SZNJZ v Minister for Immigration & Anor [2010] FMCA 72 (15 February 2010)

Federal Magistrates Court of Australia

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SZNJZ v Minister for Immigration & Anor [2010] FMCA 72 (15 February 2010)

Last Updated: 18 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJZ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 72

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – miscarriage of discretion under s.424AA(b)(iv) of the Migration Act 1958 not proved.

Migration Act 1958, ss.424AA, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant:

SZNJZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2570 of 2009

Judgment of:

Cameron FM

Hearing date:

28 January 2010

Date of Last Submission:

28 January 2010

Delivered at:

Sydney

Delivered on:

15 February 2010

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2570 of 2009

SZNJZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India and a member of the Kerala Catholic Youth Movement (“KCYM”). He alleges that he left India because the “Communist Marxist Party” (“Communist Party”), which was the ruling party in his local state, and with the support of the local police, had been harassing him following his involvement in protests against the use of anti-Christian books in schools.
2. The applicant claims to fear persecution in India because of his religion as a Catholic, his political opposition to the Communist Party and his membership of the KCYM.
3. After his arrival in Australia on 9 July 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 17 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The Tribunal affirmed the Minister’s decision on 29 September 2009. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
4. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision dated 5 March 2009 which was quashed by consent on
   18 June 2009.
5. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
6. For the reasons which follow, the application will be dismissed.

Background facts

7. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 18 of the Tribunal’s decision (Court Book (“CB”) pages 100 – 114). Relevant factual allegations are summarised below.

Primary application

8. In his primary application, the applicant made the following claims:
   1. he is aged in his thirties, comes from Trivandrum in Kerala in India and is a Catholic;
   2. he had completed a “pre-degree” course at a college associated with Kerala University in 1997. He had become a member of the Kerala Catholic Youth Movement (“KCYM”) when he had been undertaking his pre-degree studies;
   100. in March 2008 the Kerala Government had published new textbooks which stated that students should not believe in Christianity;
   4. the KCYM had “got up for the strikes to take away the printed books and to publish new books with good ideas”. The Kerala Government and the Minister for Education had refused to do this and clashes took place between “us” and the police. Many people had been arrested and he himself had been hospitalised;
   5. Communist Party members had sent gangsters to attack his home when he had not been there. They had thrown household items outside, damaged cupboards and other household materials and shouted at his wife and children;
   6. he took his wife and children to his in-laws’ house then he travelled to Chennai where he stayed with a friend for some days;
   7. Communist Party members had still been searching for him;
   8. he had come to know that he could go to Australia for World Youth Day and he had given his passport to a friend and had gone to Calcutta;
   9. he had left India because the Communist Party, with the support of police, had been harassing him, including being attacked several times and been threatened with murder. He had also been hospitalised with a serious injury; and
   10. the Government was against the Christian religion and if he returned to Kerala they would try to attack him.
9. During the interview with the Minister’s delegate on 22 October 2008, the applicant made the following additional claims:
   1. his wife and children were under threat and they were scared;
   2. he would definitely be killed by the Communist Party;
   100. on 25 March 2008 he had been beaten by police with sticks and had suffered a lot of injuries to his body. He was hospitalised for three days (from the night of 25 March 2008 until
        29 March 2008) at the Jubilee Hospital in Trivandrum. The problem had started with the distribution of a book for schools that had been against Christianity;
   4. on 24 March 2008 all the concerned people (mainly from the church but had also included disgruntled parents) had a meeting against the government activities;
   5. on 25 March more than one thousand people had taken part in a rally against the government. He and the other active people from each church group had been at the front of the rally. They had decided to protest outside the secretariat or the parliament. They had ignored the orders of the police and tried to enter the secretariat. The Communists and the police had been involved and stones had been thrown. Police had used baton charges to disperse the crowd. About twenty-five people (including himself, the President, the Secretary and the Treasurer of the KCYM and members of the church “activity group”) had entered the secretariat and had escaped using the back alleys;
   6. members of the Communist Party in his locality knew him;
   7. he assumed that while he had been away from home his sister’s husband (with whom he was not on good terms and who was also a Communist) had informed the Communist Party people and they had come to his house and had damaged the whitegoods and other items. This most likely happened on 3 April 2008. One of the people had been a “goonda” type named Rajiv who had since been killed;
   8. the President and the Secretary of the KCYM had also been beaten in the incident at the secretariat but their homes had not been attacked;
   9. his wife and children were still living with her parents;
   10. after he had been discharged from hospital he had returned to work because he needed an income;
   11. his wife’s mother had tried to report the attack on his home to the police but when the local Congress people had come to know about this they had said that he should not take this as a big issue because it could lead to other problems; and
   50. he had gone to Chennai after his home had been attacked and, during this time, had come to know that there was a chance to go to Australia.

Tribunal hearings

10. At the first Tribunal hearing on 10 February 2009 the applicant made the following additional claims:
    1. he had left India because the Rashtriya Swayamsevak Sangh (“RSS”), a Hindu extremist group, and related groups had been giving him many problems;
    2. the Communists were also targeting him and they had been the main people who had been looking for him;
    100. the real problem for him was the Communist Government. The RSS did not pose a direct problem;
    4. his problems had started when he had participated in a convention connected with the textbooks which were taught in year seven in schools. This had occurred after 20 April 2008;
    5. he had not had any problems with Hindus or Communists before 20 April 2008 apart from the street fights or street quarrels at the time of the election;
    6. the demonstration in front of the government secretariat in Trivandrum had taken place on 25 April 2008;
    7. at the demonstration, Rajiv had come forward and had taken an active role against him;
    8. he had been hospitalised on 26 April. On 28 or 29 April he returned to his home in order to go back to work;
    9. on 31 [sic] April he had been travelling to Kollam. He received a telephone call from a friend informing him that Communists had ransacked his home. The applicant then returned to his home and went to his wife’s parents’ home;
    10. the Congress party people had prevented him from making a complaint to the police after he discovered that his home had been ransacked;
    11. he had left for Chennai in the first week of May 2008, a few days after his home had been attacked, to live with a friend for more than one and a half months;
    50. the people who had attacked him were still waiting for him;
    13. he had been one of thirty people at the front of the demonstration outside the secretariat so the Communist Party people had “noted him”; and
    14. Rajiv, who was a friend of his sister’s husband, had attacked him. It appeared that his sister’s husband had “given indications to do the same thing”.
11. At the second Tribunal hearing, which took place on 17 August 2009, the applicant made the following additional claims:
    1. he did not know what would happen to him if he returned to Kerala because the Communist Party was still ruling there;
    2. he was one hundred per cent sure that if he went back he would be killed. The Communists would definitely do something to him because they had already gone to his wife’s place looking for him;
    100. he thought that the rally had been on 24 April. When protestors had entered the secretariat building on the day of the demonstration, the police had come inside and had hit everybody. Somehow he had escaped from there on a motorbike but even the motorbike had been damaged;
    4. he had been taken to hospital and remained there for four days;
    5. he had gone to Kollam in the course of his work and while he had been away his brother-in-law had come to his home with Rajiv and some “goondas”. They had taken computers and tables and had damaged everything. This attack occurred five days after the demonstration (around 29 April);
    6. his brother-in-law had organised this attack on his home with Rajiv and although his brother-in-law had been “roaming around”, he had not actually come to the house;
    7. he believed that the attack on his home had been connected to the protest in front of the secretariat. Rajiv had been leading the stone throwing and everything at the protest;
    8. he did not know if others had been attacked but other people who had been involved in the protest were here in Australia. He had travelled to Chennai after this incident so he did not know what had happened. Thereafter, he had not returned to Kerala at all;
    9. his wife was still in Kerala and she had been sending him material;
    10. he contacted his wife once in a while but was not in contact with anybody else;
    11. he had had no problems with the Communist Government prior to
        24 April; and
    50. the Congress Party people had advised him not to go to the police because the Communist Party was ruling and the police were connected with the Communists.

The Tribunal’s decision and reasons

12. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
    1. the Tribunal concluded that the applicant was not telling the truth about his reasons for leaving his home in Kerala because:
       1. in his original application the applicant stated that he had left India because the Communist Party, with the support of the police, had been harassing him, including being attacked several times by workers from the Communist Party, being hospitalised with a serious injury and being threatened with murder;
       2. however, at the second Tribunal hearing the applicant indicated that the only occasion on which he claimed to have been injured either by Communist Party workers or the police and subsequently hospitalised was at the protest rally. The only other problem he claimed to have had was the attack on his home following this demonstration;
    2. the Tribunal then noted that the applicant had given inconsistent evidence regarding the timing of those events. It considered those inconsistencies relevant to the question of whether the Tribunal accepted that he was telling the truth about the events. The Tribunal specifically referred to the following:
       1. in his visa application, the applicant said that the clash with the police had taken place in March. However, when he was interviewed by the delegate he said that the rally had been on 25 March 2008, that he had been hospitalised from 25 March to 29 March and that the attack on his home had taken place on 3 April;
       2. at the first Tribunal hearing he stated that the demonstration had taken place on 25 April and that his home had been attacked on 31 April (although there is no such date) but at the second Tribunal hearing he said that the rally had taken place on 24 April and that his house was ransacked on
          29 April;
    100. the Tribunal then referred to information that contradicted the applicant’s evidence, namely:
         1. press reports indicating that the protests over the year seven social studies textbook took place in June and July 2008;
         2. press reports indicating that the protests by Muslims, the BJP and the Congress were of a violent nature;
         3. press reports which indicated that there was a dispute between the Government in Kerala and Christian groups in March 2008 but this related to a dispute over religious worship and religious inscriptions in private schools which received assistance from the state;
         4. information from the Department of Foreign Affairs and Trade (“DFAT”) which indicated that there had been no instances of violence against “Latin Catholics” or any other Christian groups by the Communist Party in Kerala, that the police in Kerala have been effective in tackling the isolated instances of violence against Christians in the state and that Christian groups hold meetings and functions freely throughout Kerala; and
         5. in 2006 DFAT obtained independent advice from a member of the Kerala Human Rights Commission and from a prominent human rights activist who headed the Kerala state unit of the People’s Union for Civil Liberties in relation to the situation of Christians in Kerala under the rule of the Communist Party-led Left Democratic Front Government. Both of these contacts stated that the Christian community in Kerala was relatively safer than in other Indian states;
    4. in response to the applicant’s claim that he had been attacked personally, the Tribunal stated that whilst this might be correct in relation to the attack on his home, it could not apply to his claims regarding the demonstration against the year seven textbook;
    5. having regard to the inconsistencies in the applicant’s own evidence and the fact that his evidence was inconsistent with the independent evidence available to the Tribunal, the Tribunal did not accept that:
       1. the applicant took part in a protest rally or demonstration organised by the Catholic Church in front of the government secretariat in Trivandrum on 25 March, 25 April or 24 April;
       2. Communist Party workers pelted the rally with stones;
       3. the applicant was injured either by the Communist Party workers or the police and hospitalised for three or four or five days, nor that after he was released from hospital and travelled to Kollam for his work his home was attacked by people associated with the Communist Party or his brother-in-law;
    6. whilst accepting that the applicant is a Roman or “Latin” Catholic, the Tribunal did not accept that the applicant was ever persecuted by the Kerala Government or its agents or the Communist Party or its workers or by “goondas” associated with the Communist Party or by his claimed Communist brother-in-law for reasons of his religion, his real or imputed political opinion opposed to the Communist Party or his membership of the KCYM;
    7. having regard to the view the Tribunal formed of the applicant’s credibility, it did not accept that the applicant was ever persecuted by the RSS;
    8. having regard to the independent advice obtained by DFAT, the Tribunal did not accept that there is a real chance, if the applicant returned to Kerala now or in the reasonably foreseeable future, that he would be killed or otherwise persecuted by the government or its agents, by the Communist Party or its workers, by “goondas” associated with the Communist Party, by his brother-in-law or by the RSS or any other extremist Hindu organisation for reasons of his religion, his real or imputed political opinion opposed to the Communist Party or his membership of the KCYM; and
    9. furthermore, the Tribunal accepted DFAT’s advice that there have been no instances of violence against Latin Catholics or any other Christian groups by the Communist Party in Kerala, that the police in Kerala have been effective in tackling the isolated instances of violence against Christians there, that Christian groups hold meetings and functions freely throughout Kerala (which indicates the secure atmosphere ensured by the police in Kerala) and that notwithstanding that the Communist Party is in government in Kerala, the Christian community in Kerala is relatively safer than in other states.

Proceedings in this Court

13. The grounds of the amended application were pleaded as follows:
    • (1) The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise jurisdiction, by reason that it took into account irrelevant considerations when purporting to comply with the Migration Act, 1958, s424AA(b)(iv).
    • (2) The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise jurisdiction, by reason that the RRT appointed Malayalam interpreter at the RRT hearing on 17 August 2009, who purported to interpret the Applicant’s evidence from the Malayalam language into the English language, made numerous significant errors of interpretation and translation and the RRT thereby failed to afford the Applicant a fair hearing.

Miscarriage of discretion

14. The first ground alleged in the amended application was particularised in the following terms:
    • (a) The RRT, after the Applicant had requested additional time to produce reports, additional papers and evidence in relation to various items of information put to him by the RRT under s424AA and referred to at CB 111-113, paragraphs 62-72, improperly [remainder illegible; scil: took into account (?)].
      • (i) that the Applicant had been before the RRT on a previous occasion and had already given the RRT a quantity of papers none of which seemed to help his case in any way (CB 114, para 73)
      • (ii) that the press reports about the textbooks which the Applicant had produced to the RRT related to things which had happened in July so they did not support his claims in any way (CB 114, para 73)
      • (iii) that the Applicant had had ample time to produce any documents relating to his case and he had produced a large quantity of reports at the hearing (CB 114, para 74)
      • (iv) that the Applicant had had ample time to produce documents and had produced a vast quantity of documents at the hearing and it was reasonable to assume that those were the documents the Applicant thought would support his case but that the RRT did not think that they did so support his case (CB 114, para 74 and RRT hearing tape, CD 2 at 57.00-58.28 minutes duration).

The applicant did not bring to the hearing a fully legible copy of the amended application and the matter preceded relying on the copy which had been filed.

15. The Tribunal notified to the applicant a number of matters which it stated it considered would be the reason or part of the reason for affirming the decision which was under review, as required by s.424A of the Act. It advised the applicant of these matters by way of an oral notification pursuant to s.424AA. As part of such a notification, the Tribunal is required to advise the applicant that he or she may seek additional time to comment on or respond to the information which it notified and:
    • (b) if the Tribunal does so—the Tribunal must:
      • ...
      • (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (s.424AA)
16. Section 424AA(b)(iv) clearly states that the provision of additional time does not follow automatically upon an applicant requesting it. Such an adjournment will only be required if the Tribunal considers “that the applicant reasonably needs additional time to comment on or respond to the information”. This is a discretionary decision. To succeed in the first allegation in the amended application, on the assumption that a miscarriage of this discretion could lead to a conclusion that the Tribunal’s decision was affected by jurisdictional error: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25], it is necessary for the applicant to demonstrate that the exercise of the discretion miscarried.
17. Relevantly, the New Shorter Oxford Dictionary defines “consider” to mean:
    • Be of the opinion that ...

The Macquarie Dictionary (rev. 3rd ed.) relevantly defines it as:

[t]o regard as or deem to be ...

For the Tribunal to “consider” that the applicant does or does not reasonably need time to comment on or to respond to the information which the Tribunal has notified, it must arrive at an opinion on the question.

18. Subjective satisfaction as to the existence of a certain state of affairs also involves the formation of an opinion. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 the High Court considered whether an opinion or the satisfaction of an administrative decision maker could be reviewed by the courts. It held that although such decisions had previously not been reviewable, that was no longer the case. The High Court said:
    • From the classic dictum of Sir Owen Dixon in Avon Downs Pty Ltd v Federal Commissioner of Taxation was derived a list of matters upon which "satisfaction" could be reviewed. In considering a power of the Federal Commissioner of Taxation to make certain decisions based upon satisfaction as to the state of corporate voting power, his Honour said:
      • “His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.”
    • This statement of principle has been applied in numerous cases. The judgment of Gibbs J in Buck v Bavone accurately reflects the position prior to the enactment of the AD(JR) Act. His Honour said:
      • “It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.” (footnotes omitted) (at 275-276)
19. The Tribunal’s consideration of the applicant’s request for further time is set out in paras.73 and 74 of its decision and its decision to refuse the request is also found in para.74:
    • The applicant said that if he got some time he could give me a report. I indicated that I needed to consider whether he reasonably needed additional time. I noted that this was the second time he had been before the Tribunal and he had already given me a large quantity of reports none of which seemed to help his case in any way. I indicated to him that before I gave him additional time I needed to know what sort of additional evidence he was thinking of producing. The applicant said that he believed that the Australian Government might protect him and he could give anything required for that but personally he did not have anything much to give. I put to the applicant that the press reports about the textbooks which he had produced related to things which had happened in July so they did not support his claims in any way. The applicant said that he had left after this incident. He said that he just wanted to show me that these were the things happening in Kerala.
    • I put to the applicant that I did not accept on the basis of what he had said that he did reasonably need additional time. The applicant repeated that if he got some more time he could produce some additional papers. I noted that he had had ample time to produce any documents relating to his case and he had produced a large quantity of reports at the hearing. ...
20. These passages do not disclose that the Tribunal acted upon a wrong principle, took into account irrelevant considerations, mistook the facts, failed to take into account a relevant consideration or acted with manifest unreasonableness. The Tribunal did not decline the applicant’s request capriciously.
21. In these circumstances, I do not find that the applicant has demonstrated that the Tribunal’s refusal to allow him further time to provide information represented a miscarriage of the discretion available to it under s.424AA(b)(iv).
22. Further, the Tribunal’s exercise of discretion does not disclose a failure to conduct the review which it was obliged to undertake or that its decision is affected by jurisdictional error on that account.

Inadequate interpreter services

23. The allegation that the interpreter services provided at the Tribunal hearing were inadequate is unparticularised and unsupported by any evidence. Significantly, the first order made at the first return date in these proceedings on 23 November 2009 was:
    • The applicant file and serve any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 21 December 2009.

Since that order was made no further affidavits have been filed by the applicant. In particular no affidavit of a person expert in the applicant’s first language and English deposing to inaccuracies in interpretation was filed, nor has a transcript been sought to be tendered whether verified by affidavit or not. No attempt to remedy these deficiencies was made at the hearing.

24. In those circumstances, there is no evidentiary basis to conclude that the Tribunal’s account of its hearing on 17 August 2009 is anything other than accurate. In particular, nothing emerges from the relevant portions of the Tribunal’s decision record to suggest that there were any inadequacies in the interpreter services provided at that hearing. Significantly, at the conclusion of the hearing the Tribunal asked the applicant if there was anything further that he wished to say before the hearing was closed and no mention was made of any concerns which the applicant may have had at that time vis-à-vis the interpreter.
25. As the applicant has failed to discharge his onus that the translation services at the second Tribunal hearing were inadequate, I find that this ground is not made out.

Conclusion

26. Jurisdictional error on the part of the Tribunal has not been demonstrated.
27. Consequently, the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 15 February 2010