SZOGE & SZOGF v Minister for Immigration & Anor [2010] FMCA 349 (21 May 2010)

Last Updated: 25 May 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGE & SZOGF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 349

MIGRATION – Refugee Review Tribunal – applicant seeking impermissible merits review – no “manifest unreasonableness” – no breach of s.424A – no failure to provide an opportunity to appear – no bias revealed – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 424AA, 425, 429A, 476

Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Minister for Immigration and Multicultural Affairs v Henji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112; (2003) 216 CLR 473 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; [1994] FCA 1253; (1994) 124 ALR 265 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZNPB & Anor v Minister for Immigration and Citizenship [2009] FMCA 946 SZNPB v Minister for Immigration and Citizenship [2010] FCA 61 SZJYD v Minister for Immigration & Citizenship [2007] FCA 798 SZJTK v Minister for Immigration & Anor [2009] FMCA 543 SZMNE v Minister for Immigration & Anor [2008] FMCA 1660 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Applicants:

SZOGE & SZOGF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 591 of 2010

Judgment of:

Nicholls FM

Hearing date:

18 May 2010

Date of Last Submission:

18 May 2010

Delivered at:

Sydney

Delivered on:

21 May 2010

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application made on 18 March 2010, and amended on 5 May 2010, is dismissed.
(2) The applicants to pay the first respondent’s costs set in the amount of $4,600.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 591 of 2010

SZOGE & SZOGF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 18 March 2010, and amended on 5 May 2010, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 February 2010 which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.

Background

2. The applicants, who are husband and wife, and are both Indian nationals, arrived in Australia on 24 June 2009. They applied for protection visas on 4 August 2009. (See the bundle of relevant documents referred to as the Court Book – “CB” – CB 1 to CB 38.)
3. Only the applicant husband (“the applicant”) made claims to be a refugee (CB 12). The applicant’s wife (“the applicant wife”) applied for a protection visa on the basis of being a member of her husband’s family (with reference to s.36(2)(b) of the Act).

Claims to Protection

4. The applicant’s claims to protection were set out in a statement attached to the application (CB 37 to CB 38). These claims were that he was politically active and a member of the Congress Party for whom he campaigned. He became so popular and successful that this drew the attention of the “BJP” (a Hindu based party), particularly after he helped Muslims during communal riots.
5. The applicant claimed that the “anger” of the BJP escalated over time from “harsh words” to actual assault and violence on a number of occasions. Reports to police did not assist.
6. Even though his party moved him for a while, when he returned to his home area to campaign in local municipal elections a “few fanatical members” of the BJP threatened his life. He was restrained, kicked and beaten unconscious and “left for dead”. He survived when a passerby took him to hospital.
7. He continued to receive threatening calls from “local gangs” and a “mafia group of fanatical BJP supporters”. He was kidnapped and beaten. After this he felt it unsafe to stay anywhere in India as these “fanatical groups” had contacts in every state in India. He therefore fled to Australia with his wife.

The Delegate

8. The applicant was interviewed by the Minister’s delegate by telephone on 22 October 2009 (CB 55.10). Based on his application and what he said at the interview the delegate did not accept that he was a member of the Congress Party, and rejected his factual claims that flowed from this claimed membership.
9. Further, the delegate noted that the applicant had previously travelled out of India on a number of occasions, indicating that he was not afraid to return to India, which cast doubt on his claims to fear persecution in India.
10. The delegate also rejected as implausible the applicant’s explanation as to why he did not seek protection in New Zealand prior to coming to Australia, despite opportunity to do so.
11. The delegate refused the application on 30 October 2009 (CB 50 to CB 58).

The Tribunal

12. The applicants applied for review by the Tribunal on 17 November 2009 (CB 62 to CB 65). They were both invited to attend a hearing before the Tribunal scheduled for 6 January 2010. Given that the applicants were resident in Griffith, NSW, the Tribunal made arrangements to conduct the hearing by video conference, and asked the applicants to attend at the “Griffith TAFE” for that purpose. The Tribunal also advised that if there was a preference to attend in person in Sydney the applicants should contact the Tribunal.
13. The applicants attended as arranged and the applicant gave evidence. No objection was raised to proceeding in this matter. (CB 75, [14] at CB 88, and [33] at CB 91 to [56] at CB 96.)
14. The Tribunal found that the applicant was not telling the truth about his involvement with the Congress Party, his difficulties with the BJP and, therefore, the reasons as to why he left India ([60] at CB 97).
15. Its reasons were:
    1. He had made false claims in an application for a visitor visa in 2004 which suggested that he was a person prepared to lie ([60] at CB 97).
    2. The applicant’s claim of the timing of the municipal elections, in which he said he had participated, and for which he had been subsequently attacked, was not supported by independent information “in the public record” as to when municipal elections were held in the relevant part of India. The Tribunal found that as his claims centred around particular municipal elections which did not take place, he was not telling the truth about his political involvement ([61] at CB 97).
    3. The applicant gave different accounts of the claimed attacks on him, as between his written application, what he told the delegate, and at the hearing ([62] at CB 997 to [65] at CB 98).
16. The Tribunal therefore did not accept the applicant’s factual account of what he claimed to have occurred in India and found he did not have a well founded fear of Convention related persecution if he were to return. That is, it found he did not satisfy the necessary elements referred to in s.36(2)(a) for the grant of a protection visa. Consequently, he wife did not satisfy s.36(2)(b). The delegate’s decision was affirmed.

Application to the Court

17. By way of amended application the applicants appear to put forward two complaints:
    1. A failure to properly apply s.91R(2)
    2. A breach of s.424A.

Before the Court

18. The applicant appeared in person. He was assisted by an interpreter in the Gujarati language. The applicant wife did not appear. The applicant submitted that he would speak on her behalf. Mr P Reynolds of counsel appeared for the first respondent. Written submissions were filed on behalf of the Minister, although these are directed to the grounds as originally pleaded.
19. It became apparent, and the applicant confirmed, that the Minister had not been served with the amended application. The applicant was given the opportunity to attend to this in Court. Following a short adjournment, Mr Reynolds indicated that he was content to proceed with the hearing.
20. The applicant confirmed that he pressed the grounds in the amended application.
21. The applicant also stated that he had not received a copy of the Court Book from the Minister until “last week”. It was not initially clear why the applicant raised this at this time. At first he indicated that he had not therefore had sufficient time to prepare for the hearing. When he was offered the opportunity to provide written submissions following the hearing, he declined. He did not seek any adjournment of the hearing.
22. The applicant was unable to explain why he needed more time even if the Court Book had not been received by him prior to last week. I note that the applicant has had some assistance in this matter. He filed an amended application on 5 May 2010 which he said had been drafted with the assistance of someone else. I also take note that the applicant applied for, and was granted, access to the Court’s “RRT Legal Advice Scheme”. He consulted a lawyer on that panel with the assistance of an interpreter in the Gujarati language on 11 May 2010. He was provided with written advice on 12 May 2010.
23. I note further that the Court Book in these proceedings was filed on 27 April 2010. A Supplementary Court Book, consisting of seven pages reproducing file notes made presumably by officers of the Minister’s department, was filed on 6 May 2010. The file notes appear to relate to the applicant’s application for a visitors visa in 2004. (See [15.1] above.)
24. In the circumstances it would appear that the applicant’s reference to receiving the Court Book last week was a reference to the Supplementary Court Book.
25. Ultimately, the applicant indicated that he was content to proceed with the hearing, although he was greatly concerned to ensure that he would be able to board the “last” bus for the day back to Griffith.
26. The applicant’s submissions, as brief as they were, consisted of an assertion that he could not return to India because his life was in danger. Even when the relevant issue before the Court, that is the question of any jurisdictional error (“legal mistake”) in the Tribunal’s decision, was explained to him he was unable to assist. In all, his submissions did not rise above a challenge to the Tribunal’s conclusion, and could only be seen as a request for impermissible merits review (Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).

Consideration

Ground One

27. Ground one asserts jurisdictional error on the part of the delegate. In this regard, the delegate’s decision is a “primary decision” for the purposes of s.476 (see s.476(4)). Not only was that decision reviewable, it was in fact reviewed by the Tribunal. Therefore this Court has no jurisdiction to hear this ground, pursuant to s.476(2)(a).
28. However, the ground could also be fairly read as a complaint against the Tribunal. If so, the complaint asserts jurisdictional error in that the Tribunal “constructively erred” in its application of s.91R(2).
29. The particulars make reference to parts of the applicant’s factual claims. That is, that “the applicants” feared harm from the BJP because of their active involvement in the Congress Party. The particulars also assert that the applicant had been assaulted and kidnapped.
30. The complaint asserts that the Tribunal “ignored” the “aspect” of “persecution and harm in terms of s.91R of the Act”.
31. To the extent that the ground, as pleaded, makes reference to “applicants”, there is no evidence before the Court that the applicant wife made any refugee claim in her own right before the Tribunal or the delegate for that matter that she feared harm because she was a member of Congress. The complaint therefore can only properly be seen as relating to the applicant alone.
32. The complaint as pleaded, and in the circumstances presented in the current case, is again a request for impermissible merits review (Wu Shan Liang). That is, the applicant disagrees with the Tribunal’s finding that he was not an active member of Congress who feared harm from the BJP. This ground does not succeed.
33. It is notable that the term “persecution” is not defined in the 1951 United Nations Convention Relating to the Status of Refugees. Nor indeed in the 1967 Protocol to the Convention. The meaning of “persecution” has been the subject of considerable judicial consideration in Australia. I note that some leading High Court cases in this regard are Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, Minister for Immigration and Multicultural Affairs v Henji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112; (2003) 216 CLR 473.
34. Section 91R (a part of Subdivision AK of the Act, which became operational on 1 October 2001 – Migration Legislation Amendment Act (No 6) 2001 (Cth)) qualifies the understanding of the term “persecution” as it appears in Article 1A(2) of the Convention.
35. Section 91R(1) provides that the persecution claimed, in order to meet the relevant meaning of “persecution” in Article 1A(2) requires that the Convention ground relied upon must be the essential and significant reason for the persecution, that it involves serious harm to the person and involves systematic and discriminatory conduct. Section 91R(2) gives examples of the term “serious harm”.
36. The applicant’s complaint is that the Tribunal acted in a manifestly unreasonable way because it ignored the aspect of persecution and harm as set out in s.91R. Unfortunately for the applicant, the ground as pleaded does not explain why this is the case, beyond implicitly asserting disagreement with the Tribunal’s finding.
37. Any plain reading of the material before the Court reveals that the Tribunal well understood the applicant’s claims, gave him the opportunity to explain these claims at a hearing, put to him squarely its concerns about his evidence, but simply did not believe that the applicant was telling the truth.
38. This finding by the Tribunal was a finding of fact within the exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). It was reasonably open to the Tribunal on what was before it. Further, the Tribunal gave cogent reasons for its disbelief of the applicant.
39. The meaning of “persecution” is set out in the usual terms in the Tribunal’s decision record. (See generally [3] at CB 86 to [12] at CB 88). Importantly, there is nothing in the Tribunal’s decision record to show that it misunderstood or misapplied the relevant test.
40. What the ground, as pleaded, ignores is that in the applicant’s case there was no reason for the Tribunal to consider whether the applicant had suffered “serious harm” in terms of s.91R. Its comprehensive rejection of the credibility of his claims and his factual assertions was plainly the issue that disposed of the review (see [14] to [16] above).
41. Ultimately, the Tribunal is not required to uncritically accept an applicant’s account or explanations (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J). The Tribunal’s findings leading to its conclusion were all reasonably open to it on what was before it. I cannot see that any claim of “manifest unreasonableness” can be made out simply because the Tribunal did not believe the applicant. As Mr Reynolds submitted, the use of this phrase was meant to convey emphatic disagreement with the Tribunal’s findings. In all, ground one of the amended application does not succeed.

Ground Two

42. Ground two asserts a breach of s.424A because the Tribunal should have sent to him, in writing, its intention to “dismiss” his application so that he could comment on this “information”. The applicant relies on the majority judgment in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 (“SAAP”) per McHugh, Kirby and Hayne JJ.
43. While the judgment in SAAP was clearly concerned with the Tribunal’s obligation pursuant to s.424A to put to an applicant, in writing, “information” that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review, the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”) subsequently explained that the Tribunal’s subjective views of an applicant’s evidence, even its adverse views, were not “information” for the purposes of s.424A(1) (SZBYR at [17] – [18]).
44. Further, in the current case, the Tribunal expressly told the applicant at the hearing that it would put to him, orally, at the hearing, “some information” that, given the language used by the Tribunal, clearly invoked s.424AA (see [47] at CB 94). What the drafter of the applicant’s ground failed to understand is that s.424AA, introduced since the time of the judgment in SAAP (Migration Amendment (Review Provisions) Act 2007 (Cth), operational on 29 June 2007), is a facultative provision (see in particular s.424AA(2A)) that enables the Tribunal to discharge any obligation pursuant to s.424A(1) by giving the “information” at the hearing (SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46). It is also necessary of course for the Tribunal to ensure that it complies with the circumstances set out in s.424AA(b).
45. In the current case, the applicant has not put any evidence before the Court to contradict the Tribunal’s own account of what occurred at the hearing. In these circumstances, it is not open to the Court to draw inferences as to what may otherwise be said to have occurred (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
46. On the Tribunal’s account, it took reasonable steps to ensure that the applicant understood the relevance to the review (s.424AA(b)(i), see generally [48], [51] – [55]), invited his comment or response (s.424AA(B)(ii), see [47], [49], [53] – [55]), and advised him he may seek extra time to comment (s.424AA(b)(iii), see [56]). The applicant responded that he did not seek any extra time for this purpose (see [56] at CB 96).
47. As Mr Reynolds submitted, the Tribunal’s decision turned on three matters:
    1. “False” claims made in his visitor visa application in 2004.
    2. The timing of municipal elections in which the applicant said he took an active part.
    3. Different accounts of claimed attacks on him derived from his written application, what he told the delegate, and his evidence at the Tribunal hearing.
48. The information provided by the applicant in a previous visitor visa application, if it was considered by the Tribunal to be information on which it could rely in affirming the delegates decision, does fall within the obligation in s.424A(1). The Tribunal however clearly employed the avenue available in s.424AA to give this information to the applicant orally at the hearing. As set out above, this discharged the Tribunal’s s.424A(1) obligation (s.424AA(2A)).
49. The timing of relevant municipal elections was derived from independent country information available to the Tribunal (see [53] at CB 95). None of this appears to have been about the applicant or another person and therefore falls within the exception contained in s.424A(3)(a) from the obligation in s.424A(1) (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [12] - [14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).
50. What the applicant put in writing to the Minister’s department comes within the exception in s.424A(3)(ba). What he told the Tribunal at the hearing was obviously put for the purposes of the review and falls within the exception in s.424A(3)(b).
51. What he told the delegate at the interview does not fall within any of the exceptions. But the Tribunal met its s.424A(1) obligation by utilising the facility available through s.424AA (see [51] of the decision record and [48] above).
52. Ground two also does not succeed.

Other Considerations

53. Although the applicant pressed only the grounds in the amended application, I note also that none of the grounds in the original application would succeed.
54. Ground one asserts a failure to provide the applicant with an opportunity to appear at a hearing pursuant to s.425 of the Act. The basis of the complaint is that the applicant was not physically present before the Tribunal as the hearing was conducted by video conference facility (CB 68, CB 75).
55. The material before the Court shows that the applicant was given the opportunity to appear physically if he so wished, but the video conference had been arranged for his convenience given that he lived some distance from the Tribunal’s Sydney offices (CB 68). There is nothing before the Court to show that the applicant objected to the video conference, or otherwise sought some other opportunity for a hearing.
56. Given the provision of s.429A(b) and relevant authorities, this ground cannot succeed. I considered a similar complaint in similar circumstances in SZNPB & Anor v Minister for Immigration and Citizenship [2009] FMCA 946 at [20] to [31], upheld on appeal in SZNPB v Minister for Immigration and Citizenship [2010] FCA 61 at [15] to [21], and relying on authority SZJYD v Minister for Immigration & Citizenship [2007] FCA 798, SZJTK v Minister for Immigration & Anor [2009] FMCA 543. I note also, since that time, the Minister’s reference in submissions to SZMNE v Minister for Immigration & Anor [2008] FMCA 1660.
57. Ground two asserts that the Tribunal’s “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act. No particulars are provided. In any event, I cannot see any such breach on what is before the Court. I have already referred above to s.91R, s.424A, s.424AA and s.425. No breach of any other section is apparent.
58. The third ground is, as Mr Reynolds submits, no more than an assertion that the applicant satisfies the relevant Convention definition. Without anything else this can only be seen as a request for impermissible merits review (Wu Shan Liang).
59. The “second” ground three asserts that the Tribunal failed to investigate the applicant’s claim, and specifically the claim of persecution. That is said to reveal actual bias.
60. As Mr Reynolds submits, an allegation of bias is an extremely serious charge to make, as it goes to the very integrity of the decision maker. It must be clearly made, let alone distinctly proven. (See Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
61. The only basis for asserting bias is that the Tribunal was said not to have investigated the claims of persecution. As submitted by the Minister, while a failure to carry out an investigation in certain circumstances, such as the failure to make an obvious enquiry about a critical fact, may amount to jurisdictional error in itself, there is no general duty to investigate an applicant’s claims (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]).
62. No such situation is apparent in the current circumstances. The applicant is required to satisfy the Tribunal that, in effect, he or she meets the definition of “refugee” in Article 1A(2) (as qualified by s.91R) If satisfaction is reached, then the protection visa must be granted. If not, it must be refused (s.65 and s.36(2)) (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
63. In the current case, the Tribunal considered the applicant’s claims and evidence, and found it could not believe him. It gave cogent reasons for its findings, which were reasonably open to it on what was before it. No error, let alone bias, is revealed in these circumstances.

Conclusion

64. For the application to succeed the Court would need to (at least) discern jurisdictional error in the Tribunal’s decision. I cannot see such error. Therefore, the application is dismissed.

I certify that the preceding 64Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sixty-foursixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: D Nestor

Date: 21 May 2010