SZNZH v Minister for Immigration
[2010] FMCA 596
•20 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 596 |
| 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 by name and has been given the pseudonym “SZNZH” pursuant to s.91X of the Migration Act 1958 (Cth). |
| Migration Act 1958 (Cth), ss.5(1), 36, 65(1), 91X, 422B, 424A, 425(1) Migration Regulations 1994 (Cth), Sch. 2, para.866.221 |
| Abram v Bank of New Zealand & Anor [1996] ATPR 41-507 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Multicultural Affairs ; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Neil v Nott (1994) 121 ALR 148 Prasad v Minister for Immigration & Ethic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration & Ethnic Affairs (1994)34 ALD 347 SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 SZIAT v Minister for Immigration & Citizenship [2008] FCA 766 SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 | ||
| Applicant: | SZNZH | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2539 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 27 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2010 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Malayalam interpreter. |
| Solicitors for the Respondents: | Australian Government Solicitor (Ms Warner-Knight) |
ORDERS
The application filed on 21 October 2009 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application fixed in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2539 of 2009
| SZNZH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The male Applicant was born on 30 March 1963 in India and is a citizen of India. The Applicant was educated for 16 years at the following institutions: a Government High School in Kerala; a pre-Degree in Commerce at Nehru Arts & Science; a Degree in Cost Accounting at Calicut University; and a Diploma in Cookery from Food Craft Institute. The Applicant was married in 1992 and has two children who are currently residing in India.
The Applicant claims that his religion is Hindu and is from ‘Other Backward Community’ (OBC) according to the Indian Government caste category. It is for this reason that the Applicant claims he has been subjected to discrimination and life threats in India and is therefore claiming protection in Australia. The Applicant also claimed that he had been prevented from building a house on his land by his upper-caste neighbours.
The Applicant arrived in Australia on 6 April 2009 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 8 April 2009. On 28 May 2009, a delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the Applicant was notified of this decision by way of letter dated 28 May 2009. The Applicant applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 24 June 2009 and the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa on 23 September 2009. It is this decision, RRT case number 0904781, a decision of C Packer that is the subject of these proceedings.
At the First Court Date directions hearing, the Applicant was granted leave to file an Amended Application. The Applicant filed an Amended Application on 5 February 2010 and the grounds are as follows:
1. The Tribunal exceeds [its] jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of the Migration Act 1958.
2. The Tribunal member emphasised on some irrelevant question at the hearing and ignored my OBC background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
3. The Tribunal failed to properly apply the consideration that Applicant for refugee status ought to be given the benefit of the doubt in circumstance where the Tribunal entertained the possibility that the Applicant claims are plausible, which was the case here.
4. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against Applicant claims in the final outcome. The Tribunal did not give to the Applicant before the hearing the information it had about OBC in India. The Tribunal used the all information for matter of reasoning and evaluation of the Applicant case for protection visa. This was against section 424A of the Migration Act 1958.
Tribunal decision
The Applicant appeared before the Tribunal on 19 August 2009 and presented argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. However, the Applicant appeared to understand English well and often provided responses to the questions before they had been interpreted.
The Tribunal requested further information from the Applicant by inviting him to comment on information, which would, subject to any summons or response he made, be the reason, or part of the reason for affirming the decision under review (CB 206-207). The Tribunal then adjourned the hearing for two weeks until the close of business on 2 September 2009.
The Tribunal asked the Applicant again whether he sought additional time to comment or respond and he indicated he did not want time to provide documents. A substantial volume of documents were provided by the Applicant in a letter dated 22 September 2009.
The Tribunal accepted that the Applicant was of the Maniyani/Yadava caste, one of the OBCs, but is in the middle range in Kerala. The Tribunal did not accept that the Applicant’s land dispute occurred because of the Applicant’ caste.
The Applicant provided the Tribunal with further documents after the hearing which show that his wife was provisionally appointed to a position of Probationary Clerk / Cashier in the Kasaragod District Cooperative Bank ltd on 21 January 1995. The documents show that the wife was ranked 5 of 108 successful job Applicants rather than 1 of 5 successful Applicants. The documents indicate discrepancies from oral evidence given at the hearing such as the number of Applicants, the year of appointment, the selection process being quashed by court order, termination or when she left employment. Significantly, during the hearing the Applicant provided details of his wife’s employment with the bank but subsequently changed a number of these details on detailed questioning. The Applicant claims and evidence concerning the court action which ultimately found corruption and quashed the bank’s selection exercise led the Tribunal to conclude that the wife did not lose the bank job because of caste discrimination.
The Tribunal found that the Applicant was detained for three days by the police fourteen years ago and he had been released without charge or conviction.
In his visa application, the Applicant claimed he continued education from primary to college level in Kerala. He was denied admission in Bangladore because of his low caste. However, in the hearing he indicated that his family had moved to Kerala when he was young and that he attended school up to year 10 in Kerala at which time he started working. At the hearing, he stated he had unsuccessfully sought entrance to universities in other states and that his financial circumstances suggested that he would then able to finance a university course which led to him to commence employment after year 10. The Tribunal did not accept that the reason he was unable to gain university entrance was due to his caste.
The Applicant points to set backs in his wife’s career corroborated with documents concerning her education, employment and court actions. She claims she suffered continual caste discrimination in employment. She also claims that she lost a job in the banking sector and unsuccessfully sought a secondary school teacher position. The Tribunal accepts that the Applicant’s wife was a primary school teacher but was unsuccessful in obtaining a secondary school teaching appointment after serving a public service commission test. The Tribunal did not accept that the court action concerned caste discrimination however the Tribunal concluded that the Applicant’s wife was unsuccessful for reasons unrelated to her caste or the caste system.
The Applicant claimed that his daughter was expelled from school due to caste discrimination however documents provided subsequently indicate that she was in fact transferred at her parents’ requests. The suggestion that his daughter has been denied schooling in India is unfounded.
The Applicant claimed that he worked in Dubai illegally for a number of years and because of that status, was forced to perform low paid work. In India, he worked in the hospitality industry in various cities and claimed that his inability to gain and hold employment was due to his caste. The Tribunal considered all of the evidence before it and did not accept that caste discrimination was the reason the Applicant lost his employment. Nor did the Tribunal accept that he received threats on a regular basis because of his caste and that this led him to change his employment regularly.
The Tribunal’s findings are effectively summarised under the sub-heading “Conclusion” where it stated:
In sum, the Tribunal considers the evidence cumulatively and finds that the Applicant has constructed a narrative largely around the land dispute and his wife’s employment set backs, for the purposes of claiming refugee status. The Tribunal does not accept that the Applicant suffered persecution in India for a Convention related reason or that he fled India because of a fear of harm for a Convention reason. The Tribunal finds he is able to return to Kerala in India and that there is not a real chance he will suffer harm for reasons of his caste or religion. It follows that the Tribunal is not satisfied that the Applicant has a well founded fear of persecution for one or more reasons of the Convention reasons, now or in the reasonable foreseeable future, if he returns to India. The Tribunal is not satisfied that the Applicant is a refugee. (CB 220-221)
Consideration
The Applicant appears as a self represented litigant with the assistance of a Malayalam – English interpreter. At the First Court Date directions hearing he indicated that he wished to participate in a court sponsored NSW RRT legal advice scheme. He was appointed a panel advisor and attended a conference with that advisor and subsequently received written advice. He also availed himself of the opportunity to file an Amended Application after he had received advice. However it is noted that the Amended Application was not prepared by the panel advisor. The Applicant was requested to file and serve in the court registry a short written outline of submissions and a list of authorities fourteen days prior to the hearing. This request was not complied with. At the hearing when the Applicant was invited to make any oral submissions in support of his application he declined to do so indicating that he relied upon the material already before the Court.
The Tribunal found that the Applicant was not a witness of truth and was satisfied that he had created this claim in order to obtain a Protection visa. In effect the Applicant had constructed a narrative around a land dispute on which no dwelling existed. It was his plan to build a family home however the upper caste neighbours objected to the project including preventing the installation of electricity. The other limb of this claim essentially focused on his wife who was of the same caste and was allegedly denied opportunity in various areas of employment that she sought to pursue. A number of the claims made by the Applicant were either contradicted by his own oral evidence during the Tribunal hearing or by documentation that he supplied in response to the s.424A enquiry made by the Tribunal at the end of the hearing.
The relevant statutory criteria requires that at both the time of the decision of the Minister and on review, the Tribunal was satisfied that an Applicant is a person to whom Australia has a protection obligation under the 1951 Convention Relating to the Status of Refugees as amended by 1967 Protocol Relating to the Status of Refugees. This requires the satisfaction of ss. 5(1), 36 and 65(1) of the Migration Act 1958 (Cth) and para. 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 28 May 2009 a delegate of the Minister refused the Applicant a visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugee Convention. The delegate found that the Applicant does not have a genuine fear of harm and that there is no real chance of persecution occurring should he return to India in the foreseeable future. A letter dated 28 May 2009, from the delegate of the Minister indicates the Applicant’s review rights which he has pursued within the statutory time limits. It is clearly established that it is for the Applicant to satisfy the Tribunal that all of the statutory elements are made out in any review application: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. It is also widely acknowledged that an Applicant must establish persecution in the context of an application for a Protection visa. Such a claim is a matter of some complexity and a liberal attitude on the part of the decision maker is called for, since a person who claims to be a refugee may have difficulty in proving his allegations: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451. However, the merits of a case including the matters of weight to be given to items of evidence and the credibility to be attached to witnesses is for the Tribunal to determine: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292.
Clearly these requirements are quite alien to a self represented litigant with no apparent knowledge or understanding of the legal system in which he is attempting to advance his claim. Similarly he appears to be relying upon grounds of review prepared by a third party of an unknown qualification who has supplied the grounds of review which are formulaic and not strictly relevant to the circumstances of the Applicant who was attempting to rely upon these grounds. In Abram v Bank of New Zealand & Anor [1996] ATPR 41-507 the Full Federal Court applies the decision of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at 150 to the effect that where a party is not represented, the Court must assume a burden endeavouring to ascertain the right of the party which are obfuscated by their own advocacy. What a judicial officer must do to assist a litigant in person depends on the litigant, the nature of the case, the litigant’s intelligence and the understanding of the case. In this matter the Applicant has been provided with the assistance of a Malayalam – English interpreter although he has a reasonable understanding of English. However, he does not appear to have any understanding or appreciation of the legal process in which he is embarking or the onus upon him to establish his grounds of review.
The Applicant is entitled to the rights afforded to him under Division 4 of Part 7 of the Act and in particular the operations of s.422B of the Act. In order to extend this entitlement to the Applicant I intend to review the Tribunal’s obligation in this division in the absence of any appropriately pleaded grounds of review supported by particulars or oral submissions. There is reference in one of the grounds to a section which is part of Division 4 of Part 7 but this pleading has the characteristics of a formally laid claim and not relevant in the context in which it has been pleaded. The Tribunal put to the Applicant its concerns about identified inconsistencies in his evidence and explained that this might lead the Tribunal to conclude that he was not a witness of truth.
The Tribunal provided the Applicant with a two week period in which to respond and invited him to indicate whether this was sufficient time and whether a further extension was required. The Applicant did not seek an extension. This was ultimately granted as the material was not submitted to the Tribunal until three weeks after the expiry date. This is not “information” for the purposes of engaging either s.424A or s.424AA. VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 per Finn and Stone JJ cited with approval of the majority of the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18] where the word “information” was considered, it was found that:
does not encompass the Tribunal’s subjective appraisal, thought process or determination…nor does it extend to identify gaps, defects or lack of detail or specificity in evidence or to conclude conclusions arrived at by the Tribunal by weighing up the evidence by reference to those gaps, etc.
It is not enough that information, when considered against other information, may caste doubt on a review of the Applicant’s credibility for example because of the perception of inconsistencies: SZBYR v Minister for Immigration & Citizenship (supra) at [17]. Nor was the Tribunal required to put to the Applicant information under s.424A or s.424AA. The independent information shows the general circumstances of the Maniyani caste in India and Kerala (CB 110 at [33) and the Yadava caste in India (CB 211 at [36]). Such information fell within the exception in s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at 66. No errors are revealed in the Tribunal’s approach. Section 424A and s.424AA have no application where this particular line of reasoning is put to the Applicant: SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 at 30.
The Tribunal member explained to the Applicant how these issues were relevant to the review and the consequences of information being relied upon by the Tribunal as required by s.424AA(b)(i) (CB 209), inviting the Applicant to respond to information pursuant to s.424A(b)(ii) and advising him that he may seek further time to respond in accordance with s.424AA(b)(ii). In accordance with s.424AA(b)(iv) the Tribunal adjourned the hearing until the close of business on 2 September 2009. On the information before me I am satisfied that the Tribunal has complied with these requirements under the Act.
The Applicant was validly invited and attended a hearing before the Tribunal on 19 August 2009. At that hearing the Tribunal put its concerns to the Applicant about the inconsistencies in his evidence. In adopting this approach the Tribunal satisfied s.425(1) in the manner outlined in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 at [42]-[44] by ensuring that the Applicant at the hearing was sufficiently alert to determinative issues arising on review and that he had the opportunity to respond to them.
The Tribunal considered the following supporting documents provided by the Applicant in a letter dated 22 September 2009:
a)A court document OS No_/2009 but dated 5-1-1995 concerning a civil action;
b)A criminal complaint dated 27 – 2- 1995. This incident occurred in early January 1995 between the Applicant and his neighbour ;
c)A letter dated 31 August 2009 that enclosed documents;
d)Information concerning the caste system in India including Dalits largely from America;
e)Documents concerning the wife’s bank job in January 1995;
f)Another job application in November 1994;
g)Documents in Malayalam – the Tribunal phoned the Applicant who indicated that these documents and the general political situation in Kerala;
h)Indian court documents concerning his wife dated 2005;
i)Education certificate of his wife; and
j)Copy of his passport.
The Tribunal identified inconsistencies between this group of documents, oral evidence given by the Applicant and the claims set out in his original application. The Tribunal was not required to refute, line by line, the corroborative material given by the Applicant: SZIAT v Minister for Immigration & Citizenship [2008] FCA 766 at [28], citing Minister for Immigration & Multicultural Affairs ; ex parte Durairajasingham (2000) 168 ALR 407 at 67. Nor was the Tribunal required to expressly refer to every individual piece of evidence provided by the Applicant or make findings regarding each of those pieces of evidence: Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [67]-[68], [73]-[74], [77], [89] and [91]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 46.
I am satisfied that the Tribunal has conducted the review process appropriately and it is not apparent from a fair reading of the Tribunal decision that any jurisdictional error has been made.
In the Amended Application the Applicant has relied upon four un-particularised grounds of review which have not been supported by oral or written submissions. These state that the Tribunal decision is in error presumably on the basis that it contains one or more jurisdictional errors. In the absence of any indication as to what this error involves, it suggests that the author of these grounds of review has not fully comprehended the contents of the Tribunal decision and has resorted to a formulaic approach. I have canvassed many of these issues above but I will briefly address these grounds as follows.
Ground one
The Applicant asserts that the Tribunal failed to investigate his genuine claims. However, as the Minister correctly pointed out, the Tribunal was under no obligation to investigate his claims as the onus was on the Applicant to prove that he was a refugee: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. This matter does not fall within the very limited circumstances where a failure to make enquiries by the Tribunal may constitute a “failure to review”: Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at [25]. I am satisfied that this ground of review cannot be sustained and should be dismissed.
Ground two
The Applicant alleges that the Tribunal focused on irrelevant questions and did not take into consideration his OBC background, thereby ignoring relevant material which was ‘erroneous’ or ‘mistaken’. The Tribunal accepted that the Applicant’s caste fell within the OBC’s but was of a caste that lay in the middle range in Kerala (CB 215 at [52]). The Reasons for Decision indicate the material either provided by the Applicant or from the Tribunal’s own resources that it took into account before finalising the decision. All of this material is referenced in the decision. I am satisfied that this ground of review cannot be sustained and should have been dismissed.
Ground three
The Applicant claims that the Tribunal considered the possibility that the Applicant’s claims were plausible but did not give the Applicant the benefit of the doubt. Ms Warner Knight, the solicitor for the Respondent, concedes that when reviewing an application for refugee status the decision maker must bring an open mind as such a person may find it difficult to prove their allegations: Randhawa (supra). However, this must be balanced with the merits of a case, items of evidence and the credibility of witnesses: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is not necessary for the Tribunal to possess rebutting evidence before deciding that a particular assertion is not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994)34 ALD per Heerey J at 347 at 348. The Tribunal is not required to accept uncritically any and all claims made by an Applicant: Randhawa (supra) per Beaumont J (supra) ibid at 451; Minister for Immigration & Ethnic Affairs v Guo (supra); Prasad v Minister for Immigration & Ethic Affairs (1985) 6 FCR 155 at 169-170. I am satisfied this ground of review cannot be sustained and should be dismissed.
Ground four
The Applicant alleges here that the Tribunal breached s.424A of the Act by not providing to the Applicant before the hearing information it had concerning OBC in India which the Applicant claims was used against him.
In paragraph [91] of the Tribunal decision, the Tribunal provides a concise summary of the proceedings on 19 August 2009. In that summary, the Tribunal indicates that it discussed with the Applicant the independent country information concerning Maniyani cast and sets out a list of topics that the information covered. At the end of that discussion, the Tribunal records the following
The Tribunal indicated that the independent country information concerning the Maniyani cast showed it to be among the dominant cast at the top of the OBC hierarchy and did not appear to support his claims. The Applicant then discussed how his cast is unable to prove the discrimination but that practically it occurred constantly. (CB 206)
At the end of that summary, the Tribunal identifies six further documents that the Applicant supplied to the Tribunal. Under the heading “independent information” the Tribunal lists the material that it considered in respect to the application. All of this material is excluded from the provision of s.421A(1).
As discussed above s.424A(1) does not apply to independent country information: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 and that the selection and weight of independent country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.
Conclusion
In the absence of any clearly pleaded grounds of review identifying alleged jurisdictional error on the part of the Tribunal which is particularised or supported by submissions. The review of this application must be limited to a fair reading of the Tribunal decision taking into account its obligations set out in Division 4 of Part 7 of the Act. The evidence before the Court is limitd to the contents of the Court Book and in particular the Tribunal decision. I accept the submissions prepared by the representative of the Minister in respect of the grounds of review and on a fair reading of the material it is not apparent that any alleged jurisdictional error has been made by the Tribunal. In these circumstances the application should be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 20 August 2010
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