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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well founded fear of persecution for Convention reasons - whether the Tribunal's decision could be categorised as being `unreasonable' according to the Wednesbury test.

SZAAZ v Minister for Immigration [2003] FMCA 133 (2 April 2003)

SZAAZ v Minister for Immigration [2003] FMCA 133 (2 April 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAZ v MINISTER FOR IMMIGRATION
[2003] FMCA 133



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well founded fear of persecution for Convention reasons - whether the Tribunal's decision could be categorised as being `unreasonable' according to the Wednesbury test.



Migration Act 1958 (Cth), ss.91R(1)(b), (c), 474

Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1KB 223

Chan v Minister for Immigration (1989) 169 CLR 379

NASL v Minister for Immigration [2003] FMCA 72

Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484

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

Applicant:
SZAAZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1020 of 2002



Delivered on:


2 April 2003



Delivered at:


Sydney



Hearing date:


2 April 2003



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Mr Michael Jones



Counsel for the Respondent:


Dr M Allars



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1020 of 2002

SZAAZ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for the review of a decision of the Refugee Review Tribunal made on 22 August 2002 and handed down on 11 September 2002. The applicant is a citizen of India. He arrived in Australia on 18 October 1999. He lodged his application for a protection (class XA) visa with the Department on 4 November 1999. On 5 June 2000, a delegate of the Minister refused to grant the visa and the applicant applied for review of that decision on 15 June 2000.

2. The applicant was accepted to be a Tamil who was born in Tamil Nadu and was at the time of the Tribunal hearing approximately 47 years of age. He gave a history of a number of incidents in which he came into contact with Indian law enforcement organisations, commencing in 1986. The first incident involved an intercast riot in which fighting broke out and nine people on the applicant's side were killed. He was charged with attempted murder and instigating riots but was released.

3. In 1990, the applicant attended a demonstration in Madras for which official approval had been refused. A number of persons were arrested, including the applicant who was charged with blocking transport, breaching the ban and continuing with a demonstration that had not been permitted, illegally entering the governor's bungalow, damaging property and hindering government officers in the exercise of their duties. He was imprisoned for 3 months.

4. In 1991, about two months after the assassination of Rajiv Ghandi, the applicant was arrested and questioned. He was detained for three months for the purposes of investigation and was released in 1992. He was then placed on daily reporting conditions.

5. Some time later, the applicant left Tamil Nadu and went into Kerala. There he was picked up for being in breach of his Tamil Nadu reporting conditions and sent to Madras where he was held for six months in the central jail. After his release, he was placed on similar reporting conditions to those previously imposed. In 1994, he spent some time in Singapore but later in that year he was involved in a demonstration in Tamil Nadu. He sustained injuries in the altercation which occurred as part of the demonstration. He was charged with a number of criminal offences including trespass, arson and property damage and was sentenced to 14 months imprisonment. After his release from jail he went to Delhi.

6. It was in Delhi in 1998 that the final incident occurred. The applicant stated that he was walking along the street, late at night, when he was approached by some policemen and they asked him what he was doing, he responded to them in Tamil. He claimed that for that reason he was arrested and taken to the police station where he was held for a few days until it was discovered that he was in breach of other reporting conditions in Madras and was taken to that city. He spent some further time in prison in Madras and was released in April 1999. Shortly thereafter he began to make plans to come to Australia.

7. The Tribunal, in its decision, generally accepted the thrust of the applicants statements, although in respect to the final incident, it says at [97]:

"In my view the applicant has not been entirely frank in his evidence as to the reasons surrounding his arrest and detention in Delhi. Whatever the precise circumstances were surrounding his arrest and detention in 1998 and in the absence of anything more from the applicant, I am not satisfied on the evidence before me that it was owing to his ethnicity, his membership of a particular social group, his involvement in DK or his actual or imputed political opinion."

In its conclusions, the Tribunal stated at [101]:

"Further, I have already observed that the arrests and detentions of the applicant arose in the context of the authority's investigations into the actual commission by the applicant of criminal offences, a perception that he had committed or that he knew about the commission of criminal offences. As I have found, the essential and significant reason for his past arrests and detentions was to facilitate those investigations. On some of those occasions, it was his connection with the Tamil Friendship Association that put him in the position in which he might have been legitimately regarded as a suspect or as being of assistance in the investigations."

8. In effect, the Tribunal found that the reasons for the applicant's treatment at the hands of the Indian police were not convention related.

9. The applicant submits that the Tribunal fell into error in coming to certain conclusions which it did about the 1998 New Delhi incident. He argues that the errors were so unreasonable that no reasonable Tribunal could have come to them and thus they constituted a form of error known as Wednesbury unreasonableness from the case Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1KB 223. The applicant also relies on the dicta of the High Court in Chan v Minister for Immigration (1989) 169 CLR 379.

10. Mr Jones, for the applicant, made a similar argument before me in NASL v Minister for Immigration (2003) FMCA 72. There at [12]

I noted the learned authors of Judicial Review of Administrative Action, 2nd Ed, Aronson and Dyer 2000 had indicated that the bar to a finding of unreasonableness, amounting to a source of judicial review is set exceedingly high and I went on to quote from the judgment of Lord Brightman in Pulhofer v Hillingdon, London Borough Council [1986] 1 AC 484.

"Where the existence or non-existence of a fact is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable, to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom parliament has entrusted the decision making power. Say, in a case where it is obvious, where the public body, consciously or unconsciously has acted perversely."

11. In this case, as in NASL, I feel I can distinguish between the facts in Chan, relied upon by the applicant and the facts before me. It is accepted that in Chan there was a clear cut finding concerning the real chance of persecution which went against the eventual decision of the Tribunal. In this case there is nothing which is clear cut. The applicant made a statement as to the facts of and reasons for his arrest in New Delhi but the Tribunal, for reasons which it gives, found the statements problematical.

12. There is, to my mind, an even more substantial hurdle placed in the face of the applicant and that is the one set by s.91R of the Migration Act 1958 (Cth) (the "Act"). The applicant does not cavil with the finding of the Tribunal that his imprisonment in Madras was related, not to his ethnicity, but to his breach of what was described in the Tribunals decision as bail conditions, although they seem to me more likely to be reporting conditions. Therefore, even if it is accepted that the sole reason why the police picked him up in New Delhi was his ethnicity, all that that caused was his detention for a short period of time before the police discovered that he was wanted in Tamil Nadu and made arrangements for the Tamil Nadu police to collect him and return him to Madras. That type of detention would hardly fall within the provisions of s.91R(1)(b) or (c) of the Act which requires persecution to involve serious harm and systematic and discriminating conduct.

13. Mr Jones, whilst accepting that he has not raised an argument against the findings about the other arrests which occurred to the applicant, says that if the findings about the New Delhi incident are impugned then this affects all the findings of the Tribunal. I do not think that even if this where the case it would get over the problem that I have just discussed. But in any event, I am of the view that the Tribunals findings about the New Delhi incident do not fall to be considered the very rare bird that constitutes Wednesbury unreasonableness.

I certainly do not think that the evidence in relation to this incident is, as claimed by Mr Jones, all one way.

14. In these circumstances, I am not obliged to opine on whether Wednesbury unreasonableness would constitute jurisdictional error which S157 (Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2) says takes a decision out of the reach of s.474 of the Act.

15. I dismiss the application. I order that the applicant pay the respondents costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02 (2)(a) in the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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