SZODZ v Minister for Immigration
[2010] FMCA 270
•13 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZODZ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 270 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was failed to comply with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal failed to consider all the applicant’s claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2); 65(1); 65(1)(b); 91R; 424A; 424A(1); 424A(3); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 474 |
| SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609; (2007) HCA 26 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 |
| Applicant: | SZODZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 301 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 April 2010 |
| Date of Last Submission: | 13 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Malayalam interpreter |
| Solicitors for the Respondent: | Ms B. Rayment, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 301 of 2010
| SZODZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Background
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), dated 19 January 2010, and handed down on 20 January 2010.
The applicant claims to be a citizen of India, of Hindu faith, a member of the Ezhava caste and a supporter of the Sree Narayana Dharma Paripalana Yogam movement (“SNDP”).
The applicant arrived in Australia on 21 June 2009, having departed legally from Cochin Airport on a passport issued in his own name, and a subclass 676 visitor visa issued on 27 March 2009.
That visa was issued to the applicant whilst the applicant was in Bali, where he had gone to work in July 2008.
After obtaining that visa, the applicant returned to Kerala on 9 April 2009, where he remained for over two months before leaving Kerala on 16 June for Australia, during which time he passed through Indonesia on his way to Australia.
Legislative framework
Section 65(1) of the Migration Act 1958 (Cth) (“the Act”) authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The applicant’s application for a protection visa and the Delegate’s decision
On 6 July 2009 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship.
The applicant provided a statement in support of his protection visa application. That statement is accurately summarised in the written submissions of the first respondent as follows:
“The applicant, a citizen of India and a member of the Ezhava caste, claimed to fear persecution from the Communist Party India (Marxist) (CPI(M)) on account of his involvement with the Sree Narayana Dharma Paripalana (SNDP) Yogam movement. He joined the SNDP in 1981 during his schooling in Kerala and became actively involved in 1992 and 1993 when he returned to Kerala to undertake further study.
Between 1993 and 2008, the applicant worked in Goa and Bombay. He claimed he continued to receive circulars from the SNDP during this time and when he returned to Kerala to visit his family he would work for the movement which bought him to the adverse attention of the CPI(M). The applicant claimed he was attacked and injured by CPI(M) members in 1998 and that he and his family also received telephone threats whilst residing in Goa and Bombay. The applicant claimed that the CPI(M) were trying to recruit him because of his influence within the SNDP.
In July 2008, the applicant travelled to Indonesia for work and was warned not to return to Kerala as the CPI(M) was in power. The applicant then obtained an Australian visa but travelled back to Kerala before coming to Australia. He feared his life would be under threat if he was forced to return to India.”
On 28 September 2009, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has refugee protection obligations.
The Tribunal’s review and decision
On 20 October 2009, the applicant lodged an application for a review of the Delegate’s decision with the Refugee Review Tribunal.
On 28 October 2009, the Tribunal wrote to the applicant, informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to come to a hearing on 1 December 2009 to give evidence and present arguments relating to the issues arising in his case. Prior to the hearing the applicant provided no further material or documents to the Tribunal in support of his review application.
On 1 December 2009, the applicant attended the hearing before the Tribunal, at which he gave evidence and provided the Tribunal with a copy of his passport.
The Tribunal accurately summarised the applicant’s written claims in his original protection visa application in its decision record. The Tribunal then summarised the applicant’s evidence given at his interview with the Delegate.
The Tribunal’s decision record then identifies the exchanges that the Tribunal had with the applicant about his claims, and notes concerns that the Tribunal put to the applicant about his claims, and noted the applicant’s responses.
In particular, the Tribunal put to the applicant the fact that he had returned to Kerala, after obtaining his visa to travel to Australia cast doubt on his claim to fear being persecuted if he was to return to Kerala. The Tribunal noted the applicant’s response that he sought to return to see his children because he had not seen them for a year and because the company for which he worked in Indonesia had given him a return ticket. The Tribunal also put to the applicant that, even though the applicant said he feared returning to Kerala, he had kept returning to Kerala for a number of years, including to the very same area where he had grown up. The Tribunal noted that it put to the applicant that this suggested to the Tribunal that he did not, in fact, fear being persecuted in Kerala. The Tribunal also asked the applicant if he understood that the Tribunal had great difficulty in accepting that the applicant did, in fact, have a fear of being persecuted in Kerala at all. The Tribunal noted the applicant’s responses.
The Tribunal also put to the applicant that it had great difficulty in accepting that the applicant had a fear of being persecuted by anyone because of his very limited involvement in the SNDP, and that the injury the applicant claimed to have suffered to his head had been in 1998. The Tribunal further noted that it put to the applicant that the applicant’s own conduct did not suggest that the applicant feared being persecuted because of any work that he had undertaken in the past for the SNDP.
The applicant then asked the Tribunal for two weeks to produce further documents to support his claims that he had been working for the SNDP. The Tribunal gave the applicant until 15 December to produce further documents. On 14 December 2009 the applicant provided to the Tribunal a copy of a biography of the founder of SNDP and an undated letter on the letterhead of SNDP Yogam in Pattimattom stating that the applicant was a member who had been working and propagating the doctrine of the SNDP since 1979.
Whilst the Tribunal noted that there were significant differences between the applicant’s written statement and his oral evidence to the Tribunal, the Tribunal stated that, to the extent of any inconsistencies, it preferred the applicant’s oral evidence at the hearing.
The Tribunal accepted that the applicant grew up in Kerala and had become involved in the SNDP Yogam in his last two years at school and was again actively involved in the SNDP when he was studying in 1992 and 1993. The Tribunal accepted that, from 1993 until 2008, while he was living and working in Goa and Bombay, the applicant continued to receive SNDP circulars and that, when he returned to Kerala to visit his family for 15 to 45 days at a time, he did some SNDP work.
The Tribunal also accepted the applicant’s claim of having suffered an injury to his head in a fight with Communist Party of India (Marxist) (“CPI(M)”) members in 1998. However, the Tribunal did not accept that the CPI(M) were seeking to recruit the applicant as a member, as claimed by the applicant.
Ultimately, the Tribunal found that the applicant’s own conduct reflected that the applicant did not have a subjective fear of persecution in Kerala from either the CPI(M) or the SNDP. The Tribunal found that the applicant went to Bombay and Goa to work and not because of any threats to his safety in Kerala. The Tribunal found that, while the applicant was living and working in Goa and Bombay, he continued to return to his home in Kerala. Accordingly, the Tribunal did not accept that the applicant feared being persecuted in Kerala because of his involvement with the SNDP. The Tribunal did not accept that the applicant considered that he had to remain in hiding when he last visited Kerala in 2009.
The Tribunal did not accept that there was a real chance that, if the applicant was to return to his home in Kerala now or in the reasonably foreseeable future, he would be persecuted for reasons of his involvement in the SNDP, the CPI(M) or any other political party.
The Tribunal also noted that the applicant belonged to the Ezhava caste which it found is a caste classified as a ‘backward’ class in Kerala based on country information before it. However, the Tribunal did not accept that on the evidence before it that there was a real chance that the applicant would be discriminated against or otherwise persecuted for reasons of his belonging to the Ezhava caste, if he were to return to his home in Kerala now or in the reasonably foreseeable future.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 3 March 2010, 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 and written submissions in support of his application.
On that occasion, I explained to the applicant that the Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of his application made bare assertions of error unsupported by particulars.
The applicant was referred to the Court’s legal advice scheme and received legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
On 30 March 2010, the applicant filed an amended application, although it was not served upon the first respondent.
At the commencement of the hearing, the applicant confirmed that he relied only on the grounds contained in the amended application. Those grounds are as follows:
“1. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:
424A applicant must be given certain information
1. Subject to subsection (3), the Tribunal must:
a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review (sic); and
b) Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and (sic)
c) Invite the applicant to comment on it (sic).
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence and lacked credibility; therefore the Tribunal had erred by denying me procedural fairness in respect of this issues. (sic)
2. The Tribunal failed to consider an integer of applicant’s claim, in failing to consider whether or not a Backward Class in India was discriminated and ill treated by the upper class Hindus, and not able access effective protection whilst the Tribunal formed the view that the applicant was a credible witness. (sic)
3. The decision was effected by jurisdiction error in that the Tribunal failed carry out its review function in that it did not take into account or consider claims made by the applicant in relation to attack made on him in 1998. (sic)”
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 his application generally.
Ground 1
Ground 1 asserts that the Tribunal breached its obligation under s.424A of the Act in that it ignored its undertaking to give the applicant an opportunity to make written submissions about inconsistencies in his evidence.
I explored this ground with the applicant and asked him if the Tribunal said anything to him at the hearing about providing him with a further opportunity to make written submission about inconsistencies in his evidence. The applicant responded that the Tribunal had not said anything to him at the hearing to that effect. Certainly, the Tribunal’s decision record does not suggest any such undertaking was given. I asked the applicant if ground 1 was intended to contend that the Tribunal was obliged to give the applicant an opportunity to make written submissions about inconsistencies in his evidence and its concerns about his credibility. The applicant confirmed that was so.
A fair reading of the Tribunal’s decision record makes clear that the applicant asked for two weeks to produce some further papers to support his claims that he had been working for the SNDP. That request was granted by the Tribunal and the Tribunal’s decision record notes that on 14 December 2009 the applicant produced further material which the Tribunal identified in the decision record. Otherwise, there was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any other evidence to suggest that the Tribunal’s decision record is not accurate. At the directions hearing before me on 3 March 2010, the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the Tribunal hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal summary of the oral evidence given by the applicant and the exchange that it had with the applicant at the Tribunal hearing.
As stated above, there was no mention in the Tribunal’s decision record of any undertaking to give further time and I do not understand the Applicant to assert that he sought time beyond his request for the further two weeks to provide documents. As stated above, that request was granted by the Tribunal.
A fair reading of the Tribunal’s decision record makes it clear that there was no information that enlivened the obligations of s.424A of the Act. The information to which the Tribunal had regard was the oral evidence given to it at the hearing by the applicant for the purposes of his review and country information relating to Ezhava castes in Kerala.
The oral evidence given to the Tribunal by the applicant was information given for the purpose of his application for review and is therefore information that is specifically excluded from the operation of s.424A(1) of the Act by reason of s.424A(3)(b) and (ba) of the Act.
The country information to which the Tribunal had regard is information not specifically about the applicant and is just about a class of persons of which the applicant is a member. Such information is specifically excluded from the operation of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
Inconsistencies found by the Tribunal to exist are not information that enliven the obligations of s.424A(1) of the Act, and are no more than the Tribunal’s subjective appraisal thought processes; determinations and conclusions arrived at by weighing up of the evidence (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609; (2007) HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
In any event, it is clear from the Tribunal’s decision record that any inconsistency in the applicant’s evidence and material did not form part of the reason for affirming the decision under review. The Tribunal specifically stated that it had regard only to the oral evidence of the applicant given to the Tribunal and did not have regard to inconsistencies in that evidence with is written claims.
Accordingly, in all the circumstances, there was no breach by the Tribunal of its obligations under s.424A(1) of the Act, and ground 1 is not made out.
Ground 2
Ground 2 makes the bare assertion that the Tribunal failed to consider whether or not the applicant was discriminated against or ill-treated in India by reason of being a member of the Ezhava caste by upper caste Hindus and was not able to access effective State protection. A fair reading of all the evidence and material before the Tribunal makes it clear that there was never any claim squarely arising from the evidence and material before the Tribunal that the applicant suffered discrimination and ill-treatment by members of upper caste Hindus or was not able to access effective state protection (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 at [60] per the Court (Black CJ, French and Selway JJ)).
As is referred to above, the Tribunal considered whether the applicant may be at risk of persecution because of his membership of the Ezhava caste, which the Tribunal found to be classified as a backward caste in Kerala. However, the Tribunal did not accept, on the evidence before it, that there was a real chance that the applicant would be discriminated against, or otherwise persecuted, by reason of belonging to Ezhava caste if he was to return to his home in Kerala now in the reasonably foreseeable future.
The Tribunal noted that the country information before it disclosed that people belonging to that caste enjoyed the benefit of a 40 per cent reservation in respect of appointments to government service. The Tribunal noted the education that the applicant had received in India, including the completion of his leaving certificate and a Bachelor of Arts degree at the Parade Institute of Varanasi between 1983 and 1986. The Tribunal also noted the applicant had done labouring work for a construction company for six years until about 1992 when he started a course at the Industrial Training Institute at Chowakood in Kerala to become an electrician. The Tribunal noted the applicant completed that course in 1993, following which he went to Bombay where he undertook a nine-month course in Gemology at the Gemology Institute of Bombay. In the circumstances, there was no evidence before the Tribunal to suggest that the Applicant suffered any discrimination by reason of being a member of the Ezhava caste.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it, and for the reasons it gave. It is clear that the Tribunal considered whether the applicant was discriminated and ill-treated by reason of his membership of a backward caste in India.
As stated above, ultimately the Tribunal rejected the applicant’s claims because it found that the applicant did not have a subjective fear of persecution, that being a requirement for satisfying the Convention in relation to his entitlement to a protection visa (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 at 411 per Dawson J).
In the circumstances, apart from the fact there was no claim by the applicant not to have been able to access effective state protection, in the light of the finding of the Tribunal that the applicant had no subjective fear of persecution, there was no reason for the Tribunal to consider that issue further. In any event, I accept the submission of the solicitor for the first respondent, Ms Rayment, that there was no evidence provided by the applicant at any time as to any complaint made by him to authorities arising from the injury he received in 1998, let alone any evidence of a failure to provide the applicant with adequate protection.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 asserts that the Tribunal failed to “take into account or consider” the claims made by the applicant in relation to the attack on him in 1998. However, a fair reading of the Tribunal decision record makes clear that the Tribunal not only took into account and considered that claim, but accepted that the applicant suffered an injury to his head in a fight in 1998 with CPI(M) members. In his evidence to the Delegate at his interview, the Tribunal noted that the applicant said that he had been physically assaulted by some people from the CPI(M) once in 1998. That claim was not inconsistent with the oral evidence given by the applicant to the Tribunal. In the circumstances, whilst the Tribunal did not specifically say that it accepted that such injury occurred at the hands of the CPI(M), a fair reading of the Tribunal’s decision record makes clear that the Tribunal accepted that claim.
The Tribunal noted that, at the hearing before it, the applicant had said that there had been an argument in 1998 leading to a fight in which he was injured because of the SNDP and that a fight had started because members of the CPI(M) had wanted him to leave the SNDP and join the CPI(M). The Tribunal rejected that explanation by the applicant as the reason for his injury. The Tribunal did not accept that, given the applicant’s low level of involvement with the SNDP, the applicant was such an important figure that the CPI(M) would have gone to the lengths claimed by the applicant to recruit him.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. It is clear that the Tribunal had regard to the applicant’s claims made about the attack on him in 1998, however, did not accept that it was for the reasons alleged by the applicant.
Accordingly, ground 3 is not made out.
Conclusion
Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and had regard to all material provided by the applicant in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal gave the applicant a further two weeks after the hearing to provide any further information or to provide further material to the Tribunal in support of his claim.
The Tribunal had regard to the post-hearing material and identified independent country information to which it had regard. The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal and the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear 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. 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 application should be dismissed with costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 19 April 2010
0