SZOFW v Minister for Immigration
[2010] FMCA 416
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOFW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 416 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that Tribunal’s decision affected by jurisdictional error by reason that the Tribunal ignored the applicant’s claim of persecution, breached ss.424A and 425 of the Migration Act 1958, made erroneous credibility findings, erroneous factual findings and was biased – matter turns on its own facts. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister of Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Johnson v Johnson (2000) 201 CLR 488 |
| First Applicant: | SZOFW |
| Second Applicant: | SZOFX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 562 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 June 2010 |
| Date of Last Submission: | 3 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2010 |
REPRESENTATION
| The First Applicant appeared in person |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 562 of 2010
| SZOFW |
First Applicant
| SZOFX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are husband and wife, are citizens of India. The first applicant claims that because of his Sikh religion he was harassed and discriminated against by the majority Hindus and Muslims of the Indian state where he resided. He also claims that because of his support and membership of the National Conference Party (“NCP”) he and his family were targeted by BJP activists and Muslim militants.
The first applicant claims to fear persecution in India because of his Sikh religion and association with the NCP. His wife, the second applicant in these proceedings, made no separate claims of her own and hereafter in these reasons the first applicant will be described as “the applicant”.
After his arrival in Australia on 1 July 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 6 November 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. 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 applicant’s claim for a protection visa are set out on pages 6 – 17 of the Tribunal’s decision (Court Book (“CB”) pages 123 – 134). I now proceed to summarise relevant factual allegations.
In his visa application dated 13 August 2009, the applicant made the following claims:
a)he was born in 1973 in India and is Sikh by religion. He completed eight years of education in Village Jungwari in Jammu and Kashmir in 1987. He had farmed his own land until January 2000. He then moved with his family to Sanjay Nagar in Jammu in 2000 and operated a transport business there until March 2009;
b)he had been persecuted and harassed for his religious and political beliefs and forced to leave India to save his and his wife’s lives;
c)he had not been able to continue his education after year eight “due to ethnic and racial violence and harassments” in his area. His family moved to Sanjay Nagar in Jammu to escape persecution in Jungwari but were then persecuted by Hindus and Muslims as well as Muslim militants who came to India from Pakistan;
d)his father had been the local leader of the NCP. Local Hindu leaders, in connection with Pakistani militants and Naxalites, had harmed his father, demanding money from him and threatening to kill family members if ransom was not paid;
e)his parents and his younger brother had left India in 2006 leaving him to look after their properties otherwise the local Hindus, with the assistance of terrorist groups, would have taken possession of those properties;
f)he “found it essential” to join the NCP after his family left India, first as a general member in his village unit (in 2006) and then, one year later, as a member of the “executive committee of Jungwari unit”. He was then targeted by BJP activists and Muslim militants. Militants from Pakistan came to his area and forced “them” to give them shelter, food and money;
g)in 2008 he had tried to organise a community forum to protect them from terrorists. He had been warned by the terrorists and the BJP activists to stop such activities and had had to give a huge amount of money to save his life. He reported this to the authorities but “they had not taken any initiative for his protection”;
h)he campaigned for the Congress Party candidate in his local area in April and May 2009 because the NCP was in coalition with that party in Jammu and Kashmir at the time. He sought votes for the candidate door-to-door and encouraged the Sikh community to vote for Congress. As a result, he became the main enemy of BJP activists. They warned him that they would abduct him and his wife if he continued his political and social activities;
i)BJP activists in alliance with terrorists had been attempting to kill him for political gain and also to grab his properties; and
j)at the beginning of May 2009 he had sold all his properties (in secret and at a low price) in order to pay the migration agent who had organised visas for him and his wife.
The applicant produced a copy of a “J & K Youth National Conference” identity card issued on 6 June 2006.
In the interview with the Minister’s delegate on 3 November 2009, the applicant made the following additional claims:
a)his parents and younger brother had applied for refugee status in the United Kingdom and were still awaiting the outcome. He had stayed behind because he had not had a good relationship with his family;
b)he and his brother had had two buses and he had been one of the drivers. He subsequently stated that they had hired a driver and when this person was on leave he had driven the bus. He had not been a “permanent worker” because he had work to do for the NCP;
c)he had been a leader in the NCP and had also worked as driver for that party;
d)his father had only been a member of the NCP;
e)as a result of the community forum he organised in 2008, he had been targeted by Muslim militants. They threatened to kidnap his wife if he did not stop these activities; and
f)the BJP and militants used to beat him.
Tribunal hearing
At the Tribunal hearing on 1 February 2010, the applicant made the following additional claims:
a)he and his wife had not wanted to have a child there (presumably in Jammu and Kashmir) because the Muslims had said that if a child was born there the child had to be a Muslim. They had also wanted him and his wife to convert to Islam;
b)his father had been a leader of the NCP. His father had faced problems because he was in the NCP and this was the reason that his father left India;
c)he joined the NCP because he wanted to protect himself and also because he did not have enough income. He had no idea that if he joined the NCP he would face more problems in the future;
d)when he became an executive member of the Jungwari unit in 2007, this membership was part of the NCP, not the Youth National Conference. His role had been to guide people, to campaign for people to join the party and to help people with their requests or any jobs they wanted to have done;
e)the policy of the NCP was to win the election again and to do better for the welfare of the public;
f)in response to the Tribunal’s question as to whether he had been involved in campaigning in the election for the Jammu and Kashmir Legislative Assembly in 2008, the applicant said that he had not been in Jammu and Kashmir at the time for some personal reasons. He further stated that he could not tell the Tribunal what these reasons were; and
g)if he relocated to Punjab or Delhi people would recognise immediately that he was from Jammu and Kashmir and they would think he was a militant. Also, the major problem for him in relation to moving to Punjab or Delhi was that they could not buy property or land there. However he also stated that he would be able to rent there and also work as a driver anywhere.
The applicant provided, amongst other documents, a letter dated
30 December 2009 in support of his claims. The letter had a
“J & K Youth National Conference” letterhead.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were 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 did not accept that the applicant was involved in the NCP as he claimed. It also did not consider that the applicant’s reasons for joining the NCP made sense, referring to the following:
i)the applicant stated in his visa application that he found it essential to join the NCP after his parents and younger brother moved to the United Kingdom;
ii)yet at the Tribunal hearing he said that he had joined because he wanted to protect himself; and
iii)whilst he said that he had had no idea that he would face more problems in the future because he joined the NCP, he stated that his father had faced problems because he had been in the NCP and indeed that was the reason why his father left India;
b)in relation to the applicant’s claim that he had joined the NCP and not the Youth National Conference, the Tribunal noted that both his membership card and letter in support of his claims were from the Youth National Conference. The Tribunal then stated that it considered it relevant that false Youth National Conference cards were readily available;
c)the Tribunal referred to the applicant’s lack of knowledge of the NCP’s policies despite his claim to have been a member of the executive committee;
d)the Tribunal noted that the applicant did not state his absence from Jammu and Kashmir in his visa application and considered that he claimed at the Tribunal hearing to have been outside Jammu and Kashmir in order to avoid having to answer any questions about the elections which took place in 2008;
e)the Tribunal did not accept that the applicant was a witness of truth. It decided to give greater weight to the applicant’s oral evidence at the Tribunal hearing than to the documents he handed to the Minister’s delegate and the Tribunal;
f)the Tribunal did not accept that the applicant faced discrimination amounting to persecution in Jammu and Kashmir because of his Sikh religion, noting that:
i)the applicant’s family had had farmland in Jammu and Kashmir and the applicant had had a transport business in Jammu City for almost ten years; and
ii)independent information stated that the Sikh community was well-established in Jammu and Kashmir and that members of that community do not have any particular problems practising their religion;
g)the Tribunal did not accept that the applicant’s family was targeted by Naxalites, stating that there was no evidence that Naxalites operated in Jammu and Kashmir;
h)since the Tribunal did not accept that the applicant was involved in the NCP as he claimed, it did not accept that he was persecuted by members of rival parties or the BJP;
i)the Tribunal did not accept that the applicant was singled out by any of these groups for persecution, stating that it found it difficult to accept that the applicant would have continued living in Jammu and Kashmir for as long as he did if he had been having the sort of problems he claimed to have been having;
j)the Tribunal did not accept that there was a real chance that the applicant would be persecuted by Hindus or Muslims in Jammu and Kashmir or Muslim militant groups based in Pakistan because he was a Sikh were he to return to Jammu and Kashmir. It further stated that even if it were to accept that there was a real chance of this occurring, the applicant could relocate to Punjab (where Sikhs were in the majority) or Delhi (where there was also a significant Sikh population). The Tribunal further stated that there were no internal barriers which would prevent him from relocating and referred to his evidence that he could rent a place and earn his living as a driver in either location; and
k)in relation to the applicant’s claim that people in Punjab or Delhi would think he was a militant because they would recognise him as being from Jammu and Kashmir and they thought people who had been living in Jammu and Kashmir were militants, the Tribunal stated that there was no independent evidence to support this claim.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal erred in law amounting to jurisdictional error in finding that I [the applicant] do not have genuine fear of persecution for a convention reason and my fear of persecution is not well founded within the meaning of the convention for my political and religious belief and I do not meet the criteria set out in s.36(2) of the Act for a Protection visa. The Tribunal ignored my persecution that I experienced and also I shall be experiencing on my return back to India.
2.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to put the adverse materials to me and to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials. If I would be given the opportunity it could have led to a different decision by the Tribunal. The second named applicant was not given opportunity to give evidence at the hearing.
3.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to accept me as credible witness for my claims and refused my application. The Tribunal failed to consider that we were discriminated in India and our lives were at risk which we experienced in India prior to our departure.
4. The Tribunal in its decision has mentioned without any valid reason that I will have no problem if I return back to my country of residence. The Tribunal totally ignored my the [sic] persecutions as a political activists though we provided adequate documents in support of my claims. In fact the Tribunal should have given the opportunity to me to comment on.
4.The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such it vitiated the said purported decision and the Tribunal made errors of jurisdiction.
Tribunal ignored claim of persecution
The first ground of the application alleges that the Tribunal reached a decision that was wrong in law because the Tribunal ignored the persecution the applicant had experienced, and would experience, if he returned to India. This allegation cannot be made out on the facts. The summary of the evidence before the Tribunal and the summary of the Tribunal’s reasons for decision which appear earlier in these reasons, show that not only did the Tribunal acknowledge and set out the factual allegations on which the applicant based his claim to have a well-founded fear of persecution for a Convention reason, but also that it took that evidence into account in arriving at its decision. In this connection it should be observed the applicant has not pointed in these proceedings to any omissions from the Tribunal’s exposition of his allegations. But in any event, it must be observed that the basis of the Tribunal’s decision was not a deficient recognition of the applicant’s claims but a disbelief that he had been telling it the truth. By reference to inconsistencies, improbabilities and the shortcomings in the applicant’s own evidence, the Tribunal rejected the applicant’s essential claims on the basis that they were not credible. It was open to the Tribunal to do this.
As the applicant has failed to make out the allegation on the facts and because the allegation fails to address the true basis of the Tribunal’s decision, I find that it is not made out.
Breach of s.424A
The first part of the second ground of the application is, in essence, an allegation that the Tribunal failed to comply with the requirements of s.424A of the Act. That section relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
A review of the Tribunal’s decision discloses that it was based on evidence which the applicant had given it for the purposes of the review, information which was included in the applicant’s original visa application or in the statutory declaration which accompanied it and independent country information. All that information fell within the exceptions to the operation of s.424A(1) found in s.424A(3). For this reason, the Tribunal had no obligation pursuant to the section which it failed to discharge. As a consequence, the first element of the second ground pleaded in the application is not made out.
The second part of the second allegation is that the second applicant was not given an opportunity to give evidence at the Tribunal hearing. It is a fact that the second applicant did not attend the hearing but this was not because she was not invited pursuant to s.425(1). She was. However, at the time of the hearing on 1 February 2010 the second applicant was pregnant and, according to a medical certificate supplied to the Tribunal, her child was due to be delivered in mid-April 2010. The applicants had sought an adjournment of the Tribunal hearing set for 1 February 2010 until after the delivery on the basis that the second applicant was not well but the Tribunal rejected their request. The applicants had submitted various documents obtained from doctors and a hospital. The Tribunal considered that information and set out an account of the relevant exchanges with the applicant at paras.16-24 of its decision record. Amongst other things, the Tribunal’s decision records an earlier adjournment of the hearing date from 18 January 2010 to 1 February 2010 on the basis of the second applicant’s claimed ill-health. It also records that the Tribunal advised the applicants that it would only change the new 1 February 2010 hearing date for good reason.
In the summary set out in paras.16-24 of its decision, the Tribunal records its view which it advised to the applicant at the hearing that it did not accept that the second applicant’s pregnancy prevented her from attending the hearing or that there was any medical evidence which substantiated the applicant’s claim at the hearing that the second applicant was prevented from attending the hearing because she was in pain. The Tribunal summarised its position to the applicant in the following way:
I noted that the evidence which the applicant had been asked to produce was evidence of problems which would actually prevent him [recte: her] from attending a hearing and he had not produced such evidence.
In refusing the request for an adjournment the Tribunal was required to exercise a discretion. I do not find that the applicant has demonstrated that the exercise of that discretion miscarried and, in this connection, I have relied particularly on what is contained in paras.16-24 of the Tribunal’s decision record. Further, no evidence has been adduced in these proceedings to suggest that the Tribunal’s decision was erroneous factually or that the second applicant was, in fact, too ill to attend the Tribunal hearing. There is therefore no reason to conclude that the second applicant was denied her right to a hearing under s.425.
Credibility
The first element of the third ground pleaded in the application is that the Tribunal failed to accept the applicant as a credible witness. Findings of credibility are findings of fact which are, as McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, matters par excellence for the Tribunal. Findings of fact are matters reserved exclusively to the Tribunal, except in certain limited circumstances which do not apply here. It is not the Court’s role to review or reconsider the Tribunal’s findings of fact, its task being limited to ensuring that the Tribunal has properly applied the law in the conduct of its review and the reaching of its decision. For these reasons, the first element of the third ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
The second element of the third ground pleaded in the application is that the Tribunal failed to consider that the applicants were discriminated in India. This element of the allegation is, in reality, no more than the first ground of the application cast in different words. For the reasons given in relation to the first ground of the application, this element of the third ground is unsuccessful.
No problem returning to India
The first element of the fourth ground of the application was that the Tribunal mentioned without any valid reason that the applicant would have no problem were he to return to India. The relevant findings of the Tribunal were that the applicant did not face a real chance of being persecuted were he to return to India and that he did not have a well-founded fear of persecution for a Convention reason. Those conclusions were based principally on the Tribunal’s credibility-based finding that the applicant’s essential allegations were not to be believed. Together with country information, that credibility finding tended to undermine some of the factual matrix which underpinned the applicant’s claims. An example of this was the Tribunal’s conclusion, based on independent country information, that Naxalites did not operate in Jammu and Kashmir although the applicant alleged that they did. In making the allegation appearing in this ground of the application, the applicant again invites the Court to reach a conclusion on factual matters different from that reached by the Tribunal. For the reasons already given, the Court cannot do this and, as a result, the first element of the fourth ground pleaded in the application does not disclose a basis upon which the Tribunal’s decision should be set aside.
The second element of the fourth pleaded ground was that the Tribunal ignored the persecution which the applicant said he suffered. For the reasons given in relation to the first ground pleaded in the application, this element of the fourth ground is unsuccessful.
Bias
The fifth ground pleaded in the application is that the Tribunal breached the rules of natural justice by reason of apprehended and actual bias. This allegation is a serious one which must be distinctly made and clearly proved. The applicant has led no evidence and has pointed to no aspect of the Tribunal’s consideration of his claims, conduct of the review, or expression of its reasons, to which the Court should have particular regard in considering this allegation and, for that reason alone, this application ought to be unsuccessful. Nevertheless, I will consider each of its elements.
A finding of actual bias requires the Court to reach the conclusion that the Tribunal in this matter was so committed to a conclusion already formed that its mind was incapable of alteration, whatever evidence or arguments might have been presented to it: Minister of Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. As I have said, the applicant has put nothing before the Court to which the Court can apply this test. A review of the Tribunal’s decision record, which is the only evidence relevant to this issue which is before the Court, does not support a conclusion that the Tribunal’s decision was affected by actual bias.
As to apprehended bias, for such an allegation to succeed it would be necessary for the Court to conclude that a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question it was required to decide: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; Johnson v Johnson (2000) 201 CLR 488. No evidence of the conduct of the Tribunal’s hearing has been placed before the Court and, in particular, no transcript of that hearing has been tendered. Thus, there is no evidence concerning how the Tribunal conducted its hearing other than the factual summary appearing in its decision record. That decision record does not disclose any basis to conclude that the test for apprehended bias can be satisfied in this case.
Although it might be that the applicant perceives that the way the Tribunal tested his allegations during the course of its hearing suggested that it had made up its mind, my conclusion is that the Tribunal merely put matters of concern to the applicant as it was required to do pursuant to s.425(1) of the Act. Such testing of the applicant’s claims is not demonstrative of bias but merely demonstrates that the Tribunal was fulfilling the functions and discharging the duties which the Act imposed on it.
Conclusion
For these reasons, I conclude that jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 June 2010
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