SZDOU v Minister for Immigration

[2004] FMCA 974

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOU v MINISTER FOR IMMIGRATION [2004] FMCA 974

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant: SZDOU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1456 of 2004

Delivered on: 22 December 2004

Delivered at: Sydney

Hearing date: 1 December 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent: Ms R A Pepper

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1456 of 2004

SZDOU

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal) made on 24 March 2004 and handed down on 16 April 2004, affirming a decision of the delegate of the respondent (“the delegate”) made on 19 December 2002 to refuse to grant the applicant a protection visa.

Background

1. The applicant is a citizen of India and arrived in Australia on 28 March 1998.  On 18 October 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 19 December 2002 the delegate refused to grant a protection visa and on 22 January 2003 the applicant applied for a review of that decision (Court Book p.63) (“CB”). The applicant claimed a fear of persecution by the Indian authorities (at the behest of the Tamil Nadu authorities), due to his political support of the Marumalouchi Dravida Munnetua Kazhagam (“MDMK”) and his Muslim faith (CB p.64).

2. The applicant was born in Vadakarai, Tamil Nadu in 1947.  He is a Muslim and worked as a trader or importer/exporter.  On 28 December 2001 the applicant applied for a subclass 457 (long-stay business) visa.  The delegate refused that application on 27 September 2002.  As a result of that decision, the applicant applied for a protection (Class XA) visa.  In his protection visa application, the applicant stated he had left India because of his involvement with Mr V Gopalsamy (known as “Vaiko”) and his political party, the MDMK.  Mr Gopalsamy was jailed by the authorities on politically motivated charges.  The applicant claimed that he was at risk of being arrested and jailed by the Indian authorities on politically motivated charges because of his support of the Tamils in Sri Lanka.  The applicant claimed he witnessed a number of killings and the massacre of Tamils in Colombo while he was in Sri Lanka.  As a result he decided to assist the Sri Lankan Tamils and became involved in the recruitment of 200 Sri Lankan Tamils to work in the Singaporean construction industry and in the recruitment of Sri Lankan Tamil women to work as housemaids (CB p.64).

3. The applicant assisted Sri Lankan refugees in India, particularly those in Tamil Nadu.  The Tamil Nadu Government monitored his involvement with the Sri Lankan Tamil liberation movement, harassing him periodically and constantly interrogating him about his involvement with that movement.  Although the applicant was not involved in illegal activities, he claimed he was constantly threatened.  Because of his involvement with the MDMK and that organisation’s association with the Liberation Tigers of Tamil Eelam (“LTTE”), the applicant developed an adverse profile with the Tamil Nadu Government.  He claimed because of his deteriorating position he was forced to flee to Brunei (CB p.65).

4. The Australian authorities initially issued the applicant with a business visa in 1996 which contained the condition that he had to leave Australia every three months.  The applicant’s stated intention for this visa was that he could establish business contacts within Australia and export food from Australia to India.  Between the period of 1989 and 1995 the applicant travelled widely to such destinations as Dubai, Sri Lanka, Singapore, Malaysia and lived at various times in Trichy and Brunei (CB pp.65-66).

The Tribunal’s findings and reasons

1. The applicant lodged an application for review with the Tribunal on 22 January 2003 (CB pp.49-52).  By letter dated 14 October 2003 the Tribunal advised the applicant that it was unable to make a decision in his favour on the information provided and invited him to attend a Tribunal hearing on 20 January 2004 in Perth.  The conference was conducted by video link with the member and interpreter in Melbourne (CB pp.53-54).

2. The Tribunal accepted the applicant supported in some form the various political groups and persons he claimed to support (CB p.69) (“CB”).  However, because of uncertainties in the applicant’s account, the Tribunal did not accept that the applicant was attacked some time between 1992 and 1994 because of his political opinion (CB p.70).  The Tribunal also did not accept that the applicant would be harmed by the Tamil Nadu authorities as a result of his imputed support of the LTTE or the Tamils (CB p.70).

3. The Tribunal noted the applicant had not claimed to have openly supported the LTTE or to have recently rendered assistance to the Sri LankanTamils nor had he given the Tribunal evidence to support his claim that he had been targeted in relation to Rajiv Ghandi’s assassination.  The Tribunal therefore rejected the applicant’s claim that there was any real chance he would be persecuted by the authorities because of his support for the LTTE, the Sri Lankan Tamils or for Ghandi’s assassination (CB p.70)

4. The Tribunal found that the applicant was not a high profile supporter of the MDMK and therefore did not accept that the applicant would attract adverse attention from the authorities because of his support for the MDMK (CB p.70).  As a result of the applicant’s acceptance that he was not very involved in the support for MDMK due to his business activities, the Tribunal did not accept that his activities for MDMK were such that he attracted the adverse interest of the Tamil Nadu Government.

5. Finally, the Tribunal rejected the applicant’s claim that he had a genuine and well founded fear of persecution by reason of his religious beliefs because the applicant failed to provide any evidence in support (CB p.70).

Application for review of the Tribunal’s decision

1. On 18 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:

   1.“My visit to Sri Lanka during in 1982-84 during my visit I witnessed number of killings and massacre of innocent Tamils.  In Petta [Colombo] those incident affected me and left me with deep sense of humanitarian feelings.  I had then decided to help Sri Lanka Tamils to the best of my ability.

   2.My involvement in political [MDMK] movements created major problem.

   3.Well founded fear of my life threaten by the paid thugs made me to be away from my family and birthplace.

   4.Current political climate in India will reinvestigate ex prime minister assassination case and I will be a scape goat within the frame of intelligence circle.

   5.My wife involvement in BJP and BJP is not in power the Muslim phanatics will try to take revenue and we will have no support from the government.  There is an imminent danger to my life if I get back to India.”  (Errors included)

The law

1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  S157/2002 at [76] and S134/2002 at [15].

2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

1. The applicant appeared self represented with the aid of an interpreter.  The applicant attended a directions hearing on 25 August 2004 where he signed by consent Short Minutes of Order where he agreed to file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in his application to the Court and any evidence upon which the applicant proposed to rely upon by 20 October 2004.  The applicant also agreed to file and serve written legal submissions seven working days before the hearing date.  No amended application was filed however the applicant did submit written submissions prior to the hearing which were in effect a review of the applicant’s circumstances in relation to his business ventures in Brunei, Australia and India, his early business visa arrangements and his subsequent application for a protection visa.  None of this material went to anything that could be identified or called a ground for review of the Tribunal’s decision.

2. When the applicant was invited to make oral submissions the applicant complained that he had not been provided with a copy of the Court Book in a timely manner and in effect he had to visit the respondent’s solicitors’ office to obtain a copy, approximately one week before the scheduled hearing date.  The respondent’s solicitors handed up in Court a copy of a letter dated 8 September 2004 which was a copy of the correspondence forwarded with the Court Book to the applicant on that date.  The applicant denied receiving the Court Book however he did concede that he had received the respondent’s submissions by mail to the same address to which the Court Book had been directed.  When I raised with the applicant the requirement to file and serve an amended application by 20 October 2004 in order to comply with the consent orders entered into on 25 August 2004 and questioned why this did not trigger any action from the applicant until a week before the hearing, he declined to respond.

3. When asked if he wished to make any further submissions, the applicant proceeded to review in a general manner the history of his situation and the fact that he did not have that material to put before the Court.  The applicant was suggesting that he had insufficient time in which to obtain documentary evidence from India in support of his claim and situation.  I explained to the applicant the function of this substantive hearing and the issue which this Court could consider in respect of the Tribunal’s decision that was centred upon jurisdictional error.  The applicant finally stated that the Tribunal had rejected all the matters that he had submitted in support of his application and he did not agree with this.

4. Ms R A Pepper of Counsel, appearing for the respondent, filed written submissions prior to the hearing.  It was submitted that other than the factual matters pleaded in paragraphs 1 to 5, no grounds of review were identified by the applicant in the application.  It was submitted that to review the decision of the Tribunal on the factual grounds suggested by the applicant in his application would amount to the Court engaging in a merits review:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 272. It was submitted that the Tribunal weighed up the limited evidence presented by the applicant and made findings of fact that were open to it on the material before it and it was entitled to do so in the circumstances: Kopalapillai v Minister for Immigration & Multicultural Affairs at 558-559; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs at [30]. It was submitted that no jurisdictional error was committed by the Tribunal and that the decision of the Tribunal was a privative clause decision within the meaning of s.474 of the Act.

Reasons

1. The applicant in these proceedings was representing himself and has made limited oral and written submissions in support of his application.  The grounds in the original application are vague, unparticularised, and do not raise any ground for review.  Despite this substantial defect in the application, where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out:  Yo Han Chung v University of Sydney & Ors.

2. On a fair reading of the Tribunal’s decision, the Tribunal has accepted the applicant’s membership, association or support of various political parties or movements that were campaigning against the incumbent governments for reform or change.  However, on the applicant’s own admission, his involvement or support of these various organisations in recent times had not been overt or of the nature to attract attention.  The Tribunal was not satisfied that the applicant could present any evidence which would indicate that the Tamil Nadu government would be attracted to his presence and that he would be pursued or persecuted during that presence.  When the applicant indicated that he had been unable to gain documentary evidence from sources within India and that he was “on watch” by various governmental bodies, I took him to the various pieces of correspondence, both within the Court Book and documents filed within the Court, that had indicated requests made of him to supply this information as it was required to assist his claim for protection.  No explanation was ventured by the applicant.

3. The obligation was on the applicant to present his case supported by any evidence that was available that assisted in establishing the veracity of the claims made:  see Abebe v Commonwealth of Australia; S134/2002.

Conclusion

1. I have not been able to identify any ground that the Tribunal has committed a jurisdictional error.  The applicant’s claim should be dismissed.

2. I am satisfied that an order for costs should be made in this matter. 

   
   

   I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  22 December 2004