S1781 of 2003 v Minister for Immigration - [2004] FMCA 1038

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1781 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 1038

MIGRATION – RRT decision – judicial review not subject to Part 8 limitations – Indian student claimed adverse information was not put to him – no evidence in support – no error of law found.

Migration Act1958 (Cth), s.483A, Part 8

Migration Legislation Amendment (judicial review) Act 2001 No. 134, 2001 (Cth)

Judiciary Act 1903 (Cth), s.39B

SZAWW v Minister for Immigration [2003] FMCA 479

Applicant:

APPLICANT S1781 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1584 of 2004

Delivered on:

20 December 2004

Delivered at:

Sydney

Hearing date:

20 December 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1584 of 2004

APPLICANT S1781/2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed in this Court on 27 May 2004 which invokes the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth). It seeks an order that a decision of the Refugee Review Tribunal handed down on 12 April 2000 should be quashed. The Tribunal affirmed a decision of a delegate made on 30 November 1999 which refused to grant a protection visa to the applicant. He applied for the visa on 15 October 1999, after arriving in Australia on 22 April 1998.
The Court's jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present proceeding, that jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth). Amendments made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) replaced provisions in Part 8 of the Migration Act, so as to significantly limit the powers of the Courts to give relief in relation to a Tribunal decision if it is found to be a “privative clause decision”.
However, in relation to decisions made before the commencement of the amendments on 2 October 2001, they are subject to transitional provisions found in cl. 8 of Sch.1 of the amending Act. Relevant to the present Tribunal decision, under cl 8(2)(b) the amendments apply “in respect of judicial review of a decision under the Migration Act 1958 if … as at that commencement, an application for judicial review of the decision had not been lodged.”
In the present case, the Minister concedes that “as at 2 October 2001” the applicant was party to an earlier application seeking judicial review of the present decision of the Tribunal, being proceedings then on foot in the High Court of Australia in which the applicant was named as a represented party. The Minister also concedes that by reason of the applicant's participation in those proceedings at the commencement of the present Part 8, the limitations in relation to privative clause decisions do not apply to his present proceedings in this Court.
This position appears to have been taken by the Minister in many proceedings and, although I am not confident that it is based on a proper interpretation of clause 8, I accept the concession. It was accepted by Driver FM in SZAWW v Minister for Immigration [2003] FMCA 479 in relation to a case where at the date of commencement there was no pending application for judicial review of any sort, but where prior to the commencement a judicial review proceeding brought by the applicant had been finalised. In 2003 the applicant commenced a new challenge, which the Commonwealth conceded was not subject to any legislative restraints. Driver FM accepted the concession, and held that the Court had jurisdiction in the matter under s.483A which was unaffected by any limitation under either the new or the former provisions of Part 8.
In matters thus freed from restraints under Part 8, the Court's powers to grant relief remain discretionary according to the general principles applicable to the granting of administrative law remedies. However, in the present case the Minister does not put forward any argument that the Court should refuse relief based on discretionary considerations. I therefore have not found it necessary to explore the applicant’s explanations for his delay in commencing the present proceedings.
I have addressed the proceedings and reasons for the present Tribunal decision on the basis that I can give relief, and should do so, if I am satisfied that any ground for quashing the decision is made out, for example, based on error of law or breach of the tribunal's obligations of procedural fairness.
The present applicant arrived in Australia in April 1998 on a student visa which expired in October 1999. Shortly before it expired he applied for a protection visa. In his application he said that he had completed studies at a Polytechnic in Punjab in August 1996 and had joined "the Hindu Smaj Rashtrial Party" which “demands that India should be established totally as a Hindu state. Our party expressed its doctrine that the state should not follow secular policies and should not allow communal forces to further divide India.”
He said that he had written a book advocating the approach of his party in getting the Kashmiri dispute resolved, and as a result he had been threatened by the Sikh and Muslims. A group of Sikh extremists “fired on our house and a message was left on our door that our family must leave Punjab.” In April 1998 his parents left the northern state of Uttar Pradesh, and he left India to pursue his studies in Australia. He claimed that “on 12 September 1999 the extremists have murdered my father and uncle who were also members of the Hindu Rashtrial Smaj Party.”
In his application he foreshadowed that he would provide documents which had not been included with his application, being newspaper cuttings, letters, the book he wrote and articles of the party. None of this material was ever given to the delegate or to the tribunal on appeal. The applicant did produce a letter written to him by a friend.
The Tribunal's reasons set out the claims made by the applicant in his original application, and narrate what he told the Tribunal in the course of its hearing. The Tribunal drew to the applicant’s attention that it had difficulties with the letter from the friend, because it was postmarked December 1998 and was put forward as corroboration in relation to the death of the father in 1999. Further, according to the Tribunal, it clearly put to the applicant that it had been unable to find any independent country information about the party in which the applicant claimed to have been active, and also raised other matters of concern to it. It also says that it discussed with the applicant country information referred to later in its reasons, which indicated that State protection would be available to the applicant if he was threatened in India.
The Tribunal's reasoning under the heading "Findings and Reasons" is too extensive for me to set out in these reasons. The Tribunal felt it appropriate to give secondary reasons for affirming the delegate's decision as well as its principal reason. In my view, it is clear that the tribunal's principal reason for affirming the decision was its conclusion:
After considering all the evidence the Tribunal does not accept the applicant's claims as genuine, but rather, finds that they have been fabricated for the purpose of the protection visa application.
Leading up to that conclusion, the Tribunal gives a number of reasons for taking that view as to the applicant's claims, including:
·an unconvincing explanation for the omission from the applicant’s original statement of significant and memorable matters which the applicant told the tribunal of at the hearing;
·the absence of knowledge as to the circumstances of his father and uncle's murder;
·the discrepancy in relation to the letter tendered at the hearing;
·the applicant's lengthy delay in lodging his primary application after his arrival in Australia;
·the absence of independent evidence as to the party alleged by the applicant; and
·the applicant's lack of knowledge in relation to the Indian party BJP.
Only in relation to the last of these matters did the Tribunal's reasoning rely upon foreign country information.
In my consideration of the Tribunal’s reasons and the other material in the Court Book, I was unable to identify any error of law which would allow the Tribunal’s decision to be quashed.
The application to this Court was accompanied by an affidavit which purported to provide the grounds on which judicial review was sought in two sentences:
Information that was adverse to my claims was used in the making of the decision which was not put to me. If the information was put to me I could have supplied evidence supporting my claims.
No particulars of the information which was alleged not to have been put to the applicant were contained in the affidavit. No particulars have subsequently ever been provided to the Court, notwithstanding that the applicant was directed prior to the hearing to file an amended application with particulars and a written submission setting out his arguments. He did neither of these.
On the evidence before me, I am unable to identify any information material to the Tribunal's decision which was not fairly put to the applicant in the course of the hearing.
The applicant appeared today at the hearing, and his only point was that in fact the Hindu Smaj Rashtrial Party does exist, so that the delegate and the Tribunal were in error in doubting this. He agreed that he had not himself put forward any information to the Tribunal concerning this party, and was unable to show me that in fact the Tribunal had before it any information concerning the party which it had overlooked.
The point raised by the applicant does not provide any ground for finding that the Tribunal made an error of law. Indeed, the applicant has not shown that the Tribunal has made any error of fact on the material that was before it. Nor has he established any failure to accord procedural fairness.
In effect, the applicant’s submissions to me were asking for another chance to persuade the Tribunal on the merits of his visa application. However, as I have indicated I can find no basis for giving him the relief he seeks.
I therefore dismiss the application.

RECORDED : NOT TRANSCRIBED

I shall order the applicant to pay the respondent's costs in the sum of $4000.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 19 January 2005