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MIGRATION - Application to review decision of Refugee Review Tribunal - whether bias - whether denial of natural justice.

SZBZF v Minister for Immigration [2004] FMCA 697 (29 September 2004)

SZBZF v Minister for Immigration [2004] FMCA 697 (29 September 2004)
Last Updated: 8 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBZF v MINISTER FOR IMMIGRATION
[2004] FMCA 697



MIGRATION - Application to review decision of Refugee Review Tribunal - whether bias - whether denial of natural justice.



SCAS v Minister for Immigration & Multicultural Affairs (2002) FCAFC 397 at 19

Minister for Immigration & Multicultural Affairs v SBAN [2002] FCAFC 431

Re; Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425

Muin v Refugee Review Tribunal (2002) 190 ALR 601

Lie v Refugee Review Tribunal (2002) HCA 30

Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425

Applicant:
SZBZF



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ2543 of 2003



Delivered on:


29 September 2004



Delivered at:


Sydney



Hearing date:


29 September 2004



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr R Bromwich



Solicitors for the Respondent:


Clayton Utz


ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ2543 of 2004

SZBZF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 28 October 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia on 31 December 2002. He lodged an application for a protection visa on 23 January 2003, supported by a statement in which he claimed to fear religious persecution in India as a Muslim. He claimed that India was a country dominated by Hindus, that Muslim's were blamed whenever a terrorist act took place, that many had died in police custody or in hospitals due to police mistreatment and that things had worsened since the September 11 terrorist attacks.

2. The application was refused on 28 February 2003 and the applicant sought review by the Tribunal. He added a claim that his uncle had been taken into custody while staying with him and had not been heard from since. He also claimed that he had been involved in Muslim protests which had resulted in him being sought out. The Tribunal held a hearing on 27 August 2003 at which the applicant gave evidence.

3. The Tribunal reasons for decision record the claims made by the applicant in his original application and thereafter, including new claims made to the Tribunal about the applicant becoming politically active around 1995 or 1996, the arrest of his father and the detention of the applicant by police who were said to have questioned him about involvement in a violent clash after a cricket game in December 2001. He also claimed to the Tribunal that there were repeated visits by the police to his home in February and May of 2002.

4. The respondent's written submissions accurately summarise the findings of the Tribunal. The Tribunal reasons for decision record how the review was conducted. There is no other evidence before the Court as to the conduct of the Tribunal hearing. In particular the Tribunal records that it asked the applicant why Shiv Sena supporters would have a sustained interest in seeking him out despite his modest role within the Samajwadi (the Socialist Party (SP)). In reply the applicant speculated that it may have had something to do with his uncle's contacts with more senior politicians. He was not able to provide further details as he said that his uncle did not discuss such matters with the family.

5. The Tribunal put to the applicant independent evidence that while there were instances of political harassment by Shiv Sena's supporters of others, they were not systematic and did not occur everywhere. It recorded the applicant's concession that not all Muslim people were subject to such treatment and his claim that he had been singled out and that this might be attributable to the 1992 conflicts between Hindus and Muslims and in particular his uncle's involvement in that period. The Tribunal also put to the applicant whether it would be possible for him to move to the Mira Road district of Mumbai where his family were now residing. It records his response that this would be difficult and that he expected he would tracked down and threatened if he relocated there.

6. Importantly, the Tribunal advised the applicant of independent information, such as that the police and authorities in India generally sought to prevent violence and apprehend perpetrators where it did occur. The applicant was given an opportunity to comment on this information and responded that this was a generalisation and that in 90% of cases the police failed to respond, albeit that the response rate was higher with the upper classes and those prepared to pay bribes. However he also confirmed that he had approached the police to complain about threatening calls and that the police had placed up posters of his uncle to seek public assistance in their investigations. It is also notable that the reasons for decision record that at the end of the hearing the Tribunal indicated to the applicant that it had concerns regarding the evidence which had been presented to it thus far and put to him that he had not experienced, nor did he appear likely in the foreseeable future to experience harm that would give rise to a well founded fear of persecution. In response the applicant was said to have disclosed a scar on his lower right abdomen and claimed that this had occurred on his daughter's birthday, 6 October 2002, when he had been attacked by three men in the common bathroom area adjoining the family home. One of the men was said to be the brother of a Shiv Sena leader who had been killed in 1992. He told the Tribunal that he believed the reason for the attack was that his name was on a list of people linked to the 1992 conflict.

7. The Tribunal questioned the applicant as to why he had failed to mention this attack previously, given its potential importance. The applicant responded that it appeared to have been an omission on the part of his lawyer's assistant. He later stated that he had been apprehensive about sharing the information with the Tribunal.

8. The Tribunal reasons for decision sets out independent information and its findings and reasons in considerable detail. It accepted the applicant's account of his religious education, employment background and the circumstances which led to him joining the SP in 1995/96. It characterised the applicant's initial application as containing an implied claim of persecution on the basis of general discrimination against Muslims and found that this, of itself, did not provide a basis for a well-founded fear of persecution. Having regard to information about the situation in India it accepted, however, that there may have been a blurring of issues relating to religion and political opinion in the application and accordingly considered the entirety of the applicant's claims.

9. It accepted that there had been a post cricket match brawl in December 2001 and that the applicant was subsequently detained by the police investigating the cause of clashes between the local team and the opposing team and that the police had indicated to him the reason for his detention and that he was released within the period required by law without any evidence of maltreatment. It concluded that the applicant was detained in order to investigate the cause of the brawl in accordance with the normal administration of Indian law.

10. The Tribunal found any suggestion of the applicant that the police acted in a discriminatory manner and in association with Shiv Sena to be unsubstantiated, suggesting it would appear unexceptional for police investigating crowd violence to call event organisers to account, particularly where they had included in a program political elements which might be expected to provoke crowd tension, as here. The Tribunal also noted the applicant's failure to mention his detention in these circumstances in either his initial protection visa application or in his application for review. This indicated to the Tribunal that he did not consider it relevant to his claims at that time and further supported the Tribunal finding that the detention, as an individual act, did not involve serious harm or discriminatory conduct such as to constitute persecution.

11. The Tribunal also considered but rejected the applicant's claim made at the end of the hearing that he was attacked in October 2002 by three men acting on behalf of Shiv Sena. It found the applicant's various reasons for having omitted this information to be inconsistent. Also that other aspects of the account considered accumulatively led the Tribunal to conclude that the evidence was not reliable. It gave reasons for these conclusions. It described the inconsistencies and the elements which led it to conclude that the account was not considered reliable, including the different accounts given by the applicant of his daughter's birth date; the claim of hospitalisation after the attack being inconsistent with the issue of an Australian visa to the applicant at that time and the inability of the applicant to explain why Shiv Sena supporters were holding him to account for events which occurred prior to his involvement in politics.

12. On the basis of these matters the Tribunal found that the circumstances in which the claim was advanced and the inherent inconsistencies led it to find that it was not credible. It did not accept that the incident occurred and rejected it as a basis for any claims that the applicant had experienced, or was likely to experience, persecution in the foreseeable future.

13. The Tribunal did, however, accept the applicant's claim that his uncle had been taken from the applicant's house and that his whereabouts was still unknown. It acknowledged that this was a source of consternation for the applicant and his family. However it found the applicant's claim of ongoing police harassment did not sit well with his confidence in approaching them for assistance in other matters such as malicious phone calls from Shiv Sena and the disappearance of his uncle and the alleged attack at the end of 2002, and his acknowledgment that missing person notices had been posted and that the police had taken other appropriate measures (albeit that he was generally frustrated with the lack of progress). The Tribunal found that the police calls on the applicant's home did occur but were not of a threatening nature. It was satisfied that the applicant's family had received a number of threatening phone calls but not satisfied that the police were involved, or that the calls amounted to serious harm and therefore persecution for the purposes of the Refugee Convention. Nor was it satisfied that the police were involved in the claimed kidnapping of the applicant's uncle. It found that even though the applicant may mistrust local police, his subsequent approaches to them indicated that he did not have a subjective or well-founded fear of persecution stemming from police action.

14. The Tribunal found that the applicant had not been able to satisfy it that a link existed between his uncle's disappearance and the ongoing threat he claimed to face from Shiv Sena supporters, or how such a link might have arisen. It accepted that an SP colleague of the applicant had been murdered and that his sister had been harassed, but did not accept that these incidents demonstrated that the applicant faced a real chance of persecution. It had regard to the absence of reference to these incidents in the applicant's written claims.

15. The Tribunal also noted independent evidence in relation to the situation in India at the relevant time. It found that although some violent incidences had been reported there was no recent information of systematic violence or harassment by Shiv Sena supporters against Muslims in Mumbai. It considered such independent evidence lent further weight to its conclusions that the applicant was not subject to an ongoing campaign by Shiv Sena. It did not accept that attacks on Muslims in Mumbai would not have been reported as claimed by the applicant.

16. The Tribunal did accept that local political pressure surrounding the applicant's withdrawal from municipal election candidacy, including the malicious calls from Shiv Sena supporters and the unsolved disappearance of his uncle, had led to apprehension on his part which had prompted him to concentrate on business rather than political affairs and move his family to a Muslim dominated area of Mumbai. However, it found that neither the incidents in February and March 2002, nor the uncle's continued absence represented an ongoing threat to the applicant. It found it significant that the applicant remained in India from March to December 2002 and did not experience any harm during that time except some malicious telephone calls and a visit from the police in May 2002. It was not satisfied that those incidents constituted persecution and found that the applicant did not have a genuine and well-founded fear of persecution.

17. The Tribunal did not accept the applicant's claim that the police failed to protect him and his family in the manner claimed. It noted independent evidence that there were sometimes shortcomings in the way in which authorities implemented protection, but was satisfied there was no general failure on the part of the State to protect the applicant in the past, or that it would be unable to provide adequate protection in the future.

18. Moreover, having discussed the issue of relocation with the applicant during the hearing, the Tribunal found that it would be reasonable in all the circumstances for him to relocate to either Mumbai or elsewhere in India should he remain apprehensive; having regard to matters such as his age, business experience and command of the Hindi language. It found no independent evidence or substantiated claims from the applicant upon which to find that Shiv Sena supporters based in Mumbai district, where his family now lived, would pursue him or organise for his pursuit if he were to relocate.

19. In conclusion the Tribunal found that the applicant did not have a well-founded fear of persecution on the grounds of religion, stemming from general discrimination against Muslims, or a well-founded fear of persecution with respect to the specific claims arising from his and his uncle's political activities on the ground of political opinion.

20. The applicant sought review in this Court by an application filed on

24 November 2003. The application lists seven general and unparticularised grounds. The applicant also filed written submissions at the commencement of the hearing. As the applicant is unrepresented, I have considered all of the material before me in order to determine whether or not any jurisdictional error is apparent in the reasons for decision or procedures of the Tribunal. In that respect I note that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision which give a detailed account of matters dealt with at that time.

21. The most significant claims made by the applicant are those elaborated upon in his written argument. The first of those is a claim of actual bias which, in his application for review, may be seen to be contained in the grounds that there was bad faith and that a decision was preset in the back of the Tribunal's mind. No particulars of bias are contained in the applicant's written or oral submissions other than his disagreement with the conclusion of the Tribunal. Although expressed in terms of actual bias, I have considered whether either actual or apprehended bias is apparent on the material before the Court.

22. However there is nothing in the material before me to establish either apprehended or actual bias (Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425 at [27]-[32]). The Tribunal was under an obligation to consider the claims made by the applicant and to give him an opportunity to meet any concerns held by it. It is apparent from the reasons for decision that the Tribunal did so in the course of the hearing. However, as contended by the respondent, while this may have been difficult and indeed even perhaps confronting for the applicant, addressing such issues does not establish bias or bad faith.

23. There is nothing in the material before me to suggest that there is any lack of an honest or genuine attempt to undertake the task or anything that would justify an attack on the honesty of the decision-maker, SCAS v MIMA (2002) FCAFC 397 at [19]. Nor is there anything in the material before me to suggest that there is bias, be it actual or apprehended. The fact that the Tribunal found it necessary to conduct a hearing, not being satisfied on the material before it that the applicant was a refugee does not of itself establish any bias. I refer to the comments of Heerey and Kieffel JJ in MIMA v SBAN [2002] FCAFC 431 at [11], in that respect. Beyond this there is nothing in the material such as to suggest that a fair-minded observer or properly informed lay person might readily infer that there was no evidence that the applicant could give which would change the decision-maker's view. There is nothing in the material before me to suggest that the Tribunal had pre-determined the matter. On the contrary, it is apparent from the Tribunal reasons for decision that the applicant was given every opportunity in the Tribunal hearing to make his claims and to address the Tribunal concerns and that moreover, the Tribunal went to the extent of raising with the applicant, its concerns at the end of the hearing regarding the evidence which had been presented to it so far, as not indicating past or likely harm giving rise to a well founded fear of persecution.

24. A ground of natural justice is expressed generally without particularisation in the application. In the written submissions it is contended that the principles in Muin v RRT (2002) 190 ALR 601, Lie v RRT (2002) HCA 30 are applicable, although there is no further explanation of the relevance of this case. However on the material before me there is nothing to suggest that the principles of Muin are applicable in the present instance. In particular, there is no evidence before me to suggest that the factual matrix found in Muin is established here, that the applicant was misled in any way or that there is anything to suggest that the applicant could have done anything to make any difference to the outcome of the case.

25. Moreover, in relation to this claim and any general claim in relation to natural justice, country information relied upon by the Tribunal was, according to the Tribunal reasons for decision, put to the applicant in the course of the hearing. It has not been established on the material before me that particular relevant material relied on by the Tribunal was not put to the applicant for comment. Indeed, the Tribunal went so far as to reveal its preliminary thought processes and reasoning in the course of the hearing. It gave the applicant an opportunity to put further information to it and to comment. No lack of procedural fairness is apparent. That conclusion means that it is not necessary for me to consider the impact of section 422B.

26. There is no failure to comply with section 424A established insofar as that is suggested by the applicant. In the written submissions the applicant stated that the Tribunal rejected his claims because his written evidence was inconsistent in relation to major issues and that the Tribunal did not treat this matter as a section 424A issue.

27. However section 424A does not oblige the Tribunal to put to the applicant inconsistencies in the applicant's own evidence, and in this case the complaint of the applicant relates to the material he put before the Tribunal. Insofar as some of that material was put to the department in the original protection visa application it is clear from the Tribunal reasons for decision that the Tribunal did in fact raise with the applicant concerns about his evidence and gave him an opportunity to expand upon and clarify his claims. No lack of procedural fairness is established in the manner in which the hearing was conducted on the material before me.

28. The other claims made by the applicant are that the Tribunal denied the evidentiary proof of his claim, that the decision did not reflect the material facts of his claim, that it mixed up many facts with this decision which affected the decision and that it concentrated on particular facts while ignoring many other facts. None of these grounds establish any jurisdictional error. They amount to a disagreement with the Tribunal's fact-finding process and the weight which it gave to particular aspects of the evidence before it. Such matters are matters for the Tribunal and do not establish a jurisdictional error. Insofar as the applicant seeks merits review merits review is not available in this Court. As no jurisdictional error is apparent the application must be dismissed.

RECORDED : NOT TRANSCRIBED

29. The applicant complains that he was not informed that he would have to pay costs. I note however that the question and information sheet which was completed and signed by him at the time of the directions hearing (having been interpreted) indicates the possibility of liability for costs for an unsuccessful applicant. The applicant commenced these proceedings. He has been unsuccessful and in the ordinary course of events an unsuccessful applicant would be liable to meet the costs of the respondent. I am not satisfied in the circumstances of this case that there is anything to warrant departure from the ordinary principle. It is appropriate that the applicant meet the respondent's costs. Bearing in mind the nature of this and other similar matters the amount of $4000 is appropriate.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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