SZBAB v Minister for Immigration - [2004] FMCA 1025

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAB v MINISTER FOR IMMIGRATION

[2004] FMCA 1025

MIGRATION – Review of RRT decision – where Tribunal concluded that the applicant had fabricated his claims – where Tribunal not satisfied that the applicant had a well-founded fear of persecution – where the application for judicial review failed to particularise how the Tribunal had fallen into jurisdictional error – where applicant essentially seeking merits review.

Federal Magistrates Court Rules 2001

Dranichnikov v Minister for Immigration (2003) 197 ALR 389
SBBA v Minister for Immigration [2003] FCAFC 90

Applicant:

SZBAB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1430 of 2003

Delivered on:

10 December 2004

Delivered at:

Sydney

Hearing date:

10 December 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1430 of 2003

SZBAB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There comes before me today an application for review of a decision of the Refugee Review Tribunal made on 22 May 2003 and handed down on 18 June 2003. The applicant filed on 24 June 2003 an application for judicial review of that decision which had concluded that the applicant was not a person to whom this country owed protection obligations and affirmed a decision of the delegate of the Minister not to grant him a protection visa.
The grounds of the applicant's application to set aside the Tribunal decision were as follows:
(1)The Tribunal did not take into account the death of my close friend [named] and the circumstances due to which he was murdered;
(2)Firstly being an active member and then promoted to general secretary of my region shows my involvement with SIMI as an important part of the organisation which gives enough satisfactory reasons to the opposition parties to eliminate me;
(3)On several occasions me and my family is [sic] been harassed. Police is unable to take any action as these groups/organisations are supported by Hindu-ruling Government;
(4)As to this date, my family still receives threats over the phone/invasion (at home) regarding harming me, hunting me down wherever I am, etc;
(5)Recent death of one of my friend (sic) and also an ex party member is the proof that the threat is not over yet.
There were no further amended applications or particulars filed. When the matter came before me today I asked the applicant if he could tell me in his own words why he believed the Tribunal had fallen into jurisdictional error in the manner in which it came to its decision. He responded as follows:
“The RRT didn't make the right decision on my claims which I submitted to it.”
It is normal in these cases to recite at some length the applicant's claims for asylum and the processes within the Tribunal, including such things as the questions asked by the Tribunal to the applicant and then an analysis of the Tribunal's findings and reasons. The Court then would consider the application made and any other submissions made to it by the applicant to see whether these constitute evidence of jurisdictional error on the part of the Tribunal. In this case the decision of the Tribunal is lengthy. It commences at [CB 121] and does not conclude until [CB 152]. Almost all of the decision relates directly to the situation of the applicant as put to the Tribunal and it is not in any way padded by country information.
Of course, length itself is no indicator of the quality of a decision but suffice to say that having read the document I am satisfied that the Tribunal patiently and sympathetically examined all the claims made by the applicant. The essence of the Tribunal's decision was that it was unable to be satisfied that he had a well‑founded fear of persecution for any Convention reason because he had been in this country for some years before applying for a protection visa and this appeared only to have been done after he had been placed in Immigration detention as a result of the expiry of one of a number of student visas which he had been given.
The Tribunal examined the statements made by the applicant and came to the conclusion that they were inconsistent and contradictory. It said at [CB 151]:
“Given all these contradictions, the Tribunal is not satisfied that the applicant was describing events which actually happened to him. The Tribunal is of the opinion that the applicant has fabricated his claims, drawing on published accounts of inter-communal violence in India.”
Although the Court is mindful of the disadvantages suffered by persons whose first language is not English and who are faced with a very complex legal scenario in which they are required to convince a Court of the existence of a concept that even the most sophisticated legal minds find difficult, some acknowledgment has to be given to the procedures under which litigation is conducted in this country.
In Dranichnikov v Minister for Immigration (2003) 197 ALR 389, Kirby J said at [78]:
“[An applicant does not] have to pick the correct Convention “label” to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal's duties. The function of the Tribunal, as of the delegation, is to respond to the case that the applicant advances.”
And in SBBA v Minister for Immigration [2003] FCAFC 90 the Full Bench of Weinberg, Stone and Jacobson JJ said at [8]:
“ It is well established that all substantive issues raised by the evidence before the Tribunal must be considered, even if an applicant does not articulate all such claims. It is, however, no part of the Tribunal's function ‘to make a good case which the applicant has not articulated, only because there is some evidence of elements of a claim’: Parra v Minister for Immigration [2000] FCA 85 at [13].
It seems to me that what is appropriate for the Tribunal is also appropriate for the Court. If absolutely no allegation of jurisdictional error is made either in the application, or in any submissions by the applicant then it is not for the Court to try and invent one for him. This Court has read the entire decision of the Tribunal and had it come to the view that there was anything within it that caused it concern it would have suggested to the applicant that he seeks pro bono assistance so that the Court was not required to argue on the applicant's behalf. But it has found nothing and neither has the applicant.
In all the circumstances, I did not think it appropriate to call upon Mr Lloyd, who appears for the Minister, and go through what would effectively be a charade of appearing to hear two sides of a case, when as he says in his helpful written submissions, "the application does not identify any grounds of review capable of revealing jurisdictional error. The applicant seeks to agitate factual claims that were rejected in total by the Tribunal. In this present context this constitutes an impermissible attempt at merits review.” These are sentiments I endorse.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 December 2004