SZBPD v Minister for Immigration
[2005] FMCA 590
•2 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPD v MINISTER FOR IMMIGRATION | [2005] FMCA 590 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958, s.424A |
| Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 Kioa v West (1985) 159 CLR 550 |
| Applicant: | SZBPD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2084 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 2 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr A McInerny |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2084 of 2003
| SZBPD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of India, claimed to fear persecution for reasons of his religion as a Muslim and on the basis of imputed political opinion by reason of his involvement in the Thouheed Muslim movement and his work with the Tamil Nadu Muslim Munneta Khalaham.
The applicant arrived in Australia on 26 September 2001. He lodged an application for a protection visa on 25 October 2001. The Department wrote to the applicant on 5 February 2002 inviting his comment on information which may be taken into account in making a decision to reject his application. Included in that letter was an invitation to comment on the decision-maker's concerns about the minimal detail the applicant had provided about particular aspects of his claims and the nature of his claimed involvement with the Thouheed Muslim Movement. The delegate's migration agent responded to the request for comment. He stated that the applicant was unable to provide any details or evidence or documents in relation to his arrests in India.
The delegate rejected the applicant's application. The decision-maker noted the generality and lack of detail, not only in relation to the claimed arrests but also in relation to other aspects of the applicant’s claims and doubted the credibility of his claims.
The applicant sought review by the Tribunal. He advised that the reasons why he disagreed with the Departmental decision would be sent at a later date. It is apparent from the Tribunal reasons for decision that it did not receive any such submission from the applicant. The applicant attended a Tribunal hearing. The only account before the court of what occurred in the Tribunal hearing is what is set out in the Tribunal reasons for decision.
The Tribunal accepted that the applicant was an Indian national from Tamil Nadu. However it did not consider the applicant to be a reliable or credible witness. It found his evidence in relation to most aspects of his claims to be vague, generalised, lacking in specific detail, inconsistent and unconvincing especially his evidence at the hearing where he was unable or unwilling to provide details or to provide any substance of his claims except in general terms. It was unable to accept that the applicant's claims had any credibility or veracity. It was not able to accept that he was involved in any of the incidents that he claimed, noting the vagueness and generality of his claims about his activities and the purported persecution by the police and inconsistencies to which it referred.
The Tribunal was unable to be satisfied that the applicant faced a real chance of Convention-related persecution in the foreseeable future if he returned to India. It was not satisfied that he was the subject of persecution for his imputed political activities or religion in India or that there was a real chance of him being so subject to persecution if he returned to India and was not satisfied that he had a well-founded fear of persecution by reason of his imputed political opinion, religion or for any other Convention reason.
The applicant sought review by application filed in this court on 8 October 2003. The application is very generally expressed. In essence it relies on a generally expressed ground that the Tribunal exceeded its jurisdiction and constructively failed to exercise jurisdiction. The applicant filed a written submission on 26 April 2005 in which he contended that the decision was induced or affected by actual bias.
He claimed that the Tribunal findings and reasons were not properly justified by the Tribunal, that it made its decision without investigation and did not consider his genuine claims. He also claimed that the Tribunal did not accept that he was persecuted because of his religion and political opinion and did not treat this matter as a section 424A issue (section 424A of the Migration Act 1958 (C’th)). He appears to make a general claim that his circumstances are analogous to those considered by the High Court in Muin v RRT; Lie v RRT [2002] HCA 30, that the Tribunal acted in bad faith and that the decision was made in breach of the rules of natural justice. However, none of these grounds establish a jurisdictional error. In oral submissions the applicant raised no further basis for there being a jurisdictional error, but noted that he might appeal.
The findings of fact made by the Tribunal were open to it on the material before it. The Tribunal considered the applicant's claims based on both religion and political opinion, albeit it rejected his claims on the basis of his lack of credibility. The applicant was aware of the issue in relation to the lack of detail and generality of his claims from the letter sent to him by the delegate of the respondent and also from the language of the decision of the delegate. He stated in his review application that he would provide further details as to his disagreement with the delegate's decision but did not do so. He did attend a Tribunal hearing and it is apparent from the Tribunal reasons for decision that issues of significance were raised by the Tribunal with the applicant in the course of the hearing.
There is nothing on the material before the court, which consists primarily of the reasons for decision and the other documentary material, to establish that the Tribunal was so committed to a conclusion it had already formed, as to be incapable of alteration, whatever evidence or arguments may be presented. (MIMA v Jia Legeng (2001) 178 ALR 421 at [72] per Gleeson CJ and Gummow J.) Nor is there anything to suggest that bias in the sense of apprehended bias is established on the material before the court.
More generally, there is nothing to support the applicant's claim of a lack of procedural fairness on the material before the court. As indicated, the applicant had the opportunity to and did attend a hearing. There is nothing in the material before the court to suggest that there was any information that should have been brought to the applicant's attention by the Tribunal, either pursuant to section 424A of the Migration Act 1958 (C’th) or under any natural justice obligations.
The Tribunal is not obliged to bring its thought processes to the attention of an applicant under section 424A. There is nothing in the Tribunal reasoning to suggest that anything it relied on needed to be raised with the applicant, particularly in light of what had been brought to his attention by the delegate's letter and the decision of the delegate. In particular there was no material personal to the applicant on which the Tribunal relied which it had an obligation to raise with him, consistent with what was said by Mason J in Kioa v West (1985) 159 CLR 550.
The factual basis for an assertion that the case is similar to Muin v RRT; Lie v RRT has simply not been established on the material before the court. Nor is there anything to support the unparticularised claim in the written submission that the Tribunal ignored or failed to consider the applicant's claims and mixed up irrelevant issues.
No jurisdictional error is established in the reasons or procedures of the Tribunal. As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the respondent seeks that he meet the costs of these proceedings in the sum of $4,000. The applicant's impecuniosity is not a reason for not awarding costs. It may be a matter to be taken into account by the respondent in determining when and how to seek to recover costs. The amount sought is appropriate, having regard to the nature of this and other similar matters.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 May 2005.
0
4
1