SZMSM v Minister for Immigration & Anor [2009] FMCA 84 (13 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 84

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal considered all claims made by the applicant.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 425; 474; pt.8 div.2

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; [2004] 219 ALR 27

Applicant:

SZMSM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2334 of 2008

Judgment of:

Emmett FM

Hearing date:

6 February 2009

Date of last submission:

6 February 2009

Delivered at:

Sydney

Delivered on:

13 February 2009

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent:

Mr D. Tynan

Solicitors for the Respondent:

Mr R. White, Sparke Helmore

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2334 of 2008

SZMSM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 17 July 2008 and handed down on 12 August 2008.
2. The applicant claims to be a citizen of India and of Muslim faith (“the Applicant”).
3. The Applicant arrived in Australia on 2 December 2007 having departed legally from Bangalore on a passport issued in his own name and a visitor visa issued on 4 September 2007.
4. On 21 December 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
5. On 21 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
6. On 17 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
7. On 17 July 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
8. On 8 September 2008, 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.
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, is 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 provided a statement in support of his protection visa application dated 21 December 2007. The Applicant claimed that he was a “very popular member” of the Congress Party in his area. He stated that in 2004 at the parliamentary elections, he gave his full support to the Congress Party candidate and worked for the party during the election. The Applicant stated that the opposition candidate from the Bharatiya Janata Party (“the BJP”) was defeated at the election. The Applicant stated that the BJP candidate blamed the Applicant’s support for the Congress Party for his defeat at the election. The Applicant stated that the BJP candidate asked the Applicant to join the BJP and when he refused that he and his family were threatened because he was a Muslim. The Applicant stated that following this approach, he was attacked and beaten with “sticks, iron rods and arms”. The Applicant stated that he went to hospital for treatment and that the BJP leader looked for him there causing him to flee the hospital. The Applicant stated that he sought help from the police. However the police refused to take any action because the Applicant was a Muslim.

The Delegate’s decision

15. On 21 February 2008, the Delegate refused the Applicant a protection visa on the basis that the Applicant was not a person to whom Australia has protection obligations. The Tribunal was not satisfied that the Applicant had a genuine fear of harm. The Tribunal found the Applicant’s claims to be devoid of specific detail and lacking in substance. The Delegate found that the Applicant would safely and reasonably relocate to another part of India.

The Tribunal’s review and decision

16. On 17 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. No documents in support were provided with the review application. However, the Applicant later provided further material to the Tribunal post-hearing in support of his review application, being: a discharge report from Bowring and Lady Curzon Hospital, Bangalore, dated 11 February 2005; and a medical certificate from the same doctor; and several newspaper and internet articles received by the Tribunal by post on 24 April 2008.
17. On 31 March 2008, 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 28 April 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
18. The Tribunal noted in its decision record that it discussed with the Applicant: his family remaining in India; his employment history; how he claims he joined the Congress Party; his knowledge of the Congress Party, its history and ideals; his involvement with the Congress Party; his claims of threats and pressure from BJP members; his claims of physical assault and subsequent treatment for injuries incurred and attempts to file a police report; the alleged failure of the police to take his complaint because of his religion; his claimed attempts to avoid confrontation by staying with friends and moving residence, including a trip to Singapore; his claims he returned from Singapore due to his father’s illness; his claims that relocating within India would cause language difficulties and would not protect him from persecution on religious grounds; and, vagueness, omissions and contradictions in the Applicant’s evidence that go to his credibility.
19. The Tribunal noted that the Applicant claimed to fear persecution because of his religion as well as his political or imputed political opinion.
20. The Tribunal put to the Applicant independent country information that indicated that people in India were able to relocate and that adequate protection for Muslims existed. The Tribunal also noted that it discussed with the Applicant information provided by the Applicant on 24 April 2008 including information that indicated that the police were even-handed in their dealings between Hindus and Muslims and took active steps to fight clashes between Hindus and Muslims. The Tribunal noted that the information also indicated that Muslims would be adequately protected in India. The Tribunal identified for the Applicant’s response that this was not true.
21. The Tribunal put to the Applicant that there were various omissions and contradictions in his evidence that may lead it to find that the Applicant was not a credible witness and that his claims were not genuine. The Tribunal noted that it offered the Applicant time to respond to its concerns and noted that the Applicant said that he wished to respond only at the hearing. The Tribunal then put to the Applicant particular aspects of the Applicant’s evidence that caused it concern and noted the Applicant’s responses.
22. At the conclusion of the hearing, the Tribunal again asked the Applicant if he wished to respond in writing to issues raised by the Tribunal and noted that the Applicant answered he did not. The Tribunal noted that it asked the Applicant if he had any other documents which he wished to provide and noted that the Applicant said he wished to try and obtain information from the hospital about his injuries. The Tribunal gave the Applicant a further 3 weeks to 19 May 2008 to provide that further information. The Tribunal noted that on 19 May 2008, it received information from the hospital indicating that the Applicant had been brought to the hospital on 7 February 2005 and was hospitalised for 4 days as a result of injuries to his foot and right hand wrist.
23. The Tribunal found that the Applicant was not a witness of truth and comprehensively rejected his claims of: ever having been involved with the Congress Party; ever having been attacked by BJP Party members; or, having lost his job because of intervention from members of the BJP Party. The Tribunal rejected the Applicant’s claims that he and his family were threatened and found that he did not move around to avoid harm from the BJP and did not live in hiding at any time. The Tribunal rejected explanations given by the Applicant about significant omissions in the Applicant’s statement provided in support of his protection visa application and oral evidence given to the Tribunal. The Tribunal found that the Applicant would not participate in political activities “if he were to return to India as a member of the Congress Party.”
24. The Tribunal also noted that it rejected the Applicant’s claims that he suffered harm because he was a Muslim. The Tribunal rejected the Applicant’s claims of being unable to obtain police help because he was Muslim or that he and his family had to move because of threats from Hindus. The Tribunal was not satisfied that the Applicant approached police or that he was refused help by the police. The Tribunal was not satisfied that the Applicant’s family had to move because of the Applicant’s religion and threats against them by Hindus.
25. The Tribunal found that the Applicant did not face a real chance of persecution for a Convention related reason if he were to return to India and affirmed the decision under review.

The proceeding before this Court

26. The Applicant was unrepresented before this Court, although had the assistance of a Hindi interpreter.
27. On 7 October 2008, the Applicant attended a directions hearing before this Court and was given leave to file and serve and amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 18 November 2008.
28. On 22 January 2009 the Applicant filed an affidavit affirmed by him on 22 January 2009 annexing documents that post-dated the Tribunal hearing. The Applicant conceded that none of the annexures were before the Tribunal for its consideration. Counsel for the First Respondent objected to the tender of the affidavit on relevance grounds. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. I explained to the Applicant that it could not be a legal mistake on the part of the Tribunal for it to fail to have regard to material that was not in existence at the time of the hearing or was not provided to it by the Applicant. The Court then rejected the Applicant’s affidavit.
29. The Applicant has participated in the NSW RRT Legal Advice Scheme and received advice from Mr McAuley, of counsel. Mr McAuley sent a letter to the Applicant arranging a meeting on 6 November 2008. The Applicant did not attend that scheduled meeting, and so on 14 January 2009 Mr McAuley sent the Applicant written advice.
30. At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant whether he wished to continue with his application.
31. The Applicant confirmed that he relied on the grounds contained in an application filed on 8 September 2008.
32. The grounds of the application are expressed to be as follows:
    • “1 The Tribunal failed to appropriately deal with the applicant claims in particular the inference that the applicant claims are not genuine thus breaching section 424A.
    • Particular:
    • The Tribunal inferred that the applicant’s claims were not genuine. The Tribunal has not given the applicant an opportunity in the section 424A letter to comment on the claim raised by the applicant.
    • 2 The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a liberal Muslim (regardless of their claims of affiliation or past persecution) in India was at risk of harm from radical Hindus, and not able to access effective protection.”
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 his application generally.
34. 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. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant.

Ground 1

35. Ground 1 appears to be a complaint that the Tribunal failed to put to the Applicant that his claims were not genuine and to give the Applicant an opportunity to comment and thereby the Tribunal failed to comply with the obligations of s.424A(1) of the Act.
36. The Applicant made no meaningful submissions in support of Ground 1.
37. A fair reading of the Tribunal’s decision record makes clear that the Tribunal did not have regard to any information that enlivened the obligations of s.424A of the Act. At the heart of the Tribunal’s affirming the decision under review was its rejection of the Applicant’s claims based on adverse credibility findings. The adverse credibility findings arose from omissions and inconsistencies in the evidence given by the Applicant orally to the Tribunal at the hearing and his earlier written statement provided in support of his protection visa application. Further, the Tribunal found that the Applicant had no real knowledge of the Congress Party.
38. The issue of the Applicant’s credibility was raised with the Applicant by the Delegate. Accordingly, the Applicant must be taken to be aware that his credibility was an issue arising in relation to the decision under review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47]). In relation to the Tribunal’s adverse credibility findings, such 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).
39. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
40. The adverse findings arose from the Tribunal’s evaluation and assessment of the Applicant’s oral evidence. The inconsistencies and omissions that it found to exist in the Applicant’s evidence, particularly in comparison to the Applicant’s statement given in support of his protection visa application, are the thought processes of the Tribunal and arise from information given by the Applicant to the Tribunal for the purposes of his review. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a). Otherwise, the thought processes of the Tribunal are not information that enliven the obligations of s.424A(1) of the [2007] HCA 26; Act (SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477).
41. The Tribunal also had regard to country information provided to it by the Applicant that indicated that police treated clashes between Hindus and Muslims even-handedly and that police took active steps to fight clashes between Hindus and Muslims. The Tribunal also noted further independent country information that indicated that people in India were able to relocate.
42. The independent information to which the Tribunal had regard was not specifically about the Applicant rather, it was about a class of persons of which the Applicant claimed to be one. In the circumstances such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
43. Otherwise, Ground 1 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1).
44. Accordingly Ground 1 is rejected.

Ground 2

45. Ground 2 appears to complain that the Tribunal failed to consider a claim by the Applicant that as a “liberal Muslim” he was at risk of harm from “radical Hindus” in India.
46. Again, the Applicant made no meaningful submission in support of Ground 2. He told the Court that his friend wrote Ground 2 for him. However, he stated, that he never used the expression “liberal Muslim” or “radical Hindu” with his friend.
47. A fair reading of the material and evidence before the Tribunal does not suggest that either of those terms, “liberal Muslim” or “radical Hindu”, were ever used to the Tribunal by the Applicant. Nor was there any claim made by the Applicant that he feared persecution by reason of membership of a particular social group. The Applicant’s claim was expressly of a fear of persecution from Hindu members of the BJP by reason of his Muslim religion and his political membership and activities with the Congress Party. The Tribunal’s decision record makes clear that the Applicant informed the Tribunal that his Convention grounds were his political opinion and his religion.
48. The Tribunal considered carefully and fully the evidence and material before it in support of the Applicant’s claims of a fear of persecution from Hindus by reason of his religion and his political opinion and ultimately rejected the Applicant’s claims for the reasons referred to above. As stated above in these Reasons, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.
49. In particular, the Tribunal considered independently of the Applicant’s claim of a fear of persecution by reason of his political opinion or imputed political opinion, the Applicant’s claim of a fear of persecution because he was a Muslim. The Tribunal rejected the Applicant’s claims that he had been denied assistance or help from police because he was a Muslim. In rejecting the Applicant’s claims, the Tribunal considered the Applicant’s evidence and further had regard to the independent country information before it that indicated that the police were even-handed in their response to clashes between Hindus and Muslims and that Muslims were adequately protected in India. Again, those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons.
50. The Tribunal is not obliged to “consider a case that is not expressly made or does not arise clearly on the materials before it” (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; [2004] 219 ALR 27 at [61]).
51. In the circumstances, there was no evidence or material before the Tribunal that clearly gave rise to a further claim by the Applicant of a fear of persecution for a further Convention reason beyond his religion and political opinion.
52. Accordingly Ground 2 is rejected.

Further complaints in Applicant’s affidavit

53. In his affidavit in support of his application for judicial review, the Applicant stated as follows:
    • “3. The Tribunal exceeded is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claim with the requirement of Migration Act.”
54. No particulars were provided in support of those bare assertions either in writing or submissions to this Court by the Applicant.
55. A fair reading of the Tribunal’s decision makes clear that the Tribunal: understood the Applicant’s claims; accurately summarised the Applicant’s claims; invited the Applicant to attend a hearing at which the Applicant gave oral evidence; explored with the Applicant matters arising from his evidence that caused it concern; considered the Applicant’s responses; offered the Applicant a further opportunity to respond in writing; and, received from the Applicant and considered post-hearing documents in support of his claims. The Tribunal also put to the Applicant country information before it and invited the Applicant to comment upon it and again noted the Applicant’s responses. The Tribunal made findings on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached its conclusions based on findings made by it and applied the correct law in reaching those conclusions.
56. 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.
57. Accordingly, the Applicant’s bare assertions that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied the Applicant procedural fairness are not made out and are rejected.

Conclusion

58. 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.
59. The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S.Kwong

Date: 12 February 2009