SZQGR & Anor v Minister for Immigration & Anor [2011] FMCA 839 (31 October 2011)

Last Updated: 22 November 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 839

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it breached ss.424A and 425 of the Migration Act 1958.

Migration Act 1958, ss.424A, 425, 474

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

First Applicant:

SZQGR

Second Applicant:

SZQGS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1087 of 2011

Judgment of:

Cameron FM

Hearing date:

31 October 2011

Date of Last Submission:

31 October 2011

Delivered at:

Sydney

Delivered on:

31 October 2011

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Minter Ellison

ORDERS

(1) The application be dismissed.
(2) The applicants pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1087 of 2011

SZQGR

First Applicant

SZQGS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of India who arrived in Australia on 28 July 2010. On 3 September 2010 the first applicant lodged an application for a protection visa with the Department of Immigration and Citizenship on the basis that he feared persecution in India because of his political opinion. His wife, who is the second applicant in these proceedings, was included in the application as a member of the first applicant’s family unit.
2. On 26 November 2010 a delegate of the first respondent (“Minister”) refused the applicants’ applications for protection visas. The applicants then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
3. In these judicial review proceedings the Court cannot rehear the applicants’ applications for protection visas. 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.
4. For the reasons which follow, the application will be dismissed.

Background facts

5. The facts alleged in support of the applicants’ claims for protection visas are set out on pages 4-15 of the Tribunal’s decision.
6. The first applicant made the following claims in a statement attached to his protection visa application form:
   1. his father was a member of the Congress Party. All his other family members were also Congress Party supporters;
   2. he started his own business in September 2008 and became a member of the “local business committee” six months later. He realised then that the business community had been suffering because of the political donations being demanded by the Bharatiya Janata Party (“BJP”). As a member of the Congress Party, he raised this issue with his political leader and sought the latter’s advice on how to deal with it;
   100. in June 2009 he asked the business community to stop its political donations to the BJP. Together, they lodged a complaint with the local police;
   4. his shop was ransacked five days later by members of the BJP. They assaulted him and warned him to stop interfering with their business;
   5. he became more vocal after this incident and started to organise meetings “against their unlawful activities”. When the BJP realised that he was damaging their popularity, the local “MLA” (presumably, the local member of the legislative assembly) offered him a leadership position in the BJP. He refused and started to work with “higher level government authorities” in an effort to stop illegal political donations;
   6. the local MLA told his followers to stop the first applicant’s activities. They later came to his house, harassed him, threatened his wife and warned her to stop his activities. He was so traumatised by this attack that he stopped going out by himself. He did not report this incident to the police because they were “stooges” of the BJP; and
   7. his fellow party members and the business community advised him to leave India.
7. The first applicant appeared before the Tribunal on 29 March 2011 and made the following additional claims:
   1. he became a member of the Congress Party about six months after starting his business. He assisted the party at election time;
   2. he joined the business association voluntarily but tried to leave after the BJP started asking him for money. However, the committee “forced him to stay” and he finally left after his business was destroyed in February 2010;
   100. he first became fearful of the BJP when, in February 2010, they visited his wife and told her that he was going to be killed. He subsequently said that this had occurred in April 2010;
   4. he shut his business down two months before coming to Australia because “the thugs” broke up his shop and there was no point in selling it;
   5. in December 2009 he spoke to his Congress Party leader about the BJP’s demand for political donations. His leader suggested that he go to the police, which he did a couple of days later. The BJP responded by destroying his shop in February 2010;
   6. he met the local MLA at the end of February 2010 after his business had been destroyed. After he rejected the MLA’s offer, the BJP came to his house and threatened to kill him;
   7. he made the decision to leave India in May 2010. He later said that he decided to leave in March 2010;
   8. the reference in his statement to “higher level government authorities” was a reference to the MLA’s party workers;
   9. he and his wife obtained their passports in January 2010 “for ID purposes”;
   10. the authorities will not protect him as everyone supports the BJP, even the police; and
   11. the BJP continue to search for him. They visited his home in India and harassed his parents.

The Tribunal’s decision and reasons

8. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that they were persons to whom Australia had 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 first applicant claimed that he had been a longstanding supporter of the Congress Party who had been involved in various activities on the party’s behalf. However, he did not know the name of the Congress Party prime minister or the name of the party’s president (either in his own state or nationally) or that the party was currently in power in India. In the Tribunal’s view, this was basic information which a longstanding supporter such as the first applicant should have known;
   2. there were many inconsistencies in the first applicant’s evidence:
      1. he said at the hearing that he had been threatened for the first time in February 2010. He then said that it had been April 2010, a date which he confirmed to the Tribunal. However, later in the hearing he said that the BJP wished to kill him in February 2010 after he met with the MLA;
      2. he said at the hearing that he shut down his business two months before coming to Australia, which would be around late May 2010, because “thugs” broke up his shop. However, he also said that his business had been ransacked in February 2010. Based on this evidence, the Tribunal concluded that the shop was shut down as a result of it being ransacked in February 2010;
      3. he said early in the hearing that he decided to leave India in May 2010. Later, he said that he decided to leave in March 2010;
      4. he said at the hearing that he went to the police a few days after speaking to his Congress Party leader in December 2009. However, in his statement to the department he said that he went to the police in June 2009;
      5. he said at the hearing that his shop had been ransacked in February 2010 but in his statement he said that this had occurred in June 2009;
      6. he said at the hearing that his shop had been ransacked about a month after he went to the police whereas in his statement he said that this had occurred five days after he had complained; and
      7. he said at the hearing that the “higher level government authorities” referred to in his statement was a reference to the MLA’s party workers. However, the Tribunal concluded that this did not make sense because in his statement the applicant said that he had been working with these people to stop the BJP’s illegal activities;
   100. the first applicant could not provide a plausible explanation for why he and his wife had obtained their passports in January 2010 when, based on their account at the hearing, they had no fear of harm until February 2010;
   4. the first applicant claimed at the hearing that membership of the business committee was not compulsory but when the Tribunal suggested that it was open to him to leave the committee to avoid making donations to the BJP, the first applicant said that it had become involuntary. The Tribunal found it implausible that the first applicant, as a supporter and member of the Congress Party, would remain in a voluntary organisation which was asked to give money to the BJP; and
   5. given the inconsistencies and implausibilities in the first applicant’s evidence, coupled with his lack of basic knowledge about the Congress Party in India, the Tribunal did not accept that the first applicant had been a witness of truth. Consequently, it did not accept any of his claims.

Proceedings in this Court

9. The grounds of the application commencing these proceedings were pleaded as follows:
   • 1. The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in Gujarat, India. The Tribunal used this information (RRT decision record pages 15 to 17). This was against section 424A of the Migration Act 1958.
   • 2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant claims were not plausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
10. At the hearing today, the first applicant made further submissions which were essentially directed to the merits of his application for a protection visa.

Breach of s.424A

11. The independent country information to which the applicants refer in the first ground of their application appears to be the material which the Tribunal put to the first applicant at its hearing concerning individuals in the Congress Party and the BJP and which formed the background of its questions of the first applicant concerning the goals and policies of the Congress Party in India. Section 424A of the Act relevantly provides:
    • 424A Information and invitation given in writing by Tribunal
    • (1) Subject to subsections (2A) and (3), the Tribunal must:
      • (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
      • (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
      • (c) invite the applicant to comment on or respond to it.
    • ...
    • (3) This section does not apply to information:
      • (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; ...
12. Section 424A(1) requires the Tribunal to put certain information to applicants in the event that such information might be the reason, or a part of the reason, for the Tribunal deciding to affirm the delegate’s decision. Section 424A(3) contains exceptions to the obligation found in s.424A(1). Relevantly, s.424A(3)(a) provides an exception in relation to independent information or country information of the sort which is the basis of the first ground of the applicants’ application. Because the information in question fell within that exclusion, the Tribunal did not err by not providing it to the applicants and thus the first ground of the application is not made out.

Breach of s.425

13. Section 425 of the Act relevantly provides:
    • 425 Tribunal must invite applicant to appear
      • (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
14. The basis of the second allegation in the application is that the Tribunal’s findings were not obviously open on the known material and that the first applicant was not given an opportunity to comment on the matters which were the basis of those findings. In essence, the applicants allege a breach by the Tribunal of its obligation under s.425(1) to put them on notice of issues arising in relation to the decision under review.
15. That the Tribunal’s conclusions might not have been obviously open simply from the evidence before it is not really arguable once one considers the Tribunal’s summary of its hearing and the evidence expressly relied on to reach the conclusion that the first applicant’s claims were not plausible. The Tribunal considered that the first applicant’s evidence concerning his claimed political involvement led it to have serious doubts that he was a Congress Party member or supporter as claimed. It then went on to explain why it was of the view that the applicant’s evidence was replete with inconsistencies and implausibilities.
16. The Tribunal’s findings in this respect are based on its hearing attended by the first applicant which is summarised in that part of its reasons headed “Claims and Evidence”. The summaries of the relevant exchanges at that hearing set out later in the reasons under the heading “Findings and Reasons” do not reflect completely the summary of the hearing which appears under the heading “Claims and Evidence” but decisions of the Tribunal are not to be construed minutely or finely with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. Further, the applicants have not suggested that the Tribunal’s summary of the evidence before it at the hearing or the evidence on which it relied to reach its conclusions was incorrectly recorded in its decision record.
17. It is clear from the decision record that the issues which the Tribunal canvassed with the first applicant at its hearing put him sufficiently on notice that they were ones which the Tribunal would need to consider when determining the application for review. Moreover, not only did the Tribunal canvass at the hearing particular problems it had with aspects of the first applicant’s evidence, its summary of the hearing reveals that it expressly referred more than once to the evidence featuring inconsistencies and that it said that it was concerned by his evidence, that it did not understand why he acted in the way he did and that aspects of his evidence at its hearing were different from what he had said in his statement filed with his protection visa application form. From this, it must have been apparent to the first applicant that the core elements of his account, and perhaps the entirety of his account, were regarded with some scepticism by the Tribunal.
18. The second ground of the application is not made out because the Tribunal actually canvassed the matters in question with the first applicant at its hearing and did so in circumstances where the credibility of most, and perhaps all, of the latter’s account was clearly in question.
19. For these reasons, the Tribunal did not relevantly breach its obligations under s.425.

Merits review

20. In his oral submissions today the first applicant told the Court that what he had told the Tribunal was the truth and he invited the Court to look into that information and let him stay in Australia. In essence, he was inviting the Court to review the merits of his application for a visa.
    As explained to the first applicant at the hearing of this application, and as stated earlier in these reasons, the Court cannot review the applicants’ applications for protection visas; its task is limited to determining whether the Tribunal’s decision is affected by jurisdictional error.
21. For those reasons, the matters raised by the first applicant in his oral submissions today disclose no basis upon which the Tribunal’s decision might be set aside.

Conclusion

22. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 21 November 2011