SZQFS v Minister for Immigration & Anor [2011] FMCA 569 (21 July 2011)

Last Updated: 22 July 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 569

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); 65(1)(b); 91R; 424AA; 474; pt.8 div.2

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259

Applicant:

SZQFS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 972 of 2011

Judgment of:

Emmett FM

Hearing date:

21 July 2001

Date of Last Submission:

21 July 2001

Delivered at:

Sydney

Delivered on:

21 July 2011

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent:

Mr J. Pinder (DLA Piper Australia)

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 972 of 2011

SZQFS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

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 13 April 2011 and handed down on the same day.
2. The applicant claims to be a citizen of the Republic of India and of Hindu faith (“the Applicant”).
3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

4. The Applicant arrived in Australia on 20 November 2007 having departed legally from India on a passport issued in his own name and a Class TU subclass 573 visa and subsequently a Bridging Visa E valid until 7 May 2010.
5. On 18 May 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
6. On 19 November 2010, the Delegate refused the Applicant’s application for a protection visa.
7. On 3 December 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
8. On 13 April 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
9. On 13 May 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

10. 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 s.65(1)(b) mandates that the visa application is to be refused.
11. 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”).
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 of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

14. The Applicant claimed to be an active member of the student wing of the Hindu Sheve Sana Party which had allegiances to the Bharatiya Janata Party (“the BJP”) and the Rashtiya Swayamsevak Sangh (“the RSS”). The Applicant claimed to fear harm from the Khalistan Student Federation (“the KSF”) from whom the Applicant claimed to have received threats and to be on the hit list of the KSF. The Applicant also claimed that his house had been raided by KSF in the past and that reports to the authorities were in vain. The Applicant stated that because he had to escape from one place to another in fear of his life it took him four years instead of two years to pass his high school certificate.
15. The Applicant provided a statement in support of his protection visa application in which he stated:
    • “My name is (identity protected), I was born on 05/07/1988 in the city of Jalandhar a city of Indian Punjab, India. I belong to a very religious family of India, my father and other members of the family are extremist Hindus. Our tradition of the religion are to teach Hinduism in its real forms and we believe that our religion has been mis-interpreted as such we are committed to teach the people in a way that they could understand the religion. I have been educated up to Higher secondary level.
    • I belong to Hindu Sheve Sana Party i.e. (Hindu Dharam Parchar Party) which is a integral Part of BJP as well although it is not publically announced, but we are the part and parcel of the RSS as well.
    • Since I am living in the heart of the Punjab, along with the family as such we had our own Student Wing which is linked with the BJP and RSS. The Khalistian Movement had committed many attempts to finish our political & religious Group and the party, we had a lot of clashes with the Khalistan Student Federation as I was a student as I was the main and the active member of my student party, which is constituted of all most all the Hindu students. We were given a very tuff (sic) times by he K.S.F while our course of action. We believed in the peaceful preaching of our religion to become the Hindu, the only preaching was to teach them the real teachings of the Hindu religion.
    • I was an activist in my college and this matter was very well known to the K.S.F who were deadly against me and wanted to take my life away, the Khalistan Movement is also working as yet underground and my name has been placed on their hit list in this behalf I have received many threats that I shall be killed by the Khalistan Student Federation a and when I get in to their hands. They have many a times attempted to raid my house in order to get me, but luckily I survived, in this state of affairs I reported this matter, to the authorities but all my efforts were in vain. I could hardly pass my HSC in the given circumstances as I did this course in four years instead of two years, the reason behinds was that I use to escape from one place to another place to cave my life by the hands of the K.S.F. I may submit here that this organisation is very strong and even the state authorities could not gain the control over them as yet.
    • Although it is said that the movement in the Khalistan has been finished now, but the fact remains that so far it has not been finished as yet, on the contrary it is gaining more strength day by day, This is only the State Media which says that the movement has been finished. It is on the record that the Seikshs do not leave their revenge it is their tradition, in this regard the murder of Mrs Indira Ghandi is on the record as well as many other examples are available on the record.
    • I have been given a warning out rightly by the KSF that I shall be killed as I have mentioned that my name has been placed on the hit list, I have been searched by them a couple of times. They have even published a list wherein my name appears on that list that I shall be killed as soon as I am available.
    • Finding no other alternatives I obtained I got a student visa, in order to save my life from the hands of KSF because no place of India id out of reach for them.
    • I have been made a victim of systemic harassment’s persecutions and constant threats of death to my life.
    • If I am not given a protection in Australia, then it is apprehended that I shall be killed by the hands of the KHILISTAN MOVEMENT PEOPLE.”

The Delegate’s decision

16. On 2 October 2010, the Applicant was invited to attend an interview with the Delegate. The applicant did not attend the interview.
17. On 19 November 2010, 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.
18. The Tribunal noted that the Applicant had arrived in Australia in November 2007, yet delayed two and a half years before making his protection visa application. The Delegate noted that the Applicant had attempted to apply for other visas during this time and obtain a bridging visa E on the grounds of his intention to depart Australia. However, the Applicant did not depart and became unlawful in Australia. The Delegate found that the Applicant’s delay in applying for a protection visa raised concerns regarding “the immediacy, gravity and credibility of his claim to fear persecution in India”. Accordingly, the Delegate was not persuaded that the Applicant had a subjective fear for his personal safety or future well being in India and, therefore, does not have a genuine fear of serious harm for a Convention reason.

The Tribunal’s review and decision

19. On 3 December 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
20. The Applicant provided no further documents in support of his review application other than his passport.
21. On 21 February 2011, 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 17 March 2011 to give oral evidence and present arguments.
22. On 17 March 2011, the Applicant attended the Tribunal hearing and gave evidence.
23. 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, including the Applicant’s earlier student visa application.
24. The Tribunal found the Applicant was not a witness of truth.
25. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
    • “The RRT's decision
    • 9. The RRT accepted that the applicant was a Hindu and that he came from a Hindu family. It accepted, on the basis of country information, that the Shiv Sena Party was an ally of the BJP and linked with the RSS and that Sikhs constitute a majority in Punjab (see [115]).
    • 10. The RRT otherwise rejected the rest of the applicant's claims on the basis of an adverse credibility finding made at [119].
    • 11. The RRT's credibility finding was reached on the basis of inconsistencies between the applicant's written statement and his evidence before the RRT (see [116]) and inconsistencies between his refugee claims and information provided in support of an earlier student visa application (see [118]). The RRT also relied upon the delay in his lodging a Protection visa application (see [117]).”

The proceeding before this Court

26. The Applicant was unrepresented before this Court.
27. On 31 May 2011, the Applicant attended a directions hearing before me. 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 mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
28. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in English.
29. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
30. The Applicant confirmed that he relied on the grounds contained in an application filed on 13 May 2011 as follows:
    • “1. My case was not heard according to law. There is a jurisdictional and legal error, as I supplied all the information as requested.
    • 2. I attended the RRT interview, and provided all the evidence requested before the RRT. But my case was refused again.
    • 3. By appearing before the RRT, I submitted and produced all the evidence and supporting documents. I provided my statement of claim and spent nearly three hours. Yet my evidence was not considered, as per law. Therefore RRT decision suffers from prejudice and legal error. ”
31. The Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
32. The Applicant told the Court that he had not appreciated that he could have provided further material in support of his claims of past harm in India and that if he had another opportunity to attend a Tribunal hearing he would now provide this material and explain his claims further. He agreed that the material to which he was referring had been available at the time of the Tribunal hearing. Despite being asked, he was otherwise unable to identify further the nature of the material. I explained to the Applicant that it could not be a mistake of the part of the Tribunal for it to fail to consider documents that he did not give it.
33. In his affidavit affirmed 13 May 2011 in support of his application to this Court, the Applicant asserted that the Tribunal ignored documents produced by the Applicant and ignored a “bundle of the evidence”. However, the Applicant was unable to identify for the Court any document produced the Applicant other than his passport produced to the Tribunal and was unable to explain what he meant by his reference to “the bundle of the evidence”. The only material provided by the Applicant in support of his protection visa application was his statement referred to above and his passport. The Applicant provided no further documents to the Tribunal.
34. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims, invited the Applicant to come to a hearing to give evidence and present arguments. The Applicant attended the hearing and the Tribunal explored the Applicant’s claims with him.
35. 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. At the directions hearing on 21 May 2011 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. 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.
36. The Tribunal’s decision record discloses an extensive exchange between the Tribunal and the Applicant as to the Applicant’s claims. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also discussed with the Applicant independent country information to which it had regard. Further, the Tribunal purported to put information in accordance with S.424AA of the Act about inconsistent information provided by the Applicant in his student visa application and information given by the Applicant to the Delegate about the circumstances of his bridging visa and his present unlawfulness in Australia.
37. It is clear from the Tribunal’s reasons that the Tribunal’s concerns about inconsistent claims in the Applicant’s student visa and the reference in the Delegate’s decision of the Applicant’s failure to mention his refugee claims when he was granted a bridging visa on departure grounds were given to the Applicant in accordance with s.424AA of the Act. The Tribunal ensured as far as was reasonably practicable that the Applicant understood why the information was relevant to the review and explained the consequences of the information being relied on in affirming the decision under review. The Tribunal invited the Applicant to comment on or respond to the information and informed the Applicant that he could have another week to respond in writing or through another hearing. The Tribunal noted that the Applicant agreed that any response in writing would be given by 24 March 2011. The Tribunal received no further comment, response or information from the Applicant.
38. Moreover, in any event, I accept the submissions of the solicitor for the first respondent, Mr Pinder, that the information that the Tribunal gave to the Applicant in accordance with s.424AA of the Act was information that either did not amount to “a rejection, denial or undermining” of the Applicant’s refugee claims or was part of the Tribunal’s reasoning process (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]); SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [23], [25], [27] and [29]).
39. The Tribunal identified with particularity the independent country information to which it had regard. The independent country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ).
40. The Tribunal found the Applicant not to be a credible witness and to have embellished his claims for protection. Ultimately, the Tribunal comprehensively rejected the Applicant’s claims of ever having been a main or active member of any political or religious party and did not accept that the Applicant had suffered past harm or had to escape from one place to another in India. The Tribunal did not accept that the Applicant is on a hit list as claimed or suffered constant threats to his life. The Tribunal did not accept that the Applicant was of adverse interest to Sikhs in Australia or received threats whilst in Australia. The Tribunal found that there was no evidence or information to indicate that there was a real chance that the Applicant was to be persecuted in the foreseeable future and was not satisfied that the Applicant held a well found fear of harm for a Convention reason should he return to India.
41. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 per Heerey J at 348).
42. In the circumstances, the Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
43. Accordingly, to the extent that the Applicant’s grounds are capable of being taken to allege a failure to comply with s.425 of the Act, such a complaint is not made out. It is quite clear that the Applicant was invited to attend a hearing to give evidence and present arguments and attended such a hearing. A fair reading of the Tribunal’s decision record makes clear that the Applicant had a meaningful opportunity at the hearing to present and explore his claims and to respond to concerns put to him by the Tribunal.
44. To the extent that Ground 3 alleges that the Tribunal’s decision “suffers from prejudice”, such a complaint is tantamount to an allegation of bias or apprehended bias.
45. Such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
46. As stated above, the Applicant was directed on 31 May 2011 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 28 June 2011. The Court’s Order informed the Applicant that evidence of the Tribunal hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the Tribunal hearing, he needed to give notice by 28 June 2011. However, no document was filed by the Applicant to that effect, either in accordance with those directions or otherwise.
47. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
48. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115]).
49. Accordingly, any allegation of “prejudice”, bias or apprehended bias on behalf of the Tribunal is rejected.
50. Otherwise, the Applicant’s complaints, do not identify any jurisdictional error on the part of the Tribunal and appear to be no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this court cannot undertake (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

Conclusion

51. 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; and, had regard to all material provided in support. 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 to which it had regard. 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.
52. 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.
53. 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.
54. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 21 July 2011