SZDWU v Minister for Immigration
[2008] FMCA 151
•29 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 151 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Malaysia credibility – merits review – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A |
| Applicant: | SZDWU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3111 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 January 2008 |
| Date of last submission: | 29 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Snell |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3111 of 2007
| SZDWU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, who is a citizen of Malaysia, asks the Court to review a decision of the Refugee Review Tribunal that was made on 13th May 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant protection.
The Applicant commenced these proceedings on 8th October 2007. He filed an application asking for a new hearing by the Refugee Review Tribunal. His grounds as set out in the application are:
a)Jurisdictional error; and
b)Procedural error.
Background
The background to the matter is that the Applicant arrived in Australia on 17th December 2003. He applied for a Protection (Class XA) visa on 20th January 2004. A delegate of the Minister refused his application the next day, 21st January 2004.
The Applicant had applied for a visa on the basis that he said he had been persecuted by his former employer. The Applicant suspected that his employer and other people had been involved in criminal behaviour but he was told to keep quiet. Eventually the police stopped a vehicle from which the Applicant was travelling and the driver fled the scene. The Applicant was arrested and he said that he was forced to admit to a crime which led to his imprisonment. He claimed to have been harassed whilst he was in gaol.
The Applicant claimed that after he was released from gaol the police asked him to identify a suspected drug dealer but when he did so the drug dealer's gang threatened him and for that reason and also because his former employer wished to see him the Applicant fled to Singapore.
Refugee Review Tribunal Application
When the Applicant's application for a visa was refused he applied to the Refugee Review Tribunal for a review of that decision on 11th February 2004. The Applicant attended a hearing of the Tribunal that took place on 20 April 2004. The Applicant gave oral evidence with the assistance of an interpreter in the Tamil language.
The Tribunal asked the Applicant a number of questions about his case and about the circumstances in which he had been living in Singapore.
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicant was a citizen of Malaysia. However, the Tribunal did not find the Applicant to be a credible witness. The Tribunal described his testimony as inconsistent and said that he was unable to explain those inconsistencies to the Tribunal's satisfaction. The Tribunal said much of his testimony was unbelievable and the Applicant's answers to the Tribunal's questions were merely guesses on many occasions.
The Tribunal went on to say that the Applicant's testimony was such a "pastiche of exaggerations and untruths" that the Tribunal found difficulty in establishing the facts of the case.
The Tribunal, apart from making findings as to the credibility of the Applicant as a witness, found that the threats to the Applicant's safety which he claimed to come from his former employer was not for reason of the Applicant's race, religion, nationality, membership of a particular social group or political opinion. In other words, the Tribunal found that there was no basis under the Refugees Convention for the Applicant's claim.
The Tribunal turned to the Applicant's claim of having been threatened by a gang of a drug dealer whom he had identified to police. The Tribunal found that that threat of harm did not fall within the ambit of the Refugees Convention either.
It was for all of those reasons that the Tribunal was not satisfied that the Applicant had suffered harm amounting to persecution for a Convention reason, and found that the chance of that sort of harm falling upon him in the reasonably foreseeable future was remote.
Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason, and affirmed the decision not to grant the Applicant a protection visa.
Application for Judicial Review
What happened then was that the Applicant commenced proceedings in this Court on 21st June 2004. A Registrar of the Court made directions on 24th September in that year requiring the Applicant to file and serve an amended application giving complete particulars of each ground of review.
It appears that the Applicant did not do so and on 6th April 2005 Federal Magistrate Mowbray dismissed his application for costs under Rule 13.03(2)(b) of the Federal Magistrates Court Rules. I note that the Applicant did not appear at the hearing on 6th April 2005.
The Applicant does not appear to have commenced any other Court proceedings until he filed this application and an affidavit in support on 8th October 2007.
I asked the Applicant about the reason for the delay and he told the Court that he had made an application to the Minister for the exercise of the Minister's discretion under section 417 of the Migration Act. It was only after that application was unsuccessful that the Applicant commenced these proceedings.
The lawyers for the Minister have submitted that it would be open to the Court to deny the discretionary relief that the Applicant claimed for these reasons:
a)There is no explanation as to why the Applicant commenced fresh proceedings in this Court rather than filing an application under Regulation 16.05(2) of the Rules to set aside the interlocutory orders made by Federal Magistrate Mowbray on 6th April 2005;
b)The Applicant has provided no explanation for his unreasonable and unwarranted delay in commencing these proceedings by filing this application on 8th October 2007, more than two years after Federal Magistrate Mowbray had dismissed his application on the interlocutory basis on 6th April 2005.
The Applicant has given an explanation, as I said, by indicating that he applied previously.
In my view, the primary matter for the Court's consideration is the Applicant's application on its merits. The application is unparticularised. It claims jurisdictional error and a procedural error.
I asked the Applicant, who was not legally represented, to provide details as to why he believed that the Tribunal had fallen into jurisdictional error or made an error in procedure. He said that he could not return to his home country because of the threat to him by the person, Rajkumar, and his accomplices. Mr Rajkumar was the leader of the drug gang of whom the Applicant said he had fallen foul.
Conclusion
This claim, of course, is a challenge to the Tribunal's findings of fact. It is an attempt to re-agitate the Applicant's claims for a protection visa. In my view, this is not a ground for judicial review. It is clear from the Tribunal decision record that the Applicant attended the hearing of the Refugee Review Tribunal. The Tribunal considered his claims and rejected those claims.
The reasons for the Tribunal's rejection of the Applicant's claims arose from the Applicant's evidence itself. The Tribunal did not find the Applicant to be a credible witness. In any event, notwithstanding the Tribunal's findings on credibility, the Tribunal was not satisfied that even if he had made out either of the grounds upon which he claimed to fear persecution, he had not established a claim that came within the ambit of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal was not satisfied that either the Applicant's claim of fearing persecution from his former employer who had set him up to take the blame for the first drug charge or the Applicant's claim to fear violence from a gang of drug traffickers came under any one of the five grounds set out in the Convention. In my view, the evidence before the Tribunal was sufficient to enable the Tribunal to reach that conclusion.
I am mindful of the fact that the Applicant was not legally represented. I have read through the Tribunal decision thoroughly. I have considered the decision in order to see whether any arguable case of jurisdictional error can be made out irrespective of whether it has been claimed by the Applicant or not. I am not satisfied that any procedural error has been shown.
The Applicant was afforded the opportunity of attending a hearing before the Tribunal to give evidence and present arguments. He attended the hearing and gave evidence. The Tribunal did not believe his evidence and found that his claims did not amount to a well-founded fear of persecution. It did not appear to me there would be any breach of section 424A of the Migration Act in that the material used by the Tribunal to reach the conclusion that it did was the Applicant's own evidence to the Tribunal.
I cannot discern any suggestion of a jurisdictional error. In the absence of any jurisdictional error it is clear that the decision of the Tribunal is a privative clause decision as defined by section 474 of the Migration Act. Because it is a privative clause decision, it is not subject to orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
Because of these findings it is not necessary for the Court to consider withholding relief on discretionary grounds. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim and it is appropriate now for costs. The sum of $3,500.00 which is sought is well within the scale provided by the Federal Magistrates Court Rules.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 14 February 2008
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