SZCBB v Minister for Immigration

[2006] FMCA 210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 210

MIGRATION – Review of decision of RRT – where applicant resiled from his written statements – where Tribunal not satisfied of applicant’s claim to protection.

Migration Act 1958, ss.422B, 424A(3)(a), 427(1)(d)
Federal Magistrates Court Rules 2001

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v VSAF (2003) [2005] FCAFC 73
Craig v South Australia 184 CLR 193
SAAP v Minister for Immigration (2005) 215 ALR 162
VAF v Minister for Immigration (2004) 206 ALR 471
SZDQL v Minister for Immigration [2005] FCA 769
SZEBX v Minister for Immigration [2005] FAC 1197

Applicant: SZCBB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2617 of 2003

Judgment of: Raphael     FM

Hearing date: 30 January 2006

Date of Last Submission: 30 January 2006

Delivered at: Sydney

Delivered on: 30 January 2006

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Ms S Mason

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

3. Refugee Review Tribunal be joined as Second Respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2617 of 2003

SZCBB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He arrived in Australia on 1 March 2002 as a holder of a temporary business entrant visa.  On 27 March 2002 he applied for a protection (Class XA) visa from the Department of Immigration and Multicultural and Indigenous Affairs. On 19 September 2002 that application was refused by a delegate of the Minister.  On 24 September 2002 the applicant lodged an application for review of the decision by the Refugee Review Tribunal.  The applicant was invited to a hearing by the Tribunal, which he attended.  He had wished for his adviser to attend with him but his adviser was recovering from a hospitalisation and the Tribunal declined to grant an adjournment of the hearing date.

2. The Tribunal did, however, allow the adviser some time to provide additional representations to it after the hearing.  On 21 October 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed that decision down on 13 November 2003. 

3. The applicant is a Muslim living in the State of Tamil Nadu.  He claimed an association with a Muslim political group.  He claimed that his brother who was also involved in sectarian politics had been arrested and tortured and imprisoned.  In his original application for a visa the applicant indicated that he had suffered similarly for his political beliefs.  However, when he gave evidence at the Tribunal he resiled from many of these claims and gave a different version of his life in Tamil Nadu and his reasons for coming to Australia.  Australia was not the first country he had gone to seeking a new home.  He had also spent a short time in England where he had hoped to settle.

4. During the course of the interview with the applicant and in its findings and reasons the Tribunal compares what the applicant told it with things written in the formal application itself, but it does not use this comparison to point to the incredibility of the applicant's evidence.  The Tribunal in fact accepts the evidence given by the applicant to it and on the basis of that evidence comes to its conclusion that the applicant is not a person to whom Australia owes protection obligations.

   At [CB 156] the Tribunal comes to the following conclusion:

Having regard to the applicant's own denial at the hearing before me that he was ever arrested, detained, questioned, interrogated or tortured by the police, I do not accept that, as the applicant's representative claimed (in his submission to the Department) the applicant instructed him, the applicant was tortured on four occasions in 1992, 1993, 1994 and 1995 during the Meelath Nabi Festival procession and that on about ten occasions during the same period he was questioned and interrogated by the police.  I likewise do not accept that the applicant was assaulted in India due to racial violence, as it appears he told Dr Karalasingham.

At [CB 157] the Tribunal states:

“I accept that, as the applicant said at the hearing before me, he was not involved in any Muslim organisations and that he was only involved in his own family matters.  I likewise accept that, as the applicant said, he was never arrested, detained, questioned, interrogated or tortured by the police in India.  I do not, however, accept that, as the applicant also said, the police came in search of him a few days after his brother was supposedly released in October 2001.  In the first place, as I put to the applicant in the course of the hearing, it is difficult to see why the police would have come to arrest him because his brother had been arrested as a result of something that had happened in Adirampattinam. ….. As referred to above, the affidavit purporting to be from the applicant's brother suggesting that he was questioned about the applicant and his involvement in Al-Umma or other Islamic movements appears to be part and parcel of the fabricated claims contained in the statutory declaration accompanying the applicant's original application which the applicant said at the hearing before me had been written by his friend.”

1. The above paragraphs really sum up the Tribunal's decision in the case.  The applicant had made a number of claims in his original application.  He resiled from those claims and told the Tribunal what the Tribunal accepted was the truth.  The truth of the applicant's situation was that it did not constitute grounds for the grant of a protection visa.  The applicant admitted that he had not personally suffered at the hands of the police and his sole problem seemed to be related to things that had occurred to his brother. 

2. The problem was the subject of some medical evidence that the Tribunal dealt with in considerable detail in its grounds for decision.  The Tribunal was critical of the doctor involved and at the lack of evidence of a psychiatric/psychological nature that would have gone some way to establishing the alleged post-traumatic stress disorder that the applicant was said to be suffering from.  In the absence of this evidence the Tribunal at [CB 157] made its own assessment:

   Having regard to the only medical evidence before me, comprising Dr Karalasingham's two certificates, and having regard to my own observation of the applicant giving evidence at the hearing before me, I find that the applicant was able properly to take part in the hearing:  see SGLB v Minister for Immigration [2003] FCA 176; SZACW v Minister for Immigration [2003] FMCA 307.

3. At [CB 160] the Tribunal came to some general conclusions concerning the situation in India and the likelihood of the applicant suffering any harm if he returned to that country which views are expressed in the appropriate terms.

1. The applicant filed on 27 May 2004 an amended application in which he alleged four matters.  The first was that the Tribunal failed to accord him procedural fairness.  The particulars of that allegation appear to hark back to the decision of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 and made reference to the Part B documents and not providing the applicant with an opportunity to respond to the adverse material in the possession of the Tribunal.

2. There are a number of reasons why this claim is a misconstruction of the decision in Muin. The official cables and reports which were referred to in the particulars would seem to me to be all matters that are not required to be put before the applicant by virtue of the exception contained in s.424A(3)(a) of the Migration Act 1958 (the “Act”). Secondly, s.422B of the Act now applies to make division 4 of the Act an exhaustive statement of the natural justice hearing rule.

3. The respondent argues that there was no adverse material in the Tribunal's possession categorised by the delegate as the Part B documents, because the Part B documents referred to in the delegate's decision comprised only the departmental file relating to the applicant [CB 83].

4. Since the decision in Muin the Full Bench of the Federal Court has made it quite clear that it is not sufficient merely to plead this case to show a failure of procedural fairness.  There has to be evidence to establish those facts which were accepted in Muin as the basis upon which the alleged procedural fairness occurred.  No such evidence has been provided to me and this ground cannot be made out.

5. The second complaint in the amended application is that the Tribunal failed to perform the duty imposed upon it by s.424(1) of the Act. It is said in the particulars that the Tribunal failed to decide the applicant's case on the material put to it by conducting an appropriate inquiry thereon. The respondent has taken this to mean that an allegation is being made that there is a duty imposed upon the Tribunal to obtain information by s.424(1) of the Act. But this is not the case, as the respondent so clearly shows in her helpful written submissions. There is no duty, merely a permission for the Tribunal to get any information that it considers relevant. See Minister for Immigration v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration v VSAF (2003) [2005] FCAFC 73 at [20].

6. No particulars are given by the applicant of the information that it alleges the Tribunal failed to have regard to.  The Tribunal's reasons for decision are detailed and it seems to me that it clearly considered all the evidence before it and rejected the plaintiff's application on the basis of his own evidence where he explicitly resiled from the application documents that had been prepared by others on his behalf.

7. The third complaint is that the applicant was not given a fair opportunity at the Tribunal hearing to identify and explain the grounds upon which he relied.  It is suggested here that the Tribunal was well aware that the applicant was suffering from post-traumatic stress disorder and did not take this into account.  As I have said the Tribunal did take this into account.  It assessed the value of the medical certificates bearing in mind the later representations made by the applicant's adviser and came to its own views about the applicant's ability to proceed.  I cannot see that there was any lack of procedural fairness in this regard.

8. The final matter raised in the amended application was that the Tribunal failed to exercise the power conferred upon it under s.427(1)(d) of the Act. The particulars indicate that the Tribunal was put on notice that the applicant was suffering from post traumatic stress disorder and that it was unfair for the Tribunal to put the obligation on the applicant in the hearing to identify all his claims without exercising the power conferred upon it under that subsection. The power conferred under that subsection is for the Tribunal to obtain certain evidence including where necessary medical evidence but it is a power not an obligation. It is quite understandable that based upon the rather sketchy medical certificates that were provided the Tribunal could do no more than make its own assessment of the applicant's ability to give a proper account of himself at the hearing.

9. Today before me I was presented with some further written submissions filed on 13 January 2006.  These state that the Tribunal suffered from actual bias.  It has frequently been said that claims of actual bias are very serious matters that must be fully particularised and properly proved.  Neither is achieved in the outline of the applicant's written submissions before me.

10. The written submissions then go on to provide quotations from Craig v South Australia 184 CLR 193 and suggest that the Tribunal had acted illogically when it came to conclusions that the applicant was not involved in any Muslim organisation and only involved in his family affairs. This is a dispute between the applicant and the Tribunal over a question of fact. The Tribunal came to its conclusions about his involvement based upon what the applicant had said to it at the hearing. There is nothing the court can do to interfere with that finding.

11. The written submissions then proceed with a three page extract from what is clearly a submission made in another case concerning the relevance of the Muin decision.  I say clearly prepared in another case because I can see that the word "Bangladesh" has been rubbed out and the word "India" inserted on the first paragraph.  The words "High Court" have been deleted and the word "Federal Court" has been inserted at the top on the second page.  On the second paragraph of the second page the date has been changed and in the final paragraph of that page "Bangladesh" has been replaced once again by the word "India".

12. I have already dismissed the claim of a Muin jurisdictional error and I see nothing in the three pages that I have referred to which would induce me to change my mind. 

13. In accordance with the best principles of advocacy as practised in Australia and the United Kingdom the respondent's counsel has referred me to the case of SAAP v Minister for Immigration (2005) 215 ALR 162. This matter is not explicitly raised by the applicant, probably because the person who finally agreed to assist him had not yet been made aware of the existence of this case. The respondent submits that the principles outlined in that case and in particular the mandatory nature of the s.424A obligations are not relevant. I accept those submissions.

14. The only reason why this applicant has been refused the protection of Australia is because upon the evidence that he presented to the Tribunal at the hearing the Tribunal was not satisfied that he was a person to whom this country owed protection obligations.  It did not owe any protection obligations to the applicant because the applicant had not described in any way matters that occurred to him which would bring those protection obligations into operation.  The applicant had made such claims but he resiled from them.  As I have already said there was no question of deciding upon the applicant's credibility by utilising the different between the two statements.  The first statement was rejected by the applicant and by the Tribunal which then accepted his second statement, namely his oral communication with it.

15. For that reason I do not think it is necessary for me to consider the varying interpretations of the SAAP principle that are referred to by the respondent in her written submissions save to say that I believe that I am supported in my views by the decisions in VAF v Minister for Immigration (2004) 206 ALR 471, SZDQL v Minister for Immigration [2005] FCA 769 and SZEBX v Minister for Immigration [2005] FAC 1197 all of which are referred to by Ms Mason.

16. It follows from what I have just said that I am unable to find any grounds upon which the decision of this Tribunal can be reviewed.  I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $5,000.  I order that the Tribunal be joined as a second defendant.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: