SZDQK v Minister for Immigration
[2005] FMCA 153
•24 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDQK v MINISTER FOR IMMIGRATION | [2005] FMCA 153 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 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
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
| Applicant: | SZDQK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1541 of 2004 |
| Delivered on: | 24 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1541 of 2004
| SZDQK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 April 2004 and handed down on 29 April 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 14 October 2003 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDQK”.
The applicant is a citizen of India. He arrived in Australia as a temporary business entrant in June 2003 and applied for a protection (Class XA) visa on 31 July 2003. The delegate’s reasons are set out in the Court Book (“CB” pp.32-43). On 13 November 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant was born in 1951 in Kerala, India. He is of Hindu religion and speaks Malayalam. The applicant is married and is a mechanic by trade. In his original application he stated that he joined the Community Party of India (Marxist) (“the CPI(M)”) and has risen to the position of District Secretary of the Party. He claimed he had made speeches against the Congress Party and that he had been offered money to change his political affiliation but he rejected that offer.
The applicant stated that the Congress passed a Bill in favour of privatisation which has been violently opposed by all the Government opposition parties. The applicant claimed he was involved in a rally in Palghat organised by his party but the police intervened and disbursed the crowd with tear gas and lathi charges. He stated he was arrested, beaten and tortured and was unconscious for two days before he was released on bail. The applicant claimed to have lost his job because the Congress Party instructed his employer that the applicant’s continued employment would harm the firm.
The Tribunal’s findings and reasons
The Tribunal accepted that the applicant was involved with the CPI(M) but did not accept that he had to leave his home in the Palghat district of Kerala because of problems he had as a result of his membership of the Party. The applicant was inconsistent and changed stories in respect of convictions and imprisonment and the Tribunal declined to accept that material. There were also inconsistencies regarding his movement between his original home in Palghat, Bombay and Trivandreum and the reasons given for his movement between these three cities.
Although the applicant originally claimed that he would be killed if he returned to his home area he conceded during the oral hearing that his political opponents had never tried to kill him in the past but said that many such incidents had happened and it was not investigated because of the political group of the Government. The Tribunal noted that at all recent times the CPI(M) was either in Government or was the main opposition party in Kerala. The Tribunal found that independent evidence available regarding the situation of supporters of political parties in India in general and the situation in Kerala in particular indicated that if the applicant returned to his home area in Kerala now or in the reasonably foreseeable future it was unlikely that he would be killed, imprisoned or falsely charged or otherwise persecuted by police or his political opponents. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for Convention reasons if he returned to India.
Application for review of the Tribunal’s decision
On 25 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 7 October 2004 the applicant subsequently filed an amended application which contained the following grounds:
“1.The first few pages of the decision of the Refugee Review Tribunal states about the definition of ‘Refugee’ and the requirements for that.
Firstly, the applicant must be outside his country. That is correct in this case. Secondly, an applicant must fear persecution. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular group or political opinion’. Fourthly, the applicant must have a ‘well-founded fear of persecution for one of the Convention reasons’. On reading these few pages the applicant is satisfied that he fulfils the four key elements.
2.The Tribunal has not considered the real facts that the applicant was forced by the Congress part to leave Communist Party of India and join the Congress party. When he refused he was harassed by the Congress party. The police who should have given protection also failed to do that.
3.The Tribunal failed to see that the applicant is out of the country. The applicant has fear of persecution. The fear is for membership of a particular group or political opinion. The applicant has a well founded fear because, on one side the influential Congress party which has connection throughout the country threatened the applicant. The protecting authority, that is the police are not safeguarding him.
4.The Tribunal failed to take into account that the house and property of the applicant was ransacked by the opposite group and the police were a silent spectator, not see that the applicant satisfied the points as stated above and failed to see that the applicant is not willing to return to his country because of this.
5.The Tribunal completely ignored the point that [Mr M…] used all his powers to cause harm to the applicant and the law enforcing authorities are unable to do anything. In such a situation the applicant wants protection in this country.
6.The Tribunal failed to see that when the applicant went to the police to protect him he was charged on false things and put in jail.
7.The Tribunal was completely wrong in saying that the applicant had to leave his home not because of the problems he had as a result of his membership of the party.
8.The Tribunal erred in stating that it does not accept the applicant’s evidence that he was sentenced to three month’s imprisonment.
9.The Tribunal did not believe the applicant from the beginning and so it was one sided and biased against the applicant.
10.The Tribunal failed to see that the applicant tried to live in many parts of the country and could not live peacefully.
11.In any event the Tribunal should have accepted the applicant’s case. The applicant requests the Court to set aside the order of the Tribunal and direct the Tribunal to consider the matter fresh.” (Identification deleted)
The law
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].
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
The applicant appeared self represented with the aid of an interpreter. He attended a directions hearing on 31 August 2004 and agreed to Consent Orders requiring that an amended application be filed and served by 12 October 2004 and that written submissions be filed and served seven days prior to the hearing. The applicant subsequently filed and served an amended application but did not file and serve written submissions.
When the applicant was invited to make oral submissions in support of his application, he indicated that he did not wish to make any statement and would rely on his amended application.
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)It is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its implicit finding that the applicant was not credible and his fears not well founded. Such findings are matters of fact for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham per McHugh J at [67]. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration & Multicultural Affairs at 558-559; W148/00A v Minister for Immigration & Multicultural Affairs per Tamberlin and R D Nicholson JJ at [64]-[69]. The Tribunal’s findings were open for the reasons it gave, including the country information to which it referred and it was unlikely that a State party would be expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration & Ethnic Affairs per McHugh J at 428 (although here the Tribunal did not find the Applicant’s claims to be “plausible and coherent“).
b)The amended application did not identify any jurisdictional error in the Tribunal’s decision and appeared to seek merits review which is not open to this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”) at 272, and there was no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia at [137]. A claim of actual bias was made, but there was no basis for such an allegation simply because the Tribunal did not accept the Applicant’s claims.
Reasons
Although the applicant has filed an amended application in response to the orders of the Court Registrar, the grounds set out in the amended application did not identify errors in the Tribunal’s decision. The applicant appeared to be seeking a merits review of the Tribunal’s decision. In a number of the pleaded grounds the applicant merely states that the Tribunal made an error on the basis that it had declined to accept the propositions put to it by the applicant. The decision in Wu Shan Liang is the established authority that this Court cannot review the merits of a Tribunal’s decision.
In ground 9 of the applicant’s amended application he pleaded that the Tribunal was one sided and biased against the applicant. A party asserting actual bias on the part of the decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. The pleading of bias is both vague and unparticularised. A claim of bias in these circumstances could not be sustained.
The substantial finding of the Tribunal was that the applicant was not credible in his claims and the decision sets out the reasons for these findings in a number of areas. I have adopted the submissions of the respondent’s Counsel in relation to the authority to be followed in respect of a question of credibility. In the absence of any clear pleading of the grounds and the unparticularised nature of the claims it can only be considered a fair reading of the decision on its face. The absence of any particularisation of any error results in a limitation in a determination should there be an underlying error not immediately apparent by a fair reading of the decision.
Conclusion
I do not believe that the Tribunal’s decision is infected by jurisdictional error and consequently the substantive application should be dismissed.
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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 February 2005
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