SZEDX v Minister for Immigration
[2005] FMCA 101
•11 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDX v MINISTER FOR IMMIGRATION | [2005] FMCA 101 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.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
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139
Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
| Applicant: | SZEDX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2507 of 2004 |
| Delivered on: | 11 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 19 January 2005 |
| 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: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2507 of 2004
| SZEDX |
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 24 June 2004 and handed down on 20 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 17 March 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 “SZEDX”.
The applicant, who claims to be a citizen of India, arrived in Australia on 22 December 2003. On 29 January 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 17 March 2004 a delegate of the Minister of Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant a protection visa and on 31 March 2004 the applicant applied for a review of that decision.
The applicant stated he was born on 24 March 1979 in Ettumanoor, in the state of Kerala, India. The applicant claimed he was fluent in Malayalam and English and able to speak Hindi. He stated he is a Christian, has completed his secondary education and his occupation is a “DTP operator” (Court Book pp.1-2) (“CB”).
The applicant claimed he has been a member of the Marxist Party of India since March 1995 and has been persecuted many times for political reasons. He claimed he had been fearful of being killed since April 2002. The applicant travelled to Malaysia and Singapore in May 2003 to apply for asylum but was unable to do so and returned to India. The applicant claimed he was persecuted by members of the BJP after his return to India (CB pp.26-27). The applicant travelled to Australia on an Indian passport issued in his own name.
The Tribunal hearing
The Tribunal wrote to the applicant on 8 April 2004 indicating that it had considered his application but was unable to make a decision in his favour based on the information previously supplied by the applicant (CB pp.51-52). He was invited to a Tribunal hearing on 18 May 2004 to give oral evidence. The Tribunal letter was in a standard form and contained warnings to the applicant of what would occur in the circumstances of him not attending the hearing. A response to hearing invitation was returned by the applicant indicating that he did intend to attend the hearing and that he would require the services of a Malayalam interpreter (CB p.53).
The applicant failed to attend the hearing and failed to contact the Tribunal to advise them of his non attendance on that date. The applicant was advised by further letter from the Tribunal on 29 June 2004 that their decision had been made and would be handed down on 20 July 2004 (CB pp.55-56). The applicant failed to advise the Tribunal at any time prior to the handing down of its decision his reasons for failing to attend the scheduled hearing. Nor was there any attempt by the applicant to apply for a further hearing date.
The Tribunal’s findings and reasons
In the Tribunal’s decision under the heading of “Findings and Reasons” it is noted that the applicant was put on notice that the Tribunal was unable to make a favourable decision on the information before it. He did not provide any further information to support his claim nor did he give the Tribunal an opportunity to explore the relevant aspects with him (CB p.63).
The Tribunal also noted that the applicant was able to legally obtain an Indian passport and to depart that country on two occasions. Independent evidence specified that the Indian authorities have access to computer systems to check departing nationals (CB p.63).
The Tribunal made the following findings:
a)In the absence of further material, the Tribunal was not satisfied that the applicant was a member of the Marxist Party.
b)In the absence of further information, the Tribunal did not accept that the applicant was persecuted in India because of his political opinion.
c)The Tribunal did not accept that the applicant was targeted by Indian authorities or by the BJP.
d)The Tribunal was not satisfied that the applicant fled India in fear of persecution because he left India and arrived in Australia as a holder of a business visa.
On the evidence before the Tribunal the member was not satisfied that the applicant did suffer any harm in India for a Convention related reason, being his claimed political opinion. The applicant did not claim to fear persecution for any other Convention reason (CB pp.63-64).
Application for review of the Tribunal’s decision
On 11 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“1.There is a breach of procedural fairness in the making of the decision. The Refugee Review Tribunal exceeded its jurisdiction because it failed to offer me fairness in its procedures in the making of the decision.
Particulars
1)The Refugee Review Tribunal made a jurisdictional error because it failed to assess what political changes might occur in India in the near foreseeable future if I go back to India. The Tribunal also failed to assess the availability and effectiveness of any government protection.
2)The Refugee Review Tribunal also failed to make any detailed finding on my involvement as a member of the Marxist Party. By failing to investigate my political involvement, the Tribunal could not have made a fairer decision; and this fell into jurisdictional error.
3)The cancellation of my hearing is an improper exercise of power. The Tribunal did not attend me with the opportunity to comment on the available independent information which the decision record referred to. There is a breach of the rules of natural justice.”
On 29 September 2004 the applicant filed an amended application which contained the following grounds:
“1AThe Tribunal’s decision and reasons for decision dated 24 June 2004 was based on a fact-finding process that was perverse and the Tribunal did not have jurisdiction to make the decision and was not authorised by the Migration Act to make the decision.
Particulars
(i)The Tribunal’s finding that it does not accept my claims that I am a member of the Marxist Party or that I was persecuted in India because of my political opinion was based on assumption (see page 7 of the RRT decision), rather than facts because there was no evidence before the Tribunal to make such finding.
(ii)In relation to the evidence on which the Tribunal relied on in the making of the decision, the Tribunal failed to ask itself proper questions and to investigate in detail whether the claimed protections from the Indian authorities are not only available, but effective as well. A reasonable Tribunal would seek to satisfy itself that the police and other security agencies are functioning effectively.
(iii)As is implicit in the Tribunal’s reasons for decision, (see page 7 of the RRT decision) that the mere existence of judicial system and the functioning of the police force are indicative of effective state or government protection in India the Tribunal did not ask itself proper questions and fell into jurisdictional error.”
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 a Malayalam interpreter. The applicant attended a directions hearing before me on 25 August 2004 where consent orders were made requiring the applicant to file and serve an amended application setting out the full particulars of the grounds relied upon with any affidavit material to be relied upon on or before 10 October 2004. Further written submissions were to be filed and served seven days prior to the hearing date. The applicant complied with those directions by filing an amended application and a substantial written submission. My consideration of these submissions will be given in more detail in my Reasons.
When the applicant was invited to make oral submissions, these were limited to statements that he requested the matter be returned to the Tribunal in order that he may attend a Tribunal hearing and give oral evidence. He indicated that he had failed to attend the scheduled hearing of 18 May 2004 because he was ill on that date. When asked as to what action he had taken to advise the Tribunal of his ill health and his inability to attend the scheduled hearing or any subsequent notification, the applicant indicated that he had done nothing.
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing. Mr Reilly relied upon his written submissions and made further oral submissions at the hearing.
Reasons
The applicant filed detailed written submissions prior to the hearing. However, the content of this document bore little or no relationship to the applicant’s case and appeared to refer to a completely different matter. This became very obvious in light of the applicant’s oral submissions from the bar table in respect of his inability to attend the scheduled Tribunal hearing due to illness. On the second page of his submissions under the heading “Procedural Fairness and/or Natural Justice Issue”, the document contained the following statements:
“The documents and evidence provided by the applicant are reflecting the true nature of persecution claimed by the applicant. Applicant’s oral evidence made before the tribunal member was true and correct.”
The extent of the written document submitted by the applicant was limited to the protection visa application, Parts C and B, together with a typed statement of one and a half pages in length. The only other documentation consisted of photocopies of the applicant’s passport, which contained visa and customs entry and exit stamps. On page 5 of the submissions under the heading “The Background and the Statement before the Tribunal”, the applicant provided background information in relation to his schooling, studies as a desktop publishing operator and his involvement with various groups of the Marxist Party of India. The submission then detailed a number of alleged incidents of conflict between the applicant and members of the BJP party and the consequences of the various issues of conflict and finally his departure from India to Malaysia, Singapore and Australia.
The applicant in these proceedings was self represented and although he filed written submissions, they did not assist him in any way because they did not bear any relationship to his case or the decision made by the Tribunal. Consequently, in the circumstances where an applicant in 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. With the assistance of the respondent’s submissions I have endeavoured to carry out this task.
The Tribunal concluded that it was satisfied that the applicant did not have a well-founded fear of Convention based harm and indeed that he could return to India (CB pp.63-65). These were factual conclusions open to the Tribunal for the reasons as given in the decision. It is not the function or the authority of this Court to review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”). It is not the function of this Court to determine whether the Tribunal, in making its findings of fact, made an error in this process: Abebe v Commonwealth of Australia.
In respect of the original application, the first two grounds are repeated in the amended application, although they have been redrafted and I will deal with them in dealing with the particulars in the amended application. In respect of the third ground, the applicant claimed the Tribunal hearing was cancelled, thereby denying him the opportunity to comment on the available country information which resulted in a breach of the rules of natural justice. In light of the documents contained in the Court Book and the applicant’s own submissions made from the bar table together with the responses to my questioning when he was making his submissions, this ground does not deserve further consideration.
I will treat the amended application to in effect plead three separate grounds though it is structured to state that these particulars are of a single ground. The first ground claimed that there was no evidence for the Tribunal’s failure to be satisfied of the applicant’s claim. This principle is not applicable to the findings of the Tribunal. The lack of satisfaction of an applicant’s claim is an assessment of credibility: WAJS v Minister for Immigration & Multicultural & Indigenous Affairs per Wilcox, Marshall and Jacobsen JJ at [17]:
“Determination of the facts of the case was the responsibility of the Tribunal member. Whatever our personal views may have been, and we have not reached any conclusion about them, it cannot be said the Tribunal member’s view was perverse or illogical. Whether rightly or wrongly, she regarded a critical portion of the appellant’s evidence as inherently improbable and, for that reason, was unable to accept its accuracy. This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. We do not think the ‘no evidence’ ground has application to such a situation.”
The applicant’s second ground claimed that the Tribunal was required to investigate the issue of state protection from the Indian authorities. The Tribunal did rely on the independent country information when making its determination. The Tribunal recorded the nature of that information, sourced from the US State Department Report 2003, which covered those particular issues. The Tribunal was under no duty to carry out its own enquiry or investigation to either establish or verify this information: Minister for Immigration & Multicultural Affairs v SGLB per Gummow and Hayne JJ at [43]:
“… whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.”
The third ground appeared to seek both merits review and to be contrary to Minister for Immigration & Multicultural Affairs v Respondents S152/2003. This Court cannot review the merits of the Tribunal’s decision: Wu Shan Liang.
Conclusion
I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. 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-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 11 February 2005
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