SZQFL v Minister for Immigration
[2011] FMCA 588
•28 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 588 |
| 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 |
| MZYGV v Minister for Immigration and Citizenship [2010] FCA 1032 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 Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J |
| Applicant: | SZQFL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 927 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 July 2011 |
| Date of Last Submission: | 28 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2011 |
REPRESENTATION
| The Applicant appeared in person and was assisted by a Tamil interpreter |
| Solicitors for the Respondent: | Mr Ian Temby (Minter Ellison) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 927 of 2011
| SZQFL |
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 6 April 2011and handed down on 7 April 2011.
The applicant claims to be a citizen of the Republic of India and of Muslim faith and Indian ethnicity (“the Applicant”).
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 31 July 2010 having departed legally from India on a passport issued in his own name and a subclass 676 Tourist Visa.
On 9 September 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 26 November 2010, the Delegate refused the Applicant’s application for a protection visa.
On 22 December 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 6 April 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 May 2011, 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 made the following claims:
a)The Applicant is a Muslim in Adirampattinam in India where the majority of the people are Hindus.
b)In August 1999, the Applicant joined the Muslim Welfare Association called Al-Ilahi Muslim Welfare Association as a basic member.
c)The Applicant claimed to speak out against the Hindu government’s failure to provide benefits to Muslims.
d)From 1999, the Applicant was threatened by the Rastriya Swayam Sevak Sang (RSS) over the telephone and told to cease his community activities.
e)In December 1999, the Applicant was stopped on his way home by five armed members of the RSS and told that if he did not cease his activities they would set fire to his association building. This event was reported to police who were not interested.
f)The Applicant continued to distribute clothes to poor Muslims.
g)On 4 December 1999, eight RSS extremists told the Applicant he was required to see their leader, which he did and the Applicant was verbally abused by the leader.
h)On 6 December 1999, the Applicant’s coconut farm was vandalised, however, the police refused to accept his report.
i)On 3 October 2001, after completing Year 12, the Applicant commenced a Bachelor of Business Administration but continued to be threatened by the RSS.
j)At university, the Applicant met a Hindu girl whose father belonged to the RSS.
k)The girlfriend became pregnant to the Applicant and both she and the Applicant would be killed by her family.
l)The Applicant moved to Chennai for 8 months and lost contact with his girlfriend.
m)On 24 January 2005, the Applicant received information that his family had been threatened and that searches were being made for the Applicant to kill him.
n)On 5 February 2005, the Applicant obtained a visa to go to Dubai for 2 months after which he returned to India.
o)Upon his return to India, the Applicant became depressed and paranoid about people chasing him to kill him.
p)On 5 July 2006, the Applicant returned to Dubai for 8 months, and returned to India on 30 September 2008.
q)On 17 October 2008, the Applicant’s mother informed him that searches were being made for him by RSS all over India to kill him.
r)On 4 July 2009, the Applicant went to Malaysia and Singapore but returned to India and Dubai soon thereafter.
s)On 17 March 2010, the RSS damaged a Muslim mosque near the Applicant’s home.
t)The Applicant was informed that on 13 June 2010, RSS members went to the house of a friend of the Applicant who had details about the Applicant. The Applicant then went immediately to Mumbai arriving there on 15 June 2010.
u)On 24 June 2010, the Applicant returned to Dubai and obtained an Australian Tourist visa. The Applicant arrived in Australia on 31 July 2010.
v)Since coming to Australia, the Applicant has been informed by family members that RSS members came to his house in India and his room in Dubai searching for him.
w)The Applicant could not get any State protection in Dubai and would be able to be located if he were to return to India or Dubai.
The Delegate’s decision
On 18 November 2010, the Applicant attended an interview with the Delegate.
On 26 November 2011, 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 Applicant not to be a credible witness and found that information he gave to the Delegate at interview to be inconsistent with his written claims. The Delegate also found unsatisfactory inconsistencies to exist between the Applicant’s statements and country information.
The Tribunal’s review and decision
On 22 December 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 18 January 2011, 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 3 March 2011 to give oral evidence and present arguments.
On 3 March 2011, the Applicant attended the Tribunal hearing and gave evidence.
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 Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“12. On 3 March 2011, the applicant appeared before the second respondent with the assistance of a Tamil interpreter [CB 120] and on 25 March 2011, he provided further documents in support of his application [CB 123].
13. On 6 April 2011, the second respondent decided to affirm the delegate's decision not to grant the applicant a Protection (Class XA) visa [CB 144]. The second respondent notified the applicant of that decision by letter dated 7 April 2011 [CB 143].
14. The second respondent found that it was 'not satisfied as to the credibility of the Applicant's account of his experiences in India or the threat said to have been posed to him by Hindu extremists' [para 61, CB 159]. The second respondent found that the applicant's claims were implausible, improvised and inconsistent [paras 63 to 74, CB 159-161]
15. The second respondent accordingly found that it was 'not satisfied there is a real chance that he would suffer harm for these reasons if he were to return to his home town. Nor am I satisfied there is a real chance that he would suffer harm from fellow Muslims there …I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to India now or in the reasonably foreseeable future and I am not satisfied that he is a refugee' [paras 77-78, CB 162]. ”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Tamil interpreter.
On 30 May 2011, the Applicant attended a directions hearing before me. 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, as well as submissions in support.
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.
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.
The Applicant sought an adjournment of today’s scheduled hearing on the basis that he wished to seek legal advice and to file an amended application. However, in separate reasons, that application was refused, principally because of the opportunities already provided to the Applicant to seek legal advice, his participation in the Court’s Legal Advice Scheme and that he had in fact taken no step to approach any particular lawyer.
The Applicant confirmed that he relied on the grounds contained in the application filed on 10 May 2011 as follows:
“1. The applicant fear persecution. If I return to my country, my life would be in danger.
2. I have must be outside of my country because I need to save my life from the RSS and VHP extremist and my Muslim community as well.
3. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec 91R(2)(a) of the Migration Act. If I asked to relocated in India, the tribunal failure to satisfy this statutory obligation was a serious jurisdiction error caused by the Tribunal and the applicant was not satisfy the tribunal decision because as per the decition (sic) statement record misunderstanding on my hearing time. Which I underlined in attached decision recorn (sic) and I don’t get enough time to provide my proof…” (sic)
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.
In support of his application, the Applicant submitted that what he had said “was not reflected”. I understood that statement to suggest that he was asserting that the Tribunal’s decision may be incorrect in respect of some parts of the Applicant’s evidence. I asked the Applicant what things he said were not reflected. He responded that he had gone to Dubai in 2005, whereas “they” said that he went in 2004 and that he made mention of $175,000 Rupees, whereas reference was made to $400,000 Rupees.
The solicitor for the First Respondent, Mr Temby, identified these alleged errors in the Tribunal’s decision record. They are contained in the Tribunal’s summary of the Department interview. I accept Mr Temby’s submission that they formed no part of the Tribunal’s reasons for affirming the decision under review and indeed are not mentioned at all in the Findings and Reasons section of the Tribunal’s decision.
Even if the Tribunal reached wrong conclusions of fact of the nature asserted by the Applicant, those errors by themselves are not errors going to the Tribunal’s jurisdiction (See MZYGV v Minister for Immigration and Citizenship [2010] FCA 1032 at [18])
Accordingly, I am not satisfied that these complaints by the Applicant identify any error in the Tribunal’s decision that goes to its jurisdiction.
Grounds 1 and 2
Grounds 1 and 2 of the application make bare assertions that do not identify any error capable of review by this Court. To the extent that they appear to cavil with findings and conclusions made by the Tribunal, such complaints seek 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).
Ground 3
The Applicant made no particular submission either in support of Ground 3 or to explain it further beyond the Applicant’s submission referred to above.
I accept the solicitor for the First Respondent’s summary of possible complaints in Ground 3. They are as follows:
“22. Set out below are the first respondent's submissions in relation to the applicant's apparent claims that:
(a) the second respondent failed to apply the definition of 'serious harm' as set out in section 91R(2)(a) of the Act;
(b) the second respondent failed to consider whether the applicant would suffer serious harm if he relocated within India; and
(c) the applicant was not afforded an adequate hearing, in the sense that he misunderstood the hearing time and was not given sufficient time to provide evidence to support his claims.”
(a) Serious Harm
In relation to the possible complaint that the Tribunal failed to apply the definition of “serious harm” as set out in s.91R(2)(a) of the Act, such a complaint is not made out. Section 91R(2)(a) states that a threat to a person’s life or liberty is capable of being serious harm. There is nothing in the decision record to suggest that the Tribunal did not accept that a threat to a person’s life or liberty is capable of amounting to serious harm. The Tribunal considered in some depth the Applicant’s claims of threats upon his life, however, was not ultimately persuaded of their veracity.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s claims with him at hearing and put to him matters of concern it had about his evidence. For example, the Tribunal put to the applicant that it was difficult to understand why the RSS had developed such an animosity towards the Applicant when his activities in assisting Muslims were confined to a few charitable works within his community. The Tribunal also put to the Applicant independent country information that indicated that the Applicant’s home town of Adirampattinam is not Hindu dominated but is largely Islamic. The Tribunal therefore found it difficult to understand how the RSS posed a significant threat in that town. The Tribunal also put other matters of concern that it had about the Applicant’s evidence to him and explored his responses in some detail. However, ultimately, the Tribunal was not persuaded by them.
The Tribunal noted the Applicant’s responses and to its concerns but was ultimately not persuaded by them.
The Tribunal had regard to post-hearing documents received by it on 25 March 2011. In relation to a photocopied handwritten note from the Applicant’s Hindu girlfriend, the Tribunal was concerned by its appearance some 7 months after its mention in the Applicant protection visa statement and its lack of any authenticating features. In relation to the purported medical certificate, the Tribunal found it implausible that a medical practitioner would write a certificate in such general and imprecise terms. Whilst the Tribunal accepted that photographs depicted demonstrations in Adirampattinam, the Tribunal was not satisfied that they satisfied the Applicant’s claim to fear personal harm from a leader of the RSS.
Further, the Tribunal found that the Applicant’s history of travel in 5 years was not consistent with his claim to fear harm in Dubai and India.
Ultimately, the Tribunal found the Applicant not to be credible. It found the Applicant’s claims to be largely implausible. In relation to documents submitted by the Applicant, the Tribunal gave them little weight. The Tribunal comprehensively rejected the Applicant’s claims of ever having been targeted by the RSS or other extremists groups for his involvement in charity work with fellow Muslims. The Tribunal rejected his claim of having had a love affair with a Hindu girl leading him to be further targeted by the RSS and members of the girl’s family. The Tribunal is not satisfied that the Applicant has a well founded fear of persecution for a Convention related reason.
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).
In the circumstances, I do not accept the Applicant’s assertion that the Tribunal failed to consider the Applicant’s claim of a fear of serious harm being threats to his life or liberty.
(b) Relocation
To the extent that ground 3 also complains that the Tribunal failed to consider whether he would suffer serious harm if he relocated within India, such a complaint is not made out.
In circumstances where the Tribunal expressed no real doubt as to its findings, and in fact, comprehensively rejected the Applicant’s claims, there was no obligation on it to consider the issue of relocation.
Having rejected the Applicant’s claims, there was no reason for the Tribunal to consider further the issue of effective State protection. The issue of relocation only arises where Refugee Review Tribunal finds that a person has a well founded fear of persecution and cannot obtain State protection (see Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265).
(c) Adequate Hearing
To the extent that ground 3 also asserts that the Applicant was not afforded an adequate hearing, in that he misunderstood the hearing time and was not provided sufficient time to provide evidence to support his claims, again, such a complaint is not made out.
There is no evidence before this Court as to any reason why the Applicant would have any doubt as to the time in which he had to prepare for his hearing before the Tribunal. As referred to above, on 18 January 2011, the Tribunal invited the Applicant to appear before it on 3 March 2011 to give evidence and present arguments relating to the issues arising in his case. The Applicant attended the hearing with the assistance of a Tamil interpreter.
There is nothing in the Tribunal’s decision record to suggest that the Applicant made any complaint during the hearing of any particular misunderstanding or a lack of time to prepare for the hearing.
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 30 May 2011, 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.
The Tribunal’s decision record discloses an extensive exploration of the Applicant’s claims by the Tribunal with the Applicant at the hearing. Further, the Tribunal notes that at the end of the hearing the Tribunal asked the Applicant if there was anything further he wished to add and the Applicant sought further time to obtain unspecified documents from India. The Tribunal noted that it was agreed that the Applicant would provide further documents by 25 March 2011.
As stated above, on 25 Mach 2011, the Applicant submitted further documents to the Tribunal some of which were still in the Tamil language. English translations were received by the Tribunal on 4 April 2011 and the Tribunal considered those documents. As stated above, ultimately, the Tribunal was concerned about the authenticity of the documents and gave them little weight.
The bundle of documents identified as Court Book, filed on 7 June 2011, and marked Exhibit 1R make clear that the Tribunal’s invitation to the Applicant to come to a hearing was made in accordance with s.425 of the Act. The Applicant lodged his application for review on 22 December 2010. The Tribunal hearing was not until 3 March 2010 and the Applicant was provided further time after that date to provide documents.
In the circumstances, the Applicant’s complaint that he was not given an adequate hearing or sufficient time to provide evidence in support of his claims is rejected.
Accordingly, ground 3 is not made out.
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, including post-hearing documents. 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 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.
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-two (62) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 28 July 2011
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