SZOMA v Minister for Immigration

[2010] FMCA 620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOMA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 620

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

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 [1999] FCA 719
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1

Applicant: SZOMA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1335 of 2010

Judgment of: Emmett FM

Hearing date: 16 August 2010

Date of Last Submission: 16 August 2010

Delivered at: Sydney

Delivered on: 16 August 2010

REPRESENTATION

Applicant appeared in person assisted by a Hindi interpreter

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Ms J. Gallagher, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1335 of 2010

SZOMA

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 20 May 2010 and handed down the same day.

2. The applicant claims to be a citizen of India and of Muslim faith and Sunni ethnicity (“the Applicant”) and a supporter of the Congress political party in India. He claimed persecution in India by reason of his political opinion and religion.

3. The issues raised by the applicant are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and consideration of the Tribunal’s review and decision.

Background

1. The Applicant arrived in Australia on 19 August 2009 having departed legally from Delhi on a passport issued in his own name and a Subclass 456 (Business – Short Stay) visa issued on 13 August 2009.

2. On 29 September 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 4 February 2010, the Delegate refused the Applicant’s application for a protection visa.

4. On 2 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 20 May 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 17 June 2010, the Applicant 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 Bharatiya Janata Party (“the BJP”). The Applicant claimed that, when his father joined the Congress Party, he “followed him and joined Congress Party”. The Applicant claimed he became actively involved in politics and hoped to provide a voice for the Muslim minority in Sardarshahr because he felt that the government did not govern for the interests of Muslims.

2. The Applicant stated that “after becoming a member of the party”, he became involved in various activities to increase the party’s popularity with the community. The Applicant stated that he worked very hard for the Congress Party candidate during the elections and that the party’s popularity increased through his hard work, as did his profile within the party. He claimed that he became well known to members of the opposing BJP and Communist Party of India (Marxist) parties.

3. The Applicant stated that, prior to the election, he was approached by BJP members and asked to stop campaigning for the Congress Party candidate. He claimed that he was “warned” about his activities against them. The Applicant claimed he continued his involvement with the Congress Party and placed posters, handed out pamphlets and made announcements about the candidate by loudspeaker whilst driving around the town. The Applicant stated that while he was engaged in these activities he was attacked by BJP members and “beaten mercilessly”. The Applicant claimed that the following day BJP “thugs” entered his house and assaulted his family members. The Applicant claimed that he “rushed to the police station and made an entry”. The Applicant claimed the police “did not do anything against those.”

4. The Applicant claimed that after the election he was attacked by local BJP members, but ran away and reported the matter to local police. He claimed he was told to leave his house “for while” because further attacks on Muslims were planned. The Applicant claimed that two Muslim youths in different areas were killed the following week and that “They came to my house and asked my parents about my location”. The Applicant claimed that his father was beaten and his mother and sisters assaulted and all.

5. The Applicant claimed that Congress Party people helped him organise his visa to Australia as part of a cricket team. The Applicant claimed that if he returned to India, BJP members would kill him.

The Delegate’s decision

1. On 10 December 2009, the Applicant attended an interview with the Delegate.

2. On 4 February 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that he was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention.

3. The Delegate found that the Applicant’s presentation and demeanour at interview were “far from compelling” and his claims uncorroborated. The Delegate found the Applicant to be of “little credibility” and was not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason.

The Tribunal’s review and decision

1. On 2 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 15 March 2010, 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 14 April 2010 to give oral evidence and present arguments.

3. On 14 April 2010, the Applicant attended the Tribunal hearing and gave evidence.

4. 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.

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

   “Ultimately, the Tribunal was not satisfied that the applicant faced any real chance of persecution in India, “whether for reasons of ‘religion’, or ‘political opinion’, or for a combination of these, or any Convention-related factors”[1]. That conclusion was reached following findings that the applicant’s claims were “undermined by inconsistency and lack of credibility”[2], that his “substantive claims” were “thoroughly lacking in credibility”[3], that certain of his statements were “misleading” or “far-fetched” or fanciful”[4], and that his “credibility has been so weakened that the factual ‘well’, as it were, has been poisoned beyond redemption”[5]. Examples were given by the Tribunal at [52]-[53].”

   [1] CB82, [55]

   [2] CB82, [52]

   [3] CB82, [53]

   [4] ibid

   [5] ibid

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Hindi interpreter. 

2. On 6 July 2010, the Applicant attended a directions hearing before me. 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. The Applicant confirmed that he wished to continue with the 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, including any transcript of the Tribunal hearing.

3. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. 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 had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

5. The Applicant confirmed that he relied on the grounds contained in an application filed on 17 June 2010 as follows:

   “1. The second respondent committed jurisdictional error by failing to address the applicant’s claims in the way they were made,

   Particulars:

   a. The applicant stated in his protection visa that he was a active member of Congress party.

   b. He claimed that BJP thugs threatened him with violence because of his activities with Congress party.

   c. The Tribunal did not consider the way he claimed to be involved with Congress party in rejecting his claims of involvement with Congress party.

   2. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection.”

6. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. I explored with the Applicant what he meant by Ground 1. The Applicant agreed that, as asserted in Grounds 1(a) and 1(b) the Tribunal had stated that the Applicant had said in his protection visa that he was an active member of the Congress Party and that BJP thugs had threatened him with violence because of his activities with the Congress Party. He was unable to explain to the Court how it was that he asserted that the Tribunal had failed to address those claims.

2. Ultimately, the Applicant stated that the Tribunal should have accepted that he was an active member of the Congress Party and that BJP thugs had threatened him with violence because of his activities with the Congress Party. The Applicant asserted that the Tribunal had misunderstood his claims but could not explain what that misunderstanding was. The Applicant agreed that, at the heart of his complaint in Grounds 1(a) and 1(b) was a disagreement with the findings of the Tribunal. I explained to the Applicant that, if there was evidence and material before the Tribunal to allow it to make those findings, the Applicant’s disagreement with those findings would not be sufficient to establish jurisdictional error.

3. In relation to Ground 1(c), the Applicant asserted that the Tribunal did not believe that the Applicant was involved with the Congress Party, but declined to make any further submissions in support of Ground 1(c).

4. The Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s evidence given to the Delegate and explored the Applicant’s claims with him at a hearing.

5. The Tribunal noted the various assertions by the Applicant of his status with the Congress Party and made clear to the Applicant the concerns it had about the Applicant’s inconsistent evidence on this issue. In particular, the Tribunal noted that the Applicant stated in his written claims that he “joined” the Congress Party and became a member of that party. The Tribunal noted that the Applicant told the Delegate at interview that he was only “an ordinary member” of the Congress Party. The Tribunal noted that the Applicant told the Tribunal that he was not a member of the Congress Party, rather, he was just a supporter. The Tribunal noted that it asked the Applicant when he joined the Congress Party, the Applicant responded that he had never joined the Congress Party.

6. The Tribunal noted that it put to the Applicant the inconsistencies in his various statements and noted the Applicant’s response that he was never a member but simply a supporter and that his application had been written by someone else. The Tribunal noted that it put to the Applicant that the Applicant himself had told the Delegate that he was “an ordinary member” of the Congress Party and noted the Applicant’s response that the terms “leader” and “member” have the same meaning and that he was a “leader supporter”. The Tribunal noted that it put to the Applicant that the terms member and non-member are directly contradictory and that the Applicant had claimed to be both. The Tribunal noted the Applicant’s response that the Congress Party’s term for non-member supporters who put up posters is “ordinary members”.

7. The Tribunal put to the Applicant that, subject to comments he might make, it might form the view that a significant claim in his case was inconsistent and unreliable and that if the Tribunal formed that view, it may find the Applicant to be an unreliable witness overall. The Tribunal noted the Applicant’s response that Congress leaders like himself were different from Congress members.

8. The Tribunal also explored with the Applicant its concerns about his lack of knowledge of the date of the elections and the result of the elections. The Tribunal noted that it put to the Applicant that it might be hard to rely on his claims of past persecution as a result of his role in the 2009 elections, having regard to the unsatisfactory nature of his evidence about his role with the Congress Party and his lack of awareness of the 2009 elections.

9. The Tribunal also explored with the Applicant its concern that the Congress Party would have helped him link up with the cricket team but would not be willing to vouch for his role in the 2009 election campaign.

10. Ultimately, the Tribunal comprehensively rejected all the Applicant’s claims, other than that the Applicant is a Muslim from Sardarshahr in Rajasthan. The Tribunal found the Applicant’s claims to be “thoroughly lacking in credibility” and that his evidence was “far fetched” and “fanciful”. The Tribunal found the Applicant’s credibility had been “so weakened that the factual “well”, as it were, has been poisoned beyond redemption.”

11. The Tribunal found that the Applicant did not have any relevant or significant profile or relevance in India at all and was not satisfied that he faces a real chance of persecution in India for any Convention related reason.

12. The Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s claims to have been involved with the Congress Party and the various ways in which he claimed to have been involved and rejected them all.

13. Following the Delegate’s decision, the Applicant was aware, or should have been, that his credibility was an issue. In any event, the Tribunal clearly put to the Applicant its concerns about his credibility. Both the Delegate’s decision and the Tribunal’s exchanges with the Applicant during the hearing were sufficient to indicate to the Applicant that everything he said in support of his application is in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47]).

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

15. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 was not supported by particulars, evidence or submissions. The Applicant declined to make any submission at the hearing this morning in support of Ground 2.

2. To the extent that Ground 2 asserts that the Tribunal failed to consider the Applicant’s claim that liberal Muslims in India were “at risk of harm from radical Hindus and not able to access effective protection”, such an allegation is not made out.

3. The Applicant’s claim to the Tribunal was specific and related to his own claimed involvement with the Congress Party and his own claims of persecution from BJP members for that reason.

4. In relation to the Applicant’s fear of harm from non-Muslims, the Tribunal noted that the Applicant’s claims based on religion were said by the Applicant to be “not much” and that those claims were based on what happened to him as a Muslim campaigner for the Congress Party. Those claims were rejected by the Tribunal. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

5. In the circumstances, the issue of effective state protection did not arise. Nor was there any obligation on the Tribunal for it to consider that its findings might be wrong where those findings were not attenuated by any real doubt (See Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 [1999] FCA 719 at [67]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [49]).

6. There was no other claim that arose squarely on the evidence and material before the Tribunal that it failed to consider (See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [55]-[63] and [68] per Black CJ, French and Selway JJ).

7. Accordingly, Ground 2 is not made out.

8. 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 6 July 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. 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.

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 identified independent country information to which it had regard. 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 sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: 

Date:  16 August 2010