SBJF v Minister for Immigration
[2006] FMCA 1953
•23 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBJF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1953 |
| MIGRATION – Protection visa application – Albanian national alleging persecution on account of membership of Democratic Party – application to review decision of Refugee Review Tribunal not to grant visa dismissed as no jurisdictional error apparent. |
| Migration Act1958 (Cth), s.476 Judiciary Act1903 (Cth), s.474 |
| Craig v State of South Australia (1995) 184 CLR 163 Plaintiff S158 of 2002 v The Commonwealth (2003) 195 ALR 24 NAHI v The Minister of Immigration and Multicultural and Indigenous Affairs (1004) FCAFC 10 SCAL v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 |
| Applicant: | SBJF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG 223 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 23 October 2006 |
| Date of last submission: | 23 October 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 23 October 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Dr C D Bleby |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application filed on 10 August 2006 be dismissed.
That the applicant pay the first respondent's costs of and incidental to these proceedings, fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 223 of 2006
| SBJF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Secnd Respondent
REASONS FOR JUDGMENT
This is an application pursuant to section 476 of the Migration Act. Pursuant to that section, this court has the same jurisdiction as the High Court in relation to matters of judicial review pursuant to paragraph 75(v) of the Constitution of the Commonwealth of Australia.
The provisions of section 476 subsection (2) do not apply, this not being a primary decision, but the provisions of section 474 do apply and the determination of the Refugee Review Tribunal in this case will be a privative clause decision and, hence, final and conclusive unless that decision can be shown to have been vitiated by or attended with jurisdictional error as that concept was explained in the context of proceedings pursuant to Part 7 of the Migration Act in Plaintiff S157 of 2002 v The Commonwealth (2003) 195 ALR 24 and as explained more generally in other High Court decisions, such as Craig v the State of South Australia (1995) 184 CLR 163.
The application was lodged in this court on 10 August 2006. It impugned by way of assertion as to jurisdictional error the determination of the Refugee Review Tribunal made on 30 June 2006, but no further particulars as to the nature of the jurisdictional error are described in the document and, for the reasons that have been explained today by the applicant, there was no written submission filed setting out his contentions of fact and law, the reason proffered being his inability or incapacity or failure to retain legal representation to assist him in the preparation of such a document.
Notwithstanding the failure to particularise in any way the nature of the jurisdictional error contended, it is incumbent upon the court, it seems to me, to review carefully the decision record of the Refugee Review Tribunal, namely the Reasons of 30 June 2006, to ensure that, in determining the applicant’s application for a protection visa, the tribunal has gone about its work in a way which can be characterised as discharging its duties and its obligations under the Migration Act.
The application was for a protection visa. The applicant arrived in Australia at the beginning of the year on a business visa, but shortly after his arrival it became clear that he was contending that he was a person to whom Australia owed obligations under the Refugee Convention and Refugees Protocol.
The tribunal had before it the written material he had filed with the department, it had a statutory declaration dated 7 June 2006 and it had the material put before it by the applicant at a hearing on 14 June 2006.
On 15 June 2006 the tribunal wrote to the applicant asking him to comment upon various matters in discharge of the obligation pursuant to section 424 of the act, and that elicited a further statutory declaration of the applicant dated 28 June 2006.
It was upon its consideration of all of that material that the tribunal came to a determination that the applicant was not a person to whom Australia owed obligations under the Refugee Convention and Refugees Protocol and it did so plainly, upon a consideration of its Reasons, because it came to a conclusion that the applicant did not hold a well‑founded fear of persecution for any convention-related reason and, in particular, on account of his membership of or association with a political party in which he, his father and his brother had been involved.
The application itself was accompanied by a letter from a migration agent which suggested the application was one which said that the refugee status of the applicant was referable both to his political opinions and membership of a social group. But it is plain, upon a reading of all the material that the applicant relied upon, that those two matters were inextricably related.
The applicant contended that his father and he and his brother had been members of a political party - the Democratic Party - in Albania and that his father and his brother, and more generally the family and he had been the objects of acts of violence and intimidation on account of their membership of that political party such that ultimately the applicant was advised by his father to leave the country. That followed an earlier internal relocation by the family as a result of what is alleged were the acts of violence and intimidation.
I do not propose to set out the account of those acts and those events giving rise to the fear, which are dealt with in some detail in the Tribunal's Reasons, but ultimately the tribunal was not satisfied of matters which must be regarded as fundamental to an acceptance of the applicant's claim to refugee status.
In particular, the tribunal was not satisfied that the applicant's father suffered the violence which the applicant contended that he had. In particular, the tribunal found, at page 190, that it did not accept that the applicant's father was injured and hospitalised as a consequence of such an attack. Similar considerations arise in relation to the shooting of the applicant's brother. At page 191:
“The tribunal does not accept the applicant's explanation that the hospital issued a document which did not reflect the true nature that the applicant's brother was in hospital, in circumstances where the applicant has been unable to provide consistent evidence as to the number of wounds suffered by his brother and the length of period for which he was hospitalised. The tribunal finds that the applicant's claim that his brother was shot is lacking in credibility and does not accept that this event ever occurred.”
It was really upon a consideration of the inconsistencies between the different accounts of his family's experience and the different accounts of his own experiences that the tribunal came to the conclusion at page 192, which must be thought to be seminal to the ultimate conclusion it reached, that the tribunal did not accept that the applicant or his family were ever threatened, targeted, pursued or harmed in any way by members of the Socialist Party or anyone associated with the Socialist Party.
“It does not accept that the applicant and his family were ever forced to hide in Shkodra or elsewhere in order to avoid such harm.”
Further on in that paragraph:
“The tribunal simply does not accept as credible the applicant's claims concerning the targeting of him and his family. It does not accept that the applicant or other members of his family were ever of particular interest to anyone in or associated with the Socialist Party.”
It should be noted that the Socialist Party was the principal political opponent of the Democratic Party at the elections which took place in Albania in 2005. The tribunal was fortified in the conclusions it has reached by a consideration of the country information which, whilst indicating some concerns in relation to individual acts of political intimidation of members of the Democratic Party, the tribunal found was overwhelmingly in favour of the contention that members of the Democratic Party were able to participate freely in the political process without suffering persecution.
Ultimately, it is on account of the inconsistencies identified, which I do not propose to repeat in these reasons, that the tribunal came to that determination. It can be seen as a decision that has been reached primarily, if not exclusively, upon the basis of assessments of the creditworthiness of the applicant's account.
It is not possible, as I say, to identify in anything the applicant has put before this court as to what it said is the jurisdictional error, but before me today he has indicated that what he has said before the tribunal and implicitly during the course of the delegate's conduct of a consideration of the application on behalf of the minister is true; it is apparent that in some way the applicant is inviting me to take a different view of the various factual contentions which were seminal to the determination, and the Refugee Review Tribunal has itself.
Merits review, of course, is an impermissible exercise for this court and no part of the function of the court in dealing with an application for relief under section 476 of the Migration Act. So much is plain from a number of Full Court, Federal Court and High Court determinations; for example, NAHI v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at [10].
The tribunal appears to have discharged its obligations pursuant to section 424A in drawing to the applicant's attention those matters which concerned it - in particular, the inconsistencies in his various accounts, which the tribunal ultimately relied upon in determining his ineligibility for a protection visa - and afforded him an opportunity to respond to its delineation of those concerns and, indeed, took into account those responses.
I am unable to identify, from my consideration of the tribunal's reasons, any manner in which it misapprehended its obligations in terms of its assessment of the applicant's claim for refugee status. Ultimately, in view of the tribunal's findings, whether or not the application for refugee status was characterised as one based on political opinion or membership of a social group would not seem to be of any great moment because of the findings both as to the lack of credibility as to an account of his own experiences and his account of the experiences of his family, as I have indicated.
Even had it been the case that there had been some acceptance of the applicant's account of the significant events alleged in relation to his father and his brother, the applicant would have confronted the difficulties arising from section 91S, particularly as that section has been interpreted by previous decisions of the Federal Court and, in particular, by von Doussa J in the matter of SCAL v the Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548.
There being no jurisdictional error apparent in the way in which the tribunal went about its task, the application for judicial review will be dismissed.
It seems to me that an order for costs ought to follow the event of a determination. The application ultimately did not provide any sort of particularity in relation to the jurisdictional error contended. The applicant has been wholly unsuccessful and, in my view, there ought to be an order for costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lindsay FM
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