SZDWX v Minister for Immigration
[2005] FMCA 1015
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWX v MINISTER FOR IMMIGRATION | [2005] FMCA 1015 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 424A(1), 424A(3), 474
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 56
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 448
| Applicant: | SZDWX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1902 of 2004 |
| Delivered on: | 29 July 2005 |
| Delivered at: | Sydney |
| Hearing date: | 6 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr D R Meltz |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1902 of 2004
| SZDWX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 21 June 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2004 and handed down on 25 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
23 January 2004 to refuse to grant the applicant a protection (Class XA) 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 “SZDWX”.
The applicant, who claims to be a citizen of India, arrived in Australia on 14 November 2003. On 23 December 2003 he lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-34) (“CB”). On 23 January 2004 the delegate refused to grant a protection visa (CB pp.37-44) and on
13 February 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.45-48).
The applicant stated he was a married Muslim man who was born in April 1974 in Adirampattinam, India. He claimed he had completed eleven years of education and can speak, read and write Tamil and English. The applicant stated that his wife, daughter, father, sister and two brothers live in India (CB p.67).
The applicant stated that he left India as he heard he would be attacked by Hindu people such as the Rashtriya Swayamsewak Sangh (“the RSS”) and the Bharatiya Janata Party (“the BJP”) with the help of police. He stated he feared he would be mistreated by these same groups if he were to return to India. The applicant claimed he left India legally and did not have any trouble obtaining travel documents (CB pp.67-68).
Applicant’s claim
The applicant’s claim for protection was based on the following facts and assertions:
a)he is Muslim;
b)he joined the United Religion Social Association (“the URSA”), an association engaged in charitable activities, and eventually became vice-president (CB pp.68-69);
c)he was one of three Muslims associated with URSA locally (CB pp.68-69);
d)the URSA was targeted by Hindu-backed political groups known as the RSS and the BJP (CB pp.68-69);
e)the applicant arranged a rally at which the police attended and used sticks to beat the crowd. During the rally one member was caught and “murdered by the police” (CB pp.68-69);
f)the following day the applicant attended the police station where other URSA members were being held (CB pp.68-69);
g)the applicant and his family were scared as a result of the incident and persons from the RSS and BJP came looking for him and his family (CB pp.68-69);
h)a businessman came forward and assisted the applicant to travel to Australia for business purposes (CB pp.68-69); and
i)the applicant was concerned that if he returned to India the same persons would be ready to kill him (CB pp.68-69).
The Tribunal’s findings and reasons
Mr D R Meltz of Counsel, appearing for the respondent, prepared a brief summary of the Tribunal’s findings which is adopted as follows:
a)The Tribunal accepted the applicant was an Indian national (CB p.75). However, it found that the applicant’s written claims were inconsistent with statements made in his visa applications and to the Tribunal. The Tribunal found the applicant had been deceptive or inconsistent in his evidence that related to his education, work history and failure to contact his family in India (CB pp.75-76).
b)Before the hearing the applicant was asked to provide further information relating to the URSA but failed to provide such information (CB p.69). His explanation for his failure to do so was inconsistent at the hearing and, accordingly, the applicant was found not to be a credible witness.
c)The Tribunal found the applicant unable to provide sufficient detail of his connection with the URSA. Specifically, the Tribunal did not accept the applicant had ever been an URSA member primarily because of the applicant’s inconsistent evidence about the association generally (CB p.77).
d)It followed from this finding that the Tribunal did not accept there were police charges, beatings, searches and occasion for the applicant to go into hiding. The Tribunal also rejected the application’s claims in relation to his religious persecution on the basis of his lack of credibility. In this regard the applicant did not have a well-founded fear of persecution either for reason of his religion or political opinion (CB p.77).
Application for review of the Tribunal’s decision
On 21 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 25 November 2004 the applicant filed an amended application setting out the following grounds:
1.That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars
a)The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular social group Muslim minority in India. I was persecuted because of my religious believe. Because of my religion I was persecuted by RSS & BJP. If I persecuted by RSS, BJP & Police it is not possible for me relocate any other place in India. I tried to relocate in India, but I failed because police searching me. I will be persecute if I return back to India because of my religious believe. It is a convention base persecution.
b)I was arrested and detained by Indian police because of my religious & a member of a particular social group. It is true I did not collect relevant documentary evidences to prove my persecution. Because I have no one to help me collect the document.
c)The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
d)The Tribunal fail consider my claims.
2.I will provide more details to support my judicial review application in my outline of submission.
Particulars
a)The Tribunal did not provide me adequate particulars of the independent information,
b)The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
c)The Tribunal finding that the totality of the country information does not show that minority Muslims are persecuted in India. (Errors included)
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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.
Applicant’s submissions
The applicant appeared self represented with the aid of an interpreter. In the applicant’s amended application it stated he would provide further material relating to his second ground in his written submissions prior to the hearing. However, nothing was filed in accordance with the Short Minutes of Order consented to by the parties at the directions hearing before a Registrar of this Court on
28 September 2004. At the final hearing the applicant confirmed that he would rely on his amended application and that he had not filed any written submissions. He did indicate that he had provided some material prepared by a lawyer however this appeared to be the amended application. When invited to make any oral submissions in support of his application, the applicant indicated he could not return to India until his case was properly investigated and it was his desire to remain in Australia. The remainder of his submissions focused on him being distressed at the thought of appearing before the Court and that up until the day before the hearing he had been feeling well but his health had deteriorated in anticipation of appearing. No other significant submissions were made by the applicant.
Respondent’s submissions
Mr D R Meltz of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)
Following the orders of the Court on 28 September 2004, the applicant filed an amended application for review on
25 November 2004. The applicant’s amended application in substance raised three grounds of review none of which were meaningfully particularised:
i)the decision was “effected to take into account a relevant consideration”;
ii)the Tribunal did not provide adequate particulars of independent information; and
iii)the Tribunal did not entitle the applicant to respond to the substance of the information.
b)The Tribunal’s decision is a privative clause decision within the meaning of s.474 of the Act. In relation to the applicant’s claims (paragraph 12(a)(i) above), concerning the taking into account irrelevant considerations, the applicant particularised his claim by specifying merits based grounds. These included:
i)there was no consideration of the consequences of his persecution;
ii)he could not provide further documents because no one else would help him;
iii)the Tribunal’s conclusion was not “rational or logical”;
iv)the Tribunal did not apply the Act properly; and
v)the Tribunal “failed to consider” his claims.
c)To the extent that the applicant invited review of the merits of the Tribunal’s decision, the Court does not have the jurisdiction to do so: A v Minister for Immigration & Multicultural & Indigenous Affairs. Moreover, there was nothing on the face of the Tribunal’s decision to suggest that any of the purportedly particularised claims (as set out in paragraph 12(b) above), insofar as they are not merits-based, can be made out by the applicant.
d)In relation to the ground specified in paragraph 12(a)(ii) above, there was no obligation on the Tribunal to provide independent country information to the applicant where that information was not specific to the applicant. The independent country information set out in the Court Book (pp.74-75) was exempt from disclosure under s.424A(3) of the Act.
e)The third ground of review, as set out in paragraph 12(a)(iii) above, was that the Tribunal did not allow the applicant to respond to the substance of the information. There was nothing in the application to support this ground. In any event, this ground must be understood as an extension of the previous ground of review (paragraph 12(a)(ii)) and must fail for the same reasons as those set out in paragraph 14(d) above.
f)Further, and in any event, the Tribunal sought to obtain additional information from the applicant but the applicant failed to respond. He was afforded full procedural fairness in accordance with the procedures set out in Division 4, Part 7 of the Act.
g)For the reasons outlined above, there was no legal error let alone a legal error of a jurisdictional nature sufficient to impugn the Tribunal’s decision.
Reasons
The applicant appeared self represented with the aid of a Tamil interpreter. He attended a directions hearing on 28 September 2004 and consented to Short Minutes of Order at that time which included the filing and serving of an amended application and any evidence upon which he proposed to rely at the hearing. On 25 November 2004 the applicant complied with the order to file and amended application, which in substance raised three grounds of review, although none of the grounds were meaningfully particularised. The consent orders also required the applicant to file and serve any written submissions prior to the hearing date. That particular order was not complied with. When the applicant was invited to make oral submissions from the bar table this was limited to a statement that he would rely upon his amended application and that he did not have any further submissions. Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out:
Yo Han Chung v University of Sydney & Ors.
The grounds in the original application were vague and unparticularised. The original grounds were not referred to in the amended application and appeared to have been abandoned to the extent that the applicant indicated that the application to be relied upon was the amended application. The first amended ground pleaded that the Tribunal’s decision was “effected to take into account a relevant consideration”. The applicant particularised this ground to the extent that he identified the five following issues:
·there was no consideration of the consequences of his persecution;
·he could not provide further documents because no one else would help him;
·the Tribunal’s conclusion was not “rational or logical”;
·the Tribunal did not apply the Act properly; and
·the Tribunal “failed to consider” his claims
These were in effect merits-based grounds as they sought an assessment of the appropriateness of the Tribunal’s decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision-maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. A merits review provides a complete rehearsal of all the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application unfettered by earlier decisions or the reasons of the decision maker of the earlier decision. A merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang.
The fact was that the Tribunal rejected the applicant’s claim largely on the credibility of the applicant himself on the plausibility of a number of aspects of the applicant’s claim. Findings on credit are essentially findings for the decision maker, not the Court conducting judicial review. In the submissions of Mr Meltz of Counsel he pointed out that the Court does not have jurisdiction to engage in a reconsideration of the merits of the Tribunal’s decision and he referred me to the Full Court of the Federal Court decision of A v Minister for Immigration. The Tribunal did not find the applicant’s account plausible or credible and that was purely a matter for the Tribunal. There was no suggestion even from an independent examination of the decision of any bad faith or lack of procedural fairness or denial of natural justice. Indeed, it was clear that the applicant took advantage of the opportunity to give evidence to the Tribunal. The Tribunal member not only asked the applicant questions to clarify his case but put the Tribunal’s concerns regarding the plausibility of the applicant’s case to the applicant so that he had the opportunity to reply to those concerns at the hearing itself. The applicant was also afforded the opportunity provide written submissions aimed at the Tribunal’s particular concerns. However, despite this invitation by the Tribunal the applicant supplied no written submissions. There was nothing on the face of the Tribunal’s decision to suggest that any of the purported particularised claims (set out in paragraph 14 above) insofar as they were not merit based can be made out by the applicant.
The second ground pleaded by the applicant was that the Tribunal did not provide adequate particulars of independent information. The independent country information that the Tribunal referred to was set out in its decision (CB pp.74-75) and related generally to the centre of Adirampattinam which is a coastal town on the east coast of South India in the state of Tamil Nadu. The Tribunal drew from that information the general profile of the population which has been shaped by various waves of migration including trade with Egyptians, Portuguese, French and British. The Tribunal referred to recent news items which it discussed with the applicant during its hearing on
27 April 2004. The issues canvassed were the opening of a global information technology centre, recent changes to the telephone numbers, the Islamic channel supplied by cable and the EID Festival celebrated in the town. None of this material was specific to the applicant but rather of a general nature which would be known to the vast majority of the resident population. Counsel for the respondent submitted that the disclosure of this material was exempt under the operation of s.424A(3) of the Act.
The applicant’s second ground was pleaded in very general terms and was unparticularised. It stated no more than “the Tribunal did not provide me adequate particulars of independent information”. As stated above, the Tribunal identified this material as local news which was accessed via the web and which was updated as at 17 March 2002 at 1.16 p.m. (PST) and referred to four current news items. Each of these reports was general country information within the s.424A(3) exemption to s.424A(1): see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (“NAMW”); VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs.
The third ground was that the “Tribunal did not provide me with adequate opportunity to respond [to] the substance of the information”. This ground was not detailed or particularised however the assumption must be that it referred to the independent country information to which the applicant referred to in Ground 2. None of the issues raised with the applicant in respect of this independent country information was other than general public knowledge regarding the issues that were occurring in the particular town. The town was celebrating a new information technology centre which was in contrast to the applicant’s claim that the telephone and mailing services to this region did not function. The news items also referred to changes to the telephone numbers by the introduction of an additional digit to allow expansion of the service. This was an issue the Tribunal member raised as the applicant advised the Tribunal that he was unable to contact numbers within his own home town to arrange the supply of material to support of his application because of the lack of communication capacity in the town. Another item concerned the festival which was an integral part of the religious structure of the town due to the high percentage of Muslims who could trace their ancestry to Egyptian traders who had been involved in commerce in the area for a number of centuries. The exemption under s.424A(3) of the Act referred to in respect of Ground 2 also applied to this ground, however the applicant’s allegation appeared to be that he was denied some procedural fairness because he was asked to respond to these issues which happened to be occurring in his home town in the time leading up to the Tribunal hearing.
They were issues of very general nature which did not require an in depth or studied response. The building of the technology centre and the changing of the telephone numbers was something that would have been planned for some considerable time prior to its implementation or completion. In the case of the religious festival this was something that had been celebrated in the area for over a century. Insofar as this claim relied on s.424A(1) of the Act, the adverse material referred to by the applicant and relied upon by the Tribunal was not specifically about the applicant or any one person. Thus, there was no obligation on the Tribunal to give particulars of the information contained therein under s.424A(1) as such information was within the exemption of s.424A(3)(a): see NAMW.
The Tribunal wrote to the applicant on 17 March 2004 advising that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was invited to provide further documentation or written arguments to the Tribunal in support of his claim as well as being invited to the Tribunal hearing to which he was able to bring further witnesses and give oral evidence. The applicant accepted the invitation to attend the Tribunal hearing and subsequently attended but did not provide any further information in the form of further evidence or written argument. On 22 April 2004 the Tribunal made a further request to the applicant to supply specific information in respect of the URSA and to explain the meaning of “statics notice to every wall about my identification” (CB p.69) and to supply supporting evidence in respect of this issue. That letter contained a warning that if the information was not forwarded to the Tribunal, the Tribunal may proceed to make a decision without further reference to the applicant. No written material dealing with any of these aspects was supplied to the Tribunal. The Tribunal complied with the requirements of s.422B of the Act in relation to the request for further material and did not provide grounds for a claim of a denial of the applicant’s rights. The applicant did not make specific claims in his pleadings as to a denial of procedural fairness. However, there was a suggestion that the pleadings had not been adequately made because of the applicant’s lack of knowledge of the legal regime he was pursuing.
Conclusion
The application did not raise any issue that indicated the Tribunal’s decision was infected by jurisdictional error. Consequently, the applicant’s claim 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 twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 July 2005