S1910 of 2003 v Minister for Immigration
[2006] FMCA 902
•22 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1910 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 902 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 420, 424, 424A |
| NAHI v Minister for Immigration [2004] FCAFC 1 |
| Applicant: | APPLICANT S1910 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG819 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 22 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr C Mantziaris |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG819 of 2004
| APPLICANT S1910 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 January 1998 and notified to the applicant by letter dated 2 February 1998. The RRT affirmed a decision of a delegate of the Minister not to grant the Minister a protection visa. Relevant background facts relating to this matter are set out in the Minister's submissions filed on 20 June 2006. I adopt as background for the purposes of this judgment paragraphs 2 through to paragraph 7(e) of those written submissions:
The applicant is a citizen of the Republic of India who arrived in Australia on 21 December 1994: court book, page 59.
He lodged an application for a protection visa (class XA) on 2 March 1995: court book, page 1. The applicant claims that he fears persecution on the basis of his membership of a Muslim organisation called ‘Jamala Islamia’ or ‘Jamaat–e–Islami UP’ or an organisation of a similar name: court book, pages 6.5, 90.4.
The Minister’s delegate refused the application for a protection visa on 12 December 1995: court book, page 44. The RRT affirmed the decision of the Minister’s delegate on 2 February 1998: court book, page 79. These proceedings were part of the ‘Muin & Lie’ class actions.
The application
The application should be taken to state the grounds of review as follows:
a)Findings of fact – The RRT made incorrect findings of fact on (i) credibility; and (ii) independent country information: application, paragraphs 1(a), (b) & (d).
b)Section 424A – The RRT breached s.424A(3) by failing to provide information to the applicant: application, paragraph 2.
c)Procedural fairness – The RRT failed to afford the applicant with ‘an opportunity to deal with independent country information relied upon by the RRT, that was credible, relevant and significant to the RRT’s decision: application, paragraph 1(c). The RRT stated that it had made the decision on the basis of all the Part B documents contained in the departmental file, but it did not have all the Part B documents: application, paragraph 1(f).
The RRT’s findings
The RRT had before it the Department’s file and written submissions made by the applicant: after the hearing. The applicant appeared before the RRT at the hearing and gave oral evidence. The RRT also considered material sent to it by the applicant: court book, pages 81, 89.10.
The RRT made the following findings –
a)Credibility: Many of the applicant’s claims were implausible; his evidence was ‘prone to embellishment and exaggeration’. The RRT ‘doubted’ the applicant’s credibility and ultimately found that he had ‘concocted’ his story. The RRT could neither be satisfied nor accept any part of the applicant’s story. ‘The applicant’s demeanour and responses to questions gave the impression that he had rehearsed his evidence, but not well enough as he performed poorly in relation to important details’: court book, pages 89.5 & 92.10–93.1.
b)The RRT was not satisfied that the letter which purported to be from Jamaat–e–Islami was genuine: court book, page 90.1.
c)The RRT was not satisfied that the applicant was ever a member of Jamat–i–Islami or Jamaat-e-Islami Hindi: court book, page 90.4.
d)There were substantial inconsistencies in the applicant’s evidence which went to the root of the applicant’s claims: court book, page 92.9. These inconsistencies were listed by the RRT at court book, pages 90–92 (and the RRT’s handling of the inconsistencies is addressed in Table 1 below).
e)The RRT was unable to be satisfied from the evidence before it that the applicant has a well–founded fear of persecution. The RRT found that the applicant is not a person who satisfies the criterion set out in Migration Act 1958 (Cth) (“the Migration Act”), s.36(2): court book, page 93.2.
The applicant relies upon his amended application filed on 5 November 2004. He sought to tender in support of his amended application three documents which I located in the Court's correspondence file.
I declined to accept those documents as evidence as the applicant told me that they were not before the RRT at the time of its decision. He has come by them later. As I understood him, he considers that the documents support his claims to be a refugee. I regarded the significance of those documents, if any, as beyond the scope of this proceeding.
In his amended application the applicant relies upon two grounds and gives a number of particulars, some of which are unhelpfully not related to the grounds. As I understand the amended application, the applicant asserts a want of procedural fairness both under the general law and under the Migration Act. To the extent that the applicant relies upon a breach of the Migration Act the assertion appears to be limited to an asserted breach of s.424A of the Migration Act. I accept the Minister’s interpretation of the amended application
I received as evidence the book of relevant documents filed on behalf of the Minister on 20 August 2004 and an affidavit by Felicity Anne Kerr filed in court today to which is annexed a transcript of the hearing conducted by the RRT on 11 December 1997.
In his oral submissions the applicant concentrated on the merits of the RRT decision as he sees them and also upon the consequences of an accident the applicant says he suffered on 15 May 1996. The applicant says that he was attacked on that day and suffered head injuries, as a result of which he has suffered epileptic fits and memory loss. The applicant is concerned that the RRT made the wrong decision and that the outcome was affected by his medical condition. While I do not rule out the possibility that the applicant's concerns are well-founded, the fact is that the RRT was not put on notice of any medical condition suffered by the applicant prior to the RRT decision. If the RRT had been put on notice of the applicant's medical condition it could have, and I would expect would have, taken that condition into account.
The first particular supporting ground 1 of the amended application is an assertion that the RRT presiding member was wrong in stating that the applicant did not provide an original of a letter referred to in the RRT decision. That letter appears to have assumed some significance in the RRT decision. The letter in issue is reproduced on pages 76 and 77 of the court book. It appears to have been provided under cover of a letter from the applicant's solicitors dated 23 December 1997 and reproduced at pages 74 and 75 of the court book. The presiding member records on page 89 of the court book in his reasons an assertion from the applicant's adviser that the letter reproduced on pages 76 and 77 of the court book had been on the Departmental file. The presiding member did not accept that assertion. Later on page 89 of the court book the presiding member says:
The applicant has not provided an original of the letter despite undertaking to do so. The letter is signed but the signature is illegible and no title is given to indicate the qualifications of the writer to provide such a letter. The letter is self-serving. It was not provided to the Tribunal until after the Tribunal hearing, despite the applicant's adviser's claims that it was on the departmental file prior to the processing of his Freedom of Information request (17 April 1996). The letter is dated 10 March 1997. The Tribunal is not satisfied that the letter is genuine.
If it could have been established on the facts that the presiding member was mistaken as to the provenance of the letter and when or if it had come to be on the Department file, that could have been significant. However, on the state of the evidence before me, it appears to me that the finding made by the presiding member concerning the letter was open to him on the material before him.
I see no jurisdictional error in the treatment by the RRT of that letter. There is no substance to the asserted breach of s.424A of the Migration Act. As is noted in the Minister's written submissions, that section was not enacted until 1999, well after the decision of the RRT.
The amended application also asserts that there was a denial of procedural fairness in the RRT’s use of country information referred to on pages 95 to 102 of the court book. That country information was a DFAT cable bearing number ND84486 and dated 6 July 1992. The cable dealt with a wide range of issues, most of which appear to have had no bearing on this case. What the presiding member did appear to regard as relevant was the part of the cable dealing with the issuing of passports. The presiding member, in discussing what occurred at the hearing conducted by the RRT, deals with that issue on pages 87 and 88 of the court book. It appears that the cable formed some part of the presiding member's reasoning that there was a lack of credibility in the applicant's claims concerning his departure from India.
As is noted in the Minister's written submissions, the RRT was entitled to have regard to country information. I adopt for the purposes of this judgment paragraph 10 of those submissions:
The RRT was entitled to rely on the country information. In NAHI, the Full Federal Court stated:[1]
By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
[1]NAHI v Minister for Immigration [2004] FCAFC 1, [11] (special leave refused 10 March 2005: [2005] HCATrans 126).
I also accept from the transcript of the RRT hearing that the country information was referred to in the course of the RRT hearing (see in particular typed page number 46 of the transcript at about point 5). I see no procedural unfairness in the use by the RRT of the country information.
A remaining issue concerns whether the RRT proceeding was unfair because of a failure by the presiding member to disclose adverse material which proved relevant to the disposition of the case. This centres upon the adverse credibility findings made by the presiding member. The presiding member detailed concerns that he had about the applicant's claims on pages 90 to 92 of the court book. The Minister's legal advisers have examined those concerns by reference to the transcript and have identified that all of them, with the exception of two, were raised with the applicant at the hearing. The two which it appears were not clearly raised were item number 3 on page 90 of the court book and item number 10 on page 92 of the court book. The second may be partly addressed by the discussion which did occur at the hearing about the country information.
The Minister makes two submissions in relation to this issue. The first is that it cannot be said that the decision of the RRT would be different if the two items of concern were deleted. The presiding member had serious and extensive concerns about the credibility of the applicant's claims and in general these were raised with the applicant at the hearing. I accept that it is most improbable that the decision would have been any different if item 3 on page 90 and item 10 on page 92 were not present.
The Minister also accepts that there is no evidence of practical unfairness flowing from the non‑disclosure of those concerns, that is true. I have no evidence of what, if anything, the applicant could or would have said to the presiding member to deal with those concerns.
I find that the presiding member did meet the obligation of disclosure arising under the general law in relation to the general issue of his credibility concerns about the applicant's claims and that to the limited extent that the particulars of those claims were not disclosed there is no evidence that practical unfairness resulted.
The amended application also asserted unfairness in relation to the part B documents referred to in the delegate's decision on page 45 of the court book. When asked by me the applicant was unable to support the assertion in the amended application that those part B documents were, in fact, not before the RRT and were not considered by it. I find that there is no evidence to support the assertion of procedural unfairness concerning the part B documents.
Having considered the amended application and on my own perusal of the RRT decision no jurisdictional error is apparent to me. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $5,000. The applicant appeared not to consider that any submissions he might make would be useful on that subject. I agree that $5,000 would be an appropriate award of costs on a party and party basis.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 July 2006
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