SZOFH v Minister for Immigration

[2010] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFH & ORS v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 392

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political and religious persecution in India – principal applicant not believed in critical respects – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424C, 441C

Minister for Immigrationv Wu Shan Liang (1996) 185 CLR 259 at 272
NADR v Minister for Immigration [2003] FCAFC 167

First Applicant: SZOFH

Second Applicant: SZOFI

Third Applicant: SZOFJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 505 of 2010

Judgment of: Driver FM

Hearing date: 7 June 2010

Delivered at: Sydney

Delivered on: 7 June 2010

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), the first applicant is appointed as litigation guardian of the third applicant, and first applicant is relieved of the obligation of filing an affidavit of consent or of notifying the respondents of his appointment.

2. The application is dismissed.

3. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 505 of 2010

SZOFH

First Applicant

SZOFI
Second Applicant

SZOFJ
Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 9 February 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants' protection visas.  There are three applicants, a husband, a wife and a child.  The relevant protection visa claims were made by the first applicant.  As the third applicant is under 18 years of age, I appointed the first applicant his litigation guardian.

2. The background to the applicants' claims, and the decisions of the delegate and the Tribunal on them, are conveniently summarised in the Minister's written submissions. 

3. The applicants are citizens of India who arrived in Australia on 1 July 2009: court book (CB) 14. The applicants lodged applications for Protection (Class XA) visas with the Department of Immigration and Citizenship on 13 August 2009: CB 12-38. The first applicant (the applicant) submitted with his visa application an unsigned statutory declaration dated 12 August 2009, outlining the basis of his claim to fear harm in India: CB 39-42.

4. The second and third applicants sought protection visas as members of the applicant’s family unit: CB 27-38. They did not make their own claims to be refugees.

5. The first applicant claimed to fear persecution in India due to his membership and active involvement in the Indian National Lok Dal (INLD) and on account of his Sikh religion. He claimed he was an active member of the INLD in 2007 and campaigned for the party during the 2009 Lok Sabha elections. As a result, he was targeted by Congress Party supporters and attacked on two occasions. He believed that relatives of his ex-wife, who were Congress Party supporters, may have been involved in the attacks. The first applicant also claimed that Sikhs in India were discriminated against, denied rights and had limited access to government jobs: CB 106, par 64.

6. In a decision dated 14 October 2009, the Minister’s delegate refused to grant the applicants protection visas: CB 52-61. Whilst the Delegate accepted that the first applicant was involved in local campaigning for the INLD as claimed, the delegate was not satisfied that he held a political profile that would attract the adverse attention of opposition Congress party members: CB 58.5. Further, the available country information did not reveal any evidence to support the first applicant’s claims of violence towards him as an INLD member by Congress party supporters, nor provide any evidence of police collusion in violence against INLD members: CB 59.1.The delegate found that the first applicant was unwilling and unable to explain his claims on a number of occasions: CB 59.In light of the inconsistencies in his account of events and lack of documentary evidence, the delegate found that the first applicant was not assaulted on either occasion as claimed: CB 59.5. The delegate rejected the applicants’ claim regarding the disadvantageous treatment of Sikhs in India (CB 60.1), and also found that relocation was a safe and reasonable option for the applicants: CB 60.2. The delegate found that in light of the first applicant’s evidence and circumstances, he would not face a real chance of persecution upon return to India for reasons of his political opinion: CB 60.3. Accordingly, the second and third applicants’ visa applications were also refused: CB 61.1.

7. On 6 November 2009, the applicants lodged an application with the Tribunal for review of the delegate’s decision: CB 62-65.

8. By letter dated 20 November 2009, sent by registered post, the Tribunal invited the applicants to attend a hearing on 17 December 2009: CB 68-69.  All three applicants attended the hearing on that date: CB 71-73.     

9. On 22 December 2009, the Tribunal sent a letter to the applicants inviting them to comment on information the Tribunal considered would be the reason or part of the reason for affirming the decisions under review: CB 81-84.  The Tribunal subsequently identified that this letter had not provided the correct prescribed period for the applicant to respond: CB 85.[1] The letter gave 18 January 2010 as the date for any comments to be received by, when the prescribed period required that the applicants have until 19 January 2010 to respond to the Tribunal’s invitation.  Accordingly, the Tribunal sent the applicants a further s.424A invitation on 24 December 2009 (CB 86-89), which provided the prescribed period for the applicants to provide comments and or a response by 21 January 2010.

   [1] Regulation 4.35(3) provides that the prescribed period is 14 days after the invitation is received. Section 441C(4) provides that if an invitation is sent by prepaid post, the applicant is deemed to have received it 7 working days after the date of the document. As the invitation was dispatched on 22 December 2009, the prescribed period was due to expire on 19 January 2010 (taking into account public holidays).

10. The applicants did not respond to that invitation. In the circumstances, the Tribunal proceeded to make a decision on the review without taking any further action to obtain the applicants’ comments on the information, pursuant to s.424C of the Migration Act 1958 (Cth) (“the Migration Act”): CB 103 at [50].

11. The Tribunal accepted that the first applicant may have been a supporter of the INLD and provided some general assistance in campaigning during the 2009 elections, however it did not accept that he was a formal member of the party: CB 107 at [68]. The Tribunal rejected the first applicant’s substantive claims to fear harm on the basis of adverse credibility findings. In particular, the Tribunal cited the first applicant’s limited knowledge of the INLD and inconsistencies in his evidence when compared with independent country information. The Tribunal concluded that the applicant was not a member of the INLD and did not accept that he had any political profile that would bring him to the adverse attention of his political opponents: CB 106-107 at [65]-[69] and CB 109-110 at [78], [80] and [84].

12. The Tribunal also rejected the first applicant’s claim to have been attacked on two occasions by either Congress Party members or relatives of his ex-wife, finding that his evidence on these incidents was “vague”, “highly implausible” and inconsistent with the account he had given to the delegate at interview: CB 107-108 at [70]-[75]. Accordingly, the Tribunal found that the first applicant “had not given a truthful account” of the reasons he left India and his fears of returning (CB 109 at [76]), and concluded that he would not suffer persecution on account of his political opinion, or from his ex-wife’s family, if he returned to India in the reasonably foreseeable future: CB 110 at [84]-[85].

13. The Tribunal also considered the first applicant’s claims that he would suffer discrimination in India on account of his Sikh religion. The Tribunal found that the first applicant’s claims in this regard were “very vague”: CB 109 at [81]. The Tribunal also found that this claim was unsupported by independent country information and evidence of the first applicant’s own circumstances, which indicated he had enjoyed a long and successful career in the Indian army and was able to establish a successful farming business after he retired from service: CB 109 at [81]. Accordingly, the Tribunal did not accept that the first applicant had suffered persecution on account of his Sikh religion in the past and concluded that he would not suffer persecution on this basis should he return to India: CB 109-110 at [82], [85] and [87].

14. The applicants rely upon their show cause application filed on 10 March 2010.  The grounds in that application are:

    1. The Tribunal failed to accept that we are the victim of persecution for our political and religious belief.  The Tribunal did not accept the first named applicant as a credible witness and the Tribunal made errors of jurisdiction.

    2. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness for its failure to give us an extension of time to comment on the adverse information which were the reasons for affirming the decision of the delegate of the Minister.  The Tribunal did not give us an opportunity to submit our explanations and material in reply to the alleged adverse materials.  If the opportunity was given it could have led to a different decision by the Tribunal.

    3. The Tribunal in its decision stated we would not have a well-founded fear of persecution in relation to our political belief or religion or any other [C]onvention reason if returned back to India.  The Tribunal totally ignored the persecutions we experienced in India for the membership of first named applicant of a political group and made errors of jurisdiction.

    [4].    The Tribunal failed to accept that first named applicant’s wife and othe[r] family members were assaulted or experienced any other harm for first named applicant’s political belief and made errors of jurisdiction.

15. The application is supported by an affidavit which I received as a submission.

16. I received as evidence the court book filed on 1 April 2010. 

17. The applicants' difficulty is that the application before the Court struggles to rise above a contest over the merits of the Tribunal decision.  The first applicant appeared in person today and made short oral submissions which drew attention to his protection visa claims.  As I explained to him, the Court cannot deal with the merits of the Tribunal decision[2].  Grounds 1, 3 and 4 of the application suffer from the defect that although some legal terminology is used, in substance those grounds attack the merits of the Tribunal decision.  In that respect, I agree with and adopt the Minister's written submissions.

    [2] Minister for Immigrationv Wu Shan Liang (1996) 185 CLR 259 at 272; NADR v Minister for Immigration [2003] FCAFC 167 at [9].

18. The Tribunal’s adverse credibility findings which formed the basis of the Tribunal’s decision were open to it on the available material for the reasons it gave. Such factual matters are solely for the Tribunal to determine and do not come within the scope of the Court’s jurisdiction[3]. In determining whether an applicant has a “well‑founded” fear of persecution, the Tribunal is entitled to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events[4].

    [3] Minister for Immigration v Wu Shan Liang; NADR v Minister for Immigration at [9]

    [4] Minister for Immigration v Wu Shan Liang, ibid, at [281]

19. The Tribunal considered the first applicant’s claims to fear persecution, as set out in his statutory declaration and further expanded upon during the Tribunal hearing. It is apparent from the Tribunal decision record that the Tribunal questioned the first applicant in detail regarding the attacks on him by Congress party members (CB 101, pars 39-44), as well as his alleged membership of the INLD: CB 99, pars 32-38. Ultimately, the Tribunal rejected the first applicant’s claims in both respects, for reasons that were open to the Tribunal. 

20. Whilst the Tribunal turned its mind to and considered the implied claims of the applicant’s wife and family separately from the first applicant’s evidence, the Tribunal did not accept that the second and third applicants suffered or will suffer in the future serious harm amounting to persecution in India due to their Sikh religion, or on account of the first applicant’s minimal involvement in the INLD, or because of the first applicant’s ex-wife’s family, if they return to India: CB 110-111 at [88]. No error is revealed in this approach.

21. The second ground, on its face, appears to raise an issue of legal substance, but the allegation in that ground is not supported by the available evidence.  The Tribunal sent two invitations to comment on adverse information to the first applicant.  The first invitation was sent by registered post by letter dated 22 December 2009 (CB 80-84), but it was necessary for the Tribunal to issue a second invitation in order to ensure that sufficient time was given for a response.  That second invitation was posted on 24 December 2009 (CB 86).  Sufficient time for a response was provided in the second invitation.  There is no evidence of any request for an extension of time by or on behalf of the applicants.  It follows, in my view, that the second ground lacks substance. 

22. The applicants have failed to establish any jurisdictional error by the Tribunal.  Neither is any error apparent to me from my own reading of the material.  Accordingly, the decision of the tribunal is a privative clause decision and the application must be dismissed.  I so order.

23. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $3,500.  That is significantly below scale costs under the Court Rules.  The first applicant did not wish to be heard on costs.  I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:  Rebecca Chen

Date:  10 June 2010