SZOEK v Minister for Immigration
[2010] FMCA 534
•12 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOEK v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 534 |
| MIGRATION – Review of Tribunal’s decision – privative clause decision – Tribunal’s processes – merits review – procedural irregularity – failure to investigate and allegation of bias. |
| Migration Act 1958 (Cth) |
| Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Citizenshipv SZIAI [2009] HCA 39 |
| Applicant: | SZOEK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 429 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 12 July 2010 |
| Date of Last Submission: | 12 July 2010 |
| Delivered at: | Cairns |
| Delivered on: | 12 July 2010 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | The applicant appeared on his own behalf |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application filed 2 March 2010 be dismissed.
That the applicant pay the respondent’s costs which will be fixed in the regulated sum of $5865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
SYG 429 of 2010
| SZOEK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant was an applicant for a protection (class XA) visa under section 65 of the Migration Act 1958 (Cth). He claims to be a citizen of India who arrived in Australia on 30 May 2009. He made application for his protection visa on 13 July 2009.
The delegate decided to refuse his visa application on 9 October 2009 and on 4 November 2009 the applicant applied for review of the delegate’s decision. That application was made to the Refugee Review Tribunal which, after hearing his application, including his evidence, decided to refuse his application on 4 February 2010.
This application seeks a review of the tribunal’s decision.
At the outset, it is appropriate to note that the decision – the subject of review – is a privative clause decision, but that such a decision can be reviewed if it is contaminated by jurisdictional error.
In determining that, it is particularly important to note that it is not to the point to ask whether the tribunal’s factual conclusions were right. The relevant question concerns the tribunal’s processes.
In this case, the applicant has identified five grounds in his application. The first, the tribunal had no jurisdiction to make the decision because reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act. Second, the Tribunal failed to comply with section 424 of the Migration Act in that the invitation was not given in accordance with section 424(3)(a) and section 424B, in that the invitation did not specify the way in which the additional information may be given and the invitation did not specify the period within which the information was to be given. Three, the tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequences of the claim. Four, the applicant satisfied the four key elements of the convention definition and accordingly the tribunal was in error in that it did not properly consider that aspect of the applicant’s claim. Finally, the tribunal failed to investigate the applicant’s claim, especially the grounds of persecution in India, and therefore its decision was affected by actual bias constituting judicial error.
The five grounds in effect can be consolidated into three principal headings. The first: grounds 1, 3 and 4, which in effect relate to a merits review of the tribunal’s decision. Ground 2, which deals with a procedural irregularity, and ground 5 which relates to a failure to investigate and allegation of bias dealing with the merits aspects of the application.
Without descending into unnecessary detail about the applicant’s circumstances, broadly, the applicant complains that he is, in effect, a low-caste Hindu who has been subject to persecution in India by higher-caste Hindus because he engaged in the political activity of becoming involved in the National Lok Dal or INLD, who represented poor farmers. He says he thereby came into conflict with a political organisation representing high-caste Hindus which were represented by the BJP by reason of the matters that he informed both the department and the tribunal.
He contends, in summary, that his political activism in respect of those matters gave rise to incidents of persecution, and exposed him to risk of further persecution should he be returned to India. Ultimately, the tribunal did not accept the applicant’s version of events. The applicant was provided a number of opportunities to give evidence and to respond to the tribunal’s concerns. Those opportunities were provided on notice in writing. The applicant’s responses, both in his oral testimony and in particular in addressing the tribunal’s inquiry of 11 January, were entirely unpersuasive. Many instances can be found throughout the tribunal’s very detailed decision where it considered the evidence which was provided by the applicant in respect of both his concerns and claims made against those who are alleged to oppress him. Despite those claims the tribunal was not persuaded that he was being entirely truthful, by reason of inconsistencies that were apparent from statements made to both the tribunal and the department, and because of statements made which the tribunal felt did not accord with what one might expect in those circumstances.
A particular instance of such a finding can be found at paragraph 89 of the tribunal’s decision. The tribunal having commenced its hearing on 7 January afforded the applicant an opportunity to address its particular concerns in relation to some of these matters, by its letter which it forwarded to the applicant on 11 January 2010. That letter set out matters of concern to the Tribunal including information about the applicant’s family, evidence of his joining a political party, the alleged targeting of the applicant by his political adversaries, the applicant’s political knowledge, and in particular, information concerning a claimed attack on 4 April 2009.
Despite that letter having been sent to the applicant, he did not respond to any of the matters raised in it. In addition to the evidence that the applicant gave to the tribunal, the tribunal also took into account the independent country information relevant to Indian politics. Ultimately, the tribunal, in its very detailed findings and reasons, made observations that much of the applicant’s testimony was internally inconsistent and inconsistent with other evidence. In other respects, the applicant’s evidence failed to demonstrate a degree of familiarity with matters which ought to have been apparent to the applicant, had he been truthful in respect of his knowledge of political matters. That is to say that, if he had a knowledge of political matters as he asserted, by reason of is detailed involvement in politics, his knowledge of these matters would have been more fulsome than the tribunal found to be the case from his testimony.
The tribunal expressed concerns about his evidence concerning the claims of when he says he was targeted, and was troubled by inconsistencies about his evidence of how attacks occurred. For instance, it noted that there were differences in the versions provided to the tribunal and to the department in respect of those incidents. In its summary, the tribunal said that it did not accept the applicant had provided a credible account of his claimed political involvement, and noted he was unable to produce any documentary evidence.
He failed to provide a consistent account in relation to when he joined the INLD, such that, overall, the tribunal concluded his claims and evidence about political involvement lacked credibility. The tribunal concluded that it did not accept he was ever involved in a farming association or farming group that assisted and informed labourers and others about their rights and, ultimately, that the application was involved in activities of a political nature, as claimed.
The Tribunal was not satisfied that he or his family had attracted the adverse attention of the high-caste Hindus or BJP activists, and it did not accept as credible his claims about him, his property or his family being targeted or threatened by BJP. Further, it was not satisfied that they had attempted to harm him in any way on 4 April 2009, as he had alleged, and it did not accept that members of the INLD visited his home or harassed, abused or threatened his family on 14 April 2009, or that the BJP members or others in any way abused or targeted his family after he left India.
Likewise, the tribunal did not accept his claims that there was an incident in which a member of the INLD was killed. This led to the Tribunal, ultimately, finding, at paragraph 136, that the applicant had never, in any way, been targeted or harmed in the past by the high-caste or high class Hindus or activists of the BJP. It did not accept that he had any political involvement and, essentially, did not accept him as credible in relation to any of those matters.
While the tribunal was prepared to accept that a caste group can constitute a particular social group, the tribunal did not accept that the applicant was ever targeted by members of high-castes for reason of his association with a caste group. The tribunal noted that, even if the applicant was an educated farmer, such that they could constitute a particular social group, it did not accept that he was ever in any way targeted for being an educated farmer.
It concluded that, if there be a chance at all, it would be only a remote chance that he would be threatened physically, physically harmed or otherwise persecuted by high class Hindus or other people associated with the BJP. It found that there was no real chance that he would be persecuted by reason of actual or reputed political opinion, religion, membership of any caste based on a particular social group, or membership of a particular social group constituted by educated farmers or for any Conventional reason.
Each of the matters that I have related pertains to issues of fact that were in issue before the tribunal. It is well settled in our law that findings on the merits are a function of the primary decision maker par excellence: Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. The matters outlined in grounds 1, 3 and 4 of the application cannot be sustained given the tribunal’s detailed consideration of those matters and given that what the applicant really seeks in respect of those matters is merits review.
The applicant has not demonstrated any error on the part of the tribunal in the process it adopted in making those findings of fact. Accordingly, each of grounds 1, 3 and 4 are dismissed.
In the second ground, the applicant alleges the tribunal failed to comply with section 424(3)(a) and section 424B of the Act.
The letter the subject of this complaint has been earlier referred to. It is conceded by the respondent that the letter sent to the applicant inviting his comments was not sent in accordance with section 424(3)(a) but by its terms, particularly at paragraph 2 was consistent with an invitation pursuant to s424A.
Section 424 is relevantly in these terms:
“Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies---by one of the methods specified in section 441A; or
(b) if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.”
The first respondent correctly concedes that although, as the applicant claims, the letter was purportedly sent pursuant to section 424(3)(a), on its face it was sent to the applicant pursuant to section 424A. This follows from the terms of the letter, in particular paragraph 2 of the letter where it states:
“You are invited to comment on or respond to information that the Tribunal considers would, subject to any comments and responses you make, by the reason, or a part of the reason, for affirming the decision that is under review.”
These words broadly replicate s424B.
The applicant complains he was not afforded an invitation under s.424(3)(a). The significance of an invitation pursuant to s424 is explained in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. An invitation in terms of s424(2) has consequences for non-compliance. Likewise an invitation pursuant to s424A has like consequences: Migration Act 1958 (Cth) s424C. In this case both sections require such invitations be given by one of the methods provided for by s441A. For present purposes the applicant has not taken issue with the precise form of the notice and in my view nothing turns on it in any event. Despite the applicant’s complaint that he was not served by a method provided for by s441A, the evidence is to be contrary. The Tribunal acted upon the face of the record in respect of its satisfaction of their matter.
There appears to be no contest that the documents were sent in accordance with the requirements under section 441A. In this instance, the letter was sent by dating the document and then dispatching it within three working days by prepaid post to the last address for service provided by the applicant to the tribunal.
So it follows that irrespective of what might be described as a clerical error in the form of the letter itself, the applicant was forwarded an invitation compliant with section 441A, and it follows that the respondent fulfilled its obligations.
The record shows that the letter was forwarded by registered post to the address provided by the applicant in his application for review and it follows that the letter has been forwarded in compliance with the statutory requirements.
In addition, the applicant complains that the invitation did not specify the way in which the additional information can be given. That is, transparently wrong. Page 43 notes that:
“You are invited to give comments on or respond to the above information in writing.”
Furthermore, the applicant complains that the invitation did not specify a period within which the information was to be provided. Again, that complaint is patently wrong as the copy of the letter at page 43 notes:
“Comments or responses should be received at the tribunal by 3 February 2010.”
It further notes that if the applicant was unable to comply with that timetable he could have requested an extension of time.
There is no question that the date, being 3 February 2010, was not a date accorded with the requirements of the regulation, in this case regulation 4.35, and, indeed, as was submitted by the respondent, the date allowed some further days beyond that which was strictly required under the regulations.
The final ground raised is a complaint that the tribunal failed to investigate the applicant’s claim and that the tribunal was therefore affected by actual bias constituting judicial error.
Concerning the first allegation, that is the failure to investigate, the tribunal’s role is not to inquire but to review. In Minister for Immigration and Citizenship v SZIAI[1], the High Court said this:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.”
[1] [2009] HCA 39
In the decision in the application under review, no such failure to make an obvious inquiry about a critical fact has been identified. Indeed, the tribunal’s decision is extremely comprehensive and the tribunal afforded the applicant every opportunity to be heard and to respond to the tribunal’s concerns and to make any comments in support of his application.
Notwithstanding those matters, nothing in this application suggests any obvious inquiry that was overlooked. In my view its findings were entirely open to it.
The other ground which is advanced is that of actual bias. In the Minister for Immigration and Multicultural Affairs v Jia Legeng[2] the High Court said this:
“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”
[2] [2001] HCA 17
It is a rare and exceptional case where bias can be demonstrated solely from the published reasons for decision. In any event, even an allegation of apprehended bias must be firmly established.
There is nothing in the material or within the decision of the tribunal which gives basis for any conclusion that the tribunal’s decision demonstrates a lack of good faith or a closed mind in the form of prejudging the application. This ground too must fail.
In conclusion it follows that the applicant has failed to make out any of the grounds of his application and the application is dismissed. I order that the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 4 August 2010
0
4
1