SZOHK v Minister for Immigration
[2010] FMCA 486
•8 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHK v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 486 |
| 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; 474; pt.8 div.2 |
| Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 |
| Applicant: | SZOHK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 706 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 June 2010 |
| Date of Last Submission: | 22 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Mr D. Prince, Kinslor Prince Lawyers |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Ms L. Buchanan, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 706 of 2010
| SZOHK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
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 9 March 2010 and handed down the same day.
The applicant claims to be a citizen of India and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 6 July 2009 having departed legally from Cochin on a passport issued in his own name and a Class TU 572 Student visa issued on 26 June 2009.
On 31 July 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 11 November 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 2 December 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 9 March 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 31 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 Applicant’s claims for a protection visa
The Applicant’s claims are accurately summarised by counsel for the First Respondent in his written submissions as follows:
“3.The Applicant claimed to fear harm in India for reason of his political opinion. He claimed that on 7 July 2008 in Kodakara in Kerala state he saw two unknown persons being chased by four other unknown persons with sticks, and that one of the two being chased had fallen over and was beaten. He claimed he subsequently discovered by newspaper articles that the victim was a member of the BJP, and the assailants members of the CPI-M, and that one victim subsequently died from the assault. The Applicant claimed he had dropped his ID card at the scene, and that about two weeks later CPI-M members came to his house, returned his ID card, and warned him not to give evidence about the incident. He claimed about two months later the other person who was chased came to his house, having recognised him in the neighbourhood, and asked him to give evidence in court, but the Applicant declined. He claimed that in November 2008 several people came to his house to take him to give evidence, and he resisted and hurt his hand. The CPI-M also warned him against giving evidence. Rather than contacting the police the Applicant claimed he moved to Bombay for two weeks, but could not get a job so he returned home and was again threatened by the CPI-M to not give evidence, and by the BJP to give evidence. He then [travelled] to Australia on a student visa. He claimed to continue to fear harm from both the CPI-M and the BJP until the court case is over, which could take several years. See generally CB 100-106.”
The Delegate’s decision
On 20 October 2009, the Applicant attended an interview with the Delegate.
On 11 November 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 2 December 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of his review application.
On 18 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 28 January 2010 to give oral evidence and present arguments.
On 28 January 2010, the Applicant attended the Tribunal hearing and gave evidence. The hearing was adjourned and, on 29 January 2010, the Tribunal wrote to the Applicant inviting him to resume the hearing before the Tribunal on 11 February 2010.
The Applicant attended the hearing on 11 February 2010 and gave evidence.
The Tribunal noted that it had before it the Department’s file, including the Applicant’s protection visa application, documents in support and the Delegate’s decision record. The Tribunal also had regard to other information from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“4.The Tribunal found that the alleged incident witnessed by the Applicant did not occur, noting that there was no mention of it in independent sources, despite the Applicant claiming that it had been reported in the news, although not in a big newspaper, and that accordingly it did not accept that the Applicant had been harmed as he claimed: CB 110 [80-83]. The Tribunal also found that even if the Applicant’s claims were true he had not been harmed for a Convention reason but because he was a witness to a murder: CB 110 [84-85]. Further, the Tribunal found that adequate state protection was available to the Applicant in Kerala, which he had not sought to access: CB 110-111 [86-88]. The Tribunal concluded that the Applicant’s claimed fears were not well founded: CB 113 [99-100].
5.The Tribunal’s finding that the past harm the Applicant claimed did not occur, and that even if it did it was not for a Convention reason and that adequate state protection was available to the Applicant are findings of fact that were open to it for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision, and there is no error of law in the Tribunal making a wrong finding of fact or engaging in unsound reasoning: MIAC v SZNPG [2010] FCAFC 51 at [20] and cases there cited. ”
The proceeding before this Court
The Applicant was represented before this Court by Mr Karp, of counsel.
At the commencement of the hearing, Mr Karp confirmed that the Applicant relied on the grounds contained in an amended application filed on 10 June 2010 as follows:
“1. The Tribunal’s reasoning in rejecting the applicant’s claim to have witnessed a political killing in Kodakara, Kerala in July 2008 was irrational, illogical, and unreasonable, to the extent that the “satisfaction” required by s 65 of the Migration Act had not been reached.
Particulars
(a) The Tribunal’s reasoning was based on the following unstated assumptions which, (whether considered individually or cumulatively) were reached arbitrarily and without any basis in evidence.
(i) Every political murder in Kerala would be reported.
(ii) Every political murder in Kerala would be reported in English.
(iii) Every political murder in Kerala would be reported in English in a form accessible to the Tribunal.
(iv) The Tribunal would be able to access all such reports, should they exist.
(b) The Tribunal’s reasoning is inherently contradictory.
Further Particulars
(i) The applicant stated that the murder was reported in a “small local newspaper”.
(ii) The Tribunal rejected this explanation because,
(A) It thought that there would be some mention of the murder in independent sources.
(B) This was because the Indian media reports extensively about politically motivated killings and violence and subsequent hartals.
(iii) The Tribunal therefore rejected the applicant’s explanation that the killing was reported on the basis that it would have been reported.
2. The Tribunal failed to ask itself a question that was required to be asked in considering whether the harm that the applicant feared was for a Convention reason.
Particulars
(b) Whether the applicant’s giving evidence, or refusing to give evidence (as the case may be) may have caused him to be imputed with a political opinion opposed to either the party that wanted him to give evidence or to the party that did not want him to give evidence.
3. The Tribunal misinterpreted and misapplied the law when considering the question of whether the state could provide protection to the applicant.
Particulars
(a) The Tribunal failed to consider whether the Kerala Police could provide the applicant with a level of protection that he was entitled to expect according to international standards.
(b) There was no evidence before the Tribunal to the effect that the Kerala police could or would protect a witness from harm.”
Mr Karp was invited to make submissions in support of each of the grounds and in support of the application generally. On 17 June 2010 the Applicant filed an outline of submissions.
Ground 1
The Applicant claimed to have witnessed a political murder. The Tribunal was not satisfied that such an event occurred. Counsel for the Applicant submitted that the Tribunal’s reasoning in making that finding was “irrational, illogical and unreasonable and, inherently contradictory.” The particulars in support of those contentions are identified above in the grounds of the amended application.
The Applicant’s contention is derived solely from the following paragraph in the findings and reasons section of the Tribunal’s decision record:
“I have no independent evidence before me to suggest that a BJP activist was killed by CPI-M activists on 7 July 2008 in Kodakara, Kerala. The applicant explained this lack of information in the media and public domain about this attack, on 7 July 2008 in Kodakara, by stating that the incident was only reported in a ‘small local’ newspaper. I reject this explanation, I am of the view that were it the situation that a BJP supporter or activist was killed in Kerala and other BJP workers were injured, some mention would have been made in the independent sources. This is because the Indian media reports extensively about politically motivated killings and attacks between the CPI-M and the BJP and furthermore the subsequent hartals by these political parties attract media attention.”
Counsel for the Applicant submitted that the particulars in support of Ground 1 were “unstated assumptions” that were inherent in the Tribunal’s reasoning. Those “unstated assumptions” are as follows:
“(a) Every political murder in Kerala would be reported.
(b)Every political murder in Kerala would be reported in English.
(c)Every political murder in Kerala would be reported in English in a form accessible to the Tribunal.
(d)The Tribunal would be able to access all such reports, should they exist.”
Counsel for the Applicant submitted that none of the assumptions is supported by any evidence or information “whatsoever”. Counsel submitted that the fact that the media reports extensively on political violence does not mean it reports on all violence. Counsel went on to submit that even if the media did report on all violence, the Tribunal’s reference to the Indian media indicated that the Tribunal is aware that events may be reported in Malayalam rather than English and that there is no evidence that the Tribunal Member could read Malayalam or that the Tribunal Member had “made a comprehensive search of sources in English, let alone Malayalam.”
Counsel for the Applicant submitted that the Tribunal rejected the Applicant’s claim of having witnessed a murder that was reported in the Indian media because “it would have been reported in the Indian media”. Counsel submitted, therefore, that such reasoning is also “internally inconsistent.”
Counsel for the Applicant referred the Court to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] where Crennan and Bell JJ said that, for illogicality or irrationality to give rise to jurisdictional error, the Tribunal’s finding must be one “at which no rational or logical decision maker could arrive on the same evidence.” Crennan and Bell JJ stated that “the correct approach is ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.” (at [133]).
In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402, the Full Court of the Federal Court of Australia stated at 407:
“… if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35-6; 93 ALR 1 at 24-5. It is for the tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 at 490-1; 41 ALD 1 at 9.”
In my view, the Tribunal’s findings quoted above at paragraph 27 do not support the construction contended for by counsel for the Applicant. I do not accept the premises referred to in the particulars in support of Ground 1.
A fair reading of the relevant paragraph makes clear that the Tribunal understood that the Applicant was claiming to have witnessed the killing of a BJP activist by a CPI-M activist on 7 July 2008 in Kerala.
During the first hearing on 28 January 2010, the Tribunal put to the Applicant that there was no information available in the media about the incident. The Applicant said that there was a newspaper report about the incident in a small column in the newspaper which said the person had passed away. The Applicant said “there was no explanation.” When the Tribunal Member asked the Applicant how he came to know it was a political murder, the Tribunal noted the Applicant’s response that the newspaper had reported that CPI-M attacked a BJP member and the BJP member died on account of his injuries. At the end of that hearing, the Tribunal noted that the Applicant requested a month to obtain documents about the alleged murder and “about the situation of the police in Kerala.” The Tribunal Member told the Applicant that he would not give him a month to provide further documents but that the Applicant was welcome to bring any documents to the next Tribunal hearing on 11 February 2010.
At the reconvened hearing on 11 February 2010, the Tribunal Member asked the Applicant if there were any reports of the incident and noted the Applicant’s response that “his friend got the information from a local paper and it may be a politician.” The Tribunal went on to ask if there was further reporting about the victim and noted the Applicant’s response that he did not know, “he only knew that it appeared in local papers.” The Applicant said that it was a political murder by the CPI-M of the BJP member and it was “in the news but not in a big newspaper.”
The decision record makes clear that the Tribunal put to the Applicant other concerns it had about this evidence, such as the fact that the Applicant did not report to the authorities threats he claimed to have received from members of the BJP and CPI-M about being a witness in court proceedings against the perpetrators.
The Tribunal’s findings quoted above at paragraph 27 suggest that the Tribunal Member searched “independent sources” for mention of the alleged incident. It could find no mention of a BJP supporter or activist killed in Kerala and of other BJP workers being injured on 7 July 2008 in Kerala. The Tribunal noted that it had put that concern to the Applicant who had responded that the lack of information in the media and public domain about the attack was because “the incident was only reported in a small local newspaper.” The Tribunal’s reasons make clear that its view that some mention would have been made in “the independent sources” was because those sources included the Indian media which reported extensively about politically motivated killings and attacks between the CPI-M and the BJP.
I accept the submission of counsel for the First Respondent that, given the Applicant had told the Tribunal that the incident had been reported, it was not irrational for the Tribunal to look for such reports. Nor was it irrational for the Tribunal to reason that, because the Indian media reports extensively about politically motivated killings and attacks between CPI-M members and BJP, there would have been some report about the incident if it had occurred.
The Tribunal rejected the Applicant’s claims of having been harassed and threatened by members of the BJP and members of the CPI-M as to whether or not he would attend Court to give evidence in respect of the incident.
Further, the Tribunal had regard to the Applicant’s claims that he fled to Bombay yet returned to Kerala 2 weeks later. The Tribunal noted that nothing happened to the Applicant in Bombay and found that his return to his hometown in Kerala indicated that the Applicant did not have a subjective fear of persecution.
The Tribunal also had regard to a medical report provided by the Applicant indicating he had suffered injuries and had been hospitalised from 11 November 2008 to 13 November 2008. However, the Tribunal placed no support on the medical report produced by the Applicant to support his claims that his injuries were caused by an altercation with members of the BJP. The report provided a discharge summary from the hospital. It was open to the Tribunal to find that such report did not corroborate the cause of the Applicant’s injuries.
The Tribunal’s findings were open to it on the evidence and material before it. They are findings of fact, none of which are findings of a “jurisdictional fact”. In the circumstances, even if the Tribunal’s findings were wrong, they do not amount to jurisdictional error. In any event, they were neither irrational, illogical nor inherently contradictory. They were open to the Tribunal on the evidence and material before it and for the reasons it gave.
The Tribunal’s adverse credibility findings were also open to the Tribunal on the evidence and material before it and for the reasons it gave. 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).
Otherwise, Ground 1 seeks merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; 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).
Accordingly, Ground 1 is not made out.
Ground 2
In support of Ground 2, counsel for the Applicant submitted that the Tribunal should have considered whether, in giving evidence or refusing to give evidence of the alleged murder, the Applicant may have been imputed with a political opinion opposed either to the party that wanted him to give evidence or to the party that did not want him to give evidence.
In circumstances where the Tribunal rejected comprehensively the Applicant’s claims of having witnessed a political murder and having been harassed and threatened as a result, there was no obligation on the Tribunal to consider whether the Applicant’s giving evidence or refusing to give evidence may have caused him to be imputed with a political opinion opposed to either party.
In any event, the Tribunal put to the Applicant that, even if it believed him that he had witnessed a murder and was threatened by BJP and CPI-M members, the harm that he feared was not for a Convention related reason. The Tribunal’s decision record makes clear that the Tribunal told the Applicant that the Convention related reasons were “for his race, religion, nationality, membership of a particular social group or political opinion”. The Applicant does not suggest that he was not given such an explanation. The Tribunal went on to put to the Applicant that if he was threatened for being a witness to a murder it was because he did not want to give evidence to the court. The Tribunal noted that the Applicant agreed.
In the circumstances, it was open to the Tribunal to find that any harm that the Applicant may fear, if he was to return to Kerala, was not for a Convention related reason. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
In the circumstances, Ground 2 does no more than cavil with the findings of the Tribunal. As stated above, it is not for this Court to engage in merits review.
Moreover, a fair reading of the material before the Tribunal and the Tribunal’s summary of the evidence before it, does not support a contention that a claim squarely arose that the Applicant may have a fear of harm for a Convention related reason of an imputed political opinion (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]).
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 13 May 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
Accordingly, Ground 2 is not made out.
Ground 3
Counsel for the Applicant specifically said to the Court there was no need for the Court to consider Ground 3 because it does not arise if the Applicant was unsuccessful in Grounds 1 and 2.
Having regard to the findings of the Court in respect of Grounds 1 and 2 above, and in light of the Applicant’s concession that the ground does not arise in such circumstances, I do not proceed to consider Ground 3 any further.
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. 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.
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 sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 8 July 2010
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