SZCEZ v Minister for Immigration

Case •

[2006] FMCA 362

•

3 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCEZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 362
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India claiming fear of persecution for reason of religion – credibility.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.424

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 followed.
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZCEZ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 2708 of 2003
Delivered on: 3 March 2006
Delivered at: Sydney
Hearing date: 28 February 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Mr Muthalib
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. Leave to join the Refugee Review Tribunal as a party to the proceedings.

  2. The Refugee Review Tribunal is joined as a Second Respondent to the Application.

  3. The Application is dismissed.

  4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2708 of 2003

SZCEZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 16th October 2003 and handed down on 11th November 2003. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.

Background

  1. The Applicant is an ethnic Tamil and a Muslim who is an Indian citizen. He arrived in Australia on 22nd September 2002. One month later on 22nd October he lodged an application for a protection (class XA) visa. On 31st October 2002 a delegate of the Minister refused that application. On 25th November 2002 the Applicant applied to the Refugee Review Tribunal for a review of that decision.

  2. The Tribunal wrote to the Applicant under the provisions of s.425 of the Migration Act and invited him to attend a hearing. He attended that hearing and gave oral evidence on Friday 8th August 2003. The Applicant gave evidence to the Tribunal of his anti-government activities and how a warrant was issued for his arrest. He said that he had been detained for several days and whilst he was in prison he had been beaten up.

  3. He had established the Youth Islamic Welfare Association in March of 1996. He was chairman of that association in his area and the association was involved in collecting funds to help the elderly, the poor and the oppressed. Unfortunately for the Applicant, he and 15 other people were arrested. The Applicant said it was before some bomb explosions that had occurred between 14th and 17th February 1998.  He and others had been involved in distributing food and clothes to Muslims who had been affected by the bombing when they were arrested. He said that a total of 18 charges were filed against him and the Tribunal Member asked him whether in fact he was a fugitive from justice.

  4. The Applicant told the Tribunal that he fled to Andhra Pradesh and in fact escaped with assistance from members of his organisation and in disguise. He said that he was in Kerala from April 2000 to January 2001 and then in Andhra Pradesh from February to September of 2002.  There was some confusion as to whether he had said 2001 and 2002. The Applicant told the Tribunal he meant 2002.

  5. The Applicant produced some documents in support of his claim. The Tribunal Member read through those documents. The Tribunal also relied on Independent Country Information. 

The Tribunal’s findings and reasons

  1. In the Tribunal's decision the Tribunal accepted that the Applicant was a national of India. The Tribunal then went onto set out matters relating to an assessment of the Applicant's credibility.  This was at page 74 of the Court Book.

  2. It is quite clear from the decision that the Tribunal formed an adverse view of the Applicant's credibility. At page 75 of the Court Book the Tribunal said:

    The Applicant's evidence at the hearing and his subsequent written evidence contain several anomalies and implausibilities.  At the hearing he was frequently vague and evasive in his answers.  He provided two documents in support of his claims.  I do not accept the genuineness of either.

  3. The Tribunal described the first document which purported to be a summons and expressed doubts about its genuineness. The Tribunal referred to the second document which was written in English and which the Tribunal referred to as:

    Implausibly.

  4. The Tribunal went onto say:

    There are further anomalies and implausibilities in his evidence.

  5. The Tribunal went onto set out what it described as the implausibilities and anomalies of the Applicant's evidence on page 75 and page 76 of the Court Book. As far as the charges against the Applicant was concerned, the Tribunal had this to say:

    Based on the country information I am unable to accept his claim that although he had more than 18 charges pending against him he was able to depart India through bribery. For the same reason I do not accept that he departed through Chennai. Despite the risks to him of returning there because that was the only place he could bribe his way through the airport.

  6. The Tribunal went onto find that it was unable to accept that the Applicant had been summonsed or arrested in connection with bombings and Coimbatoa or for any other reason. The Tribunal was also unable to accept that the Applicant was the founder or member of a Muslim welfare organisation or that he was part of a group called


    L-Umma.

  7. In conclusion, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution for reason of his political or religious views or any other convention reason in India. It was for those reasons that the Tribunal affirmed the decision of the Refugee Review Tribunal not to grant a protection visa to the Applicant.

Application for judicial review

  1. The Applicant has sought a review of this decision under s.39B of the Judiciary Act and s.475A of the Migration Act. He filed his application on 9th December 2003. He filed an Amended Application on 6th April 2005. The Applicant has also filed a Written Outline of Submissions which he did on 23rd February 2006. 

  2. In the Amended Application the Applicant sets out several grounds for his claim. The first ground appears to be a pro forma ground that appears regularly in applications:

    That the RRT decision was effected to take into account a relevant consideration when it assess weather the delegate of the minister raised reasonable grounds for not granting a protection visa.

  3. I have indicated previously that I am not satisfied that this particular ground has any meaning whatsoever. The Applicant did, however, provide two paragraphs of particulars in respect of that ground. Those particulars say that the Tribunal did not properly consider the Applicant's chance of being persecuted on his return to India based on his membership of a particular social group, namely Muslims in India.

  4. He re-affirmed that he was persecuted because of his religious belief and that it would not be possible for him to relocate to any other part of India.  He asserted that he had been arrested and tortured and that the Tribunal overlooked the documentary evidence and made a decision in bad faith. The Applicant went onto provide other particulars which again are pro forma particulars. They are as follows:

    a)The Tribunal's satisfaction that the Applicant was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief;

    b)The Tribunal did not observe the provisions of the Migration Act;

    c)The Tribunal failed to consider his documentary evidence in the way provided by the Migration Act;

    d)He would provide more details in support of his application in his Outline of Submissions;

    e)The Tribunal did not provide him with adequate particulars of independent information;

    f)The Tribunal did not provide him with an adequate opportunity to respond to the substance of the independent information;

    g)The Tribunal found that country information showed that Muslims are not persecuted in India or rather that country information did not show that Muslims are persecuted in India.

    h)The Applicant attended the Tribunal hearing and gave proper information about his claims.

    i)Without the proper consideration of his evidence the Applicant suffered from a deprivable of procedural fairness.

    j)The Applicant intended to supply a transcript of the Refugee Review Tribunal hearing which was important for his application.

  5. I would comment that a transcript was not provided but the Applicant did file a Written Outline of Submissions which was prepared with some care. The Outline of Submissions sets out a summary of the relevant facts relied upon by the Applicant. It sets out the substance of the claims that the Applicant made to the Tribunal relating to his establishment of a Youth Islamic Welfare Association and his actions against the government. It referred to warrants being issued for the Applicant's arrest and the Applicant being detained and beaten up.

  6. The Applicant refers to the two documents that he submitted in support of his claim which were not accepted by the Tribunal. The Applicant said that the Tribunal did not investigate or verify the first document with the Indian authorities or the magistrate who issued it and the applicant said the Tribunal did not ask for any clarification from the Applicant or put to the applicant in writing its disbelief of that document.

  7. The Applicant said that if he had received written queries about the document he would have given an explanation. The Applicant described the issues in the matter as these:

    a)Whether the Tribunal fell into jurisdictional error in arriving to a mistaken conclusion about the documents by not giving the Applicant the opportunity to comment on the documents and in doing so breached the procedural fairness hearing rule of natural justice.

    b)Whether the Tribunal fell into jurisdictional error in failing to make these issues clear to the applicant under s.424A of the Migration Act.

  8. The submission goes onto refer to the decision of the Full Court of the Federal Court in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 setting out a definition of judicial error, quotes from s.424A of the Migration Act and refers to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24.

  9. In short the Applicant submits that the Tribunal fell into jurisdictional error in reaching a mistaken conclusion about the evidence and this mistaken conclusion formed part of the reasons for the decision, which was adverse to the applicant and in doing so denied to the Applicant the opportunity to give reasons to explain that material. The Applicant submits that the Tribunal fell into jurisdictional error in contravening a statutory obligation placed upon it by reaching a mistaken conclusion.

  10. I have had the opportunity also of reading the Outline of the Respondent's Submissions prepared by Mr Jordan of counsel. The Respondent points out that the Tribunal did not believe the Applicant's claims. The Respondent points out that the Applicant's complaints are without substance and points out in particular that country information disclosed to the Applicant during the hearing fell within the exception contained in s.424A(3)(a) of the Migration Act.

  11. In dealing with the particulars of the Applicant's claim I note that the first set of particulars in effect challenge the factual findings made by the Tribunal. This is what is known as a merits review and a merits review is not open to a Court conducting a judicial review of a Tribunal decision. It is the function of the administrative decision maker and only the administrative decision maker to make factual findings. So long as there is evidence upon which it is open to the Tribunal to make factual findings there will be no jurisdictional error.

  12. As to the claim that the Tribunal did not comply with the requirements of the Migration Act either at all or in considering the documentary evidence provided by the Applicant, it is relevant that the documentary evidence was in fact provided to the Tribunal by the Applicant himself. Section 424A of the Act does not require the Tribunal to provide written reasons as to why it does not accept material submitted by the Applicant as part of the applicant's case.

  13. Similarly, Independent Country Information insofar as it is not specifically about the Applicant or other relevant persons but only general information or about a class of persons, comes under the exception provided in s.424A(3)(a) of the Migration Act and is not required to be given to the Applicant in writing as a reason or part of their reason for the Tribunal affirming the delegate's decision. There is no evidence to show that the Tribunal did not discuss with the Applicant or ask the Applicant about material contained in the Independent Country Information when it contradicted the evidence given by the Applicant. No transcript of the proceedings was provided.

  14. In any event when the Tribunal heard this application in 2003, s.422B of the Migration Act had already come into force. That section came into force on 4th July 2002 and the Applicant had applied for review of the decision after that date. That means that the requirements of natural justice are those set out in the Act and not those that are contained in the principles of common law natural justice.

  15. The Applicant has alleged bad faith and a denial of procedural fairness.  Bad faith on the part of a decision maker is a serious allegation involving personal fault. It must be specifically alleged and strictly proved.  There is no evidence that I can see of any bad faith.

  16. The fact that a decision was made that was adverse to the Applicant's claim is not of itself sufficient evidence to prove bad faith. The Applicant attended the Tribunal when he was invited and gave oral evidence. The Tribunal Member asked him questions about his case and there is no evidence that the Applicant was not able to answer those questions.

Conclusion

  1. Unfortunately for the Applicant his answers were not sufficient to satisfy the Tribunal as to the credibility of his evidence about the key points of his case. As I indicated earlier credibility is the issue in this case and the principal reason why the Applicant's claims were not accepted by the Tribunal.

  2. A finding about the credibility of a witness is a finding of fact. It remains within the province of the administrative decision. So long as there is evidence upon which the decision maker can be satisfied as to the finding of fact there is no jurisdictional error. The decision maker is not required to give specific reasons for not accepting the credibility of a witness. I refer to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

  3. The real reason that the Tribunal affirmed the decision of the Minister's delegate was that the Tribunal did not accept the credibility of the Applicant's evidence. I am satisfied that no jurisdictional error has been made out.

  4. I am mindful of the fact that the Applicant is not legally represented. I have read through the Tribunal decision and made my own independent assessment of that decision. I am not able to discern any other jurisdictional error not claimed by the Applicant.

  5. It follows that the decision is a privative clause decision as defined by s.474 of the Migration Act and is protected by sub-section (1) of that section. Accordingly the application must be dismissed.

  6. This is a matter where I consider it appropriate not to depart from the usual practice. I will make an order for costs in the sum $6,300.00.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  15 March 2006

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