SZCEM v Minister for Immigration & Anor
[2006] FMCA 102
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCEM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 102 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and political persecution in India – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424A |
| Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZCEM |
| First Respondent: Second Respondent | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2757 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 31 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms A Nanson Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the application.
The application be dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2757 of 2003
| SZCEM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 18 November 2004. The RRT affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa. The applicant is from India and had made claims of religious and political persecution. Relevant background facts are set out in the Minister's written submissions. I adopt paragraphs 3–7 of those submissions as background:
The applicant is of Tamil ethnicity and is a citizen of India. He arrived in Australia on 24 November 2002 on a passport issued on 17 November 2000 and a business visa issued 8 November 2002.[1] The applicant lodged an application for a protection visa on 23 December 2002.[2] On 6 March 2003, a delegate of the respondent refused the application for protection visa.[3] The delegate’s decision was affirmed by the RRT on 23 October 2003, handed down on 18 November 2003.[4]
The applicant’s claims are set out in his statement which accompanied the application for a protection visa[5] and in response to a request for information issued pursuant to s.424 of the Migration Act 1958 (“the Migration Act”) by the RRT.[6] Those claims are summarised by the RRT in its decision at RD 82-83 and in response to the issue of s.424 Notice at RD 86. The applicant also attended a hearing before the RRT and was assisted by a migration agent.
The applicant claims a fear of persecution from Hindus arising from his religious and political beliefs, namely that he was an important member of, and active in, the Tamil Nadu Muslim Munatra Kalagam (“TMMK”). The applicant claims his involvement with TMMK was to help build a mosque with donations from Muslim people and to advocate for the right of Muslims to education and employment opportunities.[7] The applicant claimed he was arrested in November 2001 in response to his involvement in a public meeting and released on 11 December without charge.[8] The applicant later claimed the police attempted to arrest him in 2002 for conducting a public meeting following which he went into hiding in Bombay.[9] The applicant departed India via Chennai airport in his home state of Tamil Nadu.
The RRT’s findings
In its decision, the RRT methodically set out in detail the applicant’s initial claims, the content of the s.424 notice, the applicant’s response to that notice and a summary of the evidence given by him at the hearing. On the basis of this information, the RRT concluded as follows:
In summary, I do not accept that the applicant has a genuine or well-founded fear of persecution by reason of his religion, or his political opinion, or for any other Convention reason. I am satisfied … that the applicant has fabricated his claims in order to extend his stay in Australia. Those reasons are, in summary, because he has failed to provide support, documentary or otherwise, for his claims, his claims are vague, his claims changed significantly at the hearing, he raised significant claims very late in the process and had no compelling reason to explain that delay, his claims are inconsistent with available independent information, and his behaviour is inconsistent with a genuine fear of persecution.[10]
Consequently, the RRT rejected the applicant’s fears of suffering persecution in India for reason of his religious or political beliefs, or for any other Convention-related reason, as not well-founded.
[1] Relevant Documents (RD) at 13
[2] RD at 1-40
[3] RD 42-49
[4] RD 80-97
[5] RD 34-40
[6] The s.424A notice is at RD 61-63, the response at RD66-67.
[7] RD 35-36
[8] RD 38.4
[9] RD 67.3.
[10] RD 92-93
The applicant relies upon his amended application filed on 14 July 2004. That application only names the Minister as the respondent to it. As submitted by the Minister, the RRT should be joined as the second respondent to the application and I will so order.
Both parties relied upon their written submissions. Those of the applicant extend somewhat beyond the scope of his amended application. In his written submissions the applicant appears to assert bias on the part of the presiding member based upon the manner in which the presiding member dealt with the applicant's response to a notice sent to him pursuant to s.424 of the Migration Act. It is plain from the terms of the RRT decision that the presiding member was dissatisfied with the applicant's response to that notice. Indeed, the presiding member used the response in order to support an adverse credibility finding. However, that does not of itself point to bias.
The purpose of the s.424 notice was to seek details of the applicant's claims. Shortly before the s.424 notice was issued the applicant had been invited to a hearing. In that hearing invitation[11] the applicant was put on notice that the RRT was unable to make a favourable decision on the basis of the material then submitted by the applicant. The s.424 notice issued two days later[12] was an important opportunity for the applicant to change the RRT's mind.
[11] RD 59-60
[12] RD 61-63
The presiding member formed the view that the applicant's response to that notice[13] was so inadequate that it supported the adverse credibility finding made by the RRT. In my view, that conclusion was open to the RRT on the material before it and the allegation of bias is baseless.
[13] RD 66-67
The other issues arising from the amended application are dealt with in paragraphs 8 through to 14 of the Minister's written submissions. I agree with those submissions and adopt those paragraphs for the purposes of this judgment:
In order for the applicant to succeed, he must show that the decision made by the RRT is not caught by s.474 of the Act, the privative clause.
In his amended application, to the extent they can be understood, the applicant relies upon on the following grounds:
a)failure of the RRT to take into account a relevant consideration;
b)failure of the RRT to take into account the applicant’s membership of “a particular social group, Muslim minority in India and political opinion in India”;
c)failure of the RRT to base its decision on a rational or logical foundation.
There are no particulars provided in support of the first ground and, from the detail provided in the RRT’s decision, it is clear the applicant’s claims were fully considered. In the absence of any further particularity, there is no basis for establishing jurisdictional error on this ground.
The second ground is also without foundation. The applicant’s claim was never expressed in terms of membership of a particular social group but as a member of the TMMK and in relation to the political and religious activities undertaken by the applicant in association with the TMMK. Those matters were fully explored by the RRT and their centrality to the applicant’s claim to refugee status accepted[14]. However, from the lack of evidence presented, the RRT did not accept that the applicant was a member or secretary of this party as claimed.
The merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the RRT to determine: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292. The RRT principally rejected the applicant’s claims by making credibility findings, which are findings of fact, not law. Such findings were referred to by McHugh J in Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] as: "…the function of the primary decision-maker par excellence.." and, while not invulnerable to review, are difficult to overcome. On the basis of the material before, the respondent submits the RRT’s findings were open to it and no error has been disclosed.
With regard to the third ground, in responding to this basis for review, Gleeson CJ in Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] said:
As was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision‑maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
No such precision been provided and in view of the detailed reasoning set out in the decision of the RRT, without more this ground cannot succeed.
[14] RD 94.4
No other possible assertion of jurisdictional error is apparent from my own reading of the RRT decision and the book of relevant documents. I find that the RRT decision is free from jurisdictional error and is therefore as privative clause decision.
I dismiss the judicial review application.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $3,500. I accept that those costs have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. The applicant indicated a willingness to pay those costs if he could pay by instalments. That is a matter for him to discuss with the Minister's lawyers.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 February 2006
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