SZAFV v Minister for Immigration

[2003] FMCA 456

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFV v MINISTER FOR IMMIGRATION [2003] FMCA 456

MIGRATION – Application for review of decision of Refugee Review Tribunal No jurisdictional error – Application dismissed.

Migration Act 1958

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Applicant NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 33
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant: SZAFV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ281 of 2003

Delivered on: 18 September 2003

Delivered at: Sydney

Hearing Date: 18 September 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms S McNaughton

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ281 of 2003

SZAFV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, a citizen of India, arrived in Australia on 5 December 2002 travelling under his own passport and on a visitor's visa.  He is a Muslim of Tamil ethnicity.  On 17 January 2001 he lodged an application for a protection visa.  A delegate of the respondent refused to grant a protection visa on 31 May 2001.  The applicant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision on 20 June 2001. 

2. On 6 February 2003 the Tribunal handed down a decision affirming the decision of the delegate not to grant the applicant a protection visa.  The applicant sought review of that decision in this court by application filed on 5 March 2003.  In the application the applicant set out three grounds of review:

   “1. The decision maker failed to follow the procedure that we required by the act to be observed while deciding the case and the applicant leading to the conclusion that the decision maker had not acted in good faith in making the decision and also the decision maker did not endeavour to exercise it’s (sic) functions and powers to review the applicant’s application.

   2. The decision maker also had identified the issue from India is based on the Govt rules and regulations not the genuine situation previously in the state as well as in the country and also ignoring the relevant material and making a mistaken conclusion thereby committing an error of law constituting jurisdictional error. 

   3. The decision maker has exceeded his ? exercise of power in ? committing an error of law thereby constituting a failure of exercise jurisdiction.”

3. The applicant did not file written submissions prior to the hearing as ordered but at the start of the hearing tendered what was described as a written argument which he said had been prepared for him with the assistance of a migration consultant.  As the applicant is self-represented, I have considered the claims in his application and in his written argument and also whether the material before me reveals any jurisdictional error. 

4. The applicant set out his claims for refugee status in some detail in his initial application, first in a handwritten document (at pp25-28) and after in almost identical terms in a typed Statutory Declaration with an annexure (pp41-46).  He submitted additional documentary material to the Tribunal including two further written submissions, one of these filed following the hearing. 

5. The applicant specifically claimed the following:

   “a)from October 1993 to March 1997 he was a member of the All India Jihad Committee (‘AIJC’).  The Tribunal accepted this claim. 

   b)in March 1997 he joined the Tamil Nadu Muslim Munnetra Kazhagam (‘TMMK’).  The Tribunal accepted this claim.

   c)between 1992 and 1997 he was arrested by the police on at least 6 or 7 occasions.  With the exception of one claimed arrest on 10 October 1994 (discussed at pp189-190, and rejected because of the timing and manner in which it was raised) the Tribunal accepted the applicant had been arrested and detained as claimed on 6 occasions.  However, it found that this had resulted from the applicant’s participation in communal violence, the commission of serious crimes or major security incidents (p187.2 and 191.5).  On each occasion the applicant had been released without charge.

   d)In 1998, following bomb attacks in Coimbatore, hundreds of people were arrested and detained.  The applicant claimed that police attended his house in his absence, looking for him, as he had been accused of being the potential recipient of explosive materials.  For a number of reasons the Tribunal rejected the applicant’s claim that he was genuinely being sought by the authorities (pp192ff).  In summary, the Tribunal found that it was not credible on the one hand that the applicant was being sought in relation to a criminal and security matter, yet on the other, was able to leave India shortly after the incident using his own passport from an airport in his home state.  The independent evidence showed that persons of interest to the authorities in relation to criminal or national security matters would be unable to pass through an airport undetected if using a passport in their own name.  The Tribunal also found that even if the applicant was fortunate enough to be able to leave undetected on the first occasion, it was not credible that he would be able to sustain such good fortune during two trips to India using his own passport in May 1999 and August 2000.  Furthermore, the applicant had stayed in his own village in May 1999 for 3 days, then stayed in the city of Trichy for 20 days, and had married in his own village with attendant publicity in August 2000, (staying there for about 10 days) yet was not arrested or detained by the police on any of those occasions. 

   e)He had been told by his family he was still being sought by police (p193-4).  The Tribunal rejected this claim given the lack of supporting evidence and the low level of police interest in him whilst he was present in India in 1999 and 2000.  In any event, the Tribunal found that if the applicant was being sought by police it was in connection with a serious criminal and security offence for which he would be accorded a fair trial in India if charged. 

   f)Future harassment by police.  The Tribunal rejected this claim (p195-6).  It found that at the time of the Coimbature blasts, the applicant was a member of the TMMK.  The leaders of that organisation were arrested soon after the incidents but were released soon after.  There was no evidence to show TMMK members were being subjected to any systematic crackdown by authorities.  Independent evidence showed the TMMK to be a moderate political force whose support was sought by major parties during elections.  The Tribunal stated that it found the applicant’s fear was of ‘prosecution and not persecution by the Indian authorities’ (p.194-5).

   g)Inability to continue further studies because of continuous arrests and harassment by the police (p197).  The Tribunal rejected this claim given the existence of long periods without any arrests or encounters with police.  The Tribunal further did not consider lack of access to higher education per se constituted persecution within the meaning of the Convention.”

6. In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 which in essence held that decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Migration Act are reviewable. As the Full Court of the Federal Court stated in Applicant NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 33:

   “The privative clause provision in section 474 does not apply to decisions which involve jurisdictional error and does not apply in particular to decisions which do not comply with the principles of natural justice.”

7. The grounds set out in the application do not contain any particulars. No amended application containing particulars was filed. The applicant complains first that the Tribunal failed to follow procedures required under the Migration Act. The claim is repeated in the written argument but no particular procedures are identified. On the material before me there is nothing to suggest that the Tribunal failed to follow any procedures required under the Migration Act. In particular it is clear from the material before me that the applicant had the opportunity to, and did, attend a hearing. He had the opportunity to make submissions to the Tribunal both before and after the Tribunal hearing. The Tribunal has published reasons for its decisions as required by the Act. Such reasons were open to it on the material before it. The applicant alleges that in not following the requisite procedures, the decision maker did not act in good faith, or endeavour to exercise the requisite powers or functions under the Migration Act 1958. Insofar as he seeks merits review of the Tribunal decision, such review is not available in this court. There is no indication that the Tribunal failed to follow procedures or did not act in good faith.

8. Nor is there anything to support the applicant's claim that the decision maker ignored relevant material, reached a mistaken conclusion or otherwise committed a jurisdictional error.  It appears that the applicant may be suggesting that the Tribunal committed a jurisdictional error in the sense considered by the High Court in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 in ground to in his application. However on the material before me it is clear that the Tribunal considered all of the applicant's claims and the integers of the applicant's claims in careful and considered detail. It provided cogent reasons for rejecting the claims of the applicant. Insofar as it is alleged that the Tribunal did not have regard to particular material (such as related to the situation in India), on the contrary it is clear from the Tribunal reasons for decision that it had regard to all of the material submitted by the applicant, as well as to independent country information available to it. The weight to be attributed to such material is a matter for the Tribunal.

9. Nor is there anything to support the general suggestion without particularisation that there was a constructive failure by the Tribunal to exercise its jurisdiction. 

10. In relation to the written argument tendered to the court today, I have considered each of the claims in turn.  First it is contended that the Tribunal did not consider the applicant's claims to be a refugee.  As mentioned above, insofar as there is some criticism of the Tribunal's use of independent country information, there is no error apparent in the manner in which the Tribunal dealt with the material before it.  It is a matter for the Tribunal what weight it attributes to particular information and the Tribunal's findings were open to it on the material before it. 

11. Secondly, the claim of non-observance of procedures is repeated.  There is no specification of procedures said not to have been observed.  As stated above I am not satisfied that there is any evidence that any requisite procedures were not observed by the Tribunal. 

12. Third, the applicant complains that the Tribunal ignored the merits of his claim.  Merits review is not available in the court.  As to the associated complaint that the Tribunal did not take into account the ‘verdict’ from the independent country information on India in relation to the independence of the judiciary ‘despite many evidentiary proofs; only because of country information, the country information is not the independent as like the report of Amnesty International’ (which according to the applicant was ‘higher judiciary display significant role of independent (sic) but the lower judiciary control by the administrative body’), the Tribunal in its reason for decision set out an extract from independent information in relation to the Indian judicial system.  In its findings it accepted that as indicated by the independent evidence the Indian constitution provides for an independent judiciary and the government generally respects this provision in practice and went on to deal specifically with aspects of the Indian criminal procedure and judiciary of relevance to the applicant's claims.  It stated:

    “In the event the applicant faces criminal charges upon return, the Tribunal is satisfied that he will be accorded a fair trial,  As indicated by the independent evidence cited above, the Indian Constitution provides for an independent judiciary, and the Government generally respects this provision in practice.  When legal procedures function  normally, they generally assure a fair trial and the Criminal Procedure Code provides for an open trial in most cases, but allows exceptions in proceedings involving official secrets, trials in which statements prejudicial to the safety of the State might be made, or under provisions of special security legislation.  Defendants have the right to choose counsel from attorneys who are fully independent of the Government.  Sentences must be announced in public and there are effective channels for appeal at most levels of the judicial system, and the State provides free legal counsel to the indigent.  Defendants are allowed to question witnesses against them, present their own witnesses and evidence, and have access to government evidence held against them.  The Tribunal found no evidence that Muslims are discriminated against in their access to the Indian justice system because of their religion; nor was there any evidence before the Tribunal to suggest that unfairly large penalties are directed as Muslims if they are convicted under a law of general application.”

13. The applicant’s concerns about the distinction between the higher and lower levels of the judiciary are addressed generally and in its findings as to effective channels for appeal.  It cannot be said that the Tribunal failed to take into account the country information.  No error is established in connection with the Tribunal's treatment of this aspect of the applicant's claims. 

14. Written arguments 4, 5 and 6 are blankly stated claims without any supporting particulars.  There is nothing to suggest that the Tribunal did not act in good faith, that it misjudged the fate of the applicant's claims or that it made a number of errors to decide the fate of the applicant's claims, in a manner constituting jurisdictional error. 

15. Written argument 7 is that the applicant claims that the Tribunal ignored relevant evidence and made findings in the face of contradicting independent evidence and that this indicated actual bias constituting jurisdictional error.  The party alleging actual bias carries a heavy onus.  It will, as the authorities establish be a rare case in which actual bias can be demonstrated solely from published reasons.  In this case all that is before the Court is the published reasons.  It has not been established that the Tribunal prejudiced the applicant’s claims or that actual bias is otherwise established.  As indicated above the Tribunal took into account all the relevant integers of the applicant's claims and dealt with his claims.  Insofar as the applicant disagrees with findings of fact a jurisdictional error has not been established. 

16. Written argument 8 repeats to some extent the claim of actual bias on the basis that the Tribunal failed to consider or investigate the applicant’s claims.  The Tribunal did consider the applicant's claims as put to it.  It is for the applicant to make his case, not for the Tribunal to investigate in the manner suggested by the applicant.  No actual bias has been established nor is there anything on the material before me to suggest that in any other way there has been a denial of natural justice or breach of procedural fairness as argued. 

17. The applicant refers generally to a number of cases in written arguments 9 and 10 suggesting that they are relevant but not explaining how.  While it is the case that if a jurisdictional error or denial of natural justice were established the application would be reviewable in accordance with Plaintiff S157, no such error has been established.  Nor is it apparent on the material before me that SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 and Muin v Refugee Review Tribunal (2002) 190 ALR 601 is of relevance.

18. In particular in relation to the claim based on Muin there are no agreed facts before the court as there were in that case nor is there any evidence of what information is said not to have been before the Tribunal or the applicant would have done if he were aware of that such information was not before the Tribunal. 

19. The final written argument seeks that the matter be remitted to the Tribunal.  This does not establish a ground for review. 

20. Finally, the applicant in oral submissions said that the Tribunal did not accept what he had provided.  The applicant did make a number of submissions to the Department and to the Tribunal and also provided a considerable amount of information.  The Tribunal refers to that information in detail in its reasons for decision and indeed goes to the extent of indicating that while there were some minor discrepancies it did not place any weight or significance on such minor discrepancies and relied on the applicant's evidence at the hearing and the evidence contained in his subsequent submissions to the Tribunal.  Essentially the applicant seeks impermissible merits review. 

21. As no jurisdictional error is apparent I have no alternative but to dismiss the application.  Accordingly it is ordered that the application is dismissed.

RECORDED   :   NOT TRANSCRIBED

1. I have heard the submissions in relation to costs. As the applicant has been wholly unsuccessful it is appropriate that he meet the Minister's costs. His impecuniosity may be relevant to whether and when the Minister seeks to recover those costs but it is appropriate that he should bear the costs. However, taking into account the nature of this and other similar matters, I consider that an appropriate amount of costs in this case is the sum of $3,500. Accordingly it is ordered that the applicant pay the respondent's costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:  Brown S

Date:  18 September 2003.