SZDTQ v Minister for Immigration
[2009] FMCA 344
•29 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 344 |
| MIGRATION – Visa – Protection (Class XA) visa – review of RRT decision – citizen of Moldova claiming fear of persecution as a former army officer and human rights activist – country information – merits review – whether the Tribunal did not make its decision in good faith – bias – the weight to be given to documents – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.425, 476 |
| SZDTQ v Minister for Immigration [2005] FMCA 273 SZDTQ v Minister for Immigration and Multicultural Affairs [2005] FCA 867 SZDTQ v Minister for Immigration & Anor [2007] FMCA 1556 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 374 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 followed SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 followed SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 Kamal v Minister for Immigration and Multicultural Affairs [2002] FCA 818 Minister for Immigration and Multicultural Affairs v Djalal (1998) 51 ALD 567 SZILP v Minister for Immigration and Citizenship [2007] FMCA 592 Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997) Minister for immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 SZKRR v Minister for immigration and Citizenship [2008] FCA 145 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZDTQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3039 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 February 2009 |
| Date of Last Submission: | 5 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondents: | Mrs Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox (Ms Hooper) |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3039 of 2008
| SZDTQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Moldova who is seeking judicial review
of a decision of the Refugee Review Tribunal that was signed on
30th October and handed down on 31st October 2008, affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court:
a)to make a declaration that the decision of the Refugee Review Tribunal is invalid and of no effect; and
b)to set aside the decision and remit the application to the Refugee Review Tribunal for hearing and determination according to law.
The Applicant relies on these grounds of review:
i)That the Tribunal erred in determining that the Applicant did not fall within the definition of refugee; and
ii)That the Tribunal made erroneous findings and came to a mistaken conclusion.
The Applicant has accompanied his application for review with an affidavit filed on 21st November 2008 which sets out his litigation history and particularises nine grounds of review, which can be found in paragraphs 8 to 17 inclusive.
The lawyers for the Minister filed a Response on 3rd December 2008, contesting the substantive application.
Background
The Applicant arrived in Australia in September 2000. He applied for a Protection (Class XA) visa on 6th October 2000. He accompanied his application with a statement in which he set out that he was a retired army officer, a scientific researcher and a human rights defender who was unwilling to return to Moldova because he suffered harassment amounting to persecution arising from his scientific and human rights defending activities.
In his statement the Applicant described his military service in the Soviet Army. He referred to a phenomenon known as dedovschina or “grandfatherhood”, which he described as a sophisticated system of humiliation of and suppressing and, at times, torturing, of young army recruits by older soldiers. This led to desertion or death, including suicide. However, the officers in the army turned a blind eye to the practice.
The Applicant described how, on the collapse of the USSR in 1991, he elected to serve in the army of Moldova. He served until he was forced to retire in October 1997. The practice of dedovschina continued in the Moldavian army. The Applicant stated that he began to explain to army conscripts what their rights were, which attracted unwelcome attention from his superiors. They fabricated a case against him, blaming him from neglecting his duties. Eventually, the Applicant elected to resign from the Army.
When the Applicant went into civilian life, he had trouble finding employment so he joined a Human rights Centre in Moldova. He became active in defending human rights, particularly in the area of the rights of military conscripts. He commenced to write a book and worked with a human rights activist who was born in Moldova but lived in Italy.
In August 2000, when the activist was visiting him, the Applicant’s home was raided by plain-clothes police from the SIB. The activist was deported. The Applicant was taken to the SIB headquarters in Chisinau, the capital, and interrogated. He stated that he was released but told to return and make a confession. He felt threatened and decided to leave the country.
In June 2000 the Applicant had applied for a visa to visit Australia and made inquiries about obtaining a visa to enter the United States. His visa for Australia came through in August 2000. The Applicant left Moldova and travelled to Kiev on 8th September 2000 and flew to Australia.
A delegate of the Minister refused the Applicant’s application for a protection visa on 17th November 2000. The delegate found it “difficult to accept” that the authorities in Moldova had any serious interest in the Applicant. The delegate was not satisfied that the Applicant’s claims amounted to a fear of persecution.
The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 28th November 2000. He attended a hearing of the Tribunal on 23rd April 2002 and gave evidence with the assistance of a Russian interpreter. The Tribunal handed down its decision on 18th February 2003, affirming the decision not to grant the Applicant a protection visa.
The Applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. On 28th February 2005 the Court dismissed the application (SZDTQ v Minister for Information[1]).
[1] [2005] FMCA 273
The Applicant appealed to the Federal Court. On 28th June 2005 Branson J allowed the appeal and issued orders in the nature of certiorari and mandamus, remitting the Applicant’s application to the Refugee Review Tribunal for determination according to law (SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs[2]).
[2] [2005] FMCA 867
The Tribunal invited the Applicant to attend a further hearing on
17th October 2005. Again, the Applicant attended the hearing and gave evidence with the assistance of a Russian interpreter. The Tribunal handed down its decision on 5th January 2006, affirming the decision not to grant a protection visa.
The Applicant then sought judicial review of this decision of the Tribunal in the Federal Magistrates Court. On 14th September 2007 Raphael FM issued writs of certiorari, prohibition and mandamus, remitting the Applicant’s application to the Tribunal to reconsider and redetermine according to law (SZDTQ v Minister for Immigration & Citizenship & Anor[3]).
[3] [2007] FMCA 1556
The Tribunal sought further information from the Applicant, which he provided, and proceeded to make a decision without holding a hearing under s.425 of the Migration Act. The Tribunal handed down its decision on 24th April 2008, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant sought judicial review of this decision by applying to the Federal Magistrates Court. On 13th August 2008 Driver FM made orders by consent, issuing writs of certiorari and mandamus. The Court noted the concession by the Minister that the Tribunal decision was affected by jurisdictional error in that the Tribunal had breached section 425 of the Migration Act by not inviting the Applicant to a hearing (see the decision of the Full Court of the Federal Court in SZHKA v Minister for Immigration and Citizenship[4]).
[4] [2008] FCAFC 138
The Tribunal invited the Applicant to attend a hearing on 29th September 2008. The Applicant attended the hearing and gave evidence with the assistance of a Russian interpreter. The Tribunal handed down its decision on 31st October, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
The Tribunal’s decision sets out a summary of the Applicant’s claims and a detailed summary of the Applicant’s evidence at the hearing.[5] In its Findings and Reasons the Tribunal stated that there were good reasons not to accept the Applicant’s claims. The Tribunal found it “difficult to accept that he was forced to resign from the army because he was telling conscripts and their parents how they could avoid military service”.[6] The Tribunal stated that it preferred the independent evidence available to it about the number of people who are called up in Moldova.
[5] Court Book 390 – 404
[6] Court Book 405
The Tribunal found the Applicant’s evidence about his work for a human rights organisation to be inconsistent and contradictory. The Tribunal also found that “there is no evidence in reputable independent sources that human rights activists in Moldova face harassment.”[7]
[7] Court Book 407
The Tribunal found it difficult to accept that the Applicant would have had problems in Moldova because he had been discussing issues relating to conscription or a professional army, finding that conscription was not a “big issue” in Moldova.[8] The Tribunal also found that there was nothing in the Applicant’s claims to suggest that the military authorities had any interest in him after he had resigned from the army.[9]
[8] Court Book 408
[9] Court Book 409
The Tribunal considered the Applicant’s claim that the SIB, formerly the KGB, had accused him of undermining the defence of Moldova and co-operating with “foreign intelligence” and passing on military secrets. The Tribunal did not find the Applicant’s claims in this regard credible.
The Tribunal also found that four summonses which the Applicant had produced to the Tribunal were not genuine and described them as “fabrications”.[10]
[10] Court Book 411 and 412
The Tribunal did not accept that there was a real chance that the Applicant would be arrested, prosecuted, imprisoned or otherwise persecuted for any of the Convention reasons if he were to return to Moldova. Accordingly, the Tribunal did not accept that the Applicant had a well-founded fear of being persecuted “for one or more of the five Convention reasons if he returns to Moldova now or in the reasonably foreseeable future.”[11] Consequently it was not satisfied that the Applicant was a person to whom Australia has protection obligations and therefore he did not satisfy the criterion set out in s.36(2)(a) of the Migration Act for a protection visa.
[11] Court Book 413
Application for Judicial Review
The Applicant claims in his application that the Tribunal erred in determining that he did not fall within the definition of Refugee, made erroneous findings and came to a mistaken conclusion. In his affidavit, the Applicant claims that the Tribunal used “improper methods” in assessing his claims, which led it to the wrong decision.
The grounds upon which the Applicant relies are set out in paragraphs 8 to 17 of his affidavit. I will deal with them in order, using the same paragraph numbers.
Paragraph 8
The Applicant claims that the decision of the Tribunal was not made in good faith and that the Tribunal “realized the preconceived approach” to his case. This ground is covered in more detail in paragraph 12.
Paragraph 9: “The RRT decision-maker discredits me and my claims using incomplete and unreliable information.”
The Applicant takes issue with the truth of the Independent Country Information relied by the Tribunal, taken from the UK Home Office, Immigration and Nationality Directorate, Country Information and Policy Unit, Moldova – Country Report, October 2003, paragraph 5.51. He refers to further material about statistics to do with the number of troops, including conscripts, in the army of Moldova.
The Applicant claims that the Tribunal tried to discredit his claims by “fiddling with the word “volunteers’”.
This ground fails because it is an attempt at merits review of the Applicant’s factual claims, which the Court cannot undertake. It is a matter for the Tribunal what weight it gives to country information. It is not an error of law or a jurisdictional error for the Tribunal to rely on inaccurate country information. The accuracy of the country information is a question for the Tribunal, not the Court (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[12] at [11]; SZANK v Minister for Immigration & Multicultural & Indigenous Affairs[13] at [16]).
Paragraph 10: “The RRT decision-maker perverts my claims by eliding basic language.”
[12] [2004] FCAFC 10
[13] [2004] FCA 1478
This is a claim that the Tribunal misquoted the Applicant’s evidence to the second Tribunal at paragraphs 49[14] and 106[15] of the decision. The Decision Record of the Second Tribunal hearing says:
The Applicant again stated that he was not persecuted for his human rights activities, but due to the false charges against him, which arose also out of his military background.[16]
[14] Court Book 396
[15] Court Book 408
[16] Court Book 234
There is, as counsel for the Minister has submitted, no transcript of the second Tribunal hearing in evidence. In my view, the Court should accept the Tribunal decision record as an accurate account of what was said at that hearing.
This ground of review has not been made out.
Paragraph 11: “The RRT decision-maker attributes to me unlawful behaviour. He proclaims me to be a saboteur.”
This rather melodramatic ground is a challenge to the Tribunal’s description of how he explained to “conscripts and their parents how they could avoid military service…[17]
[17] paragraphs 91, 92 at Court Book 405
The Applicant submits that the Tribunal had forgotten his evidence because earlier in the decision the Tribunal stated that the Applicant had said “that he had been trying to help by explaining the legal avenues for the conscript not to serve in the army and this had enraged the military. [18]
[18] Court Book 403
In my view, the Tribunal Decision did not suggest that the Applicant had acted unlawfully but, more importantly, this is a ground that does no more than ask the Court to undertake a merits review of the Tribunal decision. Consequently, it does not demonstrate any jurisdictional error.
This ground of review has not been made out.
Paragraph 12 (also paragraph 8): “The RRT decision-maker makes his decision not in good faith.”
The Applicant takes issue with the Tribunal’s statements that “the changes in his evidence with regard to the organisation with which he was involved cast doubt on whether he is telling the truth…”[19]
[19] Court Book 407
The Applicant submits that this stems from the Tribunal’s wish “at first to force down the throat his preconceived ideas and then to suggest that my words and behaviour do not match them”. He refers to his earlier written statements to the Tribunal in support of his claim.
However, what the Tribunal was doing at paragraph 98 of the decision was state a conclusion that the Tribunal had already put to the Applicant during the hearing. The previous paragraphs of the decision, from 95 to 97, all contain propositions that the Tribunal said were put to the Applicant at the hearing, and to which the Applicant replied.
Thus, the Applicant’s ground is really an attempt at persuading the Court to undertake merits review.
It was said by the Full Court of the Federal Court in SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[20] at [10]:
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.
[20] [2002] FCAFC 358
The Full Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[21] at [44]:
The fifth proposition is that 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.
[21] [2002] FCAFC 361
Similar statements have been made in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs[22] at [38]; NAAP v Minister for Immigration & Multicultural & Indigenous Affairs[23] at [25], and SBAU v Minister for Immigration & Multicultural and Indigenous Affairs[24]at [28].
[22] [2002] FCA 668
[23] [2002] FCA 805
[24] [2002] FCA 1706
Counsel for the Minister has referred the Court to the decision of Mansfield J in Kamal v Minister for Immigration and Multicultural Affairs[25] at [36]:
It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal…The Court is not empowered to review the Tribunal’s decision on the merits.
[25] [2002] FCA 818
In my view, no lack of good faith on the part of the Tribunal has been shown. The ground of review is, as I said previously, an attempt at merits review of the decision. This ground of review has not been made out.
Paragraph 13: “The RRT decision-maker in my case demonstrates political engagement.”
The Applicant takes issue with what he sees as an anti-Russia bias on the part of the Tribunal in such statements as:
As I put to the applicant in the course of the hearing before me, there is no evidence in reputable independent sources that human rights activists in Moldova face harassment...[26]
As I put to the applicant, it is well-known that Russia backs the regime in the breakaway Trans-Dniester region and I give more weight to reports from reputable independent sources than I do to such pro-Russian sources.[27]
[26] Court Book 407 at [101]
[27] Ibid. See also [78] at page 402 of the Court Book
The Applicant states in his affidavit:
I am neither American nor Russian. I am Ukrainian. I think that political juggling in my case is not a display of impartiality but on the contrary is the display of unfairness.[28]
[28] Applicant’s affidavit at [13]
This ground certainly appears to constitute a claim of bias on the part of the Tribunal. Bias is a serious allegation and should be strictly alleged and proved. I am not satisfied that the statements referred to can be regarded as indicative of any bias on the part of the Tribunal.
This ground of review has not been made out.
Paragraph 14: “The RRT decision-maker did not comprehend my words properly.”
The Applicant takes issue with the Tribunal’s description of a statement he made at the hearing:
He then said that it had not been the military authorities and that there were special organisations dealing with spies and traitors.[29]
[29] Court Book 396 at [50]; Court Book 409 at [109]
The Applicant complains that:
A reader can have an impression that I am talking of some mysterious organizations and thus I am suffering persecution complex.
There is no mystery at all in this saying. I was talking not about some mysterious organizations but about corresponding divisions of SIB.[30]
[30] Applicant’s affidavit at [14]
In my view, the Applicant’s fears in this regard are groundless. When read in context, the Tribunal’s words make it clear that the Applicant was discussing a security agency such as the SIB and was not showing signs of any persecution complex.
Mrs Sirtes of counsel, who appeared for the Minister, surmised that this ground may be an allegation of bias. The Applicant told the Court in his oral submission that he believed that each Tribunal Member was biased and the last Tribunal Member was “biased to the extreme”. He said that the Refugee Review Tribunal did not want to be objective. He said that the Tribunal Members did not want to take into account all the evidence and it looked to him as if every time the Member of the Tribunal did not want to give a positive decision because it would compromise the earlier decisions.
In answer to a question from the Bench about why he referred to “extreme bias”, the Applicant said that he could not give any particular example but (when) the Tribunal Member was asking questions it looked as if he already knew the answer. He was taking the answers as if he knew the Applicant was not telling the truth.
I am not persuaded that the Applicant has shown in this ground that the Tribunal Member was biased or was under any misapprehension about what the Applicant meant. There is no evidence that the Tribunal believed that the Applicant was in some way suffering from a persecution complex.
This ground of review has not been made out.
Paragraph 15: “The RRT decision-maker substitutes concepts.”
The Applicant takes issue with the statements by the Tribunal at paragraphs 51, 81 and 82 of the decision that:
I referred to the applicant’s evidence that the former KGB had accused him of undermining the defence and mobilisation ability of Moldova. I put to the applicant that if this was supposed to have related to the proposal for a professional army it did not make sense…[31]
[31] Court Book 396 at [51], 403 at [81]-[82]
The Applicant then seeks to challenge those statements on factual grounds. It is an attempt at merits review, being a challenge to the Tribunal’s factual findings.
This ground has not been made out.
Paragraph 16: “The RRT decision-maker makes unfounded suggestions.”
The Applicant refers to this statement by the Tribunal at paragraph 52 of the decision:
I put to the applicant that if the authorities had believed that he was a spy or a traitor it was difficult to accept that they would simply have released him after he had been detained on 22 August 2000, as he claimed. [32]
[32] Court Book 396-397
The Applicant comments, rather sarcastically:
In my turn I could assume that if the decision-maker were in the shoes of the Moldovan “tonton makuts”[33] he would have made short work of me straight away.
[33] Plainly the applicant is referring to the “Tontons Macoutes”, the name given to the Milice de Volontaires de la Securite Nationale (MVSN), a militia force in Haiti reporting directly to President Francois Duvalier, who acted as a private security force loyal to the Duvalier family.
The statement complained of appears in the Tribunal’s summary of the evidence. It is not a finding by the Tribunal. It is no more than a description of the Tribunal challenging the Applicant’s evidence and giving him the opportunity to respond to it.
As counsel for the Minister submits, the Tribunal was merely putting the matter to the Applicant to allow him an opportunity to clarify something which was adverse to him, and in compliance with s.425 of the Act, so that he was aware of the issues.
This ground of review does not disclose any jurisdictional error.
Paragraph 17: “The RRT decision-maker stirs up irrelevant issues and stereotypes me as a corrupt person.”
The Applicant complains about the Tribunal’s finding at paragraphs 115 to 119 of the decision[34] that the summonses that he produced were fabricated. He states:
Since there is no evidence that the summonses were physically fabricated (paper, ink, stamps, print, handwriting, inappropriate omissions or inclusions) that means that all of them were issued in Moldova. They were issued at the time when I was not there which means that I could not have influenced their content. That’s it. Full stop.
[34] Court Book 411-412
Against this, counsel for the Minister submitted that the Tribunal did not need explicit evidence that the documents were fabricated to come to that finding (Minister for Immigration and Multicultural Affairs v Djalal[35]). The Tribunal put its difficulties with the documents to the Applicant for his comment[36] (see also SZILP v Minister for immigration and Citizenship[37]).
[35] (1998) 51 ALD 567
[36] Court Book 411 at [116]
[37] [2007] FMCA 592
In SZILP, at [45], Driver FM made finding of apprehension of bias, which he stated was supported by a finding by the Tribunal that a letter was fabricated because it found that the Applicant had fabricated the claim that the letter supported:
There was no analysis of the appearance or contents of the letter. Rather, there was a complete unwillingness to pay regard to the letter.
In the present case, by contrast, the Tribunal examined the documents and commented on certain aspects of them. The Tribunal put those concerns to the Applicant at paragraphs 116-119[38] and referred to Independent Country Information from the UK home Office to the effect that “Moldova is a notoriously corrupt country”.[39] I am not of the view that the Tribunal fell into error when it dismissed the summons as fabrications.
[38] Court Book 411-412
[39] Court Book 412
The Applicant also complains that the Tribunal refers to a letter from a lawyer in Moldova about his case as an officer in these terms:
The letter is couched in purely hypothetical terms, based on a case stated to the lawyer by the applicant. the applicant does not in fact claim that he has been charged with any of these offences.[40]
[40] Court Book 409 at [108]
It was a matter for the Tribunal as to what weight it put on the letter and failure to give weight to a piece of evidence does not constitute jurisdictional error (Abebe v The Commonwealth[41] at [197]).
[41] (1999) 197 CLR 510; [1999] HCA 14
Counsel for the Minister also referred the Court to Chand v Minister for Immigration and Ethnic Affairs[42], Minister for immigration and Ethnic Affairs v Wu Shan Liang[43] at 281-282, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[44] at [12] and [49], SZJMH v Minister for immigration and Citizenship[45] at [27], and SZKRR v Minister for Immigration and Citizenship[46] at [7], in support of the proposition that the Tribunal was entitled to place no weight on the letter.
[42] Unreported, Full Federal Court, per Von Doussa, Moore and Sackville JJ
[43] (1996) 185 CLR 259
[44] (2003) 198 ALR 59
[45] [2008] FCA 270
[46] [2008] FCA 145
In SZKRR at [7], Bennett J held:
The Tribunal made a comprehensive finding about the appellant’s credibility. It stated, with some care, the basis for that finding based upon a series of factual matters and it explained its reasons in each case. It then found that considering the evidence cumulatively, it did not accept the appellant’s claims. Having made that prior finding on credibility, the Tribunal was entitled to place no weight on evidence purportedly corroborative of the appellant’s case (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (20030 198 ALR 59 at [12] per Gleeson CJ and [49] per McHugh and Gummow JJ).
I am satisfied that the Tribunal did not fall into error when it gave no weight to the letter.
The Applicant also referred to the definition of the word “refugee” and made a submission that he in fact fits that definition. That is no more than a further attempt at merits review.
This ground of review has not been made out.
The Applicant complains that the Tribunal’s reference to Moldova as “a notoriously corrupt country” stereotypes him as a bribe-giver.
It does not. It is not a ground review.
The Applicant also complains in paragraph 21:
Sometimes decision-maker’s command of English fails him.
This is not a ground of review.
The Applicant refers to the decision of Minister for Immigration and Multicultural Affairs v Yusuf[47] at [82]:
[W]hat is more important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law…In other words, if an error of this type is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
[47] (2001) 206 CLR 323; [2001] HCA 30
The Applicant submits that the decision is a nullity because of the errors to which he has referred.
Against this, the Minister submits that the decision under review is a privative clause for the purpose of section 474 of the Migration Act and this can only be set aside if there has been a “failure to discharge ‘imperative’ duties or to observe ‘inviolable limitations or restraints’ (Plaintiff S157/2002 v Commonwealth of Australia[48] at [76]). As the Minister submits that no jurisdictional error has been made out, the decision is a privative clause decision.
[48] (2003) 211 CLR 476
I am satisfied that the Applicant has not demonstrated that the Tribunal decision is affected by any jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision and it is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)(c)).
It follows that the application will be dismissed.
I will hear submissions as to costs.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 23 April 2009
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