SZOGY v Minister for Immigration
[2010] FMCA 476
•2 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOGY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 476 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R. 424A, 424AA, 425 |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration v SZIAI (2009) 83 ALJR 1123 NAOA v Minister for Immigration [2004] FCAFC 241 SJSB v Minister for Immigration [2004] FCAFC 215 SZATV v Minister for Immigration (2007) 233 CLR 18 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZNTF v Minister for Immigration [2010] FMCA 4 VAF v Minister for Immigration (2004) 206 ALR 471 |
| Applicant: | SZOGY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 655 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 2 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 655 of 2010
| SZOGY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 26 February 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of religious persecution. The following statement of background facts is derived from the Minister’s written submissions, filed on 25 June.
The applicant is a male citizen of India.[1] He arrived in Australia on 6 April 2009.[2] He applied for a protection visa on 8 April 2009.[3]
[1] court book (CB) 27
[2] CB 39
[3] CB 1
The applicant's visa application was refused by the Minister’s delegate on 3 July 2009.[4] The applicant applied to the Tribunal for review of the delegate's decision on 30 July 2009.[5] He gave oral evidence and presented arguments in relation to the issues arising on the review at a hearing before the Tribunal on 29 October 2009.[6] The Tribunal affirmed the decision under review refusing to grant the applicant a protection visa.
[4] CB 66
[5] CB 76
[6] CB 90
The Tribunal decision
The applicant claimed to come from a Hindu family and to fear persecution because of his membership of a Christian welfare-type organisation. The applicant also claimed to be generally interested in Christianity,[7] and in a post hearing response to issues raised during the Tribunal hearing the applicant suggested he had become a Christian.[8]
[7] CB 49
[8] See Tribunal decision at [120] (CB 128); [143] (CB 134)
The Tribunal rejected the applicant's credibility as a witness due to inconsistencies and contradictions in his evidence and claims, including inconsistencies between the applicant's evidence and the evidence of the applicant's brother in his separate Tribunal review. The Tribunal gave detailed reasons for its adverse credibility finding. It did not accept any of the applicant's material claims as to his conduct and experiences in India (see [130][9]).
[9] CB 131
The Tribunal was not satisfied that, on return to India, the applicant would practise Christianity, be involved in the organisation, or be perceived as a Christian (at [143][10]). The Tribunal noted that, even if contrary to its findings, it were to accept that the applicant would practise Christianity on return to India, he could do so in Kerala (his home village) in relative safety (at [144]).
[10] (CB 134)
The Tribunal made a further alternative finding that if the applicant experienced difficulty in practising Christianity in his home village he could relocate within Kerala. In so finding the Tribunal took into account the applicant's attributes and was not satisfied the applicant would be sought after (at [145]-[146]).
The applicant relies upon a show cause application filed on 25 March 2010. There are six grounds in that application:
1. The Tribunal failed to consider properly the test whether the applicants [sic] would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a converted Christian in India was at risk of harm from radical Hindus, and not able to access effective protection.
4.The Tribunal’s decision was unjust and was made without taking into account the full gravity of [the applicant’s] circumstances and the consequence of the claim.
5.The applicant satisfy[ies] the four key element[s] of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
6. The [Tribunal] has failed to investigate [the applicant’s] claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 1 March 2010 [sic] was effected [sic] by actual bias constituting judicial error.
The grounds are fairly generally expressed and only the Minister took the opportunity to make written submissions about them. I invited the applicant to make oral submissions. He is concerned that the Tribunal did not take what he regards as a reasonable look at his claims. There is a particular issue of concern to the applicant, to which I will return.
In general, I agree with and adopt the Minister’s written submissions on the grounds advanced by the applicant.
Ground 1: the Tribunal failed to consider whether the applicant would suffer serious harm if asked to relocate
The Tribunal rejected all of the applicant's material claims. Its relocation finding was not essential to the decision. In any event, the relocation finding is without error and in particular is in accordance with the principles confirmed by the High Court in SZATV v Minister for Immigration (2007) 233 CLR 18. The Tribunal considered and did not accept the applicant's claim that his persecutors would find him anywhere (see [145]).
Ground 2: the Tribunal had no jurisdiction because its reasonable satisfaction was not arrived at in accordance with the Act
This ground does not identify jurisdictional error by the Tribunal. In SJSB v Minister for Immigration [2004] FCAFC 215, the Full Federal Court, at [15]-[16], concluded that a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandates a refusal decision if that state of satisfaction is not reached.
Ground 3: the Tribunal failed to consider whether a converted Christian was at risk of harm from radical Hindus and not able to access effective protection
The Tribunal acknowledged the applicant's claims to have been targeted by Hindus, for example at [54], [55][11], [59][12] and [72][13]. The Tribunal rejected the applicant's factual claims relevant to this ground (see, especially [143][14]).
[11] CB 115
[12] CB 116
[13] CB 119
[14] CB 134
In any event, the Tribunal further found that if the applicant was to practise Christianity in India, country information indicated he could do so in Kerala in relative safety (see [144]). The country information cited did not draw any distinction between persons of Christian background and those who converted to Christianity from another religion.
Ground 4: the Tribunal’s decision was unjust and did not take account of the gravity of the applicant's circumstances
The Tribunal rejected the applicant’s claims because it did not believe he was telling the truth. This ground is an assertion that the Tribunal should have accepted the applicant’s claims and, because it did not, the decision was unjust. However, the Court is not concerned with whether the decision was unjust, only whether it was lawfully made: Attorney-General (NSW) v Quin (1990) 170 CLR 1.
Ground 5: the applicant satisfies the criteria for the grant of refugee status
This is another assertion that the Tribunal should have accepted the applicant’s claims and must fail for the same reasons as ground four must fail. The Tribunal’s statement of reasons shows that it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he returned to India. That reveals that the Tribunal addressed the correct question, namely, whether the applicant met the four cumulative requirements in the definition of a refugee found in Article 1A(2) of the Refugees Convention.
Ground 6: the Tribunal failed to investigate the grounds of persecution in India and its decision was therefore affected by actual bias
The applicant has not suggested that there was an obvious inquiry that the Tribunal could have made about a critical fact, the existence of which was easily ascertained and therefore has not laid the necessary foundation for a ground of unreasonableness: see Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [20] to [25]. There being no 'duty' as such, to inquire, it cannot be argued that a failure to inquire can constitute the firm evidence required to establish actual bias. Further, such an allegation should not be lightly made. It should be particularised and supported by evidence. That was not done.
Other matters
The issue of particular concern to the applicant is the manner in which the Tribunal dealt with claimed inconsistencies between his evidence and that of his brother, who made a separate protection visa application. The applicant referred to the issue of who was attacked by whom in a scuffle at the hospital referred to in his evidence. He confirmed that the issue was that dealt with by the Tribunal at [126][15]:
The applicant claimed in his statement and at the hearing that during his efforts to have his brother transferred to another hospital he became involved in a scuffle with a doctor known to him and he was injured. The result was that both the applicant and his brother were admitted to another hospital for a month. However, at the interview the delegate asked the applicant why he was in the hospital and the applicant stated there was another person in the hospital that had been attacked and they were trying to take him from that hospital to somewhere else. The delegate asked who it was at the hospital he was trying to help and the applicant stated that his name was George. Further, in contradiction to the applicant’s claims, his brother at his hearing stated and confirmed several times that it was the doctor who was injured and not the applicant. The applicant’s brother in the response stated that the interpreter made a mistake at the hearing, however, the Tribunal does not accept this explanation. The Tribunal repeated several times for the applicant’s brother’s confirmation that it was the doctor who was injured and by doing so allowed any interpretation mistake to be corrected. The applicant’s brother confirmed at least three times that it was the doctor who was injured in the scuffle with the applicant. The applicant’s brother did not in his response explain the contradiction between what he claimed and the applicant’s statement at his interview that his brother and he were visiting George in hospital when the doctor attacked the applicant. The applicant’s brother did claim that many of the interpretations were incorrect, however, the Tribunal does not accept this claim as that [sic] applicant’s brother did not provide any detail or further examples. Also he answered the Tribunal’s questions in context and the Tribunal allowed the applicant’s brother a number of opportunities to provide further detail in relation to each of his claims which would have allowed any interpretation mistake to be corrected.
[15] CB 130
The applicant claims, like his brother did, that the supposed inconsistencies were, in fact, the result of inadequate interpretation. I queried with the applicant how he knew the interpretation was inadequate and what, if anything, he did about it. He claimed to have sufficient knowledge of English to be able to judge the accuracy of the interpretation. He also claimed that it would have been an insult to the interpreter to draw attention to the difficulties he noted.
Nevertheless, as the Tribunal records, the applicant’s brother responded to an invitation to comment on the inconsistencies seen by the Tribunal. The brother’s response is reproduced at CB 102. It purports to be a response on behalf of both him and the applicant. In the response, the applicant’s brother draws attention to alleged interpretation problems. The response was taken into account by the Tribunal in its reasons, but the explanation for the inconsistency was not accepted.
There is an issue of whether the Tribunal was obliged to disclose the applicant’s brother’s inconsistence evidence to him. It probably needed to be disclosed for the purposes of s.425 of the Migration Act 1958 (Cth) (“the Migration Act). That was done. It is apparent from the Tribunal’s record of what occurred at the hearing, in particular at [111][16], that the applicant was put on notice of the significance of the issue as seen by the Tribunal. I agree with the Minister’s submission that the Tribunal met its obligation to ensure that the applicant was aware of the essential and significant issues on which the review would turn.
[16] CB 127
I accept that the Tribunal complied with the statutory requirements in Division 4 of Part 7 of the Migration Act. The applicant was on notice of the issues arising in relation to the review[17] by virtue of:
a)The delegate's findings that the applicant was not a member of the organisation and accordingly did not suffer any consequent harm, and that the applicant could relocate. [18]
b)The questions asked of him, and matters put to him, during the Tribunal hearing. In particular, the Tribunal alerted the applicant to various inconsistencies in his evidence and indicated that these matters gave rise to credibility concerns.[19] The Tribunal discussed relocation and relevant country information,[20] and also put to the applicant it might find documentary evidence he submitted was not genuine.[21]
[17] As required by s.425 of the Act
[18] CB 74
[19] See Tribunal decision at [107]-[112]
[20] See Tribunal decision at [91]-[92] (CB 122-123); [113] (CB 128)
[21] Tribunal decision at [115] (CB 128)
I am inclined to agree with the Minister that the applicant’s brother’s evidence did not require disclosure, pursuant to s.424A of the Migration Act. I agree with the Minister’s submission that the applicant’s brother’s evidence did not of itself undermine, deny or reject the applicant’s claims. In particular, the applicant's brother's evidence,[22] as recorded by the Tribunal at [108]-[111][23], was not capable, of itself, of undermining, denying or rejecting the applicant's claims to be a person to whom Australia owed protection obligations.[24] Its relevance was its inconsistency with the applicant's evidence.[25] It was therefore not disclosable information, pursuant to s.424A(1).
[22] For the reasons given by me in SZNTF v Minister for Immigration [2010] FMCA 4, especially at [28], [35] and [37] the Tribunal was entitled to have regard to the brother's evidence and did not have to call him as a witness in order to do so.
[23] CB 126-127
[24] See SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]
[25] As was held by the joint judgment of the High Court in SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18] quoting VAF v Minister for Immigration (2004) 206 ALR 471 at 477, the word 'information' in s.424A (emphasis added):
The Minister’s alternative submission is that if there was an obligation of disclosure under s.424A, the Tribunal adequately disclosed the information orally for the purposes of s.424AA:
Apparently at the outset of the hearing, the RRT indicated to the applicant that it may use the discretionary power in section 424AA. The RRT provided an accurate summary of the steps this required it to follow.[26] The RRT, from [107] to [113], proceeded to put the applicant's brother's evidence, as recorded by it, to the applicant. The RRT explained the relevance of the brother's evidence to the review, summarising at [112] that the inconsistencies and contradictions may indicate that the applicant was being untruthful.
The RRT recorded, at [114], that the applicant stated he wanted to provide a written response. It should be inferred from this statement, read with [27], that the applicant was advised of his options for response. The RRT at [27] had alerted the applicant to the fact that he could also seek additional time to comment or respond to the information.
The applicant has not provided any evidence, such as in the form of a transcript, to contradict the RRT's record of the hearing: see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21].
[26] Tribunal decision at [27] (CB 110)
In my view, it is unnecessary to decide whether the oral disclosure pursued by the Tribunal met the requirements of s.424AA, because the information was not required to be disclosed, pursuant to s. 424A(1).
In oral submissions in reply, the applicant expressed concern that he and his brother did not have their cases considered concurrently. The applicant said that he was not aware that he and his brother could make such a request. Nevertheless, it was their choice to make separate protection visa and review applications, which were reviewed separately. Once they were put on notice that there was a credibility issue arising from their inconsistent evidence, they provided a common response to the Tribunal, in the form of the applicant’s brother’s letter, reproduced at CB 102. The Tribunal treated that response as a response on behalf of the applicant in his case. To that extent, the applicant’s concern was met.
I see no error in the Tribunal’s approach. The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. Neither is any error apparent to me from my own reading of the material. The Tribunal decision is therefore a privative clause decision, and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the amount of $4,400. The applicant doubted his capacity to pay, particularly in the short term. The issue for the Court is whether the costs sought have been reasonably and properly incurred. I am satisfied that they have, when considered on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 July 2010
' "… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …"
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.'
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