comply with s.424 of the Migration Act
Particulars
The Tribunal asked question invited the Applicant to give information additional to that which the Tribunal had obtained.
The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act.
The invitation did not specify the way in which the additional information may be given.
The invitation did not specify the period within which the information was to be given.
The Applicant appears to be at a misunderstanding of the law and the procedural steps taken by the Tribunal. The claim is that the Tribunal invited the Applicant to provide “additional” information and the information was not given in accordance with s.424(3)(a) and 424B of the Act. The misunderstanding is that the Tribunal did not invite the Applicant to provide “additional information” in accordance with s.424(2). The Tribunal discussed with the Applicant that although he was under no obligation to do so, he had been “offered to provide additional information” to the DFAT and this was acknowledged by the Applicant during the hearing before the Tribunal (CB 119 at [79]). The Tribunal enquired of the Applicant as to why he had indicated he had made this offer, an explanation was given and the matter was resolved that no further action was required. This is quite distinct from the Tribunal’s invitation to the Applicant to provide additional information. The discussion with the Tribunal as to why the Applicant offered to make this step did not constitute an invitation pursuant to s.424(2) of the Act.
When the Tribunal put to the Applicant the advice received from DFAT, he was advised that he may seek further time to “provide a response for further information to the Tribunal” in response to that matter. The DFAT information was put to him in accordance with s.424A and that does not constitute an invitation to provide additional information “pursuant to the operation of s.424(2)” (CB120 at [80]). The DFAT information was given to the Applicant in the context of the Tribunal’s compliance with s.424AA(b)(iii) and a fair reading of the Tribunal’s decision indicates that the Tribunal was not exercising its power to gather “additional information” pursuant to s.424(2). Significantly, since the recent amendment to the Act came into effect on 15 March 2009, s.424(2) of the Act now provides that the Tribunal is entitled to invite a person to give additional information orally and if it does so, it is not obliged to comply with the requirements of a written invitation outlined in s.424(3)(a) and s.424B.
The Tribunal did invite DFAT, in writing, to provide information (CB 94 – 95) in respect of the Applicant’s membership of the ICN, as outlined above. This was not an invitation to provide “additional information” pursuant to s.424(2) but was a request made in accordance with the Tribunal’s general power to gather any information that it considers relevant pursuant to s.424(1).
This ground appears to be misconceived. It is not immediately apparent whether the Applicant is attempting to challenge either of the propositions set out above, or whether it is a more general claim, commonly seen in formulaic proceedings, not specifically addressed to issues arising in the Tribunal’s procedures or recorded decision record. In both circumstances the ground cannot be sustained and should be dismissed.
Ground Two
2. The Tribunal failed to consider properly the test whether the Applicant 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 to India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
The issue of relocation was raised in the Applicant’s oral submissions, referred to above. As noted at the end of those submissions, the issue of relocation was not raised or addressed by the Tribunal. The Tribunal rejected the Applicant’s claims on the basis of an adverse credibility finding as it was unable to be satisfied that the Applicant’s fear of persecution was well founded. In these circumstances, the Tribunal was unable to reach the requisite state of satisfaction required by s.65 of the Act. The Tribunal found that the Applicant did not suffer persecution now or in the foreseeable future, if he returned to India. The Tribunal did not consider the issue of relocation and there was no obligation of the Tribunal to do so: SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841 at [26]. This ground cannot be sustained and should be dismissed.
Ground Three
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.
This is another formulaic ground of review which is misconceived. The provisions of s.65 and at s.36(2) of the Act require the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s.36(2). That is, that the Applicant meets the definition of “refugee” as set out in the United Nations Refugee Convention, such that in the circumstances, a Protection visa must be granted. The Tribunal referred to these provisions of the Act and the relevant law in its decision record (CB 106 at [6] – [18]). The Tribunal applied the statutory scheme in reaching its decision that it was not satisfied that the particular circumstances in this case warrant a Protection visa to be granted to the Applicant. The Tribunal properly assessed the Applicant’s claims and evidence and its ultimate finding that it could not be satisfied that the Applicant was a witness of truth in respect of those claims and accordingly, that it was not satisfied that his fear of persecution was well founded.
An identical unparticularised formulaic ground of review was addressed in SZNSC v Minister for Immigration & Citizenship [2009] FMCA 945 per Nicholls FM at [110] – [115] where his Honour sets out the relevant authorities that are applicable. In the circumstances, this ground should be dismissed.
Ground Four
The Tribunal’s decision was unjust and was made without taking into account the full gravity of the Applicant circumstances and the consequences of the claim.
This ground again is a formulaic pleading in identical terms as seen in other applications for review and bear little or no relationship to the Tribunal decision which is being challenged. The Tribunal decision record of 23 pages, indicates that the Tribunal carefully and thoroughly considered the Applicant’s claims to fear persecution on account of his political opinion. The Tribunal gave clear and cogent reasons for rejecting those claims and as findings in this regard were open to the Tribunal on the material placed before it. The Applicant disagrees with the Tribunal’s conclusion and claims that it was “unjust” but this is not indicative of error and is nothing more than a request for an impermissible merits review of the Tribunal’s decision. The Tribunal is required to provide fairness in the procedures that it employs and applies. However, as the High Court has states in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [25] that procedural fairness requires a “fair hearing not a fair outcome”. This ground cannot be sustained and should be dismissed.
Ground Five
5. The Applicant 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.
Again this is a formulaic ground, commonly stated in identical terms before this Court. It is an assertion that the Applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugee Convention. Contrary to the Applicant’s assertion that it failed to consider these components of the Convention, the Tribunal carefully considered the claims on which the Applicant relied to satisfy the criteria of the Convention definition. As the Tribunal found that the Applicant was not a “witness of truth” it comprehensively rejected the Applicant’s claims and concluded that his fears of persecution were not well founded. There is no error in the Tribunal’s approach to its assessment of whether or not the Applicant’s fears of future persecution were well founded within the meaning of the Convention. This is a further request that the Court intervene and undertake an impermissible merits review of the Tribunal decision. This ground cannot be sustained and should be dismissed.
Additional ground
In the Affidavit filed with the application in this Court seeking judicial review of the Tribunal decision, a further ground was listed which states
The Tribunal member failed to analyse properly the “future harm” I may face if I have to go back to India. Hence, due to this failure, the Tribunal had committed a serious jurisdictional error for failing to assess or carry out the “real chance” test before dismissing my claims.
This ground does not appear in the application however as this Applicant is self-represented with little knowledge of the Court system and in light of what he is attempting to achieve, this ground should also be considered.
The process of establishing whether an Applicant’s fear is well founded involves making findings of fact based on an assessment of the Applicant’s claims and speculation as to the reasonable foreseeable future. In determining whether there is a real chance that an event will occur, the degree of probability that similar events have or have not occurred in the past is also relevant: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. The Tribunal adopted this approach in arriving at its findings that there was not a real chance that the Applicant would suffer harm for any reason if he returned to India. The Tribunal carefully considered the Applicant’s claims for past harm. Based on its assessment of the Applicant’s evidence and the inconsistencies contained therein, the Tribunal concluded that it was not satisfied that the Applicant suffered harm in the past in India. Consequently, the Tribunal concluded that there was not a “real chance” that the Applicant would suffer any harm in the future should he return to India.
In the absence of any particularisation of this claim, written or oral submissions, the only material that is available to this Court for consideration is the contents of the Court Book and in particular, the decision record. On a fair reading of this material, the Tribunal has properly analysed the future harm, if any, that the Applicant is likely to face should he return to India, now or in the foreseeable future. I am satisfied that the Tribunal has applied the “real chance test” and there is nothing to support a claim that the Tribunal has failed to properly analyse any future harm that the Applicant may face. In the circumstances this ground cannot be sustained and should be dismissed.
Conclusion
Although the Applicant is a self-represented litigant, he has received assistance from a legally qualified panel advisor in reviewing his case. He was also provided with leave to file an amended application but he has not pursued this course, rather relied on a series of unparticularised formulaic grounds which are commonly presented to this Court. In his oral address to the Court, he pursued an issue which was raised in the formulaic grounds, but was not referred to in the Tribunal decision. Whoever is assisting the Applicant in the preparation of this Application and his oral presentation before the Court, have done absolutely nothing to assist him. The Applicant’s failure before the Tribunal was singularly due to his lack of credibility as a witness.
The Court has been assisted by detailed written submissions prepared by Ms Johnson which address all of the issues raised in the pleadings together with an accurate review of the Tribunal’s procedures in dealing with this matter. I am satisfied that those submissions address the issues associated with the requirements of Part 7 of Division 4 of the Act in respect to the conduct of the review. On a fair reading of the Court Book and the Tribunal decision it is not apparent on the face of those documents that any jurisdictional error is apparent. Consequently the application should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 10 May 2010
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