SZNJO v Minister for Immigration & Anor [2009] FMCA 759 (7 August 2009)

Last Updated: 12 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 759

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), 91R, 91S, 474, pt.8 div.2

Applicant:

SZNJO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG715 of 2009

Judgment of:

Emmett FM

Hearing date:

7 August 2009

Date of Last Submission:

7 August 2009

Delivered at:

Sydney

Delivered on:

7 August 2009

REPRESENTATION

The Applicant appeared in person assisted by a Malayalam interpreter

Counsel for the Respondent:

Ms T. Wong

Solicitors for the Respondent:

Ms M. Palmer, Sparke Helmore

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 715 of 2009

SZNJO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 February 2009 and handed down the same day.
2. The applicant claims to be a citizen of India and of Christian faith (“the Applicant”).
3. The Applicant arrived in Australia on 6 July 2008 having departed legally on a passport issued in his own name and a tourist visa which was valid to 6 October 2008.
4. On 19 August 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.
5. On 8 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
6. On 4 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
7. On 27 February 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa application.
8. On 25 March 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

9. 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 the visa application is to be refused.
10. 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”).
11. Australia has protection obligations to a refugee on Australian territory.
12. 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.”
13. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

14. The Applicant claimed that in 1996 his father was in charge of the joint accounts of a Siva temple and a Christian church in his home town. The Applicant claimed that on an occasion in 1997, a joint event held by the temple and church resulted in food poisoning which led to clashes between Hindus and Christians in the area.
15. The Applicant claimed that as a result of these clashes his house was set on fire by Hindus which resulted in the death of his father. The Applicant stated he then moved to his aunt’s house where, following her death in a hit and run accident planned by Hindus, the Applicant and his family were thrown out of his aunt’s house by her husband. The Applicant claimed that he and his family continued to be threatened by Hindus and that on one occasion he was attacked and had his leg broken.
16. The Applicant claimed that, on 2 January 2005, four Christian boys and one Hindu boy were killed in a clash between Hindus and Christians. The Applicant claimed that his cousin was arrested for the murder of the Hindu boy and that the Applicant was also arrested and tortured for four days. The Applicant claimed that following a protest by his church and other locals, he was released.
17. The Applicant claimed that, on 3 March 2006, he was involved in another incident with his cousin when they were attacked by 12 members of the Hindu community and the Applicant’s cousin was severely wounded. The Applicant stated that he was threatened with death if he reported the incident to police. The Applicant claimed that he filed a complaint to police in respect of attempts by Hindus to bribe him in relation to the incident involving his cousin which aggravated his situation with the Hindus.
18. The Applicant claimed that Hindus have since thrown “native bombs” at his house on two occasions and, as a result, the church arranged for the Applicant to come to Australia.

The Delegate’s decision

19. On 17 October 2008, the Applicant attended an interview with the Delegate.
20. On 8 November 2008, 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.
21. The Delegate found the Applicant’s responses at interview to be “evasive, extremely verbose and confusing... contradictory... without veracity, credibility or substance”. The Delegate noted that the Applicant had not provided any documentary evidence in support of his claims.
22. The Delegate had regard to country information relating to religious intolerance in India and the availability of state protection.

The Tribunal’s review and decision

23. On 4 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
24. The Applicant provided no further documents in support of his application.
25. On 23 December 2009, the Tribunal wrote to the Applicant informing him that the Tribunal was unable to make a favourable decision on the information before it alone. The letter invited the Applicant to attend a hearing on 6 February 2009 to give oral evidence and present arguments.
26. On 6 February 2009, the Applicant attended the Tribunal hearing and gave evidence.
27. 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.
28. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
    • “The Tribunal noted that the Applicant had informed the Tribunal during the hearing that his written statement to the Department was unreliable and for that reason, it was disregarded by the Tribunal: CB 79 at [56].
    • The Tribunal accepted the Applicant’s claim that his cousin had been accused of murder and that during an attack that occurred in March 2006, the Applicant was hurt and his cousin’s hand was severed. The Tribunal also accepted the Applicant’s claim that he assisted in lodging a case against the perpetrators, that he was offered money to withdraw from the case and that he was fearful that he would be harmed or killed because he refused to withdraw from the court case: CB 79 at [57].
    • However, the Tribunal held that after considering independent country information, it was satisfied that citizens of India have access to a reasonable level of protection provided by the state and that the Applicant, in particular, would have access to a reasonable level of assistance by the Indian authorities in the future if he encounters difficulties with the persons he fears: CB 79-80 at [58].
    • The Tribunal was satisfied that Christians are commonly able to freely and safely practice their religion without adverse interest from Hindus or any other religious groups, and that when communal violence does occur, the authorities provide a reasonable level of protection to all citizens, including Christians: CB 80 at [60].
    • The Tribunal was not satisfied that the Applicant faced a real chance of serious harm in India for reasons of religion or any other Convention reason. The Tribunal affirmed the decision of the Minister's delegate not to grant the Applicant a Protection visa.”

The proceeding before this Court

29. The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
30. On 20 April 2009, the Applicant attended a directions hearing before a Registrar of this Court. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon and directed to file and serve any evidence by way of affidavit in support of his application, including any transcript of the Tribunal hearing. The Applicant was also provided with the contact details of legal services providers and interpreting and translating services in documents headed in his own language. The Applicant was referred to the Court’s legal advice scheme for free legal advice and has participated that scheme.
31. At the commencement of the hearing the Applicant confirmed that he relied on the grounds contained in an application filed on 25 March 2009 as follows:
    • “1. Jurisdictional error
    • 2. Breach of procedural fairness;
    • 3. Breach of natural justice”
32. The grounds of the Application are bare assertions that do not disclose any error capable of review by this Court. They are otherwise unsupported by particulars, evidence or submissions beyond the letter referred to above.
33. 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.
34. The Applicant made oral submissions in support of his application to this Court that raised complaints that were unsupported by evidence. Those complaints are dealt with below.
35. At the commencement of the hearing, the Court raised with the Applicant an undated, unsigned letter to the Court annexing an extract from the Delegate’s decision which had been received by the Registry. The Applicant confirmed that he had delivered the letter to the Registry and that he had not provided a copy to the First Respondent or the First Respondent’s solicitors. The letter was accepted by the Court as a document in the nature of submissions. However, the complaint made in the letter, and confirmed by the Applicant to this Court, is in respect of the decision made by the Delegate and unrelated to the decision of the Tribunal. The Court explained to the Applicant that, in the circumstances, the submission contained within the letter was not relevant to the issue before this Court, namely, whether or not the decision of the Tribunal is affected by a legal mistake that goes to its jurisdiction.
36. The Applicant also confirmed to the Court that the complaint made in his letter was at the heart of the complaints made in the grounds of his application.
37. 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. As stated above, at the directions hearing on 20 April 2009, the Applicant was directed to file any transcript of the Tribunal hearing upon which he may seek to rely. 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.
38. The Tribunal noted the Delegate’s criticism of the Applicant’s demeanour in laughing when the Delegate told him that he faced severe penalties for providing false information in his protection visa application. The Tribunal noted the Applicant’s complaint that the Delegate seemed aggravated with him at the interview. The Tribunal noted that it listened to the tapes of the interview and found that they did not support the Applicant’s allegation that the Delegate was aggravated. To the extent that the Applicant raised this issue with this Court, a fair reading of the Tribunal’s decision record does not suggest that such a finding was not open to the Tribunal. Moreover, the Applicant has provided no evidence to this Court to suggest that that finding by the Tribunal was not open to it on the evidence and material before it and for the reasons it gave. In the circumstances, whilst not articulated, if the Applicant was intending to complain about that finding by the Tribunal as amounting to a legal mistake on the part of the Tribunal going to the Tribunal’s jurisdiction, such a complaint is not made out.
39. The Tribunal also noted the Applicant’s request for more time to obtain documents from India to support his claims. However, the Tribunal found that the Applicant had almost eight months to obtain any documents and that sufficient time had passed to allow the Applicant to prepare his case before the Tribunal. Accordingly, the Applicant’s request for further time was denied. The refusal by the Tribunal to extend to the Applicant any further time was a matter for the discretion of the Tribunal. The reason for the Tribunal’s refusal was open to it on the evidence and material before it. In the circumstances, there was no error by the Tribunal in the exercise of its discretion to refuse the Applicant further time to obtain documents from India.
40. The Applicant informed the Court that he now has further documents from India to support his claims. However, in light of the Court’s finding above, such documents cannot be relevant in establishing any legal mistake on the part of the Tribunal in the making of its decision or the conduct of its review. As stated above, the Tribunal was entitled to exercise its discretion to refuse the Applicant’s request for further time to obtain documents for the reasons it gave.
41. The Applicant also complained to this Court that the Tribunal asked him questions during the hearing that were not relevant. However, the Applicant was unable to identify to this Court any particular question or issue raised by the Tribunal in support of this allegation. A fair reading of the Tribunal’s decision record does not support the Applicant’s allegation that he was asked questions on unrelated matters that were not relevant. Such a complaint, in the terms put by the Applicant, is not capable of establishing jurisdictional error on the part of the Tribunal.
42. Otherwise, a fair reading of the Tribunal’s decision makes clear that the Tribunal explored the Applicant’s evidence with him and put to the Applicant concerns it had about his evidence. In particular, the Tribunal put to the Applicant country information that was inconsistent with the Applicant’s claims that Christians in Kerala are commonly targeted by Hindus. The Tribunal found that the country information before it indicated that authorities took appropriate action to intervene in any communal violence and that Christians in Kerala are provided with a reasonable level of protection by the state.
43. Accordingly, none of the grounds raised by the Applicant are made out.

Conclusion

44. 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. 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.
45. 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.
46. 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.
47. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: E. Maconachie

Date: 7 August 2009