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MIGRATION - Review of Refugee Review Tribunal decision - affirming a delegate's refusal of a protection visa - no reviewable error found.

SZAUA v Minister for Immigration [2004] FMCA 597 (17 September 2004)

SZAUA v Minister for Immigration [2004] FMCA 597 (17 September 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUA v MINISTER FOR IMMIGRATION
[2004] FMCA 597




MIGRATION - Review of Refugee Review Tribunal decision - affirming a delegate's refusal of a protection visa - no reviewable error found.




Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:
SZAUA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1097 of 2003




Delivered on:


17 September 2004




Delivered at:


Sydney




Hearing date:


13 August 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr M Wigney




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The applicant pay the respondent's costs set in the amount of $4,700 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1097 of 2003

SZAUA



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 30 April 2003 affirming a decision of a delegate of the respondent made on 2 April 2002 to refuse to grant the applicant a protection visa.

2. The applicant, who claims to be a citizen of India, arrived in Australia on 4 December 2001. On 3 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act").

3. On 2 April 2002 the delegate of the Minister refused to grant a protection visa and on 30 April 2002 the applicant applied for a review of that decision.

The history

4. The applicant, a married Muslim man from Chennai, India was born on 21 April 1959. His parents, wife, daughter and siblings live in India. The applicant attended school for nine years, from 1964 to 1973 in India. His occupation before coming to Australia was that of "trader". The applicant speaks, reads and writes Tamil and speaks and reads English.

5. When his father became ill, the applicant, who was in Grade 8, discontinued his schooling to help his father in his stationery business. The family owned two houses, one of which was rented to members of the Students Islamic Movement of India (the "S.I.M.I."). When the Indian Government banned the S.I.M.I., because the organisation was against the Government policy, police started to make enquiries of the applicant and his family and their possible links to the S.I.M.I. The police seized the house and took the applicant into custody without a warrant. Written statements were taken and the applicant was required to attend the police station whenever requested.

6. Shortly after the custody incident, the applicant claims a couple of policemen came to his house and demanded "a huge amount of money" with the threat that if it was not paid the family would not be allowed to live peacefully and the whole family would be taken into custody for enquiries. The family decided to pay the amount demanded by pledging their jewels.

7. A few days later, they were awoken around midnight by four or five persons believed to be from the S.I.M.I. They assaulted the applicant and warned him and his family not to say anything about or identifying anybody belonging to their group.

8. Threatened by the police and members of the S.I.M.I., the applicant claimed that he and his family were unable to live peacefully in India. Through a friend he was able to arrange travel to Australia.

The Tribunal's decision and reasoning

9. On 7 January 2003 the Tribunal wrote to the applicant and advised him that it had considered the material before it relating to his application but that it was unable to make a decision in his favour on that information alone.

10. The Tribunal invited the applicant to attend the Tribunal hearing and to give oral evidence and present argument in support of his application. The applicant accepted the invitation to attend the Tribunal hearing.

11. A hearing was convened on 14 February 2003 and the applicant gave oral evidence. The Tribunal on 30 April 2003 affirmed the decision not to grant a protection (Class XA) visa.

12. The Tribunal's reasons for its ultimate finding that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee Convention, may be summarised as follows:

a) Based on independent evidence available to the Tribunal, the S.I.M.I. had been declared an unlawful association. The Indian Central Government enacted the Unlawful Activities Prevention Act 1967 that declared the S.I.M.I. was an unlawful association and authorised the State Government and the Union Territory Administration to take action to curtail its activities.

b) On further independent evidence available to the Tribunal, the S.I.M.I. had links with terrorist groups and was involved in communal violence. The Tribunal found that the application of law was appropriate to be adopted to achieve legitimate State objectives. The pursuit of the objective of this law was to protect the general welfare of the State and its citizens.

c) The action of the police in detaining, questioning and requiring the applicant to return to the police station on numerous occasions was part of the enforcement of law designed to protect the general welfare of the State, and was legitimate. The law was not persecutory in the circumstances of the association with a terrorist-linked group. This amounted to a finding that the actions of the police did not amount to persecution for the reasons of the applicant's political opinion or race.

d) The applicant was no longer of any concern to the police and "there is not a real chance that the police would be given to extort the applicant or his family in the future". This amounts to a finding that the applicant did not have a well founded fear of persecution based on the past incident about which he complained.

e) The essential and significant reasons for the authorities demanding money from the applicant was not his religion or reputed political opinion. Rather this was a criminal matter for the applicant to pursue in the Indian judicial system.

f) Matters that may give rise to persecution involve the applicant's claim that the S.I.M.I.:

i) hit and threatened him;

ii) warned the applicant's family and told them not to say anything about their group or to identify its members;

iii) threatened him not to give information to the police; and

iv) constantly asked him what he had told the police.

g) The Tribunal found that members of the S.I.M.I. did visit the applicant and his family when these events occurred. The Tribunal also found that they had asked him on several occasions what he had told the police. The claimed agent of persecution in this circumstance was not the State but the S.I.M.I. The convention ground is imputed political opinion because the S.I.M.I. considered that the applicant might be assisting the Indian Government through the police. The action of the S.I.M.I. did not involve serious harm to the applicant (as required under s.91R of the Act).

h) The Indian Government is willing and able to take continuing action against the S.I.M.I. and therefore provide effective protection from persecution. Consequently, it could not be established that the State was unable or unwilling to provide effective protection from persecution when the State was not an agent of persecution. The State did not encourage or tolerate the S.I.M.I. nor was it uncontrolled by the authorities of India. India passed and implemented laws to protect India from the S.I.M.I. The applicant, in his own evidence, stated that the police arrested some members of the S.I.M.I. and that others had fled. Based on independent evidence, the Indian Government was willing and able to take continuing action against the S.I.M.I., ensuring further protection of the applicant. The Tribunal was not satisfied, on the evidence before it, that the applicant's claims gave rise to past persecution in any conventional sense nor did the material before the Tribunal indicate that the applicant faced a real chance of persecution in the future.

The application for review of the Tribunal's decision

13. The applicant filed an application under s.39B of the Judiciary Act 1903 (Cth) for review of the Tribunal's decision on 17 June 2003. The application contained ten grounds of challenge of the Tribunal's decision. The grounds include broad, sweeping, repetitive and unsatisfactorily particularised allegations about the motives and actions of the Tribunal in the conduct of the review and about the Tribunal's decision.

14. The grounds as set out in the application were as follows:

* "The Tribunal did not take into account my convention based persecution in India.

* I am a Muslim minority in India. Communal riot did not consider as like persecution.

* The Tribunal made his decision in bad faith.

* The Tribunal deprived me of natural justice.

* The Tribunal overlooked and denied the evidentiary proof of my claim.

* The Tribunal's decision did not reflect the material facts of my claim.

* The Tribunal has given a decision which was pre-set in the back of its mind.

* The Tribunal mixed up many facts with its decision which was pre-set in the back of its mind.

* I will provide more grounds later.

* I was persecuted and if return back to India, I will be persecuted."

15. At a subsequent directions hearing, the applicant was ordered to file and serve, by 18 September 2003, any amended application and any evidence upon which he proposed to rely. No amended application was filed and the written submissions that were filed on 2 August 2004 did not remedy the deficient particularisation of the grounds of review.

The Law

16. The present application is affected by the privative clause contained in s.474 see [2]. The High Court held in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002, ("S134/2002") in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

17. An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or in some circumstances, makes an erroneous finding or reaches a mistake in conclusion in the way that it affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179]; and Dranichnikov v Minister for Immigration & Multicultural Affairs.

Submissions

18. The applicant's submissions were in the form of an open letter and repeated the eight unparticularised grounds. The document made little reference to the specifics of the applicant's case. Nevertheless, I have considered such grounds as are raised in the material before me.

19. I have adopted the grouping of allegations relating to the evidence as presented in the respondent's submissions prepared by Mr Wigney of Counsel. The grounds as contained in the application are unstructured, unparticularised and repetitive. I believe this marshalling of the grounds into groups that have a similar theme is the most effective approach to avoid repetition.

20. Grounds 1, 2, 5 and 6 allege, in various ways and in broadest terms, that the Tribunal overlooked, ignored or did not take into account the applicant's claims or the evidence before it. The applicant does not however, in either the application or the written submissions, point to any specific claim or piece of evidence that falls into this category.

21. The Tribunal had before it the material from the Department files, together with a series of correspondence between the Department and the applicant together with independent advice. The applicant was assisted by a migration agent and a friend in the preparation of his documents and he was satisfied that the information contained therein was correct. The Tribunal did find that the applicant had been detained for questioning regarding the possible connection with the banned organisation S.I.M.I. in the premises owned by the family which it had leased to S.I.M.I. members.

22. The Tribunal's reasons clearly disclose that the Tribunal considered all the applicant's claims, material and evidence that were before it. The Tribunal concluded that the police enquiries were part of enforcement of the law designed to protect the general welfare of the State. It also concluded their actions were legitimate because of the perceived association with a possible terrorist-linked group and could not be categorised as persecutory.

23. These events had occurred some time ago and there appeared to be a diminishing interest by the police. The Tribunal had formed the view that there was little chance that the police would continue to extort the applicant or his family in the future. This extortion was a criminal matter unrelated to his religion or political opinions and therefore should be pursued by the applicant in the Indian judicial system. These issues are clearly not convention related.

24. The applicant appeared before me and directed my attention to specific parts of the Tribunal's decision, however that does not assist me. The grounds, the written submissions and the oral submissions made in support of the grounds, are nothing more than an attempt to have the Court consider the merits of the Tribunal's decision and the factual findings made by it. In so far as the applicant seeks a merit review, merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang.

25. Grounds 3, 7 and 8 allege bad faith and bias on the part of the Tribunal. The relevant principles applicable to a determination on whether a decision of the Tribunal constitutes a bona fide exercise of power are summarised by the Full Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs. The applicable principles are as follows:

* "An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;

* Such an allegation ought not be made lightly and must be clearly alleged and proved;

* The presence of absence of honesty will often be critical;

* The circumstance in which the Court will find an decision-maker had not acted in good faith are rare and extreme - this is particularly so where all the applicant relies upon is written reasons of the decision under review;

* Mere error or irrationality does not in itself demonstrate lack of faith - bad faith is not to be found simply because poor decision-making;

* Errors of facts or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness;

* The Court must make a decision as to whether or not bad faith is shown by the inference from what the Tribunal has done or failed to do and from the extent in which the reasons disclose from the Tribunal approach its task;

* It is not necessary to demonstrate the decision-maker knew that the decision was wrong - it is sufficient to demonstrate directness in the exercise of power."

26. A review of the Tribunal's decision, using the above criteria, shows there is no basis on which the finding that the Tribunal had acted in bad faith could be established. It is not open to a finding that the Tribunal acted dishonestly, arbitrarily, capriciously or recklessly. There is nothing in the decision that would indicate that the Tribunal has not performed its task in an entirely proper manner.

27. Grounds 7 and 8 raise the issue of bias, because its "decision was pre-set in the back of its mind". This is not evident in the decision. The decision details the material that was provided to it previously by the Department together with the material provided by the applicant, his adviser and independent information available to the Tribunal from its own sources. The process, as described in the Tribunal's decision, demonstrates that the Tribunal fairly and comprehensively considered each aspect of the applicant's case and made a reasonable finding on that material.

28. Ground 4 alleges that there was a denial of natural justice by the Tribunal when it undertook its task to review. Again, this ground is unparticularised. However, in the applicant's written submissions, two issues are raised in support of this ground:

a) procedures required to be observed under the Act were not observed; and

b) the High Court decision in Muin v Refugee Review Tribunal.

29. Division 4 of the Act gives an exhaustive statement of the requirements of natural justice hearing rules in relation to matters that it deals with: s.422B of the Act. Each of the requirements specified within that Division have been observed and satisfied by the Tribunal in its review of the applicant's claim.

30. In the applicant's written submissions he states that the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal is very relevant to the Tribunal's decision. The submission is made without any further particularisation as to what respect the applicant was mislead or that the applicant was denied the opportunity to comment on any adverse information that was credible, relevant or significant to the decision.

31. The application and supporting written submissions are deficient and they do not identify anything in relation to the decision of the Tribunal or the proceedings before the Tribunal to assist the Court in determining whether any reviewable legal error is disclosed in the decision. The applicant at trial was invited to put to the Court anything that might assist in identifying a legal error but apart from reiterating his dispute with the findings of fact made by the Tribunal, he was not able to expand upon his application or written submissions.

32. As the applicant in these proceedings was representing himself I should not limit any considerations to the arguments put forward by the applicant. Where the applicant is self-represented, the Court must independently consider whether there is an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. As the grounds in the application are broad and sweeping, without any particularisation, I have been unable to identify any arguable case.

Conclusions

33. Mr Wigney, for the respondent Minister, has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal formed that adverse view about the credibility of the claim being made by the applicant. These findings by the Tribunal are reasonably open to it on the material before it. I am satisfied that the RRT made no legal error going to jurisdiction in coming to its decision. In addition, the decision of the Tribunal was a bona fide attempt to exercise its power. The decision clearly relates to the subject matter of the Act and relates to the powers conferred on the Tribunal. I find the decision of the Tribunal is a privative clause decision, having regard to the decision of the High Court in S157/2002 see [16].

34. In the circumstances, I dismiss the application.

35. I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 17 September 2004
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