SZEFV v Minister for Immigration
[2005] FMCA 247
•24 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEFV v MINISTER FOR IMMIGRATION | [2005] FMCA 247 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.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
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Minister for Immigration & Multicultural & Indigenous Affairs v SGJB [2003] FCAFC 290
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 176 ALR 219
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEFV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2600 of 2004 |
| Delivered on: | 24 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 3 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr A Cox of Phillips Fox |
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 |
SYG 2600 of 2004
| SZEFV |
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 30 June 2004 and handed down on 27 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 4 March 2004 to refuse to grant the applicant a protection 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 “SZEFV”.
The applicant, who claims to be a citizen of India, arrived in Australia on 12 January 2004 on a temporary business visa. On 30 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 4 March 2004 the delegate refused to grant the protection visa and on 28 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
According to the applicant’s primary visa application (prepared with the assistance of a migration agent), the applicant was born in March 1978, is a single male Indian Muslim who was educated in the province of Tamil Nadu. He completed fifteen years of schooling including three years of tertiary education and obtained a Bachelor of Arts Degree from Madras University in 2002. The applicant reads and writes English in addition to reading, writing and speaking in Tamil. He resided in various parts of India in the decade before departing for Australia.
The applicant claimed he was the owner of a hardware business in Chennai between May 1998 and November 2000. He obtained an Indian passport in Chennai on 10 September 1998 which is valid until August 2008. The applicant entered Australia on a temporary business visa issued in Mumbai on 13 December 2003.
The applicant’s claims
The applicant’s primary claim to fear persecution in India was because he established a Muslim-based group which was accused of Pakistani-linked terrorism (Court Book p.75) (“CB”). In addition, he claimed to have witnessed the brutality of Hindu fundamentalism and violence towards Muslims in India (CB p.70). The applicant stated that his Muslim brothers had to defend themselves without the aid of the authorities against Hindu fundamentalist parties (CB p.70).
The applicant recounted an occasion at the age of 15 years (in 1992) when members of the RSS, a Hindu fundamentalist party, attacked his village and killed everybody they found (CB p.70). The applicant claimed that on that occasion his father had helped him run away to safety (CB p.70). He also claimed to have suffered discrimination at school and in employment opportunities because he is a Muslim (CB p.70).
The applicant gave evidence of an incident in March 2000 when a group of people broke down the door of his house and raped his mother and sister in front of him. He stated that his sister was stabbed in the back and died when trying to defend herself and despite their screams, no-one came to their assistance (CB p.70). The applicant also claimed that the police refused to take action in regard to his sister’s death. He stated that the police inaction lead him to organise a Muslim youth group whose basic task was to defend all Muslims and fight with RSS and BJP members (CB p.71). The applicant stated that the authorities then circulated information that his group was a Pakistani terrorist group and this lead to him being blacklisted by the Indian intelligence (CB p.71).
The Tribunal’s findings and reasons
The Tribunal dismissed the applicant’s claims as a whole, finding them to be a complete fabrication and finding the applicant to have no credibility (CB pp.76, 80). Although the Tribunal provided the applicant with the opportunity to provide further documentary evidence to support his claims, he declined to do so (CB pp.71-72, 76).
The Tribunal found the applicant’s evidence in relation to a number of matters inconsistent, contradictory and implausible (CB p.74). In particular:
a)Establishment of the applicant’s group (CB p.76) – the Tribunal did not believe that the applicant established any sort of a Muslim-based terrorist group which was suspected of being associated with a Pakistani based terrorist organisation.
b)The Tribunal took issue with the applicant’s claims that he went into hiding at the end of March 2000 (CB p.77) and found these claims inconsistent in that he had given his family’s address when he visited Singapore for ten days. Additionally, the Tribunal found it impossible to believe the applicant would be able to depart for Australia legally if he had been blacklisted and his photographs posted in public places as he claimed.
c)The applicant’s answers in relation to questions concerning his alleged arrest, charges and convictions were inconsistent and contradictory. The Tribunal was satisfied from the applicant’s answers together with his inability to provide documentary evidence in support of his allegations that he had never been arrested, charged or convicted in India (CB p.78).
d)The applicant’s answers in relation to the claimed attack on his mother and sister and subsequent reporting to the police were also inconsistent. The Tribunal was not satisfied that the applicant’s sister was killed at all given his contradictory statements and the lack of documentary evidence to substantiate his claims.
Application for review of the Tribunal’s decision
On 20 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The applicant attended a directions hearing on 10 September 2004 agreed to orders requiring him to file and serve an amended application giving full particulars of each ground of review relied upon by 31 December 2004. The applicant complied with the orders of the Court by filing an amended application on 6 January 2005 which contained the following grounds:
“1.The second respondent committed jurisdictional error by failing to failing to afford the applicant natural justice.
Particulars
The applicant requested an adjournment of at least one month to obtain documentary evidence from India to support his claims but was only granted two weeks which, in all the circumstances, represented a totally inadequate period of time in which to obtain such evidence and afforded the applicant no real chance of complying with the direction.
a)At the outset of the hearing before the second respondent held on 19 May 2004 the applicant requested an adjournment of at least one month to obtain documentary evidence to support his claims. The applicant was questioned in relation to this request (see CB summary at CB 71.8-72.2). The applicant, inter alia, informed the second respondent that he would have to seek the assistance of a colleague in India to obtain such documentation.
b)Towards the latter part of the hearing before the second respondent the applicant repeated his request for an adjournment of the hearing in which to obtain such documentary evidence. Initially, the second respondent refused the request stating that it ‘did not believe’ the applicant.
c)A short time later in the hearing the applicant again requested time in which to obtain such documentary evidence. The second respondent then misstated the date of the applicant’s application for review (4 March 2004 in lieu of 27 March 2004) in suggesting the applicant had had sufficient time in which to have obtained such evidence. By this stage of the proceedings, and probably earlier, the second respondent appeared to be incapable of accepting anything that the applicant stated. In response to one statement the applicant made at this time the second respondent stated: “Oh, come on.” Further, the second respondent, having stated that “there is a lot of forged documents coming out of India”, told the applicant that she doubted whether any documents which might be obtained by him would be authentic. The second respondent then declared that a period of two weeks would be granted to the applicant to obtain any documentary evidence and “that’s all”. The second respondent directed that if such documentary evidence was not received by it within two weeks that it would proceed to a decision.
2.The second respondent’s decision was vitiated by apprehended bias.
Particulars
The applicant repeats the Particulars in paragraph 1 above and will rely upon a transcript of the proceedings. Further, the second respondent’s direction allowing a mere two weeks to the applicant in which to obtain documentary evidence from India in support of his claims (and provide it to the second respondent) in all the circumstances afforded him no real prospect of obtaining such evidence and complying with the direction.”
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 Tamil interpreter. The applicant sought to have filed in Court a document headed “Applicant’s Written Submissions” which contained a very brief reference to the first ground of the amended application and then turned to address particulars to the ground of actual bias as opposed to the original pleadings of apprehended bias. Unfortunately, the document appeared to have been cobbled together from a number of sources and raises issues which are not mentioned in the Tribunal’s decision at all. These were statements regarding relocation, bad faith, delegation of authority to the Tribunal member and the similarity of this case to the judgment of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (“Muin/Lie”). There were also strange references to the persecution of his “husband” because of his political opinion.
When the applicant was invited to make any oral submissions this was limited to a request for additional time in order to obtain further material from India. A similar request was made to the Tribunal member at the hearing on 19 May 2004. When asked whether the further material that he wished to submit at the Tribunal hearing was the same material that he wished to submit to this hearing the applicant did not make a logical response. The applicant indicated that he had participated in the Pilot RRT Legal Advice Scheme (NSW) which was available to applicants of this Court but that he was unable to retain a barrister to appear at the hearing because of his financial circumstances. The applicant then raised the issue of obtaining money from overseas in order to retain a barrister. A brief reference was also made in the applicant’s written submissions in regard to this issue.
Mr A Cox, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The Tribunal discussed the applicant’s claims with him during the hearing. When the applicant sought the opportunity to tender further material, the Tribunal considered all the circumstances and provided the applicant with a reasonable opportunity to do so. It should be noted that the applicant did not get the month’s extension that he sought (until 19 June 2004). However, the Tribunal’s decision was not made until 30 June 2004, well after the deadline sought by the applicant had expired. The applicant did not provide the Tribunal with any materials during this time.
i)In Minister for Immigration & Multicultural & Indigenous Affairs v SGJB the Full Court concluded that the circumstances in which the Tribunal declined to call a material witness misled an applicant into believing that his written statement would be accepted. In circumstances where that evidence was ultimately discarded by the Tribunal, the applicant had been denied a fair hearing. The Court, at [36]-[38], considered that the breach of natural justice in this case arose as a result of the general application of a broad principle relating to natural justice (see Re Refugee Review Tribunal & Anor; Ex parte Aala).
ii)In WACO v Minister for Immigration & Multicultural & Indigenous Affairs the Tribunal made clear to the applicant at the hearing doubts it held about his credibility. In response, the applicant provided certain documents to the Tribunal after the hearing, which it rejected as fabrications. While acknowledging that the rejection of documents based on the adverse view taken of an applicant’s credit did not involve an error of law (as per McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 at [49]), the Full Court found that the Tribunal had a duty to raise clearly with the applicant the critical issues on which his or her application might depend (at [42]) and that the failure to do so amounted to a breach of natural justice.
b)There was no suggestion that the Tribunal misled the applicant in any way or that his lack of credibility came as a surprise to him. The applicant would have been left in no doubt that his credibility was being seriously doubted. The respondent submitted that the Tribunal clearly informed the applicant that it would proceed to a decision if no further documents were received (CB p.72). It was further submitted that there was no evidence of apprehended bias in the Tribunal’s decision.
Reasons
The applicant’s first ground was that the Tribunal failed to afford him natural justice. This claim was based on the Tribunal member declining the applicant’s request to provide an adjournment of at least one month to obtain documentary evidence from India. The applicant made the same request at this hearing when invited to make any oral submissions in support of his written submissions from the bar table. When the applicant was asked to elaborate on the nature and source of these documents, no clear response was obtained. After some questioning the applicant indicated that he was intending to obtain newspaper clippings from various Indian newspapers which supported his claims. When asked whether these clippings were the same documents the applicant wished to submit to the Tribunal at the time he requested an adjournment, no coherent response was obtained.
The written submissions filed by the applicant at the beginning of the hearing also sought an adjournment of at least one month in order to locate and obtain the services of a member of the bar. No reference was made in the written submissions regarding the further documentation to come from India. When the applicant was questioned during the hearing as to the nature of the contents of the newspaper clippings in respect of his case, again no coherent explanation was forthcoming.
The applicant had ample time in which to obtain further evidence. The applicant’s protection visa application was lodged on 30 January 2004 at which time he indicated he would be providing further documentary evidence. The applicant had in excess of one month prior to the delegate’s decision of 4 March 2004 to produce this evidence. The applicant then sought review by the Tribunal on 28 March 2004. The Tribunal hearing took place on 19 May 2004. No further documentary evidence was provided by the applicant at the hearing and he requested a further month to produce such evidence (CB p.71). The Tribunal granted the applicant an extension of two weeks. No further documentary evidence was provided. The Tribunal made its decision on 30 June 2004. From the time the applicant lodged his application he had approximately six months in which to produce his further documentary evidence and no such evidence was produced.
The applicant attended the Tribunal hearing on 19 May 2004 and it was at this time that the applicant sought a further month in order to obtain documentation from India to assist in his case (CB pp.57, 59). Although the Tribunal indicated it would allow a period of two weeks, it did not make its decision until 30 June 2004 (CB p.66) and the applicant received notification of this decision on 27 July 2004. The initial month requested was in fact exceeded by the Tribunal in the preparation and delivery of its decision. However, during that time no documentation was received from the applicant and no contact was made by him to the Tribunal indicating the material had arrived and was available. The applicant made the same request for an extension of time during his submissions to this Court. However, his argument was considerably weakened when it was noted that an additional period of eight months had expired since the Tribunal’s decision and the applicant’s request for an extension of time, as raised in his written submissions, was that the time was required to await the delivery of money from overseas to retain the services of a barrister. This ground cannot be sustained.
The reason the Tribunal did not accept the applicant’s claims for persecution are clearly stated as follows:
“I find that the Applicant’s evidence to the Tribunal relating to
(1) when he purportedly establish his ‘group’;
(2) when and why he allegedly ‘went into hiding’; (3) his alleged arrest/charges/convictions; and (4) his reports about his sister to the police
were filled with inconsistencies, contradictions and implausibilities …” (CB p.76)
After examining each one of these issues in detail, the Tribunal reached the conclusion:
“In essence, I do not believe any of the Applicant’s claims for refugee status. I am satisfied that all of the Applicant’s claims are a complete fabrication and he has no credibility. I find the applicant has never suffered persecution in India because of his political beliefs or actions.” (CB p.80)
I accept the respondent’s submissions that on a fair reading of the Tribunal’s decision there is no suggestion that the Tribunal misled the applicant in any way or that his lack of credibility came as a surprise to him. The applicant would have been left in no doubt that his credibility was being seriously doubted.
In the amended application filed on 6 January 2005 the second ground pleaded was that the Tribunal’s decision was vitiated by apprehended bias whereas the written submissions filed in Court at the hearing addressed actual bias. The applicant’s written submissions disclosed that the amended application was prepared with the assistance of the Pilot Scheme barrister. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. The particulars for this pleading in effect repeated the particulars used in the natural justice pleading that the applicant was not given one month to obtain documentary evidence in support of his claims.
The applicant indicated in his particulars that he would rely upon the transcript of the proceedings before the Tribunal. No transcript of those proceedings was filed by the applicant. At the directions hearing in September 2004 the use of the Tribunal hearing tape as part of the applicant’s applicant to the Court was raised both in writing and orally with the applicant. The respondent’s solicitor, with the aid of an interpreter, explained the contents of an information sheet provided by the Court registry, titled “Information for Applicants” and set out steps that needed to be taken in order to prepare for a hearing in this Court. These matters were again reinforced during the directions hearing when the hearing date was issued and questions relating to matters had been raised and answered. The information sheet also suggested that this was one of the matters to be discussed with the Pilot Scheme adviser during conference. The applicant did raise this matter during oral submissions at this hearing and stated he had been unable to have a transcript prepared because of his financial situation.
In the decision of SCAA v Minister for Immigration & Multicultural & Indigenous Affairs, von Doussa J at [38] states:
“In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.”
In the applicant’s written submissions under the heading of particulars of actual bias, the applicant did not mention the particulars pleaded in the amended applicant but raised a number of other issues regarding the Tribunal lack of consideration of his persecution claims and brief references to country information and relocation. These issues were not particularised or developed in any manner and were nothing more than bald statements.
The finding of the Tribunal was essentially a finding of credibility which is a function of the primary decision maker par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham per McHugh J at 67. The Tribunal’s decision set out in detail the areas of inconsistencies, contradictions and implausibilities. It looked at four individual examples from the applicant’s application and indicated where these three major faults were and the reason for rejection of each individual issue.
Conclusion
Where an applicant is self represented the Court must independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. Although the applicant placed considerable emphasis in his application on the failure of the Tribunal to adjourn the matter to enable him to complete a marshalling process of evidence in support of his claim, the decision of the Tribunal was primarily based on the applicant’s credibility. That lack of credibility was due to his own inconsistent and implausible statements. This was not going to be easily remedied by the presentation of newspaper clippings which the applicant claimed supported his story.
The application for adjournment was made before the Tribunal and this Court during the final hearing and was supported by the same explanation that it would take him one month to obtain the documents. No explanation was given as to why the documents had not been forthcoming with the effluxion of time despite previous requests for this data from his sources in India. The applicant did not offer any explanation as to why he did not seek an extension of time at the directions hearing before this Court in September 2004. At the directions hearing it was made very clear to the applicant that the scheduled date of the final hearing had an associated timetable for the preparation of material. A fair reading of the Tribunal’s decision does not disclose any jurisdictional error and the applicant’s pleadings and submissions do not alter that view. The application 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 thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 March 2005
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