SZCKC v Minister for Immigration
[2005] FMCA 1629
•9 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKC v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1629 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – whether the RRT breached s.424A of the Migration Act 1958 (Cth) considered in relation to material submitted in support of the protection visa application – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| SAAP v Minister for Immigration 215 ALR 162 |
| Applicant: | SZCKC |
| First Respondent: Second Respondent | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG30 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 9 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms S A Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 30 of 2004
| SZCKC |
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 completed on 14 November 2003 and was handed down on 10 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India. He had made claims of political persecution in that country. I adopt as background, for the purposes of this judgment, paragraphs 1-6 of written submissions prepared on behalf of the Minister by Ms Mason:
On 6 February 2003 the applicant, a citizen of India, arrived in Australia. On 11 February 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs ("Department") (court book (“CB”) 1 to 35). The applicant sets out his claims in a Statutory Declaration attached to that document (CB 26 to 28).
On 4 March 2003, a delegate of the respondent refused the grant of a protection visa (CB 37 to 47). On 26 March 2003 the applicant applied for a review of the delegate’s decision by the RRT (CB 48 to 51).
On 1 September 2003 the applicant was invited to give evidence at a hearing of the RRT on 4 November 2003, and was informed by that invitation that the RRT was unable to make a decision in the applicant’s favour based on the material provided to date alone (CB 54 to 55). The applicant accepted that invitation (CB 59 to 60).
The RRT hearing took place on 4 November 2003 during which the applicant gave oral evidence (CB 69.4).
On 10 December 2003 the RRT handed down a decision made on 14 November 2003 affirming the decision of the delegate not to grant the applicant a protection visa (CB 65 to 77).
The RRT’s decision
The RRT found that:
(a)The evidence as a whole led the RRT to a finding that the applicant was a witness who lacks credibility (CB 74.2)
(b)There were a number of inconsistencies in the evidence of the applicant namely:
(i)the applicant had stated in his protection visa application that he had refused to travel to Singapore whereas both his oral evidence to the RRT and his passport demonstrated that he had in fact travelled to Singapore (CB 74.4);
(ii)the applicant claimed to have stood in a college election but gave inconsistent evidence as to which college he had attended (CB 74.5 and 74.8 to 75.7). Accordingly the RRT did not accept that the applicant stood for student election (CB 74.9); and
(iii)having found that the applicant did not stand for election, the RRT rejected the claims of the applicant as to conflict which allegedly occurred as a result of his standing for student election (CB 75.2 and 75.6). Additionally the RRT found that the oral evidence of the applicant in support of those matters were factually unconvincing and the fact that an alleged beating was not reported to the police further strengthened the RRT’s finding that the incident did not occur (CB 76.6 to 75.7);
(iv)the applicant claimed in his oral evidence to be a member of three political parties, having only stated one such membership in his protection visa application (CB 74.7); and
(v)the RRT did not accept the claim of the applicant that he had been incarcerated “at least seven to eight times” and was particularly concerned about the inability of the applicant to recall the details of any dates of the alleged incarcerations (CB 75.9 to 76.1).
These present proceedings began with an application for judicial review filed on 6 January 2004. At today's hearing the applicant relied upon an amended application filed upon 4 October 2005. Both he and Ms Mason addressed that amended application in their submissions.
I explored the applicant's concerns about the RRT decision with him. His principal concern appears to be that he did not have a sufficient opportunity to put documentary evidence before the RRT. As I pointed out to him, however, he did not make good on his promise set out on page 50 of the court book in Section D of his review application to provide information in support of his review application. The applicant asserts today from the bar table that he asked the presiding member for more time to produce documents and that request was refused. The only evidence I have before me of what occurred at the RRT hearing is the decision record of the RRT in the court book, commencing at page 65. That decision record is silent as to whether or not such a conversation occurred. I am unwilling to infer that it did. However, even if such a conversation did take place, it does not establish procedural unfairness. The applicant had promised to send material in his review application signed on 25 March 2003. He was put on notice that the information before the RRT as at 1 September 2003, which in substance was limited to the material submitted in support of his original protection visa application, was insufficient to enable the RRT to make a favourable decision. He was invited to submit further information. Nothing was submitted prior to the oral hearing conducted by the RRT on 4 November 2003. It would have been reasonable for the presiding member to conclude, in those circumstances, that the applicant had had a sufficient opportunity to put before the RRT whatever he wished to.
In fact, all the RRT had to go on was the material submitted by the applicant in support of his protection visa application and what the applicant put before the RRT orally at the hearing. The absence of any supportive information in the review application raised a question in my mind whether the review application was a valid one.
Ms Mason submitted, and I accept, that the RRT was probably obliged to treat the application as valid, given that it had included a promise to provide supportive information, albeit that the only supportive information provided was what the applicant said at the oral hearing.
It appears from the discussion that occurred at the hearing that the applicant also relied upon the written information presented in support of his protection visa application. I refer in particular to the discussion set out on page 69 of the court book. This is a case where, in my view, an inference can be drawn that the applicant adopted for the purposes of his review application the material he had earlier submitted in support of his protection visa application. In these circumstances, no issue of a breach of s.424(A)(1) of the Migration Act 1958 (Cth) (“the Migration Act”) arises because of the operation of sub-section 3(b). Also, there was no obligation on the RRT to disclose adverse country information because of the operation of sub-section 3(a) of that section.
The applicant was not able to point to any jurisdictional error in the decision of the RRT. In my view, the available evidence establishes that the proceedings were fair and that the procedures required to be followed under the Migration Act were followed. Although it is not entirely clear from the amended application what legal arguments the applicant is raising, Ms Mason has attempted to deal with what she sees as pertinent issues in paragraphs 8 to 34 of her written submissions. I agree with and accept those submissions.
I find that the decision of the RRT is free from jurisdictional error.
The decision is therefore a privative clause decision and the judicial review application must be dismissed.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000. Consistently with the High Court's decision in SAAP v Minister for Immigration 215 ALR 162, it is also necessary to join the RRT as the second respondent to the application. I will so order.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 November 2005
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