SZBVT v Minister for Immigration - [2007] FMCA 414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBVT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 414

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – bias – role of court on judicial review – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424, 424A

SZHCJ v Minister for Immigration & Multicultural Affairs (2007) FCA 205 followed
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 followed
SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361 followed

Applicant:

SZBVT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3234 of 2006

Judgment of:

Scarlett FM

Hearing date:

19 March 2007

Date of last submission:

19 March 2007

Delivered at:

Sydney

Delivered on:

19 March 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Mitchell

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,225.00.
I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SGY 3234 of 2006

SZBVT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of the decision of the Refugee Review Tribunal. The Tribunal made its decision on 3 October 2006 and handed that decision down on 17 October. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
By means of an application and an affidavit that he filed on

6 November 2006, the Applicant seeks judicial review of that decision. In particular, he seeks the issue of three writs. First, a writ of certiorari to quash the decision of the Refugee Review Tribunal. Second, a writ of prohibition directed to the Minister prohibiting the Minister from acting upon or giving effect to the Tribunal decision. Third, the Applicant seeks a writ of mandamus directed to the Refugee Review Tribunal compelling to redetermine his application for a visa according to law.
The Respondent Minister has filed a Response asking the Court to dismiss the application on the basis that the Tribunal has not made any jurisdictional error.
It should be made clear that the Court does not have an unlimited jurisdiction in dealing with applications for review of the Refugee Review Tribunal. The Court may only make orders in the nature of certiorari setting aside a Tribunal decision or make orders in the nature of mandamus requiring the Tribunal to redetermine an application if the Court is satisfied, and only if the Court is satisfied, that the Tribunal made a jurisdictional error. It is not the role of the Court to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed (see SZHCJ v Minister for Immigration & Multicultural Affairs (2007) FCA 205 at [3]).
This application was originally listed for Final Hearing on 9 March. The application had come before the Court on 4 December 2006, which was its First Court Date. The application was listed for Final Hearing at 2:00pm on 9 March. At that stage the Applicant told the Court that there had been some difficulty in his obtaining legal advice from a lawyer on the panel of lawyers who give advice to Refugee Review Tribunal matters. His matter had been referred to a barrister on the panel who was the next person on the list, but unfortunately, she found herself unable to advise the Applicant because of a conflict of interest. Quite properly, she returned the material and the information was sent to another barrister.
This necessarily brought about some delay in the Applicant receiving advice and on 9 March in the afternoon the Applicant told the Court that he had not yet received a written copy of the legal advice from the panel barrister but had been told that it had recently been posted to him. I took the view that the Court should support the legal advice referral panel and adjourned the proceedings until this afternoon to allow the Applicant the opportunity to receive the legal advice that was on the way to him, noting that he was not legally represented in the proceedings and that he appeared unlikely to be represented. The application has now been heard today.
The Applicant in his application sets out several grounds for review. The numbering is rather unusual, but I will set out briefly each ground. The first ground is a claim that the Applicant was denied procedural fairness at the hearing because the Tribunal was biased and applied some technique for testing his credibility in which the Tribunal already had in its mind to reject the claim and the style of questioning and trying to get the answers was totally under the Tribunal's control to get its expected answer, and under that circumstance every claimant would get the same result. The ground goes on to complain that the Tribunal decision was unjust and was made without taking into account the full gravity of the Applicant's circumstances. That ground is accompanied by several paragraphs of particulars.
The second ground is that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. This ground is unparticularised and it is difficult to ascertain what is meant in the circumstances.
The third ground is that the decision involved a jurisdictional error of law, including incorrect interpretation of the applicable law to the fact of the case found by the Refugee Review Tribunal. The Applicant noted that the Tribunal in its decision referred to some eight decisions of the High Court of Australia and complains that the Tribunal did not ensure, as far as is reasonably practicable, or at all, as required by s.424A(1)(b) of the Migration Act, that the Applicant understood why all those abovementioned references and information were relevant to his application. The further particulars are that the Tribunal did not give the Applicant notice of the information in the manner required by s.424A(1)(a) and 424(2) of the Migration Act.
The next ground, which in the ordinary course of events should have been numbered 4, is for some reason numbered 6. That ground is that the Tribunal failed in taking into account of all the relevant matters in making of its decision rather than simply affirm the DIMIA delegate's decision in a very conventional way. That ground is not particularised.
The Applicant has not filed any outline of submissions, but Counsel for the Respondent filed an outline of submissions in opposition to the application. In respect of ground 1, the submission refers to sub grounds of bias, failure to accord procedural fairness and various errors of fact and submits that these claims have not been made out. The submission refers to the fact that ground 2 is unparticularised and meaningless in the absence of proper particulars, a submission which I believe to be correct. In respect of the third ground, it is submitted on behalf of the first respondent that the findings made by the Tribunal were open on the material before the Tribunal and there was no error of law.
As to the reference the cases cited as authorities in the Tribunal reasons, the submission is that that information was not specifically about the Applicant and was not subject to the obligation in s.424A(1) of the Act. In respect of the sixth ground, again it is submitted that ground is unparticularised and meaningless in the absence of particulars. It is further submitted that the Tribunal Member made findings as to the Applicant's claims and accordingly gave consideration to matters that the Tribunal was bound to take into consideration.
The factual ground and background to this matter is that the Applicant is a citizen of India who arrived in Australia on 1 November 1997.

He applied for a Protection (Class XA) visa on 27 June 2003 and that application was refused on 29 July that year. On 1 August the Applicant sought a review of that decision from the Refugee Review Tribunal and on 30 September 2003 the Tribunal affirmed the decision under review. The Applicant sought judicial review from the Federal Court and on

26 June 2006 the Court made an order quashing the Tribunal decision and remitting the matter to the Tribunal for consideration. The Applicant was invited to attend a hearing of the Tribunal, which he did, on 5 September 2006. But again the Tribunal, differently constituted, affirmed that decision.
The Applicant claims that he is a Muslim and that his father's business was destroyed and that he was attacked and harassed by Hindu fundamentalists in the communal riots of 1992 in India. He feared physical harassment and death and had no confidence that the authorities would be able to protect him and he was not able to relocate because of all the places in India where he knew and could speak the language there was Indian communal violence. The Tribunal was satisfied that the Applicant was a citizen of India and was satisfied that he is a Muslim. The Tribunal was satisfied that the Applicant's family were attacked during the riots of 1992, but took the view that these events were the result of generalised violence and did not constitute persecution.
The Tribunal did not accept other factual matters about the Applicant's claims. The Tribunal took an unfavourable view of the significant delay between the date of the Applicant's arrival in Australia and his application for a protection visa. The Tribunal said at p.273 of the Court Book:
The adviser suggested that the applicant was ill-informed about the application for a protection visa. As indicated by the Tribunal, a six-year delay in lodging the application for a protection visa is significant. The Tribunal has considered the applicant's explanations and the adviser's submissions, but the Tribunal is not convinced or persuaded. The Tribunal is satisfied that the delay in this case is substantial and that it indicates the applicant does not have a genuine fear of persecution.
The Tribunal considered the Applicant's evidence and referred to independent country information about the situation in India. Looking at the evidence as a whole, the Tribunal was not satisfied that there was a real chance of persecution occurring to the Applicant in the reasonably foreseeable future if he were to return to India. The Tribunal, therefore, was not satisfied that the Applicant had a well-founded fear of persecution as contemplated by the Convention and affirmed the delegate's decision not to grant a Protection (Class XA) visa.
The Applicant told the Court that he is not a legal person and is not in a position to make submissions about the law. He said that he had told the truth to the Tribunal and everything that he said to the Tribunal was the truth but the Tribunal Member did not believe him. He was critical of the Tribunal which he considered to be biased and pointed out that the Tribunal received the independent information from media which tends to give information about high society rather than that of the grassroots level. He reiterated that he was scared to return to India to such an extent that he did not return to India to attend the funeral of his father.
It is of course the fact that the Court does not have a role in reconsidering factual matters or making conclusions based on the facts. It is the Tribunal that is the party that makes the factual decisions and so long as there is evidence upon which factual decisions can be made, the Court conducting judicial review has no role to interfere. The Court must look at whether or not there is jurisdictional error. First of all, the Applicant has alleged bias on the part of the Tribunal. But the fact that a Tribunal Member does not believe the Applicant's evidence is not of itself an indication that the Tribunal is biased. True it is that the Tribunal took a very sceptical view of some parts of the Applicant's evidence, including its finding that some claim was fabricated, and in view of the critical position taken by the Tribunal, because of the lengthy delay in applying for a protection visa.
It was open to the Tribunal on the material before the Tribunal to make that decision. There was evidence there upon which the Tribunal could make that decision and the Tribunal's decision, as counsel for the Respondent submitted, was based on rational grounds and was arrived at after consideration of matters that were logically probative to the issues of credibility (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [552] and [559]).
As I indicated, no inference of bias or prejudgment can be drawn from the mere fact of an adverse credibility finding (see VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; also SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at [38]). There was no transcript of the Tribunal proceedings at this hearing. There was no evidence upon which I can find that the Tribunal Member was biased in the way that she conducted the hearing (see also SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361 at [43]).
Counsel for the First Respondent is also of the view that the Applicant claims that the Tribunal failed to accord the Applicant procedural fairness, but points out that the natural justice hearing rule does not apply to this case because the application for review was filed on

1 August 2003. Section 422B of the Migration Act applies to this case and it commenced on 4 July 2002. There is therefore no space for the common law natural justice hearing rule. There is no evidence about what happened at the Tribunal hearing, certainly none to show that the hearing was in any way irregular. There appears to me to be no breach of s.425 of the Migration Act.
The Applicant claims that the Tribunal breached s.424A of the Migration Act by not providing particulars in writing of cases referred to in the Tribunal's decision. A reference to those decisions does not come under s.424A(1) of the Act, not only because the information contained in those decisions was not about the applicant personally or about a class of persons to which the applicant belonged or was about any other relevant person, but a citation of decisions of the High Court of Australia is for the purpose of obtaining guidance as to the law to be applied. The cases contained in the Tribunal decision do not form the reason or part of the reason for affirming the Tribunal decision. There is no requirement under sub-s.424A(1) to put details of those cases to the applicant for his comment. There is no requirement under s.424, which the applicant cited, to put those cases to the applicant in writing for comment. There is no breach of s.424 or 424A(1).
There is an allegation that the Tribunal failed to take relevant matters into account in making its decision, but in my view, there is no evidence of this. There is no evidence before me that the Tribunal did not consider relevant matters of fact when it arrived at the factual decisions that it made. In short, I am unable to identify any jurisdictional error on the part of the Tribunal. The Applicant is unrepresented and in such cases the Court must look at the material before it, including the decision, with a very critical eye. But I am unable to see any arguable case for jurisdictional error. As there is no jurisdictional error, the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act and is not subject to orders in the nature of certiorari, prohibition or mandamus.
I will make a formal order that the title of the First Respondent is changed to Minister for Immigration & Citizenship. It will be necessary to dismiss the application.
There is an application for costs on behalf of the Respondent Minister. Those costs are estimated at $5,225.00. The Applicant has been unsuccessful in his claim and there is nothing to depart from the principle that costs follow the event. The Applicant says that the amount sought, $5,225.00, is beyond his capacity to pay. He points out that he is not working because he is not allowed to work. If he had the money he would have paid for a lawyer to represent him today. I have no reason to doubt what the Applicant has told me, but it is not a ground not to make an order for costs. It is, however, a matter I will take into account in allowing time to pay. I allow six months to pay.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 26 March 2007