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SZNJN v Minister for Immigration & Anor [2009] FMCA 608 (1 July 2009)
Last Updated: 2 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZNJN v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of decision of Refugee
Review Tribunal – whether state protection is relevant to determining
well-founded
fear – relevant test in S152 – whether Tribunal
properly applied test in S152 in assessing applicant’s claims
– Tribunal properly applied test – Tribunal made findings open to it
– Tribunal
considered all claims – no jurisdictional error –
application dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Delivered on:
|
1 July 2009
|
REPRESENTATION
Appearing for the
Applicant: |
In person
|
Solicitors for the Applicant: |
In person
|
Appearing for the Respondents: |
Ms Whittemore
|
Solicitors for the Respondents: |
Sparke Helmore
|
ORDERS
(1) The application made on 24 March 2009 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of
$5,200.
FEDERAL MAGISTRATESCOURT OF AUSTRALIA
ATSYDNEY
|
SYG 713 of 2009
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
- This
is an application made under the Migration Act 1958 (Cth) (“the
Act”) on 25 March 2009, seeking review of the decision of the Refugee
Review Tribunal (“the Tribunal”),
made on 16 February 2009, which
affirmed the decision of the delegate of the first respondent to refuse the
grant of a protection
visa to the applicant.
Background
- The
first respondent has put before the Court a bundle of relevant documents (Court
Book (“CB”)) from which the following
background may be discerned.
- The
applicant is a national of India who arrived in Australia on
6 July 2008 and applied for a protection visa on 19 August 2008
(application
with annexures reproduced at CB 1 to CB 33).
- The
applicant attended an interview with the delegate on 14 November 2008.
The delegate subsequently refused the application for a
protection visa on 15
November 2008 (see CB 38 to CB 47). The delegate found that there
was no Convention nexus in relation to his
claims. He applied for review by the
Tribunal on 9 December 2008 (application reproduced at CB 48 to
CB 51). On 13 February 2009,
the applicant appeared at a hearing before the
Tribunal (CB 56)
Claims to protection
- The
applicant’s claims to protection contained in his application for a
protection visa were that he worked as a cleaner, that
his employers, who were
Muslim and Hindu, harassed and assaulted him because he was a Christian, and
that they saw him as being of
an “inferior caste” and being
“unhealthy”. He discovered drugs and alcohol at a shop where he had
been working.
He reported this to the police. The police detained him for five
months and threatened that he would be “falsely” charged
if he
pursued the report, and that he would be killed if he did not leave the country.
He claimed that people with ties to the shop
had attended at his home and had
made inquiries about him. He claimed to fear physical harm from people in the
drug trade.
- At
the interview before the delegate, and at the hearing before the Tribunal, the
applicant only pressed the claims to fear harm from
drug dealers combined with
the claim that the authorities would not protect him from the drug dealers.
The Tribunal
- The
Tribunal accepted the claims made by the applicant at the hearing before it.
This included the fact that the submissions made
on his behalf by a migration
agent in support of the application for the protection visa contained a factual
account that had not
been made by the applicant, but “incorrectly”
made by the agent (CB 68.7). It accordingly accepted his claims made at
the
hearing before it that he had reported finding drugs at his place of work to the
police, that “people” had made enquiries
about him at his home, and
that he feared harm from people in the drug trade (CB 68.8). Nonetheless,
even while accepting these claims,
it was not satisfied that Australia owed
protection obligations to the applicant because it found that he would be able
to obtain
state protection at a reasonable level if he did experience problems
if he were to return to India in the reasonably foreseeable
future (CB 68.9
to CB 69.3).
Application to the Court
- The
application to the Court filed on 25 March 2009 puts forward the following
grounds:
- “1.
The Tribunal failed to give consideration to the fact that he was wrongly
suspected by the authorities and made an unreasonable
error of fact and thus
made jurisdictional error.
- 2. The
Tribunal failed to understand the seriousness of the fear the Applicant was
facing and ignored the serious issue of the claims.
The Tribunal failed to
consider the serious issues of the claims and thus made a jurisdictional
error.”
Hearing before the Court
- At
the hearing before the Court the applicant appeared in person. He was assisted
by an interpreter in the Malayalam language. Ms
K Whittemore appeared
for the first respondent.
- When
given the opportunity, the applicant submitted:
- His
application for a protection visa had been prepared by a “migration
lawyer” for “somebody else’s case.”
- The
Tribunal based its decision on what had been put in the protection visa
application.
- He
wanted more time to “call evidence” (documents) on his case because
“two persons who were enemies” were
murdered and his case involved
“criminals and terrorist extremists.” His house had been
“attacked” and damaged.
- The
“lawyer” that he had obtained cheated him.
- It
was not appropriate, in my view, that the applicant be given any further time to
provide documents to the Court. The applicant
has had at least since the first
Court date in this matter (22 April 2009), if not from the time of the making of
his application,
to provide documents to the Court.
- Further,
it was clear that the documents to which the applicant referred were documents
going to the question of his refugee status
and not documents directed to the
question of jurisdictional error in the Tribunal’s decision. The applicant
seemed unwilling,
or incapable, of understanding the difference between the role
of the Tribunal and the role of Court.
- In
any event, the applicant was given the opportunity that he sought because,
during the course of the hearing, I raised with Ms Whittemore
the question as to
whether the Tribunal’s finding that the applicant did not have a
well-founded fear of Convention related
persecution was based on a proper
understanding and application of the Refugees Convention concepts of
“persecution”
and “state protection”. In particular, the
relationship between the two concepts. That is, whether the availability of
state protection is relevant to determining whether an applicant has a
well-founded fear of persecution, or whether the opportunity
of state protection
is to be considered separate to this consideration. Further, whether the
Tribunal properly applied the relevant
law to the case before it.
- I
gave the parties the opportunity to file written submissions on this issue. The
Minister’s submissions were drafted by Counsel
(Ms A Mitchelmore) and filed on his behalf. They comprehensively
address the issue.
- Although
given the opportunity to file submissions in reply, the applicant filed a
document headed: “Applicant’s Written
Submissions”, but which
appears to be a collection of items apparently downloaded from the Internet
dealing with reported Christian/Muslim
“clashes” in India. It
appears that these were the documents relevant to his request for more time.
Persecution and State Protection
- The
Minister’s position is that the Tribunal in the current case found that
the applicant did not have a well-founded fear of
persecution for a Convention
reason by applying, relevantly, the reasoning of the majority of the High Court
in Minister for Immigration and Multicultural Affairs v Respondents
S152/2003 [2004] HCA 18; (2004) 222 CLR 1 (“S152”).
- In
S152 the majority of the High Court (Gleeson CJ, Hayne and Heydon JJ)
held, relevantly, that where the fear of harm emanates from a source
which is
not the state, nor an agent of the state, then the willingness and the ability
of the state to provide protection to its
national may be relevant to whether
the conduct of the claimed persecutor giving rise to the fear is persecution
(see, in particular,
S152 at [21], [22], and [29]).
- In
submissions the Minister referred this Court, in particular, to [23] of
S152 where their Honours considered the ways in which the conduct of the
state could be relevant to the question as to whether an applicant
meets the
definition of “refugee” in Article 1A(2) of the Refugees Convention.
- The
first is where the harm feared is inflicted by the state or its agents. The
second is where the harm feared is not inflicted by
the state, but where the
attitude of the state is such that: “...it supports a conclusion of
unwillingness to seek (external)
protection based on a fear of persecution
because of the state’s encouragement, condonation or tolerance of the
persecution”
(S152 at [23]).
- The
Minister submitted that in both of these scenarios the majority of the High
Court saw the availability of state protection from
harm as relevant to the
issue of persecution. In particular, this Court was referred to what the
majority said in S152 at [25]:
- “...What
kind of inability to protect a person such as the first respondent from harm of
the kind he has suffered would justify
a conclusion that he is a victim of
persecution and that it is owing to a well-founded fear of persecution that,
being outside his
country, he is unwilling to avail himself of his country's
protection?”
- The
factual situation in S152 involved a claim to fear harm in the Ukraine.
The Tribunal in that case found that the Ukrainian authorities were unable or
unwilling
to protect the applicant. This was in circumstances where it found
that the attacks on him were “random” and
“unco-ordinated”,
and that the police response was appropriate on
the one occasion that they spoke to him, noting that he had never made any
formal
complaint.
- The
High Court said in these circumstances the relevant question was as set out in
[25] of its Judgment (see [20] above).
- The
Minister relies on what the High Court said subsequently at [28] to [29] for the
proposition that the majority considered the
availability of state protection to
be of relevance for the purposes of determining whether an applicant is able to
satisfy the Tribunal
that he or she has a well-founded fear of persecution.
- The
Minister also submits that in a separate judgment, Kirby J was similarly of the
view that the availability of state protection
was relevant to the question of
whether a protection visa applicant had a well-founded fear of persecution (see
at [100] of S152).
- By
contrast, earlier in Minister for Immigration v Khawar [2002] HCA 14; 210
CLR 1 (“Khawar”), McHugh and Gummow JJ held that the Tribunal
would be in error if it injected the notion of state protection into the first
part of Article 1A(2) of the Convention, that is, the testing of whether there
is a well-founded fear of persecution (see at [66]).
Their Honours’ view
was that “persecution” did not encompass a “failure of
protection” but was the
denial of basic rights otherwise exercised by the
citizens of the country of claimed persecution. This was with reference also to
what was said by Mason CJ in Chan Yee Kin v Minister for Immigration &
Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379.
- McHugh
J repeated this view in S152 at [65]:
- “If
conduct constitutes persecution for a Convention reason when carried out by the
State or its agents, it is persecution
for a Convention reason when carried out
by non-State agents. In neither its ordinary nor its Convention meaning does the
term ‘persecution’
require proof that the State has breached a duty
that it owed to the applicant for refugee status. Where the State is involved in
persecution, it will certainly be in breach of its duty to protect its citizens
from persecution. But that is beside the point. State
culpability is not an
element of persecution. The attitude of the State may be relevant, however, to
whether a person has a well-founded
fear of persecution, a point recognised by
Gleeson CJ in Khawar.”
- [Citations
omitted]
- I
should just note that to the extent that the Minister submits that Kirby J
in S152 relevantly expressed a similar view to the majority in that case
(at [100]), it could be said that, with reference to [111] to [112]
of that
judgement, no conclusion was expressed on the difference between the majority
and McHugh J.
- The
Minister submits that in the current case the conclusion of McHugh and Gummow JJ
in Khawar as to this issue is not the prevailing view, and was not even
the prevailing view in Khawar.
- The
Minister refers to the “opinion” expressed by Gleeson CJ in
Khawar as being similar to what was expressed by the majority in
S152. That is, that in circumstances involving non-state agents of
persecution, the failure of the state to intervene may be relevant
to the issue
as to whether a fear of continuing persecution is well-founded (at [29]). The
Minister further submits that Kirby J
in Khawar was of a similar view (at
[117] to [118]). Further, that while Callinan J in Khawar did not comment
expressly on this issue, he did make “comment” (at [155]) that, at
least implicitly, appears to accept
that the issue of state protection has some
relevance to the existence of a well-founded fear of persecution.
- The
issue, then, is whether what was relevantly said by the majority in S152
is obiter or whether it is authoritative, as the Minister submits, over what was
held in Khawar per McHugh and Gummow JJ.
- For
the purposes of the current case, and clearly for the purposes of this Court,
this issue was addressed “recently”
in SBZD v Minister for
Immigration and Citizenship [2008] FCA 1236 (“SBZD”) per
Gray J.
- In
that case the Court identified the “essential question” as being
whether the Tribunal: “applied the wrong test
when considering the issue
of the availability of state protection in the context of an application for a
protection visa”
(at [1]).
- The
ground advanced on behalf of the applicant in that case and submissions in
support were identified at [16]:
- “16
That ground is that the Tribunal failed to apply the correct legal test in
ascertaining whether the appellant satisfied
the requirement that his
unwillingness to avail himself of the protection of the United Kingdom was the
result of a well-founded
fear of being persecuted. The argument put on behalf of
the appellant rested heavily on the proposition that what the majority said
in
S152/2003 does not constitute a definitive statement of the appropriate test in
circumstances such as those faced by the appellant, and needs
to be read in the
context of the case with which the High Court was dealing. Rather, it was
suggested that the correct test was stated
by McHugh J in that case. To deal
with this submission, it is necessary to analyse
S152/2003.”
- After
considering what was said in S152 by the majority, McHugh J and Kirby J,
his Honour concluded (at [24]):
- “24
This examination of S152/2003 demonstrates that it is impossible to uphold the
contention, put on behalf of the appellant in the present case, that the
majority
judgment in that case cannot be taken as an expression of the
authoritative test to apply when the issue is whether the country of
nationality
of an applicant for a protection visa alleges that that country lacks the
ability effectively to protect him or her from
the harmful actions of non-state
antagonists. By the time the case reached the High Court, it was a case about
the adequacy of state
protection. It had become such a case because the Full
Court had held that the Tribunal had failed to deal with the ability of the
Ukrainian Government to prevent future harm. The majority of the High Court
allowed the appeal on the basis that the Tribunal had
no evidence before it that
would have justified a finding that the necessary state machinery of Ukraine
fell below the required standard
for protection of its citizens. The majority
expressed this norm by reference to international standards, and made it clear
that
there is no requirement that a state provide absolute protection for its
citizens. In the light of what the majority said, the view
of McHugh J cannot be
regarded as authoritative. In Applicant A99 of 2003 v Minister for Immigration
and Multicultural and Indigenous
Affairs [2004] FCA 773 (2004) 83 ALD 529 at
[35]- [42], Mansfield J analysed S152/2003. It is clear that his Honour thought
that the view expressed by the majority was authoritative. I respectfully share
his Honour’s
view. Even if what the majority said could be characterised
technically as obiter, it would be necessary to characterise the view
of McHugh
J in the same way. It would be a bold step for a judge of this Court, or a
federal magistrate, and especially a Tribunal
member, to ignore what the
majority said in favour of adopting the view of McHugh
J.”
- While
it does not appear that the submissions made to the Court made reference to
Khawar, or that consideration was given to it, nonetheless, this case,
being a matter on appeal from this Court, means that his Honour’s
conclusion (at [24]) is binding upon this Court.
- That
is, it is not open to this Court to ignore what was relevantly said by the
majority in S152 even if it was “technically obiter” in
addressing the same issue now as what arose in SBZD. That is, the
relevant test to be applied is that expressed by the majority in S152
(SZBD at [25]).
- In
applying this test to what the Tribunal has done is this case, it is necessary
first to consider a number of complaints made by
the applicant to this Court.
- The
applicant complained before the Court that the Tribunal based its decision on
what had been put in his application for the protection
visa. That this
statement had been prepared by his “migration lawyer” for
“someone else’s case” and
did not represent his claims.
- In
its account of what occurred at the hearing with the applicant the Tribunal
reports ([48] at CB 68.1):
- “The
Tribunal indicated to the applicant that the written statement provided to the
Department is not a reliable record of
his claims, for reasons discussed above,
and the Tribunal preferred his oral evidence at the hearing as an accurate
account [of]
his circumstances in India and the difficulties he anticipates
there. The applicant stated that the description he provided at the
hearing was
an accurate account of his circumstances. He agreed with the Tribunal that the
written statement submitted on his behalf
by the agent did not accurately
describe his claims or circumstances in India.”
- The
applicant, despite opportunity, has not put evidence before the Court to dispute
the Tribunal’s account of what occurred
at the hearing.
- Further,
in its “Findings and Reasons” the Tribunal stated ([53] at
CB 68.7):
- “The
applicant claimed in his written statement that his difficulties in India
related to his religion and politics. He indicated
to the Tribunal that these
claims were false and incorrectly submitted by the migration agent who assisted
him to lodge his application.
The Tribunal is satisfied that the applicant
provided an accurate account of his claims at the hearing and finds that the
written
submission provided on his behalf by the migration agent was an
inaccurate account of the applicant’s claims and circumstances
in
India.”
- On
the evidence available to this Court, therefore, the applicant’s complaint
that the Tribunal based its decision on what the
applicant’s
“lawyer” or “agent” had put in the statement attached to
his protection visa application
is simply not made out.
- Having
accepted the applicant’s claim that what had been put in the statement did
not represent his claims to fear persecution,
the Tribunal proceeded to consider
the claims as put by the applicant at the hearing.
- Again,
the only evidence before the Court as to what was said at the hearing is the
Tribunal’s own account. The Tribunal reports
that the applicant:
“essentially repeated the claims he provided to the delegate at the
interview” ([42] at CB 66.8).
These were that he found a parcel
containing a powder at the toilet at his work. He assumed that the powder
“was drugs”.
When he took police to the shop they: “arrested a
boy who worked” there. Subsequently, the police told him that the parcel
did not contain drugs. He assumed that they had been bribed, as this was said to
be: “a common practice in India.” He
then claimed that persons
associated with the drug trade had gone to his house looking for him and he
assumed that if they found
him in the future they would cut off his hand or his
foot. He asked to stay in Australia for five to ten years until the matter was
“forgotten” ([43] at CB 66.10 to CB 67.2).
- While
the remainder of the Tribunal’s account of what occurred at the hearing is
explored more fully below (at ground one),
it is clear that at the hearing the
applicant’s evidence was that: “he had no problems relating to his
religion”
([44] at CB 67) as had been put in the written statement by
the agent, and that: “religion played no part in the difficulties
he had
in India. He did not mention that he was a Christian.”
- The
Tribunal’s account reports (at [46] at CB 67.8): “The applicant
essentially stated that his problems in India had
nothing to do with religion or
the religion of the persons he fears.”
The applicant’s
claims clearly arose from the following circumstances (at [46] at CB 67):
“He stated that he found the drugs, the criminal’s lost money,
and now they are seeking revenge. He stated that if he
was allowed to stay in
Australia he could earn some money and pay the criminals the money they lost
when he reported the matter to
the police. He stated that his mother told him
not to tell anyone about the powder but unfortunately he
did.”
- Further,
in relation to “politics” (at [47] at CB 67):
- “The
Tribunal commended that in his written statement he made references to the
government of Kerala. He stated that he was
not involved in politics and the
problems he faced in India had nothing to do with politics ... The applicant
stated that politics
were irrelevant to the difficulties he anticipates in
India.”
- As
already referred to above, the Tribunal clearly accepted the applicant’s
evidence at the hearing as being truthful. It accepted
that the written
statement was not an accurate account of his claims. It therefore proceeded to
consider the application on the basis
of claims made at the hearing ([48] to
[49], [53] to [54] at CB 68). That is, that his fear of harm emanated from
the finding of
the parcel and fear of harm from drug dealers because he reported
the find.
- The
“Applicant’s Written Submissions” now put before the Court
comprise a number of items “downloaded”
from an Internet site. They
deal with claimed Muslim/Christian clashes in India.
- First,
such material put before the Court now cannot assist the applicant. There is no
evidence that such material was put before
the Tribunal. This appears now to be
an attempt to agitate claims going to the merits of his refugee application.
This Court has
no power to entertain any such attempt. This is clearly an
attempt to engage the Court in impermissible merits review (Minister for
Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6;
(1996) 185 CLR 259).
- Second,
it is not clear if the applicant is being disingenuous or if he simply cannot
see the plain contradiction between his oral
and written
“submissions” made to this Court.
- In
oral submissions, he complained that the Tribunal wrongly assessed his claims as
set out in a statement attached to his protection
visa application. This was
plainly, and clearly, factually incorrect. It assessed his claims as put by him
at the hearing.
- Yet
in making these “written submissions” now, the complaint is squarely
aimed as being in support of those very matters
which were said to be
“wrongly” asserted by his “agent/lawyer” in the
statement. That is, claims relating
to religious and political grounds. However,
whatever the situation now, these “Written Submissions” do not
assist the
applicant for the reason set out above.
- What
is left to answer, therefore, is: did the Tribunal properly apply the test set
out by the majority in S152 in assessing the applicant’s
“surviving” claims that he feared harm in India because of his
finding of the “parcel”
and consequent reaction from “drug
dealers”? I agree with the Minister’s submissions that it did.
- The
Tribunal accepted that he genuinely feared he would be physically harmed by drug
dealers in India. But it found, based on independent
country information before
it ([55] at CB 68), and the applicant’s own evidence on what he said
the authorities had done in
Kerala when he reported the find, that: “the
applicant will have access to a reasonable level of protection in the future if
he encounters difficulties with the person he fears.” Further, it
discussed this with the applicant at the hearing ([45] at
CB 67)
(SZBEL at [47]).
- The
Tribunal’s finding that India would provide “a reasonable level of
protection” ([56] at CB 69) was open to it
on what was before it and
was consistent with the relevant authorities as to the level of protection to be
afforded. The majority
judgment in S152 said at [26]: “No country
can guarantee that its citizens will at all times, and in all circumstances, be
safe from violence.”
What is required is that the state takes
“reasonable measures” to protect the safety of its citizens (at [26]
and see
also [28]). At [117] Kirby J stated that the Convention does not require
the elimination by the state of all risk of harm but rather
that it
“posits a reasonable level of protection, not a perfect one.”
- The
Tribunal’s finding that such a reasonable level of protection,
notwithstanding that the applicant had a genuine fear of
harm, meant that it
could not be satisfied that the applicant faced a real chance of serious harm,
that is, “persecution”,
in India for a Convention reason, was also
consistent with what was said in the majority judgment in S152.
- In
all, therefore, no error in this regard is revealed in the Tribunal’s
analysis.
- I
should also just note that in oral submissions to this Court the applicant
referred to those from whom he feared harm to be, in
part, “terrorist
extremists”. No such claim survived at the enunciation of his claims at
the hearing before the Tribunal
such that the Tribunal could be said to have
failed to deal with an integer of his claims.
- The
applicant’s claim before the Court that his “lawyer cheated”
him also does not assist him before this Court.
The “lawyer” did not
represent the applicant before the Tribunal. The “lawyer’s”
role was to prepare
a statement put before the delegate. As such, there is
nothing before the Court to say that the “lawyer’s” actions
vitiated the process before the Tribunal in such a way that jurisdictional error
in the Tribunal’s decision is revealed (see
SZFDE v Minister for
Immigration and Citizenship [2007] HCA 35). Nor, for that matter, is what is
alleged, even in circumstances where the Tribunal has accepted that the
“lawyer” acted
in making submissions to the delegate that were
“not correct”, on its own, capable of amounting to a finding of
fraud.
It may be that the applicant may achieve some satisfaction in reporting
the actions of the “lawyer” or “agent”
to the
appropriate authorities, but it does not assist him before this Court.
Ground one
- The
first ground in the application complains that the Tribunal failed to consider a
claim made in support of the application. That
is, that “he was wrongly
suspected by the authorities.”
- In
conducting the review the Tribunal is, of course, required to consider an
applicant’s claims and each integer of those claims.
However, the Tribunal
is not required to deal with a case not stated by an applicant or not arising
from the material put before
it (Htun v Minister for Immigration and
Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v
Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001)
113 FCR 396 at [79], VQAB v Minister for Immigration and Multicultural and
Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for
Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at
[46] to [47]).
- The
applicant has not put a transcript of the Tribunal hearing before the Court.
Therefore, the only account before the Court is the
Tribunal’s account
contained in its decision record. What is reported as having transpired at the
hearing was that the applicant
departed from the claims made in his protection
visa application and replaced those claims with what he said at the Tribunal
hearing.
That is, he pressed those claims, and only those claims, that he made
at the Tribunal hearing and no longer pressed the claims in
his written
statement:
- “The
applicant stated that the description he provided at the hearing was an accurate
account of his circumstances. He agreed
with the Tribunal that the written
statement submitted on his behalf by the agent did not accurately describe his
claims or circumstances
in India.” (CB 68.2)
- Importantly,
at the Tribunal hearing, the applicant’s claims largely reflected those of
what he had said at the delegate’s
interview (CB 66.8). According to
the Tribunal’s decision record (the only account of what occurred at the
delegate’s
interview before the Court), at the delegate’s interview
the applicant stated that: “he had no problem in India with
the
authorities. He indicated that he had not been detained by the police”
(CB 66.5).
- This
was confirmed at the Tribunal hearing:
- “He
stated that he was afraid of drug dealers in the area where he lived and worked
in Kerala. He stated that he had no problems
relating to his religion, he was
never detained by the police or mistreated by them.”
(CB 67.3)
- Essentially,
the Tribunal’s account of what occurred at the hearing (being the only
account put before the Court), indicates
that the Tribunal pinpointed what the
applicant’s actual claims to protection were. It confirmed with the
applicant that his
fear of harm derived from his fear from those in the drug
trade combined with the fact that the authorities would not be able to
protect
him (“... he is afraid of drug dealers in India and he is afraid that the
authorities will not protect him from those
drug dealers” –
CB 68.3).
- The
Tribunal did consider the claim that the applicant feared drug dealers and
feared that the authorities would not protect him:
- “The
Tribunal has considered the applicant’s claim that the authorities in
India are corrupt and that they will not provide
him with the protection he
requires.” (CB 69.2)
- It
made specific findings in relation to this:
- “The
Tribunal has formed the view that the authorities in Kerala acted appropriately
when the applicant reported finding the
parcel of drugs and it is satisfied that
the applicant will have access to a reasonable level of protection in the future
if he encounters
difficulties with the persons he fears.”
(CB 68.9 to CB 69.1)
- Simply,
the applicant’s claim that the Tribunal did not consider one of his claims
is not made out on the material before the
Court. There was no surviving claim
before the Tribunal that he was “wrongly suspected” by the
authorities. At best,
this may be said to be an aspect of his claim made at the
interview before the delegate. He is reported as having told the delegate
that
he left India “because he was afraid of being framed for possessing
illegal drugs” (CB 65.2). Further, that a “policeman
‘scolded’ him by using ‘police language’”
(CB 65.9). None of this, however, survived as part of his
claims before the
Tribunal.
- This
ground also alleges that the Tribunal “made an unreasonable error of
fact.”
- Even
if unreasonableness were to be seen as an applicable ground of review to the
applicants’ case, and even to the extent that
illogicality may be said to
be available in some circumstances (see Re Minister for Immigration and
Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198
ALR 59; [2003] HCA 30 at [9] per Gleeson CJ), there is nothing in the analysis
put forward by the Tribunal in its decision record to support any such claims.
- The
Tribunal’s decision record plainly does not reveal any support for any
claim of “unreasonableness” or illogicality,
nor for that matter
“unreasonableness ” in the “Wednesbury sense”
(Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947]
EWCA Civ 1; [1948] 1 KB 223).
- The
applicant has claimed that the Tribunal made an error of fact. Even if there was
something to support this claim (as not conceded
by the first respondent), in
that there could be said to be some factual error in the Tribunal’s
analysis, then such an error
is not jurisdictional error. Error of fact made by
the Tribunal when exercising its jurisdiction is not a jurisdictional error
(Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137]).
- As
was said in SZJHR v Minister for Immigration and Citizenship [2007] FCA
1901 at [45]:
- “An
error of fact made by the Tribunal when exercising its jurisdiction is not a
jurisdictional error. An error of that kind
does not provide this Court with
jurisdiction to quash the decision: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999)
197 CLR 510 at [137].”
- Further,
if what the applicant is saying is that the findings made by the Tribunal were
not open to it on the “known material”,
a plain reading of the
Tribunal’s decision record reveals that the Tribunal’s findings were
open to it on the material
before it, and no error is demonstrated in this
regard (Kopalapillai v Minister for Immigration and Multicultural Affairs
[1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148/00A v Minister for
Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at
[64] to [69] per Tamberlin and Nicholson JJ).
- In
essence, what the applicant again seeks is impermissible merits review
(Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors
[1996] HCA 6; (1996) CLR 259).
- This
complaint also does not succeed.
Ground two
- In
ground two the applicant asserts that the Tribunal failed to understand the
seriousness of the fear the applicant was facing and
ignored the serious issue
of the claims: “The Tribunal failed to consider the serious issues of the
claims and thus made a
jurisdictional error.”
- The
second ground also contains a complaint that the Tribunal did not
“understand the seriousness of the fear” held by
the applicant.
- It
must be noted that the relevant statutory scheme (ss.65 and 36(2) of the Act)
requires the Tribunal to reach a requisite level of satisfaction that the
criterion set out, relevantly in s.36(2) (that is, in effect, that the
applicant meets the definition of “refugee” as set out in the
Refugees Convention), such
that in these circumstances a protection visa must be
granted (SJSB v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration
and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5],
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF
of 2003 [2005] FCAFC 73).
- In
my view, the Tribunal properly understood what was required of it in fulfilling
this obligation. It properly considered whether
the applicant was a refugee and
what constituted “serious harm” under s.91R of the Act (CB 63.3
to CB 63.5). The Tribunal did not make a finding denying that the harm
faced by the applicant was of a “serious”
nature, but rather that he
would be adequately protected by the state if he were to return. Plainly, the
Tribunal understood and
accepted the “seriousness” of the
applicant’s fear. It accepted that: “...the applicant genuinely
fears that
he will be physically harmed by the drug dealers in India”
([54] at CB 68).
- However,
as already set out above, the Tribunal found, notwithstanding the seriousness of
this statement, the applicant would have
adequate state protection. A finding,
which I have already said, was open to it on what was before it. This ground
does not succeed.
Conclusion
- For
the applicant to succeed before the Court there would have to be jurisdictional
error (at least) in the Tribunal’s decision.
I cannot discern such error.
The application is therefore dismissed.
I certify that the
preceding eighty-three (83) paragraphs are a true copy of the reasons for
judgment of Nicholls FM
Associate: C Darcy
Date: 1 July 2009
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