SZOGV v Minister for Immigration
[2010] FMCA 420
•17 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOGV v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 420 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424A; 474; pt.8 div.2 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | SZOGV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 649 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 17 June 2010 |
| Date of Last Submission: | 17 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2010 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 649 of 2010
| SZOGV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 February 2010 and handed down on 26 February 2010.
The applicant claims to be a citizen of India and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 26 June 2009 having departed legally from Kochi on a passport issued in his own name and a Subclass TR-676 Tourist visa issued on 20 May 2009.
On 4 August 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 30 October 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 24 November 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 25 February 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 24 March 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of 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 Tribunal’s review and decision
The Applicant’s written claims in support of his protection visa application were largely reflected in his claims before the Tribunal. The Tribunal accurately summarised the Applicant’s claims as follows:
“82. The applicant claims he fears persecution in India because he is a member and actively involved in the Indian National Congress. He claims he is actively involved at election time, with his home currently and traditionally being the meeting place for the Indian National Congress at election time. He claims as a result of this political involvement and opinion he has suffered serious harm at the hands of Mr. Peter and his family and Mr. Peter’s associates. He claims Mr. Peter is the local secretary of the CPI(M), the main party in opposition to the Indian National Congress in Kerala state. He claims he also fears persecution from the CPI(M) and the local gundas because of his political dispute with Mr. Peter, and that this arises when the CPI(M) is in power. He claims he is unable to obtain effective protection from the authorities as the CPI(M) are currently the ruling party in Kerala and as a result he is not protected from the CPI(M) gundas, or the police as they are under the control of the CPI(M).
83. He claims the serious harm he has suffered at the hands of Mr. Peter, his family and associates and CPI(M) party and gundas is long running legal action against him from 1988 until 2003 regarding the operation of his saw mill, action by those loading and unloading the wood – diverting the wood elsewhere leading to him closing the sawmill, loss of money and wealth because of the court cases and trouble from the unions, death threats from 1988 until he left India, an attack in 2005/2006 where he sustained injury to his head, and complaints regarding the operation of his catering business. He claims he fears return to India as he is not free, and will be killed. He claims the CPI(M) gundas, with the involvement of Mr. Peter will kill him if he returns to India.”
The Applicant provided further documents in support of his review application, being the proceedings involved in his litigation with Mr and Mrs Peter.
On 8 December 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 material alone. The letter invited the Applicant to attend a hearing on 12 January 2010 to give oral evidence and present arguments.
On 12 January 2010, the Applicant attended the Tribunal hearing and gave evidence.
On 2 March 2010, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 22 February 2010, the Applicant responded to the s.424A Letter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“The Tribunal conducted a hearing on 12 January 2010. On 26 February 2010, the Tribunal affirmed the delegate’s decision under review. In summary the Tribunal accepted that the applicant had been involved in a long running legal dispute with a Mr Peter and his wife, however it found that the dispute was for personal reasons between the parties and not due to the applicant's alleged political opinion or activities. Based on the applicant's ignorance of party candidates and the dates when elections in his area took place, the Tribunal did not accept the applicant's claimed involvement in the Indian National Congress party. It found that the harm that the applicant claimed to fear in the course of his litigation dispute did not have a Convention nexus.
It also rejected the applicant's complaint that he could get no assistance from police for reasons of political opinion when in 2005 the applicant reported an assault. The Tribunal found that the reason the police did not take further action at that time was because the applicant was unable to identify his assailants. The Tribunal thus rejected the applicant’s claims to have a well-founded fear of persecution for any Convention reason.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 6 May 2010, the Applicant attended a directions hearing before me. On that occasion, I explained to the Applicant that this Court has 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 going to the jurisdiction of the Tribunal. I explained that the grounds of the Applicant’s application to this Court made bare assertions, unsupported by particulars, and were in identical terms of grounds regularly seen in this Court. The Applicant confirmed that he wished to continue with his application. The Applicant 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 submissions in support.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has received advice in accordance with that scheme. 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 2 June 2010, the Applicant filed an amended application. The Applicant confirmed that he had not filed any evidence or submissions in support of his amended application and that he had no documents to provide to the Court today.
At the commencement of the hearing, the Applicant confirmed that he relied only on the ground contained in the amended application filed on 2 June 2010. That ground is as follows:
“The Second Respondent committed jurisdictional error by failing address the applicant’s claims in the way they were made.
Particulars:
(a) The applicant stated in his protection visa application that he was an active member of Indian National Congress.
(b) He claimed that CPI(M) Gundas and local secretary Peter threatened to kill him and forced him to stop his business.
(c) The Tribunal did not consider the way that he claimed to be a member of INC in rejecting his claims of involvement with INC.”
The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of the application generally.
The Applicant did not address the ground of the amended application in oral submissions or make any relevant submission, save to repeat that the Tribunal had failed to address matters referred to in Particulars (a), (b) and (c) of the ground.
When asked whether the Applicant had anything further to say in support of his application, the Applicant asserted for the first time that the Tribunal had not considered the documents he had provided in relation to his litigation with Mr and Mrs Peter.
The Applicant’s complaints are dealt with below.
Particular (a) and Particular (c) appear to make the same complaint that the Tribunal had failed to address the Applicant’s claim to be an active member of the India National Congress. However, a fair reading of the Tribunal’s decision record does not support such a contention.
The Tribunal’s decision record makes clear that the Tribunal understood the Applicant’s assertion that he was involved in the elections in 2006 and 2009 in support of the local Indian National Congress candidate who won. However, the Tribunal noted that the name of the candidate given by the Applicant was not correct, nor was the name given by the Applicant for the Communist Party of India (Marxist) (“the CPI(M)”) candidate. The Tribunal also understood the Applicant’s assertion that Mr Peter was actively involved with the CPI(M). The Tribunal understood that the Applicant asserted that the difficulties he faced at the hands of Mr Peter were because of their opposing political interests. The Applicant’s incorrect answers were put to him by the Tribunal both at the hearing and in writing in the s.424A Letter, together with the independent country information which the Tribunal accepted as correct in preference to the Applicant’s answers.
The Tribunal also put to the Applicant its concerns about his claims of having been involved in the last elections for Lok Sabha. The Applicant stated the elections were in 2006, whereas independent country information indicated that the elections were held in April 2009, before the Applicant left India.
It is a matter for the Tribunal the independent country information to which it has regard and the weight it gives such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
The Tribunal did not accept the Applicant’s explanation that he did not remember the details because he was stressed when attending the hearing. The Tribunal accepted that the hearing process can be stressful, but that, as the Applicant’s claim was one of active involvement in politics and campaigning for the local Congress Party candidate, the Tribunal did not accept the stress of the hearing as a satisfactory reason for the Applicant’s lack of knowledge.
In the circumstances, it was open to the Tribunal to prefer the independent country information to the Applicant’s evidence.
Ultimately, the Tribunal did not accept that the Applicant was or is a member of the Indian National Congress or was involved with the Indian National Congress as claimed, including that his home was used at election time. For that reason, the Tribunal did not accept that the harm the Applicant claims to fear from the CPI(M) and Mr Peter is because of any involvement with the Indian National Congress. For that reason, the Tribunal did not accept that the Applicant faced harm for any Convention related reason, if he were to return to India now or in the reasonably foreseeable future. The Tribunal found that any difficulties the Applicant has faced in the past were not for any Convention related reason and were personal.
The Tribunal found that the claims in the Applicant’s protection visa application that he would be killed by the CPI(M) gundas, if he were to return to India, were “vague” and that his claims were given no further detail at the hearing, despite being asked. For that reason the Tribunal found that the only fears the Applicant relied on were those identified at the hearing, rather than “the vague and confused evidence in his statement.”
In the circumstances, it is clear from the decision record, that the Tribunal gave detailed consideration to the Applicant’s claims to be an active member of the Indian National Congress. However, ultimately, the Tribunal was not satisfied of the veracity of the Applicant’s claims.
Those findings were open to the Tribunal on the evidence and material before it including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, Particulars (a) and (c) are not made out.
Particular (b) asserts that the Tribunal failed to address the Applicant’s claim that CPI(M) gundas and the local secretary, Mr Peter, threatened to kill him and forced him to stop his business. Again, the Tribunal’s decision record does not support the Applicant’s assertion.
The Tribunal identified with particularity the past harm the Applicant claimed to have suffered at the hands of Mr Peter and “his associates”. The Tribunal had specific regard to the Applicant’s claim to fear harm from Mr Peter and CPI(M) gundas because of his involvement with the Indian National Congress. In particular, the Tribunal stated as follows:
“83. He claims the serious harm he has suffered at the hands of Mr. Peter, his family and associates and CPI(M) party and gundas is long running legal action against him from 1988 until 2003 regarding the operation of his saw mill, action by those loading and unloading the wood – diverting the wood elsewhere leading to him closing the sawmill, loss of money and wealth because of the court cases and trouble from the unions, death threats from 1988 until he left India, an attack in 2005/2006 where he sustained injury to his head, and complaints regarding the operation of his catering business. He claims he fears return to India as he is not free, and will be killed. He claims the CPI(M) gundas, with the involvement of Mr. Peter will kill him if he returns to India.
84. The Tribunal accepts on the basis of the court documentation submitted by the applicant, that he has been involved in a long running court action by Elizabeth Peter and her associates until the final court judgment in 2003. It notes that the 2003 judgment as confirmed by the applicant was in his favour and in his evidence he said that this is over.”
Ultimately, the Tribunal found that the dispute between the Applicant and the Peters did not have a Convention Nexus. The Tribunal found that “even if Mr Peter is or was using his political position to effect personal harm, if any, the harm is not for reasons of Mr Peter’s political position but for personal reasons.”
As stated above, those findings were open to the Tribunal on the evidence before it and for the reasons it gave.
Accordingly, Particular (b) is not made out.
In relation to the Applicant’s further oral complaint that the Tribunal did not have regard to the documents provided by him to the Tribunal, such a complaint is not made out. The Tribunal’s decision record identifies with particularity the nature of the documents. All the documents provided by the Applicant related to the litigation proceedings he had with the Peters from 1988 until 2003. The proceedings arose out of a claim by the Peters against the Applicant that their neighbouring property was being contaminated by the Applicant’s sawmill business. Ultimately, the proceedings were resolved in favour of the Applicant.
However, the Tribunal was not satisfied that there was any Convention Nexus involved in the long running proceedings between the Applicant and the Peters. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, this ground of review is not made out.
Otherwise, the Applicant’s complaints are more in the nature of a disagreement with the findings of the Tribunal. Such a complaint invites merits review which this Court cannot undertake. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [194]).
Conclusion
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 in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses, both at the hearing and in writing. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. Again, both at the hearing and in writing. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that 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 proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 17 June 2010
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