SZOHC v Minister for Immigration

Case •

[2010] FMCA 426

•

21 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOHC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 426
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered the applicants’ claims.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
First Applicant: SZOHC
Second Applicant: SZOHD
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 667 of 2010
Judgment of: Emmett FM
Hearing date: 21 June 2010
Date of Last Submission: 21 June 2010
Delivered at: Sydney
Delivered on: 21 June 2010

REPRESENTATION

First Applicant appeared in person assisted by a Gujarati interpreter
Solicitors for the Respondent: Ms K. Hooper, DLA Phillips Fox
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 667 of 2010

SZOHC

First Applicant

SZOHD

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

  1. 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 28 February 2010 and handed down on 1 March 2010.

  2. The first applicant claims to be a citizen of India and of Hindi faith (“the Applicant”). The second applicant is the wife of the Applicant. The second applicant’s claims are entirely dependent upon the claims of the Applicant.

  3. The applicants departed India from Ahmadabad in May 2009 and travelled to New Zealand. In New Zealand, on 17 June 2009, the applicants applied for subclass TR-676 Tourist visas which were granted on 17 June 2009. The applicants then travelled to Australia, arriving on 24 June 2009. The Applicants departed India and New Zealand legally travelling on passports issued in their own names.

  4. On 4 August 2009, the applicants lodged an application for protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”) under the Act.

  5. On 30 October 2009, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas.

  6. On 17 November 2009, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

  7. On 1 March 2010, the Tribunal affirmed the decision of the Delegate not to grant protection visas.

  8. On 25 March 2010, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

  1. 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.

  2. 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”).

  3. 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.”

  4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

  1. The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by members of the Congress Party and their controlled entities.

  2. The Applicant claimed that in 1990 he was a supporter and active member of the Bharatiya Janata Party (“BJP”) and was very influential in Gujarat. He claimed that, at this time, he borrowed money for his business from a bank whose chairman was a Congress Party supporter. The Applicant claimed that the bank targeted him and demanded repayment of his loan “to try and get me to change political sides”.

  3. The Applicant claimed that, in October/November 2008, he was assaulted by Congress Party supporters who came to his place of business and demanded that he pay money to the bank. The Applicant claimed he was admitted to hospital for two or three days, but did not report the incident to police.

  4. The Applicant claimed that, in about January 2009, Congress Party supporters returned to his place of business, demanded money from him and, when he was unable to pay, assaulted him again. The Applicant stated that his attackers told him he was “too influential” in the BJP and was a great obstacle to the Congress Party.

  5. Following the second attack, the Applicant stated that he did not go back to work for about a month and continued to receive threatening phone calls during this time. The Applicant further stated that his attackers tried to break into his home “on a few occasions”, resulting in the Applicant and his family moving to Bombay in March 2009.

  6. The Applicant claimed that his attackers traced him to Bombay and threatened the lives of the Applicant and his family. He stated that one night, while walking alone in Bombay, he was attacked again and told he would be killed. The Applicant stated that he “knew then that my loan with the bank was just an excuse and that I was a real threat to the Congress Party’s plans”.

  7. The Applicant stated that he reported this incident to police, but they were unable to protect him because some of the police were Congress supporters and on the Congress payroll.

  8. The Applicant stated he and his family then returned to Ahmadabad, where he left his children in the care of his extended family. The Applicant stated that he and his wife then left India to seek refuge in Australia.

  9. The Applicant stated that Congress Party supporters continued to threaten his family in India.

The Delegate’s decision

  1. On 22 October 2009, the Applicant attended an interview with the Delegate.

  2. On 30 October 2009, the Delegate refused the applicants’ application for protection visas on the basis that the applicants are not persons to whom Australia has protection obligations under the Convention.

  3. The Delegate did not accept that the Applicant had faced any past persecution for any Convention-related reason. The Delegate found that the Applicant only faced harassment from the bank after he closed his business and stopped making the payments of the loan. The Delegate was not satisfied that the Applicant suffered the attacks as claimed or that he feared his life was at risk in Ahmadabad or Bombay. The Delegate noted that the Applicant said that he intended to return to India in two to three months “when the matter has settled down”.  

The Tribunal’s review and decision

  1. On 17 November 2009, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

  2. The applicants provided further documents in support of their review application.

  3. On 2 December 2009, the Tribunal wrote to the applicants informing them 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 applicants to attend a hearing on 8 January 2010 to give oral evidence and present arguments.

  4. On 8 January 2010, the applicants attended the Tribunal hearing by video conference and gave evidence.

  5. The Tribunal noted that it had before it the Department’s file and a number of other materials from a range of sources.

  6. The Tribunal found the Applicant was not a witness of truth.

  7. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:

    “The RRT rejected the applicant's credibility as a witness.  Citing country information, the RRT found the bank had in fact closed in 1996 and the bank's licence was cancelled in 2001.  The chairman of the bank had had legal cases filed against him because of the money he siphoned from the bank (at [66]).[1]  The RRT further found the applicant's evidence was confused and inconsistent (at [67]).[2]  The RRT accordingly rejected all of the applicant's claims (at [68]).[3]”

    [1] CB 106

    [2] CB 106

    [3] CB 106-107

The proceeding before this Court

  1. The applicants were unrepresented before this Court. The Applicant, who appeared on behalf of both applicants, had the assistance of a Gujarati interpreter.

  2. On 13 May 2010, the Applicant attended a directions hearing before me and the applicants were 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. On that occasion, I explained to the Applicant that this Court had 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.

  3. At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant elected to participate in the Court’s legal advice scheme and received advice but did not receive legal advice. The panel advisor indicated that the applicants were not contactable on the telephone number provided. 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.

  4. At the commencement of the hearing, the Applicant confirmed that he appeared on behalf of both applicants and that his wife had no independent claims of her own. The Applicant confirmed that the applicants relied only on the ground contained in the amended application, filed on 9 June 2010. The ground is as follows:

    “The second respondent committed jurisdictional error by failing to address the applicants claims in the way they were made.

    Particulars:

    (a) The applicant stated in his protection visa application that he was an active member of BJP.

    (b) He stated he was assaulted by Congress party members because of his involvement with BJP.

    (c) The Tribunal did not consider the way he claimed the Urban Co-operative Bank’s chairman Mr. Surendra Rajput was a Congress supporter, targeted applicant and demanded repayment of the loan in the hope of getting the applicant to change his political view.”

  5. The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the particulars and in support of the application generally. The Applicant confirmed that no evidence or submissions had been filed by or on behalf of the applicants. The Applicant declined to make any submission in support of the ground of his amended application or any of its particulars or in support of his application generally.

  6. I understand the ground of the amended application to assert that the Tribunal had failed to consider those matters identified in particulars (a), (b) and (c) above. However, the Tribunal’s decision record makes clear that the Tribunal understood the Applicant’s claims in particulars (a), (b) and (c) were part of his complaints in support of his protection visa application and review application.

  7. The Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s claims, and to which I have referred above at paragraphs 14 to 19. Those included the Applicant’s claims to be an active member of the BJP (particular (a)), to have been assaulted by Congress Party members because of his involvement with the BJP (particular (b)) and that the chairman of the bank with whom he had a business loan had targeted him and demanded repayment of the loan in the hope of getting the Applicant to change his political views (particular (c)).

  8. On 8 January 2010, the Applicant attended a hearing before the Tribunal at which the Tribunal explored with the Applicant his refugee claims.

  9. In particular, the Tribunal noted the Applicant’s evidence that the chairman of the bank was a follower of the Congress Party, whereas the Applicant had been a supporter of the BJP, and that the chairman “had ordered him to repay his loan”. The Tribunal explored with the Applicant the difficulties the Applicant had with his business, which the Applicant ultimately said had began around October 2008. The Tribunal noted that the Applicant said that he first had difficulties before January 2009 with repaying the loan.

  10. The Tribunal put to the Applicant independent country information about the bank and its chairman, particularly, that the bank had effectively shut down in 1996 and the chairman was facing certain charges. The Tribunal put to the Applicant that, in the light of that information, it was very difficult to believe the Applicant’s claims that he had been borrowing money from this bank and was being persecuted in 2008 and 2009 because of those loans.

  11. The Tribunal found that, as the bank had shut down in 1996, the Applicant could not have had an outstanding loan from the bank in 2008 or been persecuted because of his failure to repay money to the bank as claimed.

  12. The country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ). It was open to the Tribunal to prefer the country information before it in preference to the Applicant’s evidence.

  13. The Tribunal went on to put other specific concerns it had about different accounts given by the Applicant in his written claims, the departmental interview and at the Tribunal hearing. The Tribunal found the Applicant’s evidence about the problems he claimed to have faced in India to be untruthful. The Tribunal did not accept that the Applicant had a loan with the bank or that the bank required him to repay a loan because its chairman was a Congress Party supporter who was seeking to persuade the Applicant, an active BJP supporter, to change sides.

  14. The Tribunal explored the Applicant’s claims of attack by people from the bank at his place of business and in Bombay. The Tribunal put to the Applicant matters of concern it had about his evidence, particularly inconsistencies between his written claims and his evidence to the Tribunal. The Tribunal did not accept the Applicant’s claims of attacks by people from the bank or Congress Party supporters either in Ahmadabad or Bombay because he had not repaid the bank loan. The Tribunal did not accept that the Applicant’s family in India was being threatened by people from the bank or Congress Party supporters.

  15. The Tribunal explored with the Applicant his claims of lack of protection from the police and noted that at the time of his alleged attacks the BJP was in power.

  16. The Tribunal also put to the Applicant information in the Applicant’s visitor visa application in which he stated he had been employed by S M Industries for the past five years. At the Tribunal hearing, the Applicant said he had no other business in India apart from his own diamond cutting and polishing business. The Tribunal told the Applicant that this was information that may be part of the reason for affirming the decision under review because it may cause the Tribunal to find that his claims about borrowings in relation to his business were untrue. The Tribunal told the Applicant that he was entitled to seek additional time to comment on or respond to the information. The Tribunal noted the Applicant’s response that he did not want additional time to comment on or respond to the information. In the circumstances, the Tribunal complied with s.424AA of the Act in giving this information to the Applicant and advising him that he may seek additional time to comment on or respond to the information.

  17. The Tribunal noted that the Applicant did not appear to maintain his claim of having been a supporter and active member of the BJP. The Tribunal noted that the Applicant said his involvement had been “nothing much” and that he had not held any position in the BJP. The Tribunal also put to the Applicant that in his written statement he had said that he had a lot of supporters and had been very influential in Gujarat. The Tribunal noted the Applicant’s response that he had been “nothing like that”.

  18. The Tribunal found that there was not a real chance that the Applicant would be threatened for reason of political opinion or imputed political opinion if he were to return to his home in Ahmadabad now or in the reasonably foreseeable future.

  19. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, 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).

  20. As stated above, the Tribunal’s decision record makes clear that the Tribunal explored with the Applicant in detail the claims referred to in particulars (a), (b) and (c) of his amended application.

  21. Accordingly, the ground of the application is not made out.

Conclusion

  1. 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. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. 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.

  2. 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.

  3. 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.

  4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  21 June 2010


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