SZOVL v Minister for Immigration - [2011] FMCA 140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVL v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 140

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; 424A; 424A(1); 424A(3); 474; pt.8 div.2

Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632;
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;
see Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220;
HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 24 at [49]).
Abebe v Commonwealth of Australia (1999) 162 ALR 1;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259;
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265;
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37;
Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 ;
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965;
SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660

Applicant:

SZOVL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2644 of 2010

Judgment of:

Emmett FM

Hearing date:

7 March 2011

Date of Last Submission:

7 March 2011

Delivered at:

Sydney

Delivered on:

7 March 2011

REPRESENTATION

Applicant in person with an interpreter :

Counsel for the Respondent:

Mr. P.M Knowles

Solicitors for the Respondent:

D. Smith Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2644 of 2010

SZOVL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

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 27 October 2010 and handed down on 28 October 2010.
The applicant claims to be a citizen of the Republic of India and of Muslim faith. (“the Applicant”).
The applicant raised no issue capable of review by this Court either in the grounds of his application, his affidavit annexing the Tribunal decision or his oral submissions to the Court this morning. In short, no error is apparent on the face of the Tribunal’s decision record.
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 a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 25 December 2008 having departed legally from India on a passport issued in his own name and a subclass 572 student visa issued on 10 December 2010.
On 4 May 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 2 August 2010, the Delegate refused the Applicant’s application for a protection visa.
On 1 September 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 27 October 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 6 December 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 application for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated:
a)The applicant is a 21 year old Muslim male from Hyderabad, India. The applicant claims that in Hyderabad there are always clashes between Muslims and Hindus. The applicant claims that the police support Hindus over Muslims.
b)The applicant claims that he is wanted by a group of Hindus in Hyderabad. He claims when he as returning from praying at the mosque, he was stopped by a group of Hindus, knocked him down and threatened with death. The applicant stated that they threw stones on him and tried to kidnap him, but because he was thin he was able to run away.
c)The applicant claims that if he returns to India, he will be put in jail by Hindus as he is wanted by them.

The Delegate’s decision

On 30 July 2010, the Applicant attended an interview with the Delegate.
On 2 August 2010, 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 Delegate found the Applicants claims to be “vague and inconsistent”. The Delegate found that the Applicant’s sole purpose in coming to Australia was to study and that he lodged an application for a protection visa to extend his time in Australia. The Tribunal found that “the lapse of time between the applicant’s arrival in Australia and the lodgement of this application supports a finding that his fears of Convention – based persecution are insubstantial”.

The Tribunal’s review and decision

On 1 September 2010, 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 13 September 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 October 2010 to give oral evidence and present arguments.
The Applicant attended a Tribunal hearing held over two sessions, on 14 October 2010 and 20 October 2010.
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.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“7. The Tribunal refused the Applicant’s claim for protection, concluding that:
Having regard to the applicant’s circumstances and country information, the Tribunal finds that there is no real chance of him facing serious harm in the form of generalised communal violence, or of being targeted by Hindu activists or the Hyderabad authorities. (CB 82 at [78]).
8. The Tribunal reached this conclusion by making the following findings:
a) The Tribunal found that, at the hearing, the Applicant gave an account of the alleged physical assault upon him by a group of Hindus that was inconsistent with the account in his written application (CB 78-79 at [67]).
b) The Tribunal gave little weight to the corroborative evidence of Mr Rahman because he was related to the Applicant and had made an application for a protection visa on similar grounds (CB 78 at [66]).
c) The Tribunal accepted that the Applicant and his family may have been subjected to some discrimination on account of their religion. However, the Tribunal held that this did not amount to persecution for the purposes of the Convention: (CB 80 at [71]).
d) The Tribunal, with reference to independent country information, accepted that there have been incidents of communal violence in Hyderabad. However, the Tribunal found that the Applicant does not have any particular characteristic which would expose him to a risk of harm from such violence. It was also found that Indian authorities provide effective state protection against communal violence (CB 81 at [76]).
e) The Tribunal held, with reference to independent country information and news reports proffered by the Applicant, that there is a culture of police corruption and inefficiency in India (CB 80 at [73]). However, the Tribunal held that the mere fact of being a young Muslim man in Hyderabad did not expose the Applicant to a risk of police mistreatment (CB 81 at [74]).
f) According to the Tribunal, the Applicant sought protection ‘some 18 months’ after his arrival in Australia. The Tribunal found that this delay supported the conclusion that the Applicant had given ‘an exaggerated and misleading account of his past experiences and future prospects’ (CB 81-82 at [77]).
g) The Tribunal found that, if the Applicant was at risk of persecution in the area of Hyderabad where he previously lived, he could avoid such risk by relocating within India (CB 82 at [80]-[81]).”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Urdu interpreter.
On 16 December 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. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. 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, and submissions in support.
The applicant required an order for an extension of time to be granted in making the Application to this Court. This application was unopposed by the respondents at the directions hearing. As such, the order was made on 16 December 2010 that time be extended to the applicant to 6 December 2010 to file an application seeking judicial review of a decision of the Refugee Review Tribunal, handed down on 27 October 2010.
Also 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.
The matter was set down at the directions hearing for final hearing this morning at 10:15am before me.
At the commencement of the hearing this morning, the Applicant confirmed that he had not filed any amended application or submissions in support of his application.
The applicant tendered a compact (“CD”). The Applicant informed the Court that the disc contained footage of violence between Muslims and Hindus. He confirmed that it is a CD of video footage obtained by him from the “Youtube” website, a copy of which was sent to the Delegate by email from the Applicant on 1 August 2010. The Applicant also confirmed that this was the same video footage that was submitted to the Tribunal and referred to by the Tribunal in its findings and reasons.
Counsel for the first respondent did not object to the tender of the CD upon the confirmations referred to above by the Applicant and on the basis that, if the CD had been in documentary form, it would have formed part of the bundle of documents identified as “Court book” filed 21 December 2010 and marked Exhibit 2R.
On that basis the CD was marked Exhibit 1A.
The Applicant confirmed that he did not appear in the footage contained on the CD. Otherwise, the Applicant was unable to identify to what issue the CD was relevant.
The Tribunal’s decision record makes clear that the Tribunal accepted that Hyderabad has been a “flash point for past communal violence”. However, the Tribunal was satisfied that country information before it disclosed that the authorities took effective measures to respond to such incidents.
The Tribunal found that on the country information before it, the Tribunal was satisfied that authorities provided effective state protection. The Tribunal also found that the Applicant had no political, religious or other community profile that may increase his risk of harm as a result of any future communal clashes if he were to return to India.
The Tribunal also found that the Applicant had never needed to seek police or other assistance because he has not been subject to past harm or experience any convention related persecution in India. The Tribunal also found that the Applicant did not directly witness any communal violence. The Tribunal accepted that the Applicant may be apprehensive about seeking redress or protection if he was subject to criminal or even communal violence, however, as stated above, was satisfied that adequate protection and complaint mechanisms existed.
The Tribunal also found the Applicants delay in seeking protection “some 18 months after his arrival in Australia” to be a significant delay that added to the Tribunal’s concern as to whether his fear of persecution in India was genuine or well founded. Counsel for the first respondent pointed out in his written submissions that in fact the delay was a little more than 16 months. The Applicant arrived in Australia on 25 December 2008 and applied for a protection visa on 4 May 2010. Even if describing the period of delay as “some 18 months” is incorrect, I accept the submission of counsel for the first respondent that such a factual error does not detract for the basic proposition that the Tribunal is entitled to have regard to the relevant delay when assessing the Applicants credit (see Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 at [10] per curiam).
There was no information that enlivened any obligation under s.424A of the Act. The Tribunal’s decision record makes clear that it discussed the Applicant’s claims with him at the hearings. The Tribunal put to the Applicant matters of concern it had about his evidence and noted his responses. The Tribunal also put to the Applicant country information to which it had regard and again noted the Applicant’s responses. The Tribunal also took evidence from the Applicant’s witness who was a distance relative from Hyderabad and a former student visa holder also seeking protection on more or less the same grounds.
In the circumstances, the information to which the Tribunal had regard in affirming the decision under review was either information that was not specifically about the applicant or another person and just about a class of persons of which the Applicant or other person is a member; or that the Applicant gave for the purpose of the application for review; or that the Applicant gave during the process that led to the decision under review, other than such information that was provided orally to the Department. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3) of the Act.
Otherwise the country information to which the Tribunal has regard and the weight it gives such information is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
Ultimately, the Tribunal found that the Applicant had given “an exaggerated and misleading account of his past experiences and future prospects as a young Muslim in Hyderabad, and that he does not have a genuine or well founded fear of persecution.”
The Tribunal’s findings and conclusions 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).
The Tribunal considered the issue of re-location despite stating that its finding that the Applicant faced no real chance of Convention - related persecution in his local area of Madannapet was made with confidence. In such circumstances, it was not necessary for the Tribunal to consider the issue of re-location. (see Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 575 – 576; Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 [1999] FCA 719 at [67]; HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 24 at [49]).
The Applicant otherwise made no relevant submission in support of his application to this Court. When I asked him what were his complaints about the Tribunal’s decision, he responded that he could not tell me but that when he had read the Tribunal’s decision it was apparent that the Tribunal had not accepted all his claims. Such a complaint is more in the nature of a disagreement with the Tribunal’s findings and conclusions, thereby inviting merits review which this court can not 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).
However, to the extent that the Tribunal considered whether it was reasonable for the Applicant to re-locate within India, the Tribunal considered the issue of relocation in accordance with the material and evidence before it in relation to the individual circumstances of the Applicant, as it was bound to do (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 269-270 per Black CJ and 277-278 per Beaumont J; NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] and Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 at [18]).
In any event, the consideration by the Tribunal of relocation is independent of its consideration of the claims of persecution made by the Applicant. Accordingly, any error in the Tribunal’s consideration of relocation would not affect the validity of the Tribunal’s conclusion that the Applicant does not have a well-founded fear of persecution for a Convention related reason (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]).

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 fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 7 March 2011