SZKLO & Anor v Minister for Immigration & Anor [2009] FMCA 1707 (12 December 2008)

Federal Magistrates Court of Australia

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SZKLO & Anor v Minister for Immigration & Anor [2009] FMCA 1707 (12 December 2008)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKLO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1707

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicants are citizens of India – claiming fear persecution for being member religious group – no reviewable error.

Migration Act 1958 (Cth), ss.36, 91R, 424, 425A, 474

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473, 481, 35 NABE v Minister for Immigration & Multicultural & Indigenous Affairs No 2 [2004] FCAFC 263 Re Minister of Immigration & Multicultural Affairs ex part Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

First Applicant:

SZKLO

Second Applicant:

SZKLP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1106 of 2007

Judgment of:

Scarlett FM

Hearing date:

12 December 2008

Date of Last Submission:

12 December 2008

Delivered at:

Sydney

Delivered on:

12 December 2008

REPRESENTATION

The Applicant:

Applicant in Person

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondents:

Ms McDonald

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent's costs fixed in the sum of $1,000.00
(3) I allow three months to pay.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1106 of 2007

SZKLO

First Applicant

SZKLP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicants are citizens of India. They ask the Court to review a decision of the Refugee Review Tribunal that was signed on
   23rd February 2007 and handed down on 8th March 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicants Protection (Class XA) visas. The applicants asked the Court to issue the following writs:
   1. A writ of certiorari quashing the Tribunal decision;
   2. A writ of prohibition preventing the first respondent, the Minister for Immigration & Citizenship, from giving effect to the decision to refuse the applicants a protection visa; and
   3. A writ of mandamus requiring the Tribunal to re-hear and re-determine the applicants' refugee claims.
2. It has been explained to the first applicant who has attended Court today that in order to make those orders the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. In their application the applicants have set out three grounds of review.
   They claim that the Tribunal exceeded its jurisdiction; that it erred in law; and that it acted outside the scope of the Refugee's Convention and they provide details of those claims. The Minister for Immigration & Citizenship has filed a response opposing the orders being made.
3. The background to this matter is that the applicants arrived in Australia on 3rd July 2006. They are husband and wife. On 14th August 2006 they applied to what was then the Department of Immigration & Multicultural Affairs for Protection (Class XA) visas. The basis of their claim related to the fact that they are members of the Hindu religion and claimed to fear persecution from members of the community who were Muslims.
4. The first applicant was a farmer who had inherited agricultural land in Gujarat. He was working away from the farm and had hired a number of families to work the land who were Muslims. However, the applicant found out that the people on the land were stealing produce and equipment and he attempted to require them to leave. This did not happen for some years but he gave them final warning in 2005 and then contacted the police.
5. The families did not leave and the first applicant claims that over the ensuing year they in fact made his life very difficult for him and he was even attacked and beaten so badly that he was hospitalised. He claims that the police refused to take the complaint. Once he was released from hospital the first applicant claims that these people came to his home and threatened him.
6. A delegate of the Minister refused to grant the visas on 9th October 2006. I should comment that the first applicant is the primary applicant and the second applicant, his wife, is a Part D applicant with no separate refugee claims of her own. She relies on her membership of her husband's family unit as part of her claim.
7. After their applications for protection visas were refused on 9th October 2006 the applicants then on 3rd November applied to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal invited the applicants to attend the hearing to take place on 13th December 2006. The first applicant, the husband, attended and gave evidence with the assistance of an interpreter. He was represented by a registered migration agent, Mr Chandra Jayawardena, who also attended the hearing. The second applicant did not attend the Tribunal hearing but the first applicant spoke on behalf of the two of them, as he has done today.
8. After the hearing the Tribunal wrote to the applicants' migration agent, Mr Jayawardena, that same day in a letter intended to comply with s.424A of the Migration Act. The letter was headed, "Invitation to comment on information" and told the applicants that the Tribunal had information that would, subject to any comments they made, be the reason, or part of the reason, for deciding that they were not entitled to protection visas.
9. The letter then set out a number of bullet points containing the information about which the Tribunal sought comments. The letter told the applicants:
   • The information is relevant to your review as it indicates that you had intended to apply for visas to depart India prior to the claimed events of April 2005 and June 2005. The information also indicates that the events you claimed occurred in April 2006 and June 2006 may not have occurred. It also indicates that you may not have told the truth in the information provided to department in support of your refugee visa and that your claims in relation to being a refugee may have been made for migration purposes. If the Tribunal makes these findings it may also find that you do not meet relevant criteria for the grant of a refugee visa.[1]
10. The first applicant replied to that letter in a letter dated and received by the Tribunal on 27th December 2006. With that letter he provided a two page typed statement and a number of documents in the Indian language. On 22nd February 2007 the Tribunal received a further letter from the applicant enclosing a medical certificate. That certificate was headed in Indian script but was written in English[2].
11. The Tribunal signed its decision on 23rd February 2007 and handed that decision down on 8th March. The Tribunal affirmed the decisions not to grant the applicants Protection (Class XA) visas. The applicant sought judicial review of this decision from the Federal Magistrates Court and a hearing took place before another Federal Magistrate and their application was dismissed. The applicants appealed and on 3rd June 2008 Flick J allowed the appeal, set aside the decision of the Federal Magistrates Court and remitted the application for determination in accordance with law.
12. The Federal Magistrate concerned is sitting in another State and is not scheduled to sit in New South Wales at any time in the foreseeable future. Accordingly the application for review or the rehearing of the application for judicial review is before me. In the Tribunal decision record, which is set out in the Court Book at pages 164 through to 186 the Tribunal summarises the claims and evidence of the applicants including the first applicant's evidence to the Tribunal at the hearing on 13th December 2006.
13. It also referred to its s.424A letter and the applicants' written replies. The Tribunal also considered Independent Country Information about the Indian state of Gujarat which is apparently well known for communal violence between Hindus and Muslims. The Tribunal set out in some detail information from a variety of sources relating to that situation. In its findings and reasons the Tribunal accepted that the applicants were outside of India, their country of nationality, it did not find the first applicant to be a credible witness; it will be recalled that the second applicant did not attend the Tribunal hearing and accordingly no comments were made about her credibility or otherwise.
14. The Tribunal set out in its findings and reasons on pages 183 to 185 the reasons why it did not accept the first applicant's evidence.
    The Tribunal did not accept on the evidence before it that the first applicant had suffered persecution in India because of his political opinion, or his imputed political opinion, his membership of a particular social group, his religion or any other convention reason.
    The Tribunal went on to find:
    • In light of the Tribunal's findings made above, particularly in relation to the applicant's credibility the Tribunal also finds that the evidence does not establish that there is a real chance that the first applicant will suffer persecution for a Convention reason, either now or in the reasonably foreseeable future if he returns to his country.[3]
15. The Tribunal was not satisfied that the first applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol and did not therefore satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa. As the second applicant had not made any specific Convention claims it relied on membership of the first applicant's family, the Tribunal found that she could not satisfy the alternative criterion set out in sub-s.36(2)(b) of the Act and therefore could not be granted a protection visa also.
16. Accordingly the Tribunal affirmed the decision not to grant the applicants protection visas. The first applicant has attended Court today. He has travelled up from a country town in New South Wales in which he and his wife reside. His wife has not attended Court today. The first applicant assured the Court that he had authority to speak on her behalf as well as his own. He chose not to make a written submission or an oral submission and indicated that he was content to rely on the written material in his application.
17. Ms McDonald, solicitor, who appeared for the Minister has completed an extensive and detailed written outline of submissions and in the light of the decision of the first applicant not to make any oral submissions elected to rely on that written outline of submissions which, in my view, was an appropriate course. The applicants in their application set out three grounds which I shall quote verbatim:
    • (1) The applicants submit that the Tribunal exceeded its jurisdiction due to the following:
      • Generally in relation to the first applicant's claim as to the problems he had with the Muslim families stealing and their claimed continuous use of the first applicant's agricultural land, this is a criminal or a civil matter that should be dealt with by the police and the Courts. It is not persecution for a Convention reason and the Tribunal finds accordingly.
    • (2) The Tribunal erred in law when finding that:
      • The inconsistency as to what was stated at the hearing in relation to where the first applicant resided during the working week and when the two incidents were claimed to have happened; the first applicant's pay slips do not support his statement that he took leave when there was trouble all indicate that the two incidents did not happen.

(3) The Tribunal acted outside the Convention scope when it concluded:

In the light of the Tribunal's findings made above, particularly in relation to the applicant's credibility the Tribunal also finds that the evidence does not establish that there is a real chance that the first applicant will suffer persecution for a Convention reason, either now or in the reasonably foreseeable future.

18. Those are the three grounds of the applicants' application and contain particulars within the grounds themselves. For the Minister Ms McDonald submits that the Tribunal decision was based on its adverse findings as to the first applicant's credibility based on the inconsistencies referred to in the s.424A letter. The Tribunal also gave no weight to a medical certificate that the first applicant has provided because it had already found he was not a credible witness.
19. It also relied on Independent Country Information which overwhelmingly contradicted the allegation by the first applicant.
    For those reasons the Tribunal did not believe the applicants' claims and dismissed the application. The Tribunal also found, she submitted, that the harm feared was not for a Convention reason that arose from a criminal or civil matter. The Tribunal was not satisfied that the applicant would not be able to obtain police protection if necessary.
20. As to the applicants' grounds, Ms McDonald submitted that mere factual error by the Tribunal will not grant judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law which constitutes jurisdictional error and thereby vitiates the purported decision. I was referred to the discussion in Minister for Immigration & Multicultural Affairs v Yusuf.[4]
21. It was submitted that an error of fact in the course of the decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact. I was referred to Re Minister for Immigration & Multicultural Affairs; ex parte Cohen[5] at 481, [35]. I was also referred to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[6] which contains an illustration of the way the Full Court of the Federal Court applied that standard in a matter where the Tribunal had made an error but the Court concluded at [68] that:
    • Although the Tribunal's adverse finding of credibility could have affected the outcome of the review it did not constitute jurisdictional error, it was merely an error of fact within jurisdiction.
22. In short it is submitted that:
    • The applicant has not identified any jurisdictional error but only complained about the merits of the credibility findings. The Tribunal discussed the applicant's creditability with him at the Tribunal hearing and gave him an opportunity to address those concerns in its s.242A letter.
23. Turning now to the grounds of the application, Ground one is a submission that the Tribunal exceeded its jurisdiction because it made a finding that in relation to the first applicant's claim about the problems he had with the Muslim families that this was a criminal or a civil matter that could be dealt with by the police and the courts in India and it was not persecution for a Convention reason. In its decision record the Tribunal had occasion to consider the definition of persecution and set out its understanding of the meaning of persecution under s.91R(1) of the Migration Act. The Tribunal noted that:
    • An applicant must fear persecution and that persecution must involve serious harm and systematic and discriminatory conduct.
24. The expression "serious harm" the Tribunal said:
    • Included, for example, threats to life or liberty or significant physical harassment or ill treatment or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood where that hardship or denial threatens the applicant's capacity to subsist.
25. The Tribunal noted that:
    • Persecution implies an element of motivation on the part of those who persecute for the infliction of harm and the persecution must be for one or more of the reasons set out in the Convention definition, that is race, religion, nationality, membership of a particular social group or political opinion.
26. The Tribunal also noted that an applicant's fear of persecution for a Convention reason must be a well founded fear which, as the Tribunal said:
    • This adds an objective requirement to the requirement that an applicant must in fact hold such fear. A person has a well founded fear of persecution under the Convention if they have genuine fear founded upon a real chance of persecution for a Convention stipulated reason[7].
27. In my view, the Tribunal in its decision demonstrated that its understanding of the meaning of "persecution for a Convention reason" was in accordance with the law and there is no error in the Tribunal's statement of its understanding of that need. What the Tribunal did, having set out what persecution for a Convention reason is, applied that standard to the claim by the first applicant in relation to the activities of the Muslim people on his property, particularly as directed towards him.
28. The Tribunal found that whilst their actions may be unlawful it was a matter of recourse to the police or to the Courts and it was not persecution for a Convention reason. The Tribunal has not demonstrated any error in that finding. The applicants' ground one therefore has not bee made out.
29. The second ground claims that the Tribunal erred in law when it found that inconsistency in the applicant's evidence at the hearing in relation to certain events that the first applicant claimed to have occurred and the evidence of the pay slips which he provided, did not support his statement that he took leave when there was trouble at the farm and the Tribunal took this to mean that the incidents complained about did not happen.
30. It is difficult to see how this is an error of law. It is a case where the Tribunal has considered the evidence before it and in consideration of that evidence has made a factual finding. A factual finding is, provided there is evidence upon which such a finding could be made is a matter for the Tribunal and is not subject to interference by a Court conducting judicial review.
31. It is clear that there was evidence which would entitle the Tribunal to make the factual finding that it did. Even if it were the case that the Tribunal had made a factual error this would not, of itself, establish that the Tribunal had made an error of law as has been set out by the High Court in Abebe v The Commonwealth. As was submitted an error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact.
32. That is not the case here. Ground two does not disclose an error of law; it is an attempt to cavil at the Tribunal's factual finding and it is an attempt at Merits Review of a factual finding which is not available in an application for jurisdictional review. Accordingly the second ground fails.
33. The applicant's third ground claims the Tribunal acted outside the scope of the Convention when it found that, particularly in relation to its findings as to the first applicant's credibility that the evidence did not establish that there was a real chance that the first applicant would suffer persecution for a convention based reason either at the time of the hearing or in the reasonably foreseeable future if he were to return to India.
34. Again it is difficult to see how this can be characterised as the Tribunal acting outside the scope of the Convention. It is the function of the Tribunal when carrying out its review to assess the evidence and that includes the evidence as to the credibility of those people who give evidence before it. It is well established that credibility findings are factual findings and they are a matter for the administrative decision maker, in this case the member of the Refugee Review Tribunal[8].
35. In my view there was evidence before the Tribunal that enabled it to make the factual findings that it did, particularly as far as its assessment of the credibility where the first applicant is concerned. The Tribunal did comply with the requirements of s.424A of the Migration Act when it wrote to the applicants immediately after the hearing putting a number of matters to them and seeking their comments.
36. And the applicants did reply to that letter on two separate occasions. They made submissions and provided further documentation. In the long run, however, the Tribunal was not satisfied as to the credibility of the applicant's claims and affirmed the Delegate's decision. No jurisdictional error has been made out.
37. The applicants are not legally represented and quite clearly the Court has an obligation to read the Tribunal decision independently and look at the supporting material. In order to ascertain whether an arguable case for any other jurisdictional error can be made out, I am not of the view that any jurisdictional error is apparent in the decision. The Tribunal complied with s.425 of the Migration Act when it invited the applicants to attend the hearing and its letter of information does not contravene s.425A.
38. The first applicant attended the hearing and gave evidence with the assistance of an interpreter. There is no complaint that the interpreter was inadequate or that the applicant was in any way hampered or hindered in giving evidence to the Tribunal. In my view the Tribunal did not fall into jurisdictional error and in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act.
39. Under s.474(1) of the Act privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or prohibition or mandamus. It follows that the application will be dismissed.
40. There is an application for costs on behalf of the first respondent Minister in the sum of $1000. This is a modest amount and is explained by the fact that it was not necessary for any further submissions or other material to be prepared. The applicants have been unsuccessful in their claim. It is appropriate to make an order for costs and the amount sought is well within the scale and I propose to make that order.
41. The first applicant has told the Court that he is not working due to a medical condition and there is very clear evidence of that as he has arrived with his left arm in a sling and heavily bandaged. I see no reason to disbelieve his claim that he is not working because of a medical condition. In the circumstances I accept that it would be difficult for him to pay an order for costs, even as low as $1000 at relatively short notice. It is appropriate that I should make an order for time to pay and I propose to allow a greater period of time than I normally would. I propose to allow three months to pay. I make the following orders.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 3 February 2009

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[1] See Court Book page 138
[2] See Court Book page 154
[3] See Court Book page 185.
[4] (2001) 180 ALR 1.
[5] (2001) 177 ALR 473
[6] [2004] FCAFC 263
[7] See Court Book at page 197
[8] See Re Minister of Immigration & Multicultural Affairs ex part Durairajasingham (2000) HCA 1; (2000) 168 ALR 407