BZAAS v Minister for Immigration - [2011] FMCA 513

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZAAS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 513

MIGRATION – Refugee Review Tribunal – judicial review – jurisdictional error – irrationality or illogicality – procedural fairness.

Migration Act 1958 (Cth), ss.414, 424A, 425, 474(2)

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Applicant:

BZAAS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 1257 of 2010

Judgment of:

Burnett FM

Hearing date:

14 June 2011

Date of Last Submission:

14 June 2011

Delivered at:

Brisbane

Delivered on:

14 June 2011

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondents:

Mr B. McGlade

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application filed 20 December 2010 be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1257 of 2010

BZAAS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant, who claims to be a citizen of Sri Lanka arrived in Australia on 4 August 2008 and applied to the Department of Immigration and Citizenship for a Protection Class SA Visa. He made an application on 16 September 2008. The delegate decided to refuse to grant the visa on 12 March 2010 and notified the applicant of that decision and his review rights by letter dated 15 March 2010. The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
The applicant applied to the Tribunal on 31 March 2010 for review of the delegate’s decision and following a hearing before the Tribunal the Tribunal decided on 30 November 2010 to affirm the delegate’s decision. On 20 December 2010 the applicant applied to this court for a judicial review of the Tribunal’s decision seeking orders for either certiorari to quash the Tribunal’s decision or mandamus directing the Tribunal to reconsider the application according to law. The grounds of the application were:
a)that the decision of the Tribunal was affected by jurisdictional error; and
b)that the Tribunal failed to complete the exercise of its jurisdiction because it did not address the totality of the applicant’s claim.
The Tribunal’s decision was a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 (Cth) (the Act). It cannot be reviewed unless it can be shown to be tainted by jurisdictional error. The applicant’s case before the Tribunal is that he was a Sri Lankan national, that he was born on 17 November 1965 and came from Iranaikkemy in the Trincomalee district in Sri Lanka. He has a wife and son who were born in Sri Lanka. He and his wife had a grocery shop. He says that one day the army asked him to attend army camp. He did that and when he arrived army officers accused him of providing grocery items to members of the LTTE.
He says that he was interrogated and tortured by the army officers and detained by the Sri Lankan army for a week. He says he was released from army camp on the condition that he attended army camp every week and sign in for three months. He says at the end of June during this three month period or after there were two further incidents. The first he says occurred around midnight one night when a number of army officers surrounded his residence. That seems to be the extent of that allegation. He says that later, during the day which followed that incident, two soldiers attended at his residence in civilian clothes and threatened him.
He says those threats included threats to kill both him and his family. He says that shortly after he and his family fled Sri Lanka by boat to travel to India and then upon his arrival in India he was arrested by police and sent to a refugee camp in Tamil Nadu. He then says that he travelled on an Indian passport to Australia, which passport was obtained by an agent for him. He says the passport contained his photograph but a different name, date of birth and issue date, all of which approximated one year before he departed for Australia.
Now, the Tribunal, having heard this material confirmed the decision of the delegate. It was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal’s decision is principally based upon adverse findings of fact made against the applicant. In particular, key findings by the Tribunal rejected the applicant’s contentions as to his identity. The Tribunal concluded that the applicant’s true identity was that contained in the Indian passport and that at all times he was, in fact, an Indian citizen: (See in particular the decision at paragraph 129). The Tribunal’s conclusion was that the applicant’s contentions as to his history and circumstances in Sri Lanka were entirely fictitious and made for the purpose of obtaining a protection visa.
Central to the Tribunal’s findings concerning the applicant’s identity were the applicant’s passport and the applicant’s refugee identity card. The applicant had produced to the Tribunal an Indian passport which he said he had used to travel from India to Australia. He stated to the Tribunal that he had obtained an Indian passport some 10 to 11 months prior to coming to Australia, and that he had obtained it through an agent to whom he had paid 600,000 rupiah. He says in that he had little involvement in obtaining a passport other than signing the documents provided to him by the agent.
In particular it is noted that the passport was numbered G4197630. It contained a photograph of the applicant, which the applicant accepted was a photograph of him. It recorded the applicant’s name as BZAAS #1 and not BZAAS, the name he asserted before the Tribunal. It recorded his date of birth as 6 April 1962 and not 17 November 1965, the date of which he asserted before the Tribunal, and it had an issue date of 26 July 2007. The Tribunal made inquiries through the Australian Department of Foreign Affairs and Trade (DFAT) which revealed that the passport was a genuine and properly issued Indian passport.
DFAT also provided the Tribunal with other information relevant to Indian passports and in particular this passport. The information was that the Indian passport authorities confirmed that the person whose photograph appeared in the passport was issued a previous passport to passport G4197630. Their records indicated that this person was issued passport number A3639975 and that that passport had been issued in 1997. Further information by the department was that Indian passports only issued to Indian citizens.
Such information was directly contradictory to the applicant’s assertions. It indicated that the applicant was actually an Indian citizen and had been so for some time; at least since the issue of the past passport in 1997. Consistent with its obligations pursuant to s.424A of the Act the Tribunal put this allegation to the applicant in writing and stated that this matter might lead the Tribunal to doubt, among other things, the genuineness of the applicant’s assertion that he was a Sri Lankan national. The applicant’s response was to the effect that he had little to do with obtaining the passport and that the agent who obtained the passport for him told him it would contain his photograph.
He also told the Tribunal that the agent had informed him that the passport may be issued under a different name and date of birth, and there may be a number of copies. The applicant alleged corruption on the part of Sri Lankan authorities. At paragraph [126] to [127] of the Tribunal’s decision, the Tribunal examined and discussed this issue. It concluded that given the police verifications in respect of the issue of the passport in 1997, it did not accept the applicant’s explanation about obtaining the passport in 2008 through an agent. It found on the basis of information before it, the applicant was in fact issued with a passport in 1997 following this.
This was made following the usual police checks in relation to identity. In addition the applicant was unable to provide a satisfactory explanation for this, and contended that he had no idea about these matters, and that an agent had made all the arrangements for the passport. He suggested that the Indian authorities were corrupt and unreliable, and that they were responsible, and he was then victimised by the Indian bureaucratic system. The Tribunal did not accept these matters having expressed the view that there was no apparent motivation for the Indian bureaucracy to do this, and concluded that the information obtained through the DFAT was more reliable.
It concluded the Indian passport was a genuine and properly issued Indian passport.
The second matter concerned the refugee identity card. The applicant had produced to the Tribunal a Sri Lankan refugee’s identity card as evidence of his time as a refugee in Tamil Nadu. The Tribunal provided a copy of the refugee identity card to the DFAT and requested information. At paragraph [123] of the decision, the department’s response was noted as follows:
“The refugee identity card has the appearance of a genuine identity card, but the details are not completed correctly. A genuine identity card does not include the village number, in this case, 113, along with the village name on the front cover. The refugee identity card was not genuinely issued by the Tamil Nadu Government. Tesilda Namak Kau, Mr Rajas Kahna advised that there is no record of a card with that number being issued. He stated that the refugee identity card is counterfeit and that it was never issued to the person with the details indicated in the refugee identity card.”
Pursuant to s.424A of the Act, the Tribunal put the DFAT refugee identity card information to the applicant, and stated to the applicant that these matters might leave the Tribunal to doubt, among other things, the genuineness of his assertion that he is an Indian refugee, and that he was in an Indian refugee facility as he asserted. The applicant’s response was that the refugee identity card was not counterfeit. At paragraph [128] of its decision, the Tribunal discussed this matter and concluded:
“The applicant insists that the Sri Lankan refugee identity card is genuine, although the information provided by the Tamil Nadu authorities indicated that it was counterfeit. The Tribunal has considered the applicant’s claims about matters such as the lack of centralised or computerised database, the lack of a uniform system, differences in refugee identity cards, and the manner in which such cards were issued.”
It noticed that the applicant did not detail in what manner the cards from other camps were a little bit different. It noticed that the information from DFAT indicated that the identity card was not genuinely issued, and that the identity card was counterfeit, and that it was never issued to the person whose details show on the document. Now, while the implication from the applicant’s submissions would appear to be that the Indian authorities reached such a conclusion without any sound basis for doing so, the Tribunal considers that the information from DFAT is clear and it accepted it as reliable. It does not accept as plausible any suggestion that the information obtained by DFAT was somehow tainted by corruption or an effort by the Indian authorities to victimise the applicant.
Regardless of whether refugees in Tamil Nadu are registered with the UNHCR, the Tribunal found that the information before it clearly indicated the Sri Lankan refugee’s identity card submitted by the applicant was not genuine. Other information available to the Tribunal which led it to its conclusion included information concerning the applicant’s international drivers licence, an envelope addressed from BZAAS at 1272 Wynnum Road Tingalpa to his son at an address in India, the “dob-in letter” and the purported Sri Lankan birth certificate.
The Tribunal found that the applicant was, in fact, an Indian citizen. Specifically, the Tribunal rejected that the applicant was born in Sri Lanka and that he and his family lived there. It rejected, too, his assertion that he was ever subject to any difficulties with the authorities as a consequence of association with the LTTE, that he had to leave Sri Lanka as he alleges, and that he lived in the Tamil Nadu refugee camp in India as a refugee.
It concluded that he would not suffer any persecution in Sri Lanka if he were to go there. In addition, the Tribunal considered that if the applicant was to return to India, it did not accept that he would suffer persecution from the Indian authorities on the basis of being a Sri Lankan refugee.
Against that background, the applicant has advanced two grounds in his appeal.
The first ground is that the decision is illogical. In Minister for Immigration and Citizenship v SZMDS,[1] the test for illogicality was stated as follows.
“[130] In the context of the tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[1] [2010] HCA 16
In this case, the Tribunal’s logical processes are evident and were sound. Simply put: the Tribunal rejected the applicant and his evidence as to who he said he was. Critically, this finding was based on evidence from DFAT, which indicated the applicant, was, in fact, an Indian national.
All other findings flowed from that. Essentially, however, that matter was a matter of fact open to the Tribunal and in respect which the Tribunal was best positioned to resolve.
The second ground advanced by the applicant was a complaint concerning a want of procedural fairness. The complaint was unparticularised. Notwithstanding that matter, there is nothing to indicate on the face of the record that the Tribunal failed to accord the applicant procedural fairness. The material in the appeal book demonstrates that all the Act procedures were complied with. In my view, that matter requires no further comment.
The third ground advanced by the applicant is a failure to comply with s.414 and s.425 of the Act. So far as the complaint under s.414 is concerned, it is difficult to ascertain the factual basis upon which the applicant relies to press this ground. The Tribunal clearly reviewed the delegate’s decision and its determination was to affirm it. That decision was notified to the applicant by registered post. No failure to comply with the requirements of s.414 is apparent.
Concerning a non-compliance with s.425, again the non-compliance does not appear apparent. By a letter dated 25 April 2010, the Tribunal invited the applicant to attend and give evidence and present arguments at the hearing. The applicant, in fact, completed a response to hearing invitation form dated 30 April and attended before the Tribunal on 21 May. By a letter of 6 September 2010, the Tribunal invited the applicant to attend another hearing to give evidence and present arguments and the applicant attended in response before the Tribunal on 1 October 2010. There appears to be no basis for that complaint.
In summary, the applicant has not demonstrated any of the grounds asserted in his application for judicial review and the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 21 July 2011