NBCN v Minister for Immigration
[2006] FMCA 1931
•21 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBCN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1931 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – citizen of India claiming fear of persecution as a Muslim and for reasons of his political opinion – no reviewable error. PRACTICE & PROCEDURE – Show cause – no reasonable cause of action. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss. 422B, 424, 424A, 430, 439, 440, 474, 476
Migration Legislation Amendment (Procedural Fairness) Act 2002
SZGNY v Minister for Immigration & Anor [2006] FMCA 1142 followed
SZFBJ v Minister for Immigration & Anor [2006] FMCA 1472 followed
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 followed
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 followed
| Applicant: | NBCN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2630 of 2006 |
| Delivered on: | 21 December 2006 |
| Delivered at: | Sydney |
| Hearing date: | 21 December 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Nesbitt |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,500.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2630 of 2006
| NBCN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application by the First Respondent, the Minister, that the Applicant should show cause why his application for review of the decision of the Refugee Review Tribunal should not be dismissed on the basis that it does not show an arguable case for relief.
Background
The substantive application is an application for review of a decision of the Tribunal signed on 9th August 2006 and handed down on 29th August 2006. The Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks the following orders:
a)An order or declaration that the notification by the delegate and Tribunal to refuse to grant the protection visa is invalid and has no effect.
b)A writ of certiorari quashing the decision of the Department of Immigration and Multicultural and Indigenous Affairs or the Refugee Review Tribunal.
c)An order that no action is taken to remove the Applicant from Australia while the decision is pending.
It should first be made clear that the application before the Court is an application to review the decision of the Refugee Review Tribunal so an application for a declaration relating to the notification by the delegate is misconceived. Similarly, the application for an order in the nature of certiorari quashing the decision of the Minister's delegate is misconceived.
The Applicant claims a fear of persecution by Hindu extremists in India. He arrived in Australia on 16th July 2003 and applied for a protection visa on 15th August 2003. His application was refused and he sought a review of that decision by the Refugee Review Tribunal. The Tribunal affirmed the delegate's decision on 28th January 2004. On 29th March 2006 the Federal Magistrates Court made orders by consent setting the Tribunal decision aside and remitting the application to the Tribunal for determination according to law.
The Tribunal invited the Applicant to attend a hearing on 26th July 2006. He attended and gave evidence with the assistance of an interpreter in the Tamil language. The Tribunal assessed the Applicant's claims and rejected them on the basis of adverse findings about his credit. The Tribunal said:
The Tribunal had significant doubt about the applicant's credibility. It formed the view that he was an unreliable witness, particularly in view of substantially differing accounts of key experiences given to the Tribunal at the December 2003 and July 2006 hearings.[1]
[1] Court Book, p.137
The Tribunal went on to find:
On the basis of his highly inconsistent and unconvincing claims at both Tribunal hearings, the Tribunal rejects the applicant's claims to have suffered serious harm in the past from either the Indian authorities or non‑State agencies or individuals.[2]
[2] Court Book, p.137
The Tribunal was not satisfied on the evidence before it that the Applicant had suffered Convention‑based persecution in the past. It then went on to consider whether there was a real chance if he were to be persecuted if he were to return to India in the foreseeable future. The Tribunal then went on to consider independent country information about conflicts between Muslims and the rest of the community in Tamil Nadu.
The Tribunal commented that although the Applicant had made vague claims of being harassed in the past for reasons of his religion he was not able to provide evidence to satisfy the Tribunal that he had been persecuted in the past for that reason.
The Tribunal was not satisfied that there was a real chance the Applicant would be persecuted for reasons of his religion in his home state of Tamil Nadu if he were to return to India in the foreseeable future.
The Tribunal then turned to consider the Applicant's claims that he had been victimised by the authorities and by individuals at the instigation of a politician. The Tribunal was not satisfied on the basis of the Applicant's serious lack of credibility that he suffered serious harm as a result.
The Tribunal commented that the Applicant's claims, whilst they had not been made out, rested on his real or imputed political opinion in exposing corruption in the government.
The Tribunal was not satisfied that there would be a real chance that the Applicant would be persecuted for reasons of his political opinion if he were to return to India. Accordingly the Tribunal was not satisfied that the Applicant had a well‑founded fear of Convention‑based persecution if he were to return to India in the foreseeable future and affirmed the delegate's decision not to grant a protection visa.
The Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 18th September 2006. In his application he sets out three grounds which are these:
a)A breach of rules of natural justice occurred in connection with the making of the decision. RRT made an error when they failed to comply with the s.424A of the Migration Act 1958.
b)The Tribunal failed to internalise the circumstantial ground of the review application and weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents and such has breached s.424, s.430, s.439 and s.440 of the Act.
c)The Tribunal in its decision of 9 August 2006 failed in its written statement that a breach of the rules of natural justice, therefore it rises[3] the ground under s.476 of the Migration Act.
[3] sic
The Applicant has not filed any written submissions. He attended Court today unrepresented and with the assistance of an interpreter in the Tamil language. He told the Court that a friend of his had drafted his application for him. When asked about the claim for breach of natural justice set out in the first ground the Applicant said that if he were given one more chance he may be able to produce some more evidence. He went on to say that he could definitely produce some more evidence but he had been physically not quite well before the second Tribunal hearing.
When asked by the Court about the second ground of his application and as to what it meant precisely the Applicant told the Court that he was not in a position at the time to explain that but would have to go back and find out.
In reply to the Court's question about the meaning of the third ground the Applicant was again not in a position to provide an answer. When given the opportunity to speak about his case generally the Applicant told the Court that he had presented all of the facts and was unable to say the reason as to why the Tribunal did not accept his presentation.
The solicitor for the First Respondent filed written submissions on 18th December 2006. She described the Applicant's grounds of review as ‘Bland, unparticularised grounds of review’.
As to the Applicant's first ground, the First Respondent submits that there was no breach of s.424A of the Migration Act as the information relied upon by the Tribunal falls into the exception in s.424A(3)(b) of the act because it was given to the Tribunal for the purposes of the application for review. In addition, s.422B of the Migration Act applies to the matter.
The First Respondent submits that the Applicant's second ground does not disclose any ground upon which it could be concluded that the decision of the Tribunal was attended by some error. There is no foundation for any claim that the Tribunal failed to attend to the material before it. There is no breach of ss.424 or 430. No particulars of the claim are provided and it is not apparent that ss.439 and 440 apply to the Tribunal decision.
The First Respondent submits that it is difficult to comprehend what the Applicant's third ground is actually alleging. To the extent that the Applicant simply disagrees with the conclusion on the facts that is not a proper basis for a judicial review. In oral submissions the First Respondent's solicitor, Ms Nesbitt, put to the Court that if the third ground relates to a claim of a breach of the rules of natural justice as was raised in the first ground, then not only is there no evidence of any failure to provide natural justice but the provisions of s.422B of the Migration Act apply.
In reply to the Applicant's oral submissions Ms Nesbitt submitted that the Applicant was taking issue with the merits of the Tribunal's decision and therefore merits review, i.e. a challenge to the factual conclusions of the Tribunal, is not a matter for a Court to deal with on an application for judicial review.
The Applicant chose not to make any other submission.
Conclusion
In considering the material before me I turn first of all to the Applicant's first ground in which he claims a breach of the rules of natural justice occurred and that the Tribunal made an error of law by failing to comply with the provisions of s.424A of the Migration Act.
It is clear that when the Tribunal made its adverse findings about the credibility of the Applicant's evidence the Tribunal relied on inconsistencies between the Applicant's oral evidence, given at the first Tribunal hearing on 3rd December 2003 and the second Tribunal hearing on 26th July 2006.
Ms Nesbitt submitted for the Minister and in my view correctly, that it was open to the Tribunal to take that information into account. I was referred to the decision of SZGNY v Minister for Immigration & Anor [2006] FMCA 1142 at [21]-[22]. The information falls within the exception contained in s.424A(3)(b) of the Migration Act because it was given to the Tribunal for the purposes of the application for review. Accordingly there was no obligation on the Tribunal to provide the Applicant with particulars of the evidence given at the first hearing in writing under s.424A. See SZGNY at [31] and also SZFBJ v Minister for Immigration & Anor [2006] FMCA 1472 at [9].
In addition, s.422B of the Migration Act applies to this matter. This section was introduced by the Migration Legislation Amendment Procedural Fairness Act (2002) which applies to applications for review made on or after the date of commencement which was 4th July 2002.
For the purposes of this application Div.4 of Part 7 of the Migration Act constitutes an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with. In any event, as a matter of fairness the Tribunal did raise these issues with the Applicant at the hearing and allowed him an opportunity to respond (see Court book at pp.134 and 135). Ultimately the Tribunal was not persuaded by the Applicant's explanations about these inconsistencies.
Having regard to the inconsistent evidence and having regard to the Applicant's failure to mention that he was detained for three months in 1998, which the Applicant did not mention at the earlier hearing, the Tribunal did not accept any of the Applicant's claims[4].
[4] Court Book at 137
These factual findings about the Applicant's credibility were open to the Tribunal on the material before it and it is well established that findings on credibility are matters of fact for the Tribunal and should not be disturbed by the court (see in particular Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] and also NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]).
The Applicant's second ground complains that the Tribunal “failed to internalise the circumstantial ground of the review application and in weighing both the subjective and objective claims in the review application that the Tribunal has breached ss.424, 430, 439 and 440 of the Act.” It is not surprising that the Applicant was not able to explain to the Court exactly what this claim, which had been prepared by a friend of his, actually meant.
If it is a claim that the Tribunal failed to attend to the actual material before it that claim is not made out. The references to the four sections of the act are somewhat confusing. Section 424 is a section of the Act which provides that the Tribunal may get any information that it considers relevant but it does not impose any obligation upon the Tribunal to do so.
The Tribunal did not seek any additional information and there is no basis for claiming that the Tribunal did not comply with s.424 of the Act.
Section 430 of the Act is the section that requires the Refugee Review Tribunal to record its decision. Sub‑section 430(1) says:
Where the Tribunal makes its decision on a review the Tribunal must prepare a written submission that
(a) sets out the decision of the Tribunal on the review ;
(b) sets out the reasons for the decision;
(c) sets out the finding on any material question of fact;
(d) refers to the evidence or any other material on which the findings of fact were based.
In my view the Tribunal complied with s.430(1). The Tribunal's decision record sets out the decision, sets out the reasons and the findings and refers in some detail to the evidence from which the findings of fact were based. There is no breach of s.430.
Neither s.439 which refers to the disclosure of confidential information or s.440, which empowers the Tribunal to restrict publication or disclosure of certain matters, applies in this case. The second ground has not been made out and there is no breach of any of the four sections referred to.
Ground 3 is also somewhat difficult to comprehend. If it is an allegation purely of a breach of the rules of natural justice by the Tribunal then it must fail because there is no evidence of any failure to provide natural justice. In any event the natural justice hearing rule has been codified by s.422B of the Migration Act and the section provides that the particular subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule and in relation to the matters it deals with.
As the solicitor for the Minister pointed out s.476 of the Migration Act relates to the jurisdiction of the Federal Magistrates Court. The jurisdiction of the Federal Magistrates Court is being exercised in the hearing of this application but there is no jurisdictional error by the Refugee Review Tribunal made out by this ground. There is no breach of the rules of natural justice.
The fact is that the Tribunal was not satisfied about the credibility of the Applicant's claims. Credibility is a matter for the Tribunal. There is evidence upon which it was open to the Tribunal either to accept or reject the Applicant's claims on a credibility basis. The Tribunal took the view that it did not accept the Applicant's evidence was credible. In my view that is entirely a matter for the Tribunal.
The Applicant has not made out any jurisdictional error. I am mindful of the fact that the Applicant is not legally represented. Indeed it appears that his application for review was prepared by a friend who is apparently not legally qualified.
I have read through the Tribunal decision and the supporting material that appears in the Court Book in order to ascertain whether any arguable case for a jurisdictional error appears. I am unable to discern any. As there is no jurisdictional error the Tribunal decision is a privative clause decision as defined by sub‑section 474(2) of the Migration Act therefore the decision is final and conclusive and it is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court.
The application will be dismissed.
There is an application for costs on behalf of the Minister in the sum of $2,500.00. The Applicant has been wholly unsuccessful in his claim and I see no reason why I should not make an order for costs in favour of the Minister. The applicant is prepared to pay the costs in the sum of $2,500.00 but is not working and is unable to pay that amount immediately.
In my view the amount of costs is a reasonable and appropriate figure. I will take into account the fact that the applicant is not currently in employment and I will allow three months to pay.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 December 2006
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