SZCLO v Minister for Immigration - [2005] FMCA 1477

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCLO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1477

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – applicant claims a fear of persecution based on political opinion – bad faith – natural justice – ground ‘That the RRT decision was effected (sic) to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa’ held virtually meaningless and not a ground for judicial review – allegation of bad faith a serious matter – allegation of bad faith or bias must be clearly alleged and proved – rare and extreme circumstance where lack of good faith will be apparent by reference only to the reasons for the decision – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 475A
Federal Magistrates Court Rules 2001

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs ex parte Durairajasingham (2000) 168 ALR 407
Pereira v Minister for Immigration & Multicultural Affairs [1999] 93 FCR at [6]
Plaintiff S157/2003 v Commonwealth of Australia [2003] HCA 2
R. v Hickman ex parte Fox & Clinton (1945) 70 CLR 598
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 631; (2002) 194 ALR 749
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:

SZCLO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 75 of 2004

Judgment of:

Scarlett FM

Hearing date:

28 September 2005

Date of Last Submission:

28 September 2005

Delivered at:

Sydney

Delivered on:

28 September 2005

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Ms Wong

Solicitors for the Respondent:

Clayton Utz

ORDERS

I grant leave to join the Refugee Review Tribunal as the second Respondent to these proceedings.
The application is dismissed.
The Applicant is to pay the first Respondent’s costs fixed in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 75 of 2004

SZCLO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made the decision on 16^th November and handed it down on 16^th December 2003. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa.
At the commencement of the hearing I dealt with an application for adjournment which was set out in the applicant's submissions filed on 21^st September. The applicant sought an adjournment for a period of four weeks so that he could obtain funds from another country in order to engage the services of a legal representative. I refused the application on the basis that the applicant had attended Court when a Registrar of the Court made certain directions on 2^nd April 2004 and listed the application for hearing today, more than 1 year and 5 months later. I consider that the applicant had had ample time in which to obtain legal representation and secure the funds for it.
The other preliminary matter with which I dealt was to give leave to join the Refugee Review Tribunal as a party following the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2005] HCA 24.
The applicant is a citizen of India, who arrived in Australia on

11^th May 2003 and applied the next day for a protection visa. A delegate of the Minister refused that application on 23rd of that month. On 18^th June 2003 the applicant applied for a review of that decision to the Refugee Review Tribunal.
The Tribunal invited the applicant to attend a hearing on

6^th November 2003. The applicant attended that hearing where he gave evidence and answered a number of questions put to him by the Tribunal member. The applicant was provided with the assistance of a Gujarati interpreter. The Tribunal made its decision on

20^th November 2003 and handed its decision down on

16th December 2003.
The applicant filed an application to this Court for review of that decision on 13^th January 2004. On 2^nd April 2004 a Registrar of the Court listed the application for hearing today. The applicant filed an amended application on 21^st June 2004.
The applicant had claimed a well founded fear of persecution by reason of his political opinion. The Tribunal's decision found that the applicant was not a credible witness and the Tribunal did not accept that the applicant was an office bearer or a member or a worker for the particular political party. The RRT decision referred to the applicant's very poor knowledge of the political situation in his home state and in India generally.
The RRT did not accept the applicant's claims that he had been attacked in 1999 and 2003 for reasons of his political opinions or at all. The RRT did not accept the applicant's uncle had died in police custody as a result of any persecutory conduct by the police relating to the uncles membership of the congress party. The Tribunal held that State authorities did not condone violence between members of political parties in India and would not withhold reasonable protection for any convention related reason. The Tribunal did not accept that members of the congress party were targeted for persecution by government authorities and found that the applicant would not face persecution for reasons of his political opinion if he were to return to India.
Notwithstanding having found that the applicant would not face persecution for reasons of his political opinion the Tribunal went on to consider at page 79 of the Court Book the reasonableness of the applicant’s relocating to another large town or city in India. The Tribunal concluded that the applicant would not be at risk of any harm if he were to relocate.
It was for those reasons that the Refugee Review Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant.
In the applicant's amended application filed on 21^st June 2004 he seeks a writ of certiorari to quash the RRT decision and a writ of mandamus requiring the RRT to reconsider his application according to law. The application clearly comes within the provisions of s. 39B of the Judiciary Act 1903 (Cth) and the Federal Magistrates Court has jurisdiction to hear the application.
The application sets out the following ground for seeking relief:
That the RRT decision was effected (sic) to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa. I will provide more ground after the meeting with the pilot scheme barrister.
I would comment at this stage that those pro-forma grounds seem to have been in general circulation in mid 2004. The Court has seen them on numerous occasions complete with the same spelling errors of the words "effected" and "weather". I have held previously and I affirm today that the ground as quoted is virtually meaningless and is not a ground for judicial review.
The applicant provides particulars in his amended application in so far as follows:
a) The Tribunal to consider in assessing the chance of the applicant being arrested and/or persecuted on his return to India based on the fact he was political activist in India.
b) The Tribunal satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for disbelief.
The first particular appears to be no more than a request for merits review. It is well established that a Court conducting judicial review of a decision of the Refugee Review Tribunal does not and can not carry out a review of the actual findings of the Tribunal. I refer to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
The second particular relating to reasoning which did not provide a rational or logical foundation for a finding does not appear to be much more than a request for merits review.
If it is intended to suggest what is known as "Wednesbury" unreasonableness then no particulars are given, nor am I able to discern any evidence in the Tribunal decision.
The applicant's written submission was filed on 21 September 2005. It is in effect, although not in title, a further amended application. It bears very little if any resemblance to the amended application and sets out entirely different grounds for claiming relief.
The grounds can be summarised as follows:
a)That the findings of the Tribunal demonstrated actual bias.
b)That the Tribunal breached s. 424A of the Migration Act as set out in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs to which I have previously referred.
c)That the decision is not a privative clause and can be reviewed under s. 39B of the Judiciary Act in that it breaches one of the “Hickman principles”, namely that the decision maker did not act in good faith.
d)That the applicant was denied natural justice as set out in Plaintiff S157/2003 v Commonwealth of Australia [2003] HCA 2.
e)That the Tribunal's decision was tainted because the applicant did not have a competent interpreter at the RRT hearing.
Turning first of all to the question of actual bias, the applicant relies on the decision of the Tribunal to illustrate bias. The question of bias is a serious issue and it is submitted on behalf of the respondent Minister that there is no evidence to suggest that the decision discloses any lack of good faith or prejudgment of the issues.
Counsel for the respondent, Ms Wong, referred the Court to the decisions of SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] and the Full Court decision of SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358. In that latter decision the Full Court constituted by Tamberlin, Mansfield and Jacobsen JJ held at par 16:
It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision maker will be apparent by reference only to the reasons for the decision themselves.
Their Honours went on to refer with approval to the decision of Von Doussa J in SCAA v Minister for Immigration (supra) to which I have previously referred. That same Full Court in the decision of SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 631; (2002) 194 ALR 749 handed down shortly thereafter, set out a number of propositions applicable to a determination of whether a decision constitutes a bone fide attempt to exercise the power of review.
Those propositions are set out in paragraphs [43] to [48] inclusive of the joint judgment. It is convenient here for me to summarise those propositions: First - an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker; second - the allegation is not to be lightly made and must be clearly alleged and proved; third - there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition; fourth - the presence or absence of honesty will often by crucial; fifth - the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme, this is especially so where all that the applicant relies upon is the written reasons for the decision under review; sixth - mere error or irrationality does not of itself demonstrate lack of good faith, bad faith is not to be found simply because of poor decision making; seventh - errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; eighth - the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; ninth - it is not necessary to demonstrate that the decision maker new the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
In my view, with respect to their Honours, those nine propositions set out the matters that the Court must consider when dealing with allegations of actual bias or bad faith. The decision of course is binding upon the Federal Magistrates Court.
Turning to the applicants claim of a breach of s. 424A of the Migration Act and the reference to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 I am unable to see any evidence of any breach and the only reference to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 that is applicable to this case is the decision to grant leave to add the Refugee Review Tribunal as a party to the proceedings.
The reference to the “Hickman principles” set out in the applicant's submission is of course a reference to the decision of the High Court of Australia in R. v Hickman ex parte Fox and Clinton (1945) 70 CLR 598. The submission described the principles themselves accurately:
a) The decision maker acted in good faith.
b) The decision is reasonably capable of reference to the power granted to the decision maker.
c) The decision relates to the subject matter of the legislation.
d) Constitutional limits are not exceeded.
Where the submission misstates the law is where it states that review under s.39B is available if the four factors are observed. The truth is that if the decision of the administrative decision maker complies with those four factors the decision is a privative clause and attracts the protection of s.74 of the Migration Act which means that judicial review is not available. In this case I note that part of the submission seems to have been taken from some other submission as it refers to:
The decision of the Refugee Review Tribunal date 11 June 1998.
As the decision under review was made on 20^th November 2003 the reference to 11^th June 1998 is irrelevant.
Turning to the ground contained in the submission where the applicant refers to Plaintiff S157/2003 v Commonwealth of Australia (Supra), to which I have previously referred, I am of the view that the decision has been correctly cited, but I am unable to discern any matter in the decision before me to which the decision in Plaintiff S157 (supra) would apply.
The applicant complains of the breach of the rules of natural justice but I am not able to discern any in reading the decision. When I asked the applicant to explain he told the Court that he was talking about the decision and not about the hearing. I note that the applicant was invited to attend the hearing in a way that complied with s.425 of the Migration Act. He attended the hearing and gave evidence with the benefit of an interpreter. The Tribunal asked him certain questions about his case and put to the applicant various propositions which tended to suggest a different state of affairs to that mentioned by the applicant.
The applicant asks the Court to listen to audio cassettes of the hearing to find out the issue of jurisdictional error but has not provided any of this information, certainly has not provided a transcript.
As I am satisfied that there is no evidence of bias or bad faith I am not able to identify any breach of the rules of natural justice.
The applicant has raised the issue of the Gujarati interpreter at the RRT hearing and has raised doubts about the quality of that interpreter’s ability. If there were evidence that an interpreter interpreted the proceedings to the applicant in such an incompetent way that the applicant was not able to understand the proceedings fully or present his case properly, then there would be a serious question about procedural fairness.
The applicant has referred the Court to Pereira v Minister for Immigration & Multicultural Affairs [1999] 93 FCR at [6]. I am not satisfied that there is any evidence to persuade the Court that the interpreter at the RRT hearing performed so badly that the applicant was so hindered in his case as to be denied procedural fairness.
The applicant did not refer to this in either his original application or his amended application. He raised it for the first time in his outline of submission dated 20 September 2005, eight days before the hearing. The basis of his claim, he told the Court, is that prior to the hearing he sought legal advice from eight to ten lawyers whose names he cannot recall. Most of those lawyers, he said, had told him upon hearing the audio tape of the proceedings that the interpreter at the RRT hearing was not interpreting the questions properly.
The applicant was not suggesting that these eight to ten lawyers all spoke Gujarati and indeed even though he speaks a little English himself he always took with him a person who speaks Gujarati as well as speaking English. This person was able to interpret for him with the eight to ten lawyers where necessary. When asked by the Court how the lawyers, or at least the majority of them who had told him of the interpreters failings, were able to express such a view if they themselves did not speak Gujarati, he told the Court that they had arrived at that conclusion from listening to the questions put to him and listening to his answers.
I am not satisfied that the applicant has shown that the interpreter at the RRT hearing was in any way deficient. The fact is that the principal reason why the Refugee Review Tribunal did not make a favourable decision to the applicant is because the Tribunal found that the applicant was not a credible witness on a number of matters. That finding is set out at page 77 of the Court Book. On pages 77 and 78 of the Court Book the Tribunal member sets out the reasons why she has made a finding adverse to the applicant's credibility. She sets out a number of reasons as to why she does not believe particular claims made by the applicant relating to the disbelief of his membership or affiliation with the congress party, her disbelief that the applicant's uncle died in police custody as a result of persecutory conduct relating to his membership of the congress party, or that he had been attacked at the times he said for reason of his membership or affiliation with the party.
The rejection of the applicant's credibility in respect of a number of major points relating to his claim was a sufficient reason for the Tribunal not to grant his application.
In my view the Tribunal held that the applicant was not a credible witness was open to the Tribunal on the basis of the evidence and it is well established that findings as to an applicant or a witness’s credibility are entirely within the scope of the administrative decision maker.

This has been set out in the decision of McHugh J in the High Court of Australia in the Minister for Immigration & Multicultural & Indigenous Affairs ex parte Durairajasingham (2000) 168 ALR 407.
The applicant in his submissions has mentioned almost in passing several other purported jurisdictional errors. They are set out in page 5 of the submission as follows:
Finally the RRT decision did reflect the mistake or error in the decision and also the RRT ignored or failed to consider my claims. And mix up irrelevant issues.

I am mindful of the fact that the applicant is not legally represented.

I have read through the decision myself and I am unable to discern any jurisdictional error to which the applicant has not referred. In my view the text of the decision shows that the decision maker did consider the substance of the applicant's claims and in fact asked him questions about his claims. There does not appear to be any evidence that the Tribunal mixed up any issues relevant or irrelevant. There is no reviewable error. The decision is a privative clause which is protected by s. 474 of the Migration Act1958 (Cth).
In my view the amount claimed is within the scale set by the Federal Magistrates Court rules for a hearing of this nature. The applicant has been wholly unsuccessful in his claim. It is an appropriate matter for an order for costs to be made in favour of the successful party. The amount of $4,700.00 which is sought, inclusive on counsel's fees is within the scale of costs set out in the Federal Magistrates Court Rules 2001.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 7 October 2005