SZOJP v Minister for Immigration
[2010] FMCA 571
•13 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 571 |
| MIGRATION – Refugee Review Tribunal – applicant seeking impermissible merits review – no failure of procedural fairness – no failure to consider a claim – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 424AA, 425, 425A, 426A, 441A, 441C Migration Regulations 1994 (Cth), reg.4.35D |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 1996) 185 CLR 259 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 |
| Applicant: | SZOJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 947 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 July 2010 |
| Date of Last Submission: | 13 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2010 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 3 May 2010 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $3,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 947 of 2010
| SZOJP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from transcript)
I have before me today an application made on 3 May 2010 under the Migration Act 1958 (Cth) (“the Act”) which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 April 2010, which affirmed the decision of a delegate of the respondent Minister which in turn refused a protection visa to the applicant.
Background
The Minister has put before the Court a bundle of relevant documents (Court Book – “CB”). From this material the following is drawn.
The applicant is a citizen of India. He arrived in Australia on 14 July 2009 and applied for a protection visa on 24 August 2009 (CB 1 to CB 30 with annexures). The applicant was assisted in the making of the application by a registered migration agent (CB 9).
Claims to Protection
The applicant’s claims to protection are set out in a document attached to his protection visa application headed: Statutory Declaration (CB 27 to CB 30).
While a university student the applicant joined the University Students’ Union with an intention to help disadvantaged students. Following completion of his studies he joined his father’s business and became involved in politics to work against the discrimination and disadvantage of, in particular, the Dalit caste. The applicant protested against the treatment of the Dalits on many occasions.
He joined the Kanounda branch of the Haryana Vikas Party (“HVP”) in 2004 because he said it was the only party trying to help the disadvantaged, including the Dalit and other farmers. Amongst other things he claimed to have established a cooperative society and at some time was offered the position of General Secretary of the HVP.
The applicant claimed that his activities, his political profile and his popularity brought him to the attention of a number of opposition parties and landlords who started to act against him. The applicant claimed to have been physically and verbally abused and harassed when violence between Dalit and upper caste Sikhs in Punjab had spread to Haryana. The applicant claimed that during 2009 he participated in campaigning for the local HVP candidate. He claimed to have been physically abused both before and after the election by political opponents.
Following the election the Congress Party came to power and Congress Party “thugs” tried to take revenge against him. He was warned to “breach” his relationship with the Dalits. He was attacked, severely injured and threatened that he would be killed if he continued his activities.
He claimed that the authorities in India were reluctant to protect him. He therefore left India for fear of persecution for his political belief and because he was an activist of the HVP.
The Delegate
The Minister’s delegate was satisfied that the applicant was a member of the HVP, although not General Secretary. The delegate was not satisfied, however, that the applicant engaged in organising protests or was proactively engaged in assisting poor and disadvantaged groups. Nor was the delegate satisfied that the applicant’s profile in the community was as high as he had claimed (CB 47 to CB 48).
The delegate accepted some aspects of the applicant’s factual account of what had occurred in India in the past. However, in all the delegate was not satisfied that the applicant left India due to a fear of persecution. Therefore the delegate found that the applicant did not have a genuine fear of harm or that there was a real chance of persecution if the applicant were to return to India (CB 48).
The Tribunal
The applicant applied for review by the Tribunal on 27 December 2009. He was invited to and attended a hearing before the Tribunal on 26 February 2010. The Tribunal’s account of what occurred in the hearing is set out in its decision record at [27] to [49] (CB 95 to CB 99).
Quite in contrast to the delegate, the Tribunal concluded that the applicant’s factual claims were a complete fabrication ([53] at CB 100).
With reference to what the Tribunal said had been discussed at the hearing, and with reference to what had occurred before the Minister’s department, the Tribunal based its finding of the complete fabrication on the inconsistencies in the applicant’s own claims, and further that the claims were inconsistent with independent information available to the Tribunal.
The Tribunal set out its findings as to these inconsistencies comprehensively in its analysis ([53] at CB 100 to [60] at CB 102). What is immediately obvious is that each of these findings in relation to specific aspects of the applicant’s factual account reflected each of the matters arising from, and put to the applicant at the hearing.
As a result, the Tribunal rejected the applicant’s claims of past harm, and found that there was no real chance of persecution on return to India ([61] at CB 102). The Tribunal therefore on that basis affirmed the delegate’s decision.
Before the Court
The applicant appeared in person today. He was assisted by an interpreter in the Hindi language. Ms B. Rayment appeared for the first respondent. In addition to the Court Book, the Minister has also put before the Court written submissions, which I understand have been read for the applicant.
Before the Court the applicant has put four grounds for review, although I note that the last two are both numbered “three”. Before the Court today the applicant explained that a friend had assisted in the drafting of the application to the Court, and he was therefore not able to assist the Court further, other than what was written in the application to the Court.
At the beginning of the hearing I explained to the applicant the purpose and role of the Court in the matter today, and how the role of the Court contrasted to that of the Tribunal. I was prompted to do this because, when called upon to address the Court, the applicant was clearly at a loss as to what he should say.
In that context the applicant advanced one complaint about the process before the Tribunal. He asserted that on the day of the hearing before the Tribunal he was not feeling well. That he was not “aware about anything” and could not reply (to questioning) properly. Following prompting, the applicant confirmed that an interpreter in the appropriate language had been provided by the Tribunal for the purposes of the hearing. This reflects what is reproduced at CB 57. The applicant also stated that he told the Tribunal that he was not feeling well, but was otherwise unable to provide evidence of his not feeling well on that occasion.
Essentially I agree with submissions made by Ms Rayment that, while the applicant now asserts that his feeling unwell may be some attempt to assert that this interfered with his capacity to properly participate in the hearing before the Tribunal, there is simply no evidence before the Court to support the applicant’s claim. I note, as Ms Rayment submitted, that the applicant was given the opportunity to file evidence in this matter at the first Court date.
Nothing has been put before the Court in any evidentiary context to support the applicant’s bare assertion today. I say, in particular for the applicant’s benefit, that the Court can only proceed on the evidence that is put before it. Relevantly, that evidence shows that the Tribunal’s account of the hearing is comprehensive. There is nothing whatsoever in that account, nor indeed otherwise, to provide any basis to support the applicant’s assertion. I note further, as Ms Rayment in my view correctly submitted, that even if the applicant was feeling unwell there would still need to be some evidence that any such feeling of being unwell was such that the applicant was not able to properly participate in the hearing before the Tribunal.
On the evidence that has been put before the Court it is not open to the Court to draw any inferences as to what otherwise may have been the case. On the state of the evidence before the Court, I cannot be satisfied that any breach of s.425 of the Act occurred or otherwise in relation to the conduct of the hearing before the Tribunal.
Before the Court at the conclusion of submissions by Ms Rayment the applicant also asserted that he was feeling unwell before the Court today. To the extent that this may be said to be some implied request for an adjournment of the proceedings today, I refused any such request. The timing of the applicant’s statement can at best only be seen as a self-serving statement made at a time well into the hearing before the Court. As I said to the applicant, the time for any such statement would have been at the beginning of the hearing, not towards the end.
In any event, I am otherwise satisfied, after observing the applicant in Court today, his participation, and his ability to respond to and initiate statements, that he was able to properly engage in the conduct of the hearing today before the Court.
Consideration: The Grounds
Turning now to each of the grounds, as stated in the application. Ground one reads as follows:
“1. The Tribunal exceeded its jurisdiction or constructively failed to find that I was not persecuted for my political belief as a member of Haryana Vikas Party and also failed to accept me as a credible witness.”
What must be said in all is that, as the Minister submits, this does not rise above a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259). As I explained to the applicant, this Court has no power or role in making any findings in relation to whether or not Australia owes him protection. The law does not permit this Court to engage in a process of fact-finding to answer the question as to whether or not the applicant is a refugee under the Refugees Convention. That is the role and the function of the Tribunal.
The applicant also complains that the Tribunal failed to accept him as a credible witness. The short answer to the applicant’s complaint in this regard is that there is very clear authority that the Tribunal is not obliged to uncritically accept anything, or indeed everything, that an applicant may say to it (see Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J).
In the current case the Tribunal gave cogent reasons for its disbelief of the applicant. Its findings were each, separately and cumulatively, reasonably open to it on what was before it. These findings, and its ultimate conclusion as to the applicant’s credibility, were all within the exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405).
Ground one does not reveal jurisdictional error on the part of the Tribunal.
Generally, ground two asserts a failure of procedural fairness because the applicant says he was not given an opportunity to comment on adverse information. With reference to what is subsequently stated in this ground, it appears that this is a reference to the very reasons given by the Tribunal for affirming the delegate’s decision. The applicant also complains that he was not given an opportunity to reply to the alleged adverse materials.
What must be immediately noted is that this is a case to which s.422B of the Act applies. This means that the matters that are set out in Division 4 of Part 7 of the Act are the exhaustive statement of the natural justice hearing rule that relates to this case. This is, of course, absent bias.
Relevantly, one of the sections in Division 4 is s.424A of the Act. Section 424A(1) requires the Tribunal to give to the applicant information which is considers would be the reason or part of the reason for affirming the decision that is under review. If the applicant’s ground seeks to complain that the Tribunal should have put its adverse views of his evidence to him for comment, that is its reasons, then such views are not information for the purposes of s.424A(1) (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18], and the reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471).
If the applicant was expecting the opportunity to comment on a draft of the Tribunal’s decision record, then s.424A(1) does not require the Tribunal to provide that opportunity.
In any event, and for the sake of completeness, I note the following:
1)The information the applicant provided in writing to the Minister’s department in connection to his protection visa application, and what he told to the Tribunal, is excluded from the obligation in s.424A(1) by s.424A(3)(ba) and (b) respectively.
2)Country information relied on by the Tribunal, for example its references to elections and candidates at elections, all fall within the exception contained in S.424A(3)(a).
Of course what the applicant orally told the Minister’s delegate at the interview does not come within the exception in s.424A(3)(ba). But the only account, as I have said, of what occurred at the Tribunal hearing that is before the Court is the Tribunal’s own account. This account is unchallenged by any evidence to the contrary brought by the applicant, for example a transcript of the hearing. This account shows that the Tribunal specifically employed the facility available through s.424AA to put this and indeed other information to the applicant for comment at the hearing.
The account also shows that the applicant was given the opportunity to comment, and was asked if he wanted more time to do so. Given the provision of s.424A(2A) the Tribunal thereby discharged any residual obligation under s.424A(1) in this regard. Noting also that there is no error in the Tribunal putting to the applicant information that otherwise may fall within the exceptions contained in s.424A(3). For the relationship between s.424A and s.424AA, and how that relationship has been exercised and applied in the current case, I rely on SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46.
Section 425 is another section appearing in Division 4 of the Act. This section compels the Tribunal in certain circumstances to invite the applicant to a hearing to give evidence and present arguments in support of his application. In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 the High Court explained the Tribunal’s obligation in relation to s.425 and how the Tribunal may discharge its obligation, by providing the applicant with the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. As I have said earlier, and must repeat again for the applicant’s benefit, he has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing.
In the circumstances it is not open to the Court to draw inferences or otherwise rely on matters as to what may otherwise be said to have occurred at the hearing (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
In the current case it is clear that the issue which determined the review was the Tribunal’s comprehensive rejection of the credibility of the applicant’s factual account of what he said had occurred in India and underpinned his claim to fear persecutory harm.
There can be no doubt, on even the simplest reading of the Tribunal’s account, that each facet of the applicant’s factual account of events in India was discussed at the hearing. Further, that the Tribunal’s comprehensive disbelief of the applicant’s evidence and his claims were squarely put to him for comment at the hearing.
I also note for the sake of completeness that the Tribunal’s letter of invitation to the hearing complied with all of the relevant statutory and regulatory requirements. It complied with the provisions of s.425A. The letter noted the effect of section 426A. On the best evidence available to the Court the letter was sent by one of the methods set out in s.441A, namely s.441A(4). Having regard to the relevant dates, that is the date of the letter and the date of the scheduled hearing, and also having regard to s.441C(4) and reg.4.35D, the Tribunal complied with the relevant notice period. Nor can I see error arising from any other section which forms part of Division 4 of Part 7 of the Act.
Even further, I agree with the respondent’s submission that, to the extent that the applicant complains of a lack of fairness, s.422B(3) does not create a procedural requirement of fairness above and beyond what is expressly provided for in Division 4 of Part 7. I agree with the Minister in relying on Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 in that regard.
In all therefore, ground two does not succeed.
As pleaded in the application to the Court, neither of the two grounds numbered “three” reveal jurisdictional error in the Tribunal’s decision. I cannot see that the Tribunal ignored any claim made by the applicant. Nor indeed any facet or aspect of any claim. The applicant’s complaint that the Tribunal ignored his past persecution is simply not supported by what is before the Court. What the applicant fails to understand in making this complaint in the way that he has is that the Tribunal did not ignore his claim, it simply rejected the truth of his claims.
The Tribunal went through each aspect of the applicant’s factual account of what he said had occurred in India and made findings in relation to each aspect of those claims. Findings which were open to the Tribunal to make on what was before it, and for which it gave reasons. That does not constitute ignoring or failing to deal with claims. It constitutes a failure to accept the truth of those claims. That on its own does not reveal jurisdictional error.
Conclusion
I have already dealt with what the applicant has put to the Court today. It is the case that for the applicant to succeed today the Court would need to, at the very least, discern jurisdictional error in the Tribunal’s decision. I cannot discern such error. Therefore I will make an order dismissing the application that has been made to the Court.
Costs
An order for costs in my view should be made in the normal course of events. The applicant has told the Court that he does not have any money and so is unable to pay any costs order that may be made. But that is not a sufficient reason for the Court not to make the order. It is, of course, the applicant’s right to come to this Court and complain about the Tribunal's decision. But, as with the exercise of many rights, there are quite often consequences.
As to the amount, I am generally guided by what is said to be reasonable by what is set out in the relevant Schedule to the Rules of this Court. In that light, the Minister could have asked for an amount almost $2,000 above what has been asked for.
But quite separately, having regard to the work that has actually been done in this case, I am satisfied that the amount sought is a reasonable amount. I will make the order in the amount sought by the Minister’s representative today.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: D Nestor
Date: 2 August 2010
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