SZOAH v Minister for Immigration
[2010] FMCA 254
•7 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 254 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal has no general duty to make enquiries. |
| Migration Act 1958, ss.65, 415, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| First Applicant: | SZOAH |
| Second Applicant: | SZOAI |
| Third Applicant: | SZOAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2745 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 April 2010 |
| Date of Last Submission: | 7 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2010 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $4,168.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2745 of 2009
| SZOAH |
First Applicant
| SZOAI |
Second Applicant
| SZOAJ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. The first applicant claims that, while in India, he was engaged in various activities designed to increase the popularity of the Congress Party. He claims that his own popularity increased as a result and that an opposing party, the Akali Dal, then tried to recruit him. He claims that after he refused their offer the Akali Dal lodged cases against him and he fears that he will be sent to gaol if he returns to India.
The first applicant claims to fear persecution in India because of his political opinion.
On 6 April 2009 the applicants lodged an application for protection visas. The first applicant’s wife and son, the second and third applicants respectively, made no claims of their own but relied on their membership of the family group. On 11 June 2009 the application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicants’ visa application. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claims for protection visas are set out on pages 4 – 9 of the Tribunal’s decision (Court Book (“CB”) pages 128 – 133). I now summarise relevant factual allegations.
The first applicant made the following claims in his protection visa application:
a)from 1992 he was involved in various political activities designed to increase the popularity of the Congress Party;
b)his own popularity increased as a result of his work, such that in 1998 he was approached by the Akali Dal secretary who asked him to join that party. He refused as he knew that many Akali Dal members were violent and corrupt;
c)on 8 March 1999 he was arrested and brutally interrogated by the police after the Akali Dal leader framed him for murder. While in gaol he was beaten up by Akali Dal supporters but the Congress Party was very helpful and gave him moral support. He was bailed after four months and his case dismissed on 20 September 2000;
d)in February 2006 he moved (from Harayana) to Punjab where, at the time, the Congress Party was in government. When the Congress Party lost the local assembly elections later that year, the Akali Dal leader in Harayana told the Akali Dal leaders in Punjab about him. Subsequently, on 23 October 2006, another case was filed against him. He was granted bail although the case is ongoing; and
e)he returned to India after his visit to Australia in 2008 because of the pending court case. However, he does not wish to return to India because he has been told by his lawyer that the verdict will be against him.
At the Tribunal hearing on 26 August 2009 the first applicant made the following additional claims:
a)in 2006 he went to Malaysia, Singapore and Thailand as he had to run away. However, he returned to India after his son was born, although he did not return to his home;
b)the applicants first came to Australia in June 2008 as it was dangerous for them in India. They did not claim refugee status at the time and, instead, returned to India because the opposition were putting pressure on the first applicant to return from Australia so they could reconcile their differences. When he discovered that things were still dangerous in India, he came back to Australia;
c)he was just an ordinary member of the party’s Harayana branch. He did not have a role or do any “big things” for the party, but only did “certain things” like encouraging people to join;
d)the opposition parties would seek to harm him because, variously:
i)every party opposes the other party, which it regards as its rivals;
ii)his father was in the Congress Party and there was a family history;
iii)he was seen by the Congress Party [sic] sitting member as being closely associated with his father and they regarded him as being a pain in their side; and
iv)the opposition parties did not want him to progress; they wanted to put their own people in positions;
e)he is worried about the pending court case. He is also scared that, once the Akali Dal is in power, they will instigate further charges against him and, as a result, he will spend the next fifteen to twenty years in gaol; and
f)he cannot live elsewhere in India as he does not have the necessary language skills or relatives to support him. Also, he would not be able to sell his farm so would not be able to set himself up.
The Tribunal’s decision and reasons
After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was not satisfied that the first applicant had a political profile of any sort in India, noting that:
i)his claims were vague and general and he could not fully explain why his political profile would cause him to fear persecution;
ii)when the Tribunal asked him to talk in detail about the Congress Party platform, he could only respond with sweeping generalisations. His knowledge of the party’s manifesto and philosophy was very general and was limited to the point of being non-existent;
iii)while accepting that he may have, on a few occasions, been loosely associated with some general Congress Party activity, in the Tribunal’s view his extremely limited knowledge of the party was insufficient to enable him to play any real role in that party or in politics in India more generally;
iv)in the Tribunal’s view, if he had a well-founded fear of serious harm amounting to persecution for the reasons claimed, he would have been motivated and able to elaborate at length on his claimed experiences and political views but was unable to do so at the hearing;
b)the Tribunal found that the first applicant had embellished his claims in order to enhance his prospects of obtaining a visa and concluded that he was not a credible witness;
c)having found that the first applicant had no profile in India whatsoever, the Tribunal did not accept that opposition parties would view him as such a political threat that they would bother to take any action against him, including by mounting a politically motivated court case. In this connection, the Tribunal noted the first applicant’s claim that he was considered to be closely associated with his father, however, given that he did not provide any information to indicate that his father was a political figure nor did he claim that his father had been persecuted in the past for this or any other reason, the Tribunal did not accept his unsupported claim that he would have a political opinion imputed to him because of his father’s association with the Congress Party;
d)while the Tribunal did accept that the first applicant was charged with and later acquitted of murder in 1999/2000, it was not satisfied based on the information provided by the first applicant that there was a relevant Convention nexus associated with his claim;
e)neither did the Tribunal accept that any future charges levelled against the first applicant (if any) would be for a Convention related reason, noting that:
i)this claim was entirely speculative in nature;
ii)it was satisfied that if for any reason he had a well-founded fear of serious harm amounting to persecution for a Convention reason, such as because of the treatment he allegedly received while in detention in 1999, then he would have sought international protection during his visit to Malaysia, Singapore and Thailand in 2006 or his previous visit to Australia in June 2008; and
iii)having left India, he would not have voluntarily returned if he felt that there was the slightest chance he would have any difficulties; and
f)the Tribunal was satisfied that if the first applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason, he would have, once outside India, immediately taken the opportunity to seek international protection or assistance of some kind. However, not only did he not do so, but he also voluntarily returned to India twice (i.e in 2006 and 2008) and did not make any claims to have experienced any serious harm upon his return on either occasion.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1. 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.
2.The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicants circumstances and the consequence of the claim.
3.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.
3.The RRT has failed to investigate applicants claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 13 October 2009 was effected by actual bias constituting judicial error.
Reasonable satisfaction
The first allegation made in the application is not particularised and, as it stands, has little meaningful content in the context of the Tribunal’s task of reviewing the delegate’s decision. Under s.65 of the Act, the Tribunal’s task is to determine whether it is satisfied, amongst other things, that an applicant meets the criteria for the grant of a protection visa. If it is not satisfied of this then under ss.65(1)(b) and 415 it must affirm the delegate’s decision. That is what happened in this case. In para.53 of its decision the Tribunal stated, having set out the evidence and reasons for reaching its conclusion, that it was not satisfied that the first applicant is a person to whom Australia owes protection obligations under the Convention. At no point was it a question of the Tribunal’s decision being based on what the applicants have identified as its “reasonable satisfaction”. Rather, the Tribunal’s decision was based on a want of satisfaction. For that reason the allegation does not address the actual basis of the Tribunal’s decision and must fail on that account.
If, however, the applicants refer to those places in its decision record where the Tribunal states that it is satisfied that certain factual matters existed or did not exist (paras.44, 47, 48, 49, 50 and 52), then the applicants raise findings of fact into which this Court cannot inquire. This is because none of those findings had a jurisdictional element and each of them was open on the evidence.
For these reasons, the first allegation is not made out.
Decision unjust and deficient
The first element of the second allegation, namely, that the Tribunal’s decision was unjust, has no content on its own. Without particulars pointing to jurisdictional error, it is no more than a complaint that the Tribunal did not agree with the applicants’ claims. However, it is to be presumed that the applicants intend the second part of the allegation to give the necessary substance to the allegation of unjustness. The second part of the allegation is to the effect that the Tribunal failed to take into account how serious their claim was.
The entirety of the second allegation depends on the Tribunal having accepted the applicants’ essential factual allegations and to have misunderstood them or to have not applied the law properly to them. However, that was not the case here. The first applicant’s claims to have had a political profile in India, from which all the other elements of the applicants’ claims flowed, was disbelieved by the Tribunal. The Tribunal rejected, or was unable on the evidence to make findings in the applicants’ favour, on the allegations advanced in support of the review application. Consequently, there were no relevant circumstances or consequences which the Tribunal had to take into account in the manner alleged by the applicants.
For this reason, the second ground of the application does not disclose jurisdictional error on the Tribunal’s part.
The applicants satisfied the Convention test
The third ground of the application is to the effect that the Tribunal failed to consider whether the applicants satisfied the Convention test. The applicants also allege that they satisfy that test.
It is plain from a review of the Tribunal’s decision that it recognised what the Convention test entailed and tested the applicants’ claims against its requirements. However, the outcome of its review did not turn on its application of the test. Rather, it turned on the Tribunal’s disbelief of the factual assertions advanced by the applicants in support of their application for visas. Although the applicants may disagree with the Tribunal’s findings of fact, those findings were open on the evidence and, for the reasons already given, are matters which are not reviewable in these proceedings. Consequently, the third allegation in the application is not made out.
Failure to investigate and bias
The fourth allegation made in the application is that the Tribunal should have undertaken certain enquiries and that its failure to do so was evidence of actual bias on its part. The first observation to be made in relation to this allegation is that the Tribunal has no general duty to make inquiries although a failure to make an obvious inquiry about a critical fact, the existence of which was readily ascertained, could in some circumstances amount to a failure to review and a constructive failure to exercise jurisdiction: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]. But the applicants have not identified any fact which would meet this description and which the Tribunal failed to pursue by its own inquiries. The one particular contained in the allegation, namely, that the Tribunal failed to investigate the first applicant’s “grounds of persecution in India” does not meet the test suggested in SZIAI. Indeed, it implies that the Tribunal had an obligation to undertake inquiries to produce evidence supportive of the applicant’s claims, evidence which the applicants themselves had failed to proffer in support of their review application. Certainly any duty to make inquiries, as the Tribunal might on occasion have, does not go this far.
The applicants have made no reference to the large untranslated file which they left with the Tribunal. This was appropriate, as the Tribunal did invite submissions on those parts of that file which the applicants considered relevant to the review application, but no submission was received by it.
In these circumstances, there is no basis for a finding that the Tribunal failed to make inquiries which it was obliged to undertake or that such failure evidences actual bias on the part of the Tribunal.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 April 2010
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