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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming religious and political persecution in India - RRT accepting some factual claims but finding no persecution - other claims rejected on credibility grounds - formulaic attack upon the RRT decision - asserted procedural unfairness pressed at hearing - no reviewable error found - application dismissed.

SZAYH v Minister for Immigration [2004] FMCA 771 (5 November 2004)

SZAYH v Minister for Immigration [2004] FMCA 771 (5 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYH v MINISTER FOR IMMIGRATION
[2004] FMCA 771




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming religious and political persecution in India - RRT accepting some factual claims but finding no persecution - other claims rejected on credibility grounds - formulaic attack upon the RRT decision - asserted procedural unfairness pressed at hearing - no reviewable error found - application dismissed.




Migration Act 1958 (Cth), s.36

Chen v Minister for Immigration [2001] FCA 1671

Eastman v The Queen (2000) 203 CLR 1

Kioa v West (1985) 159 CLR 550

Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

Minister for Immigration v Jia (2001) 178 ALR 421

Minister for Immigration v SCAR [2003] FCAFC 126

Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206

SCAA v Minister for Immigration [2002] FCA 668

Applicant:
SZAYH




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1345 of 2003




Delivered on:


5 November 2004




Delivered at:


Sydney




Hearing date:


5 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Ms J Jag�t




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1345 of 2003

SZAYH



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 20 May 2003 and handed down on 17 June 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and made claims of persecution on several bases. The predominant grounds appear to be asserted religious and political persecution. The relevant backgrounds and circumstances are comprehensibly dealt with in written submissions prepared by Ms Jag�t. I adopt paragraphs 3-10 of those written submissions for the purposes of this judgment:

The applicant is a citizen of India. The applicant made application for a protection visa claiming that he:

a) was a Muslim who had previously been detained and interrogated as a possible sympathiser or a person with links to Muslim radical movements;

b) was in a "distinguishable position" as a Tamil minority rights activist;

c) had acquired a profile as a person opposed to high caste Hindus;

d) feared that if any problems emerged between Hindus and Muslims, he would face fear, harassment and serious harm in detention with possible torture and even disappearance;

e) feared that if he returned to India he ran the risk of being arrested and detained under the TADA Act[1] and was in fear of serious human rights abuses, torture and persecution given the present animosity and hatred against minority Muslims perceived to be radicals; and

f) would be implicated on serious charges and detained for prolonged periods under the TADA Act as politically motivated radical Hindus and political adversaries Visvanathan, Enathybalu, Kosi Mani (leader of the DMK), Rajendran, his brother Somu and other political opponents would use influence with the central government and the State government due to a "political vendetta" they have against the applicant.[2]

The RRT, by letter dated 21 March 2003, invited the applicant to give oral evidence and present arguments in support of his claim on 16 April 2003. At the RRT hearing, the applicant claimed that:

a) he contested the 2001 Tamil Nadu State Elections;[3]

b) in the election he stood as an independent candidate on a platform of a theme or equality for all Tamils;[4]

c) even before he nominated, the applicant was threatened by the local DMK secretary not to nominate lest his whole family be wiped out, as a consequence of which the applicant complained to the police;[5]

d) he was again threatened by the DMK secretary over his complaint to the police and feared that Visvanathan, the DMK secretary and others would carry out a political vendetta against him in the form of false charges because Visvanathan had been barred from standing in the election and was still angry about this and the DMK was angry at him for siphoning votes from the DMK;[6]

e) he went into hiding when he received the first threat from the DMK secretary by moving to another part of Chennai and staying there;[7]

f) he made it easily through Chennai International Airport on 1 April 2002 because he prepaid his way through the security checks at the airport through a friend who was a travel agent and a considerable sum of money changed hands because it was confirmed to him that his name was already on a police "terrorist" black list.[8]

RRT's findings and reasons

The RRT accepted that the applicant was a national of India and a long term resident of Tamil Nadu, as shown in his passport, which was also accepted by the RRT as genuine.[9]

The RRT also found that the applicant had lawfully departed India in February 2002 and again in April 2002. The applicant had re-entered India, lawfully, in February 2002 and returned to society at large without being in any way impeded by the authorities.[10]

The RRT did not accept the applicant's claims about being on a terrorist black list and having to bribe officials to escape India because:

a) the applicant's claims in this respect were inconsistent and unreliable;[11] and

b) the applicant's claims could not withstand close examination, because the applicant had repeatedly exposed himself to airport officials during the period when, if his claims were true, it should have been very risky to do so even once.[12]

The RRT also rejected the applicant's claims that he was wanted by the police in India due to some perception of his being a terrorist, a Muslim radical, an enemy of the DMK or of Visvanathan.[13] This was because:

a) the fears cited in the applicant's primary protection visa application were hypothetical;

b) the applicant was not able to cite any evidence to the effect that his fears might be well founded;

c) on the applicant's own evidence, no threats or attacks upon him lasted past the election campaign; and

d) the evidence was that the applicant's life had returned to normal after the elections because they found him continuing in business, including business travel and remaining at the one address in his home district,

notwithstanding the fact that the RRT was prepared to accept, at face value, that the applicant in fact stood for the election in Tamil Nadu in April 2001. [14]

Finally, the RRT observed that, on the applicant's own evidence, the applicant did not withdraw from the 2001 election after the threat, that he achieved a result in the 2001 election that was quite proportionate with other Independent candidates and that he withdrew from politics after his defeat, returning to business. As a consequence, the RRT concluded that the applicant left India in his own good time and at his leisure (in that four months that lapsed between the receipt of the passport and the applicant using it to fly to Australia).[15]

Accordingly, the RRT concluded that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and that the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (Cth) (the Migration Act) for a protection visa.

2. Ms Jag�t also conveniently sets out the grounds of review advanced by the applicant in his judicial review application filed on 15 July 2003. I adopt paragraph 1 of Ms Jag�t's submissions for the purposes of identifying those grounds:

The applicant seeks review of a decision of the RRT made on 17 June 2003 in which the RRT affirmed a decision of the Minister's delegate refusing the applicant a protection (Class XA) visa.[16] The application is made on 11 grounds, paraphrased below.

a) the RRT did not take into account the court case against the applicant in India, being a "convention based reason";

b) the applicant is a victim, being of a particular minority social group;

c) the RRT did not require the applicant's comments regarding all of the applicant's claims;

d) the RRT made its decision in bad faith;

e) the RRT deprived the applicant of natural justice;

f) the RRT denied the evidentiary proof of the applicant's claim;

g) the decision of the RRT did not reflect the material facts of the applicant's claim;

h) the RRT gave a decision which was "preset in the back of its mind";

i) the RRT decision involved the "mixing up" of many facts;

j) the RRT concentrated on particular facts in its decision, but ignored many other facts; and

k) the RRT made its decision without any enquiry regarding the applicant's claim and did not believe the applicant's "genuine convention based refugee claim".

3. The applicant also filed written arguments in support of his application on 25 October 2004. In those written arguments the applicant assets actual bias, procedural unfairness and a general disagreement with the findings made by the RRT. The applicant also took up an opportunity to present oral submissions to me this afternoon.

4. Although his judicial review application and written submissions bear some of the hallmarks of the intervention of a migration agent, the applicant told me that his written arguments were his own work. He told me that the central point that he wanted to put to me was that there was a breach of natural justice or procedural fairness in the proceedings before the RRT. He is particularly concerned that, in his view, key documents were not taken into account by the RRT. I asked him to identify which documents in particular he is concerned about. He identified the document appearing on page 104 of the court book and also the newspaper article appearing on page 63 of the court book. He told me that an English translation of the article appears on page 61.

5. These documents relate to the applicant's claim of political candidacy in a Tamil Nadu state election in May 2001. It is obvious from a simple reading of the RRT's reasons for decision that the applicant's claim and the documents relating to it were considered by the presiding member. The presiding member considers this aspect of the applicant's claims in some detail. Despite expressing some doubts the presiding member ultimately accepted that the applicant was indeed an independent candidate in the May 2001 Tamil Nadu state elections. Moreover, the presiding member accepted that the applicant had been threatened by a political opponent during the course of those elections.

6. I find that the documents identified by the applicant were considered by the RRT. The presiding member rejected as false claims made by the applicant about what happened after the elections. The applicant was unable to verify those claims by reference to documents. Nevertheless, it is obvious that the presiding member considered the claims. The claims were rejected on their merits. There was no procedural unfairness in the consideration of those claims. Annexed to the applicant's written arguments are some black and white copies of photographs. These purported to show members of the applicant's family as victims of torture. The applicant told me that he obtained these photographs in September this year. Obviously therefore, they could not have had any bearing upon the decision of the RRT.

7. The applicant also annexed to his written submissions documents concerning his state of health. It appears that the applicant suffers from a heart condition. The applicant told me that he suffered a deterioration in his heart condition following the RRT decision. While one may have sympathy for his state of health his medical condition does not have a bearing on my assessment of the validity of the RRT decision.

8. The applicant also expressed concern about the assistance he received under the Pilot Legal Advice Scheme. The Court correspondence file reveals that Mr C Jackson provided advice to the applicant on 4 November 2003. The applicant expressed concern to me that at the time he gave advice Mr Jackson was under the belief that these proceedings were going to be heard the following day, this is verified by a letter dated 12 September 2003 from the Australian Government Solicitor to the applicant, which incorrectly stated that the matter had been listed for hearing at 2.15pm on 5 November 2003. This error was corrected in a further letter from AGS to the applicant dated 5 November 2003. That letter would not have been available to Mr Jackson when he gave advice on 4 November 2003. However, the applicant told me that he was successful in convincing Mr Jackson that his hearing was in fact today, not on 5 November 2003.

9. The applicant expressed concern at the advice given to him by Mr Jackson. I cautioned the applicant not to reveal that advice unless he made a conscious decision to do so. He elected to do so. He told me that Mr Jackson had advised him in substance that he had poor prospects of success. While that may have been disappointing to the applicant, the advice may well have been sound advice. In any event the applicant has had 12 months since then to prepare his case for hearing today. No legal issue bearing on these proceedings arises from the provision of advice by Mr Jackson.

10. Ms Jag�t deals comprehensively with the grounds of review raised by the applicant in writing. I agree with paragraphs 12-26 of those submissions by Ms Jag�t and adopt them for the purposes of this judgment:

The applicant claims that the RRT did not take into account "the court case against me in India of a Convention based reason". The only court case in India referred to by the applicant was the election petition.[17] The election petition was plainly taken into consideration and evaluated by the RRT.[18] The RRT was entitled to make the factual findings that it made in respect of the election petition (that it was evidence of a poorly mounted attempt by a citizen to seek an injunction against an election result, according to his rights, through India's courts but provided no evidence of the applicant being persecuted for his political opinion).[19] That process of consideration, evaluation and conclusion discloses no error of law.

Ground 2

This is presumed to be a reference to the fact that the applicant is Muslim identified by the applicant at court book, page 30 as a "minority". The applicant's claims that he was a victim, being a member of a minority social group, was considered at length by the RRT in a manner which discloses no error of law.[20]

Ground 3

The RRT is not obliged to undertake any particular kind of inquiry with regard to all of the applicant's claims pursuant to either the Act or any common law obligation. Division 4 of Part 7 of the Act sets out the requirements for the conduct of review by the RRT. The RRT is not required to actively assist the applicant in putting his or her case; nor does it require the RRT to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration [2001] FCA 1671.

In Minister for Immigration v SCAR [2003] FCAFC 126 (6 June 2003), the Full Court of the Federal Court said at [31] that:

"31 It is also clear that the requirements of natural justice in any particular instance are to be determined in the relevant statutory context: see Kioa v West (1985) 159 C LR 550 at 584-585, 611. This means that it may be misleading, at least in Australia, to discuss �natural justice' as if that term always has a fixed meaning in every statutory context. So, for example, the fact that an obligation to afford natural justice does not normally imply a duty upon the decision-maker to make inquiries (see Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 213-214) does not mean that there may not be a duty to inquire in relation to a particular issue under a particular statute. Inquiries in relation to �fitness to plead' may be an obvious example: see Eastman v The Queen (2000) 203 CLR 1."

Ground 4

The applicant's claims the RRT made its decision in bad faith finds no support in the RRT's reasons. The RRT made its decision accepting that the applicant was an independent candidate in the May 2001 Tamil Nadu elections who was threatened by a DMK figure to withdraw.[21] The applicant had the opportunity to give extensive evidence at the hearing on 16 April 2003 and its decision was delivered, with detailed reasons, on 17 June 2003.

Ground 5

The applicant's claim that the RRT deprived the applicant of natural justice is also incapable of being sustained. By letter dated 21 March 2003 the applicant was invited to attend the hearing on 16 April 2003 to give oral evidence and present arguments in support of his claim.[22] The RRT's reasons disclose numerous references to the oral evidence given by the applicant to the RRT.

Ground 6

The applicant claims that the RRT "denied the evidentiary proof of my claim". The RRT, in fact, accepted the applicant's principal assertions and documents other than his claim that he had to bribe airport officials to leave India and was on a terrorist blacklist. The RRT was entitled to consider and evaluate all of the available evidence and it was open to the RRT to reach the conclusions that it did on the evidence.

Ground 7

The applicant contends that the RRT's decision did not "reflect the material facts of my claim". The precise nature of this contention cannot be ascertained other than to observe that the RRT's reasons extensively review the applicant's evidence and documentary material and that it was open to the RRT to reach the conclusions which it did.

Ground 8

The applicant claims that the RRT pre-determined his application. There is no evidence to support that contention and the RRT's detailed reasons speak to the contrary.

Ground 9

The applicant contends that the RRT "mixed up many facts". No particular facts are identified and, in any event, a mere error of fact (if any are identified) is not sufficient for the application to be upheld.

Ground 10

The applicant contends that the RRT concentrated on particular facts and ignored many other facts. No facts said to be ignored by the RRT have been identified.

Ground 11

The applicant contends that the Tribunal did not make any enquiry regarding his claim and did not believe his genuine convention based refugee claim. The respondent relies on its submission in the paragraphs above.

Other matters

The applicant's submissions refer to the RRT having been actually biased against the applicant. The submissions provide no example of the alleged bias. Actual bias, if found, would constitute a jurisdictional error. Actual bias involves a state of mind, in exercising the discretion, so committed to a conclusion already formed and incapable of alteration, whatever evidence or arguments may be presented. A decision-maker's mind need not be blank, but it must be open to persuasion.[23]

The onus on a person who asserts bias is heavy. The allegation must be distinctly made and clearly proved.[24] Factual error or faulty reasoning does not equate to bias; bias is a grave condemnation of a decision-maker's capacity to discharge their functions impartially. Cases where bias can be established from reasons for a decision alone have been described as rare and exceptional. Reasons are conclusions and adverse findings on facts and credit in reasons are inevitable. The mere fact of such findings can give rise to no allegation of bias, even where the findings are contrary to the evidence or unreasonable or the reasoning process is shown to be "hopelessly flawed".[25]

As in SCAA,[26] the applicant's allegation of bias is nothing more than an assertion that the Tribunal's findings on credibility were wrong. But that assessment of credibility was a matter for the Tribunal alone - the finding on credibility being "a function of the primary decision-maker par excellence."[27]

11. Because the applicant is self-represented I have independently considered whether any jurisdictional error is apparent in the decision of the RRT. In my view, there is none. It follows that the RRT decision is a privative clause decision and the application must be dismissed.

12. On the question of costs, the application having been dismissed Ms Jag�t seeks an order for costs. I agree that costs should follow the event. Ms Jag�t seeks an order fixed in the sum of $3,500 on a party/party basis. I explained the considerations relevant to an assessment of costs to the applicant and he did not wish to make any submissions. In my view, costs of $3,500 have been reasonably and properly incurred in this matter on behalf of the Minister when assessed on a party/party basis. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 November 2004


--------------------------------------------------------------------------------

[1] The Terrorist and Disruptive Activities (Prevention) Act.

[2] court book, pages 30 to 34.

[3] court book, page134.2.

[4] court book, page135.6.

[5] court book, page136.4.

[6] court book, pages,138.2-4.

[7] court book, page140.2.

[8] court book, page142.2-6.

[9] court book, page144.6.

[10] court book, page144.7.

[11] court book, page144.9.

[12] court book, page145.1.

[13] court book, page145.2.

[14] court book, pages 145.5-10.

[15] court book, pages 146.4-6 and court book, pages 143.2-3.

[16] court book, pages 147.

[17] court book, pages 73 - 104.

[18] court book, pages 136.8 - 10, 137 and 146.6.

[19] court book, page 137.6.

[20] court book, pages 135, 136, 143, 145.

[21] court book, pages146.

[22] court book, page 118.

[23] Minister for Immigration v Jia (2001) 178 ALR 421 at [71] - [72].

[24] Minister for Immigration v Jia (2001) 178 ALR 421 at [69].

[25] SCAA v Minister for Immigration [2002] FCA 668 (30 May 2002) at [35] to [38].

[26] At [42].

[27] Minister forImmigration; Ex Parte Durairajasingham (2000) 168 ALR 407 at 423.
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