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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZDKD v Minister for Immigration [2004] FMCA 737 (11 November 2004)

SZDKD v Minister for Immigration [2004] FMCA 737 (11 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKD v MINISTER FOR IMMIGRATION
[2004] FMCA 737




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.36(2), 91R(1), 395, 422B, 424A, 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

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396

Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244

Abebe v Commonwealth (1999) 197 CLR 510, 576 at [187]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909

VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 609

NANM and NANN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 99

NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262

VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214, 219-221

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112

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

Applicant:
SZDKD




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1214 of 2004




Delivered on:


11 November 2004




Delivered at:


Sydney




Hearing date:


11 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of interpreter.

Counsel for the Respondent:


Ms M Allars




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application fixed in the amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1214 of 2004

SZDKD



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This judgment relates to a decision of the Refugee Review Tribunal ("the Tribunal") made on 24 February 2004 and handed down on

1 April 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.

2. The applicant arrived in Australia on 24 September 2003. On

20 October 2003 the applicant 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"). On 13 November 2003 a delegate of the Minister refused to grant a protection visa.

The history

3. The applicant was born on 27 March 1975 in Hyderabad, India and is a single male Muslim. He claimed to speak, read and write both Hindi and English. The applicant completed seven years of education from 1980 to 1987 and stated his occupation in India from 1999 as Student Counsellor.

4. In the applicant's application for a protection visa, he claimed he left India due to the consistent fear of death and persecution because of his religious and political background. The applicant claimed to be a Muslim and supporter of a political party known as the Manjlis Itheadul Muslimin ("MIM") party. The applicant claimed that the party was basically a Muslim-based party involved in social/welfare and that he worked as a student counsellor with the party in 1999.

5. The applicant also claimed to have supported a political candidate, Mr Sajjad, in a local election. As a result of Mr Sajjad having won the election, the applicant claimed that he became the target of opposition parties and had been attacked and threatened by BJP/Hindu extremists many times. The applicant stated that Mr Sajjad was attacked and killed by opposition extremists in his home. The applicant subsequently left India claiming that the government did not provide adequate protection to the Muslim community in any part of the country.

The delegate of the Minister's decision

6. The delegate outlined the reasons and findings for its decision dated 13 November 2003 (CB pp.33-37) ("CB"). The delegate was satisfied that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and therefore did not meet the prescribed criterion for the grant of a protection visa.

The Tribunal's decision and reasoning

7. The application lodged by the applicant for a review of the delegate's decision was received by the Tribunal on 4 December 2003. The Tribunal wrote to the applicant on 17 December 2003 inviting him to attend a hearing on 3 February 2004 to give oral evidence and further submissions in support of his application.

8. On 25 January 2004 the applicant advised the Tribunal he was waiting on relevant documents from India to support his claims. The hearing date was subsequently rescheduled for 11 February 2004.

9. The applicant gave oral evidence at the Tribunal hearing on 11 February 2004. The applicant requested further time to submit documents confirming his membership of the MIM party. The Tribunal noted the applicant had previously advised that all such material would be provided by 6 January 2004 and then requested an extension and rescheduled hearing date. The Tribunal agreed to receive this material by 20 February 2004, however the applicant failed to provide the material by this date and did not request a further extension of time in order to do so. The Tribunal granted a further period of three days grace for the applicant to provide the material and then proceeded to make its decision.

10. The Tribunal had before it the Department's file, the protection visa application and the delegate's decision record. The Tribunal had regard to material referred to in the delegate's decision, other material available to it from a range of sources and the applicant's application for review. In the Tribunal's decision, under the heading Findings and Reasons (CB pp.81-86), the Tribunal considered all the claims made by the applicant. After consideration, the Tribunal was not satisfied there was a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returned to India, either now or in the foreseeable future.

11. The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol. It found that the applicant did not satisfy the criterion set out in s.36(2) of the Act for the grant of a protection visa and the Tribunal therefore affirmed the decision of the delegate not to grant a protection visa.

The application for review of the Tribunal's decision

12. An application for review under s.39B of the Judiciary Act 1903 was filed on 27 April 2004 seeking a review of the Tribunal's decision. The applicant filed an amended application on 30 September 2004 and a further amended application was filed on 7 October 2004. However this further application was only identified as an amended application. The grounds contained in these two amended applications are most effectively summarised as follows:

a. The Tribunal failed to take into account a relevant consideration when it assessed whether there was a real chance of the applicant being persecuted in India;

b. The Tribunal failed to consider that as a right-hand man of the prominent Muslim leader Mr Sajjad (who was later murdered by the Hindu extremists) it was very much possible for the applicant's opponents to track him and kill him;

c. The Tribunal failed to consider that the applicant's father was also a victim of Hindu extremists and was murdered in the open street; and

d. The Tribunal depended on some generalised country information and failed to inform him about it, when, since most of his comrades were jailed or killed, he could not provide any documents from his party.

The law

13. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held 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].

14. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that 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 and Multicultural Affairs.

Submissions

15. The applicant appeared self represented with the aid of a Hindi interpreter. The applicant declined the invitation to make any oral submissions. No written submissions were received from the applicant either before or at the hearing.

16. Ms M Allars of Counsel represented the respondent and filed detailed and helpful written submissions in accordance with the orders made at the earlier directions hearing.

17. In respect of Ground (a), Counsel submitted the Tribunal addressed the proper test as to whether a person meets the definition of `refugee' in the Refugees Convention and the Refugees Protocol. The Tribunal sets out the elements of the Convention definition and the `real chance' test of persecution, and the test of `serious harm' set out in s.91R(1) of the Act (CB pp.72-74). It was submitted that this was the test which the Tribunal applied in the light of the applicant's claims and the evidence (CB pp.81-86). It was submitted the applicant had not established any error.

18. It was submitted by Counsel that Ground (b) does not raise any error of law but expresses disagreement with factual findings of the Tribunal. The applicant claimed the Tribunal failed to consider that as a right-hand man of the prominent Muslim leader Mr Sajjad, it was very much possible for his opponents to track him and kill him. However, Counsel made note of the Tribunal's finding that the applicant was not Mr Sajjad's right-hand man, that his activities for Mr Sajjad were relatively menial and that such activities would not by themselves have resulted in Mr Sajjad wining the local assembly election (CB p.83). Counsel further noted that the Tribunal made an adverse finding as to the applicant's credibility, in that he embellished his claims as to his role with Mr Sajjad to enhance his claim for a protection visa (CB p.83).

19. Counsel further submitted that it was open to the Tribunal to reach an adverse finding as to credit on the basis that the applicant embellished his claims. Making findings as to credibility is a function of the primary decision-maker, for which detailed reasons need not be given: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [423]. It was further submitted by Counsel that reasons had in fact been given as to why the applicant was not believed by the Tribunal on these matters.

20. In respect of Ground (c) it was submitted by the applicant that the Tribunal had failed to consider that his father was also a victim of Hindu extremists and was murdered in the open street. Counsel for the respondent submitted, however, that the Tribunal had taken this into account both in its summary of the applicant's evidence and claims (CB pp.75-76), and in its findings (CB p.81).

21. It was further submitted by Counsel that the applicant's claim, both in his application for the protection visa and in oral evidence to the Tribunal, was not that he would attract attention and persecution because he was the son of a prominent member of the MIM party, but that he would be a target because he was recognised as having been Mr Sajjad's right-hand man and responsible for Mr Sajjad's winning the local assembly elections, this having given rise to the ire of the BJP and Telugu Desham parties (CB pp.77, 81). In the application for the protection visa, he stated that his father was killed by members of the BJP and Telugu Desham. It was submitted that the applicant did not state the date or the circumstances of his father's death or describe any immediate repercussions for himself. It was further submitted that the applicant did not link his own persecution and fear of harm to the event of his father's death. The reason the applicant gave for his facing persecution was his contribution to the re-election of Mr Sajjad (CB p18). The only actual harm he claimed to have suffered was a severe beating on 23 December 2002, which occurred when he was returning home from a meeting with Mr Sajjad. The applicant stated that other members of his family were threatened (CB p.19), but Counsel submitted that he did not link this with his father's death but rather, gave particular emphasis to the threats having been made by reason of his work as the right-hand man of Mr Sajjad.

22. Counsel also submitted that the Tribunal's account of the oral hearing indicates that the applicant did not elaborate upon his father's death or its implications. The applicant stated that he was targeted because he supported Mr Sajjad (CB p.77), and because members of the BJP and Telegu Desham parties believed that Mr Sajjad won the election because of his support and student votes he had obtained (CB p.77). At the oral hearing he said that the threats to other family members were made because of his activities with Mr Sajjad, not because of his father's earlier activities (CB pp.78-79).

23. Given that the Tribunal found the applicant's claim to be the right-hand man of Mr Sajjad as not credible, Counsel submitted that the applicant failed to satisfy the Tribunal that he faced persecution for a Convention reason. The applicant made no claim that he suffered harm or faced persecution simply because he was the son of his father. The claim about his father was one factual matter raised in the application for the protection visa.

24. It was also submitted that persecution by reason of the applicant's father's activities which led to his death (those activities not having been described by the applicant) was not an integer of the applicant's claim: Minister for Aboriginal Affairs v Peko-Wallsend Ltd; Paul v Minister for Immigration & Multicultural Affairs at [79] per Allsop J ("Paul"); Htun v Minister for Immigration & Multicultural & Indigenous Affairs at [259] per Allsop J. An "integer" of an applicant's claim for asylum is a central element of the claim. The "integers" or aspects of the claim are not be conflated with the evidence given by the applicant in support of the claim: "Paul". The death of his father was not put forward by the applicant as the basis of his claim to be owed protection on a Convention ground. It was part of the evidence the applicant gave, and the Tribunal took it into account. The Tribunal has a duty to consider the claim as it was made by the applicant: Abebe v Commonwealth ("Abebe") at [187]; Re Ruddock; Ex parte Applicant S154/2002 at [57] per Gummow and Heydon JJ (with whom Gleeson CJ agreed). The Tribunal did not have a duty to make out the integers of the claim for the applicant: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 at [32], [43], [49], [50], [57].

25. In respect of Ground (d) the applicant claimed that since most of his comrades were jailed or killed he was not able to provide documents from his party. He claimed that the Tribunal depended on generalised country information and failed to inform him about it. Counsel submitted, however, that the applicant made no claim in his application for a protection visa (CB pp.17-20) or in oral evidence to the Tribunal, that his comrades were jailed or killed. The applicant claimed that Mr Sajjad had been killed by political opponents in the BJP or Telugu Desham party but the Tribunal was not satisfied that Mr Sajjad had been killed for these reasons (CB p.82).

26. Counsel further submitted that the applicant had an opportunity to present his case in writing and orally. It was for the applicant to advance whatever evidence and argument he wished to advance, and for the Tribunal to decide whether his claim had been made out: "Abebe". The applicant requested further time in which to obtain evidence of his membership of the MIM party. The Tribunal granted him additional time, by rescheduling the hearing from 3 until

11 February 2004. During that time the applicant sent the Tribunal newspaper clippings concerning Mr Sajjad's death. A second extension was given until 20 February. No material having been received, the Tribunal made a decision on 24 February. A letter concerning his membership of the MIM party was obtained by the applicant (CB p.66) and was received by the Tribunal on 29 March 2004 (CB p.67). On 29 March the Tribunal member recorded that he did not consider that the letter could alter his findings or decision (CB p.67).

27. It was submitted that under s.422B of the Act it is not open to the applicant to claim a denial of procedural fairness as a ground of review. In connection with Ground (d), the applicant claimed that the Tribunal failed to comply with s.424A of the Act when it took into account general country information. The country information which the Tribunal took into account consisted of the newspaper clippings obtained by the applicant (CB pp.48-58, 82), and country information that the judiciary in India is independent (CB p.85).

28. It was further submitted by Counsel, that the country information relating to the independence of the judiciary in India was not "the reason, or a part of the reason", for the Tribunal affirming the decision of the delegate to refuse the protection visa: see generally VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs ("VEAJ") at [30]-[55]. The test is whether the Tribunal itself considered that the statements were a reason or part of the reason for its decision. As French J held in VEAJ at [41] it is necessary to look at the Tribunal's expressed reasons for its decision, in order to decide whether it considered any of the information to be a reason or a part of the reason for affirming the delegate's decision.

29. Counsel submitted that, on their face, the Tribunal's reasons indicate the statements were not part of a reason for its decision. The Tribunal referred to the country information about the independence of the judiciary when considering the applicant's claim, made in his application for the visa, that the authorities in India were trying falsely to implicate him in different terrorist attacks which took place in India. The Tribunal took into account that the applicant was able to leave India without any difficulty and concluded that it was not satisfied he was wanted on serious terrorist charges: CB p.85. The reference to the independence of the judiciary in India in dealing with any such charges was made as additional reinforcement of the conclusion already reached that the applicant did not face such charges. Section 424A(1) did not therefore apply to the information.

30. It was submitted that in any event, s.424A(3)(a) of the Act excepts the duty of disclosure information "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".

31. It was further submitted that in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs ("VHAJ"), a majority of the Full Court held that information about the right to re-enter and reside in Italy was information which satisfied s.424A(3)(a). In NANM and NANN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs ("NANM and NANN of 2002") at [17] per Whitlam, Finn and Goldberg JJ, the Full Court unanimously held that general country information about the political situation in Bangladesh fell within the exception of s.424A(3)(a).

32. Counsel submitted that the exception was given a narrower operation by the majority approach in NARV v Minister for Immigration & Multicultural & Indigenous Affairs ("NARV") at [29]. On this approach there is a category of country information which is not specifically about the applicant nor just about a class of persons, and which is not excepted by s.424A(3)(a) from the duty of disclosure under s.424A(1).

33. However, it was submitted, in VHAP v Minister for Immigration & Multicultural & Indigenous Affairs ("VHAP"), the Full Court followed VHAJ and NANM and NANN of 2002 rather than NARV, holding that information about the emigration policy of the People's Republic of China in relation to members of Christian, Falun Gong and other groups, fell within the exception in s.424A(3)(a). The second limb was not a cumulative criterion, but simply underlined the specificity required by the first element in s.424A(3)(a): see VHAP at [14] per Gyles and Conti JJ, at [21] per Allsop J agreeing.

34. It was further submitted that in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW ("NAMW"), the Full Federal Court unanimously held that the exception in s.424A(3)(a) did not apply to the country information in question. However, the Court held by a majority (Beaumont dissenting), that the Tribunal denied the applicant procedural fairness. This was an application lodged in the Tribunal before 4 July 2004, to which s.422B did not apply. Beaumont J followed in VHAP at [66]-[71]. Merkel and Hely JJ applied VHAP at [135] to the extent that they held that the second limb in s.424A(3)(a) simply underlines the specificity of the first limb. In NAMW information about the kinds of political activists who experience violence in Dhaka was held to be excepted by s.424A(3)(a) from the duty of disclosure under s.424A(1).

35. Counsel submitted that in accordance with the prevailing authority, country information normally falls within the exception in s.424A(3)(a). The country information was not part of the reason for the finding as to the credit of the applicant. In any event, the information fell within s.424A(3)(a). Further, a breach of s.424A(1) does not, without more, constitute jurisdictional error: Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs ("NAHV") at [23]-[25]; NAMW per Merkel and Hely JJ at [120]. Particulars of the information required to be given may be given to an applicant in the course of the hearing before the Tribunal: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs at [32]-[33]; NAMW per Merkel and Hely JJ at [120]. It was submitted that the Tribunal did this.

36. It was also submitted that in the particulars in Ground (d), the applicant refers to "s.395". Section 395 of the Act does not appear to be relevant. If the applicant intended to refer to the High Court's decision in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs, that decision does not appear to have any immediate relevance to his claims or the reasoning of the Tribunal.

Conclusions

37. The applicant in these proceedings was representing himself with the assistance of an interpreter and has made no oral or written submissions. Two versions of the amended application have been filed in Court on substantially the same issues, although the presentation has been altered considerably. The final form of the amended application has been drafted with the assistance of someone with formal legal training.

38. Where an applicant is self represented in Court, their application must be independently considered to assess whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The respondent Counsel has prepared detailed written submissions which clearly and accurately respond to the grounds pleaded.

39. I am satisfied that the Tribunal took into account the relevant consideration when determining the status of the applicant as a refugee in assessing the applicant's claims and his supporting evidence and I accept the submissions of Miss Allars as set out in paragraph 17 above. In respect of the applicant's claims that he was the right-hand man of Mr Sajjad, the prominent Muslim leader, I believe the Tribunal's finding that this claim was embellished to enhance the applicant's visa protection application was correct.

40. In Ground (d) the applicant challenged the use of generalised country information and the failure to inform him about it, as the basis for the Tribunal's deficient decision making process. This has been addressed in detail in the submissions of Ms Allars and I accept the thrust of that argument.

41. I have not been able to identify any grounds that the Tribunal has committed any jurisdictional error. The applicant's claim should be dismissed.

42. I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 11 November 2004
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