SZEEZ v Minister for Immigration
[2007] FMCA 1314
•14 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEEZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1314 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 476 Federal Magistrates Court rules 2001 (Cth), rr.44.11(c), 44.12 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 245 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 SZBQS v Minister for Immigration [2005] FMCA 1066 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SZGYN v Minister for Immigration [2006] FMCA 1142 SZHUI &Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1042 |
| Applicant: | SZEEZ |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2225 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Tamil interpreter |
| Counsel for the First Respondent: | Mr M Izzo |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 11 August 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2225 of 2006
| SZEEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEEZ”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 August 2006 for judicial review of a decision of a second Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 4 July 2006 and handed down on 27 July 2006, affirming a decision of a delegate of the first respondent made on 6 February 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 20 September 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of G Short, reference N06/53426, provides the following background information:
This is a review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 6 February 2004 refusing an application by the Applicant for a Protection (Class XA) visa. The Applicant was notified of the decision under cover of a letter dated 6 February 2004 and the application for review was lodged with the Tribunal on 1 March 2004. The Tribunal, differently constituted, affirmed the decision under review in a decision signed on 28 June 2004 and handed down on 22 July 2004. On 23 March 2005 the Federal Magistrates Court dismissed an application for review of that decision but on 24 February 2006 the Full Court of the Federal Court allowed an appeal and ordered that the decision made by the Federal Magistrates Court be set aside and that in lieu thereof it be ordered that there be a writ in the nature of certiorari to quash the decision of the Tribunal and an order in the nature of mandamus requiring the Tribunal to review the decision of the delegate of the Minister according to law. The matter is now before the Tribunal pursuant to the orders of the Federal Court.
The Applicant is a citizen of India. He arrived in Australia in September 2003 and applied for a Protection (Class XA) visa on 22 October 2003.(CB 74)
A brief summary of the applicant’s claims are contained in the written submissions prepared by the first respondent’s counsel, Mr Izzo, and I adopt para.3 of those submissions:
3. The applicant claimed that because of his association with a Mr Sriskandarajah, a Sri Lankan friend who was involved in the LTTE, he was arrested and remanded in custody in India on two occasions. He claimed to have been released on bail, but claimed that he did not comply with a condition of his bail that he report to court every week. He claimed the police were looking for him to arrest him in Tamil Nadu before he left India, and were seeking to arrest him under the Prevention of Terrorism Act, and had filed false charges against him. The applicant also claimed Mr Sriskandarajah would kill him because he once informed the police of Mr Sriskandarajah whereabouts. He claimed that Mr Sriskandarajah claimed to have killed both the applicant’s mother and his eldest son. He claimed that his family, relatives and friends hated him because of his association with Mr Sriskandarajah and that members of the ruling party who lived in his neighbourhood turned against him.
The key elements of the Tribunal decision are summarised in Mr Izzo’s submissions and I adopt paras.4 to 10 of those submissions:
4. The Tribunal noted that the applicant produced his passport to the Tribunal at the hearing. It said that it was evident from the passport that the applicant left India travelling on a passport in his own name. [CB88.7] It observed that, as it had put to the applicant in the course of the hearing, this suggested that he was not of any interest to the authorities at the time of his departure. It noted that DFAT had said checks at airports in India are exceedingly thorough and the airport police cannot be bribed. [CB88.8-89.1] It concluded that it did not accept the applicant was of any interest to the authorities at the time he left India; that he had not been twice arrested and released on bail; nor that he had breached his bail conditions; nor that the police were searching for him before he left Tamil Nadu. [CB89.3]
5. The Tribunal referred to a letter the applicant produced purporting to be from his lawyer and referring to Mr Sriskandarajah’s arrest. The applicant had claimed it corroborated his evidence that Mr Sriskandarajah was responsible for the death of his mother. The Tribunal noted this was not the ordinary and natural meaning of the words used in the letter. It also noted that since the applicant himself denied Mr Sriskandarajah had ever been arrested, it was difficult to put weight on it. It did not consider that the limited corroboration the letter provided outweighed its concerns arising from the fact that the applicant left India on a passport in his own name. [CB89.4-6] Likewise, It did not consider a letter from the applicant’s wife which the applicant produced to the Tribunal differently constituted, stating that the applicant’s wife had come again and was causing problems, outweighed its concerns with the applicant’s evidence arising from the fact that he left India on a passport in his own name. [CB89.7]
6. The Tribunal concluded that it did not accept the applicant would have been able to leave India travelling on a passport in his own name as he claimed had he experienced the problems he claimed as a result of his association with Mr Sriskandarajah and the LTTE. It said that, having regard to the view it had formed of the applicant’s credibility, it did not accept that he had ever had any association with the LTTE or Mr Sriskandarajah as he claimed. [CB89.7-8] Since it did not accept that the applicant had ever had any association with Mr Sriskandarajah and the LTTE as he claimed, the Tribunal did not accept charges had been laid against the applicant by reason of that association before or after he left India. It did not accept on the evidence before it that there was a real chance the applicant would be arrested, detained in custody or imprisoned or tortured if he returned to India. [CB89.9-90.1]
7. Since it did not accept that the applicant had ever had any association with Mr Sriskandarajah and the LTTE as he claimed, the Tribunal did not accept that there was a real chance Mr Sriskandarajah or the LTTE would kill him or otherwise persecute him if he returned to India. For the same reason, it did not accept that his family, friends and relatives hated the applicant, or that members of the ruling party who lived in the neighbourhood turned against him, because of his association with Mr Sriskandarajah or the LTTE. [CB90.2-4]
8. the Tribunal noted a submission by the applicant that he had been persecuted because of his involvement with the TMMK. However, the Tribunal noted, the applicant had said at the hearing that he had not been involved that much in the TMMK and that nothing had happened to him as a result of that involvement. [CB90.6]
9. The Tribunal also noted a submission that members of the ruling party who lived in the neighbourhood hated him because he was a Muslim. It noted that, as it had put to the applicant, DFAT advice found no evidence to suggest Muslims in Tamil Nadu were discriminated against in any systematic way. It did not accept on the evidence before it that there was a real chance that the applicant would be persecuted for reasons of his political opinion (his involvement in the TMMK) or his religious beliefs (the fact that he was a Muslim) if he returned home. [CB90.8-90.10]
10. It concluded it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason if he returned to India. [CB91.1].
Application for Review of the Tribunal Decision
On 11 August 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon, by 2 November 2006. On 1 November 2006, the applicant filed an amended application which contained the following grounds:
1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made jurisdictional error when it assed his claim, not following s.424A of the Migration Act 1958 (the Act).
Particulars:
i) As I put to the Applicant in the course of the hearing before me, the fact that he left India travelling on a passport in his own name suggest that he was not of any interest to the Indian authorities at the time of his departure. (CB-89,4th paragraph).
ii) The letter which the Applicant produced purporting to be from a lawyer, M J Jaseem Mohamed (CB-60), does not refer to the applicant’s claimed problem with the police but it does purport to corroborate the Applicant’s evidence that Mr. Srisknadarajah was arrested because the lawyer wrote that he had been ‘supposed to conduct the trial but the police authorities acted hand in glove and set him scot free’. The Applicant denied that this was the meaning of the letter and he said that it meant that the lawyer had been going to conduct the case for him (the Applicant) in relation to his mother’s death, to prove that it had been a murder but they had changed it into suicide. However this is not the ordinary and natural meaning of the words used in the letter. Since the Applicant himself denies that Mr. Srisknadarajah was ever arrested it is difficult to put weight on the letter from the lawyer. (CB-89,3rd paragraph)
iii) I likewise do not consider that the letter in Tamil from the Applicant’s wife which he produced to the Tribunal (differently constituted), stating that Mr. Srisknadarajah had again come and was causing problems. (CB-89, 3rd paragraph)
iv) That the Tribunal did not accept that the police were searching the Applicant to arrest him under the Prevent of Terrorism Act. (CB-89,3rd paragraph)
v) I do not accept that as the Applicant claims, Mr. Srisknadarajah was responsible for the death by hanging of his (the Applicant’s) mother in August 1998 and the killing of his eldest son, Ziyad, in Calcutta in 1999, nor that Mr. Srisknadarajah told the Applicant that he was responsible for these deaths. (CB-90,1st paragraph)
2. The applicant claims that the Tribunal denied him natural justice when the Tribunal made findings and reasons.
Particulars: The Tribunal asked many questions in the interview and the applicant answered all the questions rightly but the Applicant did not understand why and how his answers were not received by the Tribunal (CB-83 to 87) and the applicant also did not understand the decision of the Tribunal why his claim was rejected.
Submissions and Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Tamil interpreter. The applicant complied with orders of the Court and filed written submissions. However, other than giving a brief outline of the relevant litigation history and comments on some of the particulars, his written submissions effectively repeated the amended application. I will make a further reference to those additional comments in my consideration of each ground of review.
The applicant advised the Court that he would rely upon the amended application and the written submissions, and that he did not initially wish to make any further oral submissions to the Court. The applicant did however make some comments of a very general nature which
I will refer to below.
Mr Izzo submits in his written submissions that the first three particulars set out in the first ground refer to the applicant leaving India and travelling on a passport in his own name. This was supported by letters from the applicant’s lawyer (CB 60) and his wife. The letters was supplied to the Tribunal by the applicant himself in support of his application. Consequently, that material is exempt from the operation of s.424A(1)of the Act by s.424A(3)(b).
The fourth and fifth particulars address the Tribunal’s refusal to accept that the police were searching for the applicant and that a Mr Sriskandarajah was responsible for the death of the applicant’s mother and son. Mr Izzo contends that this was not information in the form contemplated by the Act, but a simple conclusion after the Tribunal’s subjective appraisals, thought-process or determinations: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206] per Allsop J:
[206] Information does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word “information”: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the tribunal must say or do to comply with s 424A(1)(a), (b) or (c).
The Tribunal decision states under the heading “The Applicant’s evidence given to the Tribunal (differently constituted)”:
On 24 May 2004 the Applicant produced to the Tribunal copies of:
·What purports to be the Applicant’s mother’s death certificate;
·A letter dated 1 May 2004 purporting to be from M J Jaseem Mohamed, a lawyer, stating that the Applicant’s mother ‘was hang [sic] to make it look like a case of suicide by an LTTE gangster viz. Sris Kandarajah on 15.08.1998’ and that he was ‘supposed to conduct the trial but the police authorities acted hand in glove and set him scot free’;
·A provisional certificate issued by the University of Madras indicating that the Applicant qualified for the degree of Bachelor of Arts in the Third Class at an examination in April 1993; and
·A letter in Tamil without a translation.(CB 78-79)
Clearly this material was provided by the applicant at the first Tribunal hearing as the second Tribunal did not hold a hearing until 26 June 2006. However the second Tribunal does not commit jurisdictional error by referring to the applicant’s evidence from the first Tribunal hearing: SZHUI v Minister for Immigration [2006] FMCA 1042 at [61], SZBQS v Minister for Immigration [2005] FMCA 1066 at [14], SZGYN v Minister for Immigration [2006] FMCA 1142 at [21].
SZHUI at [62] considered the relevant principles:
62. The Minister does not dispute that the second Tribunal gained the information supporting the adverse credibility conclusion (about the applicant’s tardiness in seeking protection) from the evidence given by the first applicant to the first Tribunal. However, the Minister submits that this was information falling within the exception in s.424A(3)(b) of the Migration Act. There is support for that proposition in the decisions of this Court in SZBQS v Minister for Immigration [2005] FMCA1066 at [14] and SZGNY v Minister for Immigration [2006] FMCA1142 at [21] where Smith FM said:
In SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]-[20], I inferred in a situation such as the present that the Tribunal had been reconstituted under s.422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of a previous decision. On appeal, the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my reasoning that the "review" which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107). At [39] their Honours said:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
I am satisfied that these principles apply to the present matter and the first ground of review cannot be sustained.
In the second ground, the applicant claims that the Tribunal denied him natural justice on the basis that he did not understand why or how his answers were not received by the Tribunal or why his claim was rejected. Mr Izzo submits that it is not apparent how this ground relates to the principles of natural justice. He submits that the principles of natural justice do not apply to the applicant’s claim by reason of s.422B of the Act.
Mr Izzo submits that the applicant alleges that the Tribunal made certain observations intentionally because it wanted to reject his claim. It is apparent that this allegation may raise a claim of bias to the extent that the claim is one of actual bias. Such an allegation is serious and must be clearly alleged and proved. A finding of actual bias is unlikely to be made when all that is relied on is the Tribunal’s written reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]. Mr Izzo submits that the matters that the applicant relies upon do not establish factual bias; they simply indicate that the Tribunal did not accept the his account because of its findings on credibility. These are findings of fact the Tribunal was plainly entitled to make: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Mr Izzo further submits that for the same reason, there is no basis for a reasonable apprehension of bias according to the principles discussed in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 245 at [27]-[32].
When the applicant was invited to make oral submissions in reply, he stated that the passport he had used was his and his own name.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out. I am satisfied that none of the grounds contained in the amended application can be sustained. Neither is it apparent that any other ground of review exists to suggest the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claims should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 13 August 2007
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