SZNXC v Minister for Immigration

[2010] FMCA 154

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNXC v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 154

MIGRATION – RRT decision – Indian claiming fear of persecution for membership of a religious sect – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.420(2)(b)

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470

Applicant: SZNXC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2232 of 2009

Judgment of: Smith FM

Hearing date: 18 February 2010

Delivered at: Sydney

Delivered on: 18 February 2010

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms E Baggett

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,300, not including the costs ordered on 11 February 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2232 of 2009

SZNXC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia on a tourist visa in November 2008.  On 18 December 2008, he applied for a protection visa.  His application did not identify any person assisting him, and attached a typed statement explaining his claims to fear persecution if he returned to India. 

2. The applicant claimed that he and all his family had become involved in the Sacha Sauda religious sect, run by a guru in various locations in India.  The applicant said that he was “one of the key leaders of this Sect and therefore my life is in real danger as I tried to expand my sect’s religious believes about my said Guru”.  He referred to hostility to the sect, which is confirmed in country information, from the Sikh community and other people in India, and to activities of the guru which have attracted police attention.  He said:

   That since last two years raised some issues and teachings of Sacha Sauda in the general community and peoples and leaders of other religions could not tolerate these activities of our Guru and first of all they attacked orally and verbally on our Society president and then became violently and about six months ago, these people tried to kill me and after that they tried to send me jail too many times and they also threatened me on the telephone by their extremely dangerous activities.  My family has also been threatened and they also tortured me mentally and given third degree torture in the jail.

   …

   That since I arrived in Australia I contacted my family members and I was informed that Sikh leaders, police and congress supporters are still looking for me and if I am forced to go back then there is every possibility that I may be killed or jailed.

3. In support of his claims, the applicant presented a certificate from a nursing home, indicating that he had attended for treatment in January 2008 for a complaint diagnosed as “tension headache”, and three warrants for his arrest, issued in June, July and November 2008 for offences which were not indicated in these documents.

4. The applicant attended an interview with the delegate on 11 March 2009.  The delegate subsequently made a decision on 23 March 2009, to refuse the visa application. 

5. The delegate did not accept that the applicant’s key assertions were true.  The delegate noted matters in relation to the application for a tourist visa which cast doubt on the applicant’s credibility, and also commented upon travel which the applicant had made during 2007 out of India and back.  The delegate thought that, assuming the applicant was, at most, a leader of a small local branch of the sect, it would not be difficult for him to relocate to another part of India to avoid any difficulties he had faced locally.

6. The applicant appealed to the Refugee Review Tribunal, and attended a hearing on 23 June 2009.  According to the hearing record, the hearing lasted more than two hours.  The applicant was subsequently given the recording.  However, he has not tendered a transcript, and I would accept the description of the hearing given by the Tribunal.  It does not purport to be a verbatim nor fully complete description. 

7. According to the Tribunal, it questioned the applicant about his claims. At the end of the hearing it put various concerns to the applicant, and gave him an opportunity to respond to them in writing.  The Tribunal had also previously served an invitation for written comments in relation to some particular matters, arising from his tourist visa application and that of his wife who had remained in India.

8. The Tribunal made a decision on 19 August 2009, affirming the delegate’s decision. 

9. The Tribunal’s statement of reasons set out all the evidence before it, and summarised the hearing.  In its findings and reasons, the Tribunal identified what it said were “A number of discrepancies, contradictions and omissions in the applicant’s evidence which leads the Tribunal to conclude that he is not a reliable or credible witness”. 

10. The Tribunal referred to plainly inconsistent statements made at various times by the applicant in relation to his employment in India as a farmer, and as a cloth mill proprietor.  It referred to his evidence giving “three different timeframes for his claimed involvement in Sacha Sauda”.  It thought significant, that the applicant had made no mention before the hearing of serious threats being made to his wife, and noted the absence from his evidence at the hearing of a claim to have been a “president” of a sect branch. 

11. The Tribunal referred to the absence of medical evidence corroborating his claims to have received injuries to his hand and wrist in attacks.  It thought that his claims to have gone into hiding when problems started in May or June 2007, were inconsistent with evidence that he travelled out of India and returned to India during the period he claimed to be in hiding.  The Tribunal also noted that the applicant had been able to leave India in 2008 while arrest warrants were in place, and said that his explanation for being able to do this - that he had bribed authorities and police - had not been mentioned previously. 

12. Finally, it noted that:  

    The applicant’s evidence on his involvement with Sacha Sauda, including the activities which he undertook as a member, was vague, unspecific and did not demonstrate the depth of knowledge which would be expected of a person with a lengthy involvement, including in a claimed leadership capacity, in the group.

13. The Tribunal said that, for all these reasons, it was unable to rely on the applicant’s evidence and find that his claims were genuine. 

14. The Tribunal considered the three purported arrest warrants, and noted some unsatisfactory aspects of their contents.  It said that it was “not satisfied that these documents are related in any way to the applicant’s claimed involvement in the Sacha Sauda”. 

15. It concluded:

    Given the lack of credibility of the applicant and the lack of any supporting evidence, the Tribunal finds that the applicant was not a member of Dera Sacha Sauda. He did not hold a leadership position or Presidency in that group. He has not been threatened or assaulted because of his membership of or involvement in the group. He had not been in hiding because of his fear of harm from opponents of Sacha Sauda.

16. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution coming within the meaning of the Refugee’s Convention, and therefore was not satisfied that he was a person to whom Australia had protection obligations. 

17. The applicant has applied to the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal.  I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant should be believed, nor whether he is entitled to a protection visa or any other permission to stay in Australia. 

18. The applicant’s grounds of his application were set out in his original application, and were repeated in an amended application.  It contains two grounds, with particulars of the first ground in dot form (which I have provided with numbers), as follows:

    1.The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.

    The applicants submits, in particular, that the Tribunal did not act according to substantial justice and the merits of the case in:

    (i)Its treatment of the claims that the Honourable Tribunal member did not consider the material including the documents received by the Applicant from overseas in support of the Applicant’s claim..

    (ii)Its treatment of the Applicant’s claim that there are wide spread anti-Sacha Sauda elements in India and if anybody follows the teachings of Sacha Sauda and then he is not acceptable at all by the Hindu and Sikh communities.  Applicant can not go to other state or part of India due to the physical and verbal threats by the Sikhs and Hindus and the Police.

    (iii)Its treatment of the Applicant’s claim that in January 2008, the Applicant was arrested by the police on the false cases and was tortured. 

    (iv)Its treatment of claim that the Honourable member of the Tribunal did not follow the rules of natural justice and the merits of the case.  The Natural justice was not adopted and applied for by the Honourable member of the RRT and all the relevant facts of the case were ignored.

    (v)Its treatment of claim that the Honourable member of the Tribunal did not adopt the proper legal procedure or did not follow the Guidelines and rules while deciding the case.

    (vi)Its treatment of claim that there was no evidence or other material to justify the Tribunal’s decision.  Honourable member of the Tribunal considered the case laws and material which was not relevant to this matter.

    (vii)Its treatment of the Applicant’s claim that the decision was an improper exercise of the powers conferred by the Migration Act and regulation.

    (viii)Its treatment of claim that the Honourable member of the Tribunal took the narrow meaning of the Refugee Convention instead of the broad meaning.

    (ix)Its treatment of the Applicant’s claim that the decision involves an error of law being incorrect interpretation of the applicable law or an incorrect application of the law to the facts of as founded by the Tribunal.

    2.The Tribunal did not have jurisdiction to make the decision.

19. The applicant has not addressed these grounds in any written or oral submissions.  The hearing of his case was adjourned to allow a barrister, whom he briefed shortly before the appointed hearing, to advise him and appear today.  However, the applicant has attended today unrepresented, and without any further amended application.

20. The applicant’s oral submissions did not address the grounds in his application, and essentially only invited me to decide for myself that his claims to be a refugee were true.  However, as I have explained to him, it is not my function to do that.

21. Unfortunately, the grounds in the applicant’s amended application are lacking in any substance, and are of no assistance to him. 

22. The preamble to ground 1 suggests that the Tribunal did not observe a requirement to proceed “according to substantial justice and the merits of the case”, and thus appears to refer to s.420(2)(b) of the Migration Act. However, it has been held in the High Court that this provision does not impose any duty upon the Tribunal which can give rise to jurisdictional error (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [36], citing Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], [108]-[109], [158], [179]). A similar construction has recently been taken in the Federal Court in relation to a similar direction to the Tribunal in s.422B(3) that the Tribunal “must act in a way that is fair and just” (see Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [17]-[18]).

23. The dotted particulars of ground 1 appear to have been taken from a precedent with little reference to the applicant’s particular case.  Even after penetrating their garbled expression, they are devoid of meaningful arguments. 

24. In relation to the first particular, I am unable to detect any material presented by the applicant to the Department or the Tribunal which it did not take into account. 

25. The second and third particulars are entirely obscure to me as to the argument which is presented.  They appear, at best, to invite an investigation of the facts and merits of the case, rather than identify jurisdictional error. 

26. The assertions in the fourth and fifth particulars that the Tribunal did not follow natural justice, and ignored “the relevant facts of the case”, are unparticularised.  I am unable to identify any such errors in the material before me. 

27. Similarly, the various contentions of legal error in particulars 6, 7, 8, and 9 are unexplained, and I have been unable to identify how they might relate to the present Tribunal’s decision. 

28. Even more general, and meaningless, is ground 2. 

29. For the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error.  I must therefore dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  10 March 2010