SZEJT v Minister for Immigration
[2005] FMCA 629
•17 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEJT v MINISTER FOR IMMIGRATION | [2005] FMCA 629 |
| 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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai vMinister for Immigration & Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
NAGV& NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
| Applicant: | SZEJT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2804 of 2004 |
| Delivered on: | 17 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 May 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: | Sparke Helmore |
ORDERS
The application be 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 2804 of 2004
| SZEJT |
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 13 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 July 2004 and handed down on 17 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 18 February 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 “SZEJT”.
The applicant, who claims to be a citizen of India, arrived in Australia on 20 January 2004. 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 (Court Book pp.1-37) (“CB”). On 18 February 2004 the delegate refused to grant a protection visa (CB pp.38-52) and on 15 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.53-56).
The applicant was born in July 1952 in Dindugul, India and is a businessman. He stated that he is married with one child and his wife and son reside in India. The applicant was issued with a passport in Madras on 30 April 2001 and obtained a visa on 3 February 2003 which was valid until 29 January 2004 (CB p.68).
When the applicant filed his original visa application he enclosed a statutory declaration dated 29 January 2004 which gave a detailed statement regarding his background and the nature of his claim for a protection visa (CB pp.26-34, 68-73).
The Tribunal’s findings and reasons
The Tribunal did not accept the credit of the applicant and noted its findings in the decision as follows:
“In dealing with this application the Tribunal has formed a firm view that the Applicant lacks credibility and that his claims cannot be accepted. There were inconsistencies in his version of events which have led me to reject the Applicant’s claims and to affirm the Delegate’s decision not to grant the Applicant a protection visa.” (CB p.82)
The Tribunal found that the applicant’s claims of fear of persecution were on the grounds of his political opinion, religion and membership of a particular social group being the Brahmin Hindu caste. However, the Tribunal noted, the applicant’s fear of persecution stemmed primarily “if not solely” from a personal dispute between the applicant and an individual who is a local politician in the State of Tamil Nadu. The Tribunal doubted that the applicant suffered any form of persecution because of the dispute with this individual because of a difference in political affiliation. The Tribunal also noted that part of the animosity was also due to a caste dispute, with the rival being a member of a lower caste and the applicant being a Brahmin (CB p.83).
At the conclusion of a detailed analysis of all of the applicant’s claims, the Tribunal found that the applicant is a highly educated man, skilled in business with many business contacts and is capable of residing and working in a country and culture far removed from his own. The Tribunal found that it was reasonable to expect that the applicant could safely relocate within India to avoid the continuing dispute with the political opponent (CB pp.85-86).
Application for review of the Tribunal’s decision
On 13 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 19 January 2005 the applicant filed an amended application which was essentially in the same terms as the original application. The amended application contained the following grounds:
“1.a) Sec 36(2) of the Migration Act has not been considered or applied by the Tribunal in the right perspective while considering my claims for a protection visa.
b)The decision maker did not follow proper procedures as required by the Migration Act 1958 (the Act) in that, procedures required by the Act and the Migration Regulations were not observed by the Tribunal. No such procedures were identified.
c)The Tribunal’s decision was in abuse of power in making credit findings.
d)The Tribunal did not believe the applicant.
e)The Tribunal failed to investigate the applicant’s claims.
f)The decision maker erred in replying on what has become known as doctrine of “Effective Protection” which has been referred to “Thiyagaraja” and subsequent cases. The applicant submits that the “Doctrine of Effective Protection” is no answer to the claim that Australia has protection obligations where a person found to be a refugee within the meaning of Convention and Protocol. Australia is obliged under Sec 36, Sec 91 of the Migration Act and Article 38 of the Convention to protect the applicant when there is a well-founded fear of persecution. Freedom of life is under threat or refoulment in his country of nationality.
g)The decision maker had identified wrong issues, asking wrong and irrelevant questions, ignoring the relevant materials, making erroneous findings, reaching mistaken conclusion, thereby committing an error of law constituting jurisdictional and judicial error.
h)The Tribunal has failed to go into the merits of the case and had a preconceived opinion at the time of the hearing.
i)The Doctor’s certificate does not contain any prescription of medicine as stated by the Tribunal. This clearly shows that the Tribunal has not gone into the details of the case. Moreover as stated by the Tribunal the certificate produced does not contain the reason for the illness. The doctor has mentioned only the advise and the illness and no certificate will carry the reason for the illness.
k)The Tribunal mislead the applicant during personal interview by twisting the questions intentionally causing deliberately inconsistencies in the questions and ignoring the right answers.
l)I pray for justice in granting protection visa to me as I have the fear of persecution if I return to my country.” (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 (“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.
Applicant’s submissions
The applicant appeared self represented with the aid of an interpreter. However, the applicant addressed the Court in English without requiring the assistance of the interpreter. The applicant attended a directions hearing on 24 September 2004 and consented to Short Minutes of Order requiring the filing and serving of an amended application and any evidence upon which the applicant proposed to rely at the final hearing. Although this order was complied with, the applicant’s amended application was substantially the same as the original application. At the directions hearing, the applicant also consented to filing written submissions fourteen working days prior to the hearing. However, no submissions were filed by the applicant prior to the hearing. At the directions hearing, the applicant accepted the offer of an opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW). The Court file indicates a legal adviser attempted to contact the applicant to arrange a conference but was unsuccessful and the written advice was subsequently prepared and forwarded solely on the basis of the material contained in the Court Book.
When the applicant was invited to make oral submissions in support of his application, he took the Court to a number of Court Book references regarding the independent country information together with the limited nature of the material in his possession that he had been able to obtain in support of his claims. The substantive parts of the submission were the issues he disputed in both the delegate and Tribunal findings in respect of his claims.
Respondent’s submissions
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)
The applicant claimed to fear persecution for reason of his political opinion and membership of a particular social group in India. He claimed to be a supporter of the MDMK Party in Chennai, and that another party member (Mr Manimaran) assaulted the applicant in his home in 2000 and arranged for the applicant to be arrested and beaten by the police, and then detained for ten days and beaten in June/July 2000 and made the subject of false charges. The applicant claimed that this was because Mr Manimaran believed the applicant had spoiled
Mr Manimaran’s election chances when he stood for a seat on behalf of the MDMK, and because Mr Manimaran was of low caste whereas the Applicant was of high caste. He claimed to fear further harm from Mr Manimaran if returned to India, and that he could not relocate within India (CB pp.24-34, 68-80).
b)
The Tribunal found that the applicant was not credible
(CB p.82.9), noting various inconsistencies and implausibilities in his claims, and concluded that the applicant did not even genuinely fear harm (CB p.84.9). The Tribunal rejected all the applicant’s claims of past harm. It concluded that the applicant had not been persecuted in the past in India and that there was not a real chance of him being persecuted in future (CB p.85.4), and further that he could relocate within India if he wished
(CB pp.81-86).
c)It is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its strong finding that the applicant was not credible and his claims untrue. Such findings are matters of fact for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67]. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai vMinister for Immigration & Multicultural Affairs at 558-559; W148/00A v Minister for Immigration & Multicultural Affairs per Tamberlin and R D Nicholson JJ at [64-69]. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth at [137].
d)The amended application does not properly particularise any jurisdictional error in the Tribunal’s decision. It claims that the Tribunal relied upon the doctrine of effective protection: NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs, but the Tribunal did not so rely. It also claims that the Tribunal wrongly stated that the applicant’s medical certificate required prescription medicine, but the Tribunal does not so state (CB p.84.3), nor would it amount to a jurisdictional error if it did. Complaint appears to be made about the Tribunal’s conduct of the hearing, but no transcript of the hearing has been filed so there is no evidentiary basis for this claim. The remaining grounds are meaningless in the absence of particularisation.
e)As there is no jurisdictional error in the Tribunal’s decision it follows that it is a “privative clause decision” within s.474 of the Act.
Reasons
The applicant in these proceedings is self represented and has filed no written submissions and has made limited oral submissions from the bar table. As indicated above, the grounds of the original application and substantially repeated in the amended application, were generally vague and unparticularised. Although the applicant raised a number of issues, they were unstructured and amount to little more than a list of issues that are commonly canvassed in administrative review without identifying the statement or context where that particular error is alleged to have occurred within the decision structure. Other grounds were just bald statements, such as:
“1.d) The Tribunal did not believe the applicant.”
This was a finding of the Tribunal.
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 main finding of the Tribunal was that the applicant was not credible and it reached this conclusion because of the inconsistencies and implausibilities contained within his various claims. These were findings of fact and I accepted the respondent’s submissions and supporting authority in respect of this issue.
The grounds also contained a number of generalised allegations such as the Tribunal’s failure to follow the proper procedures required under the Act. Ground 1(b) contained the rather unusual comment that “No such procedures were identified” which was a valid observation in respect of the drafting of the pleadings. In the absence of any specific pleading and particularisation and on a fair reading of the Tribunal’s decision, it is not possible to identify any procedure followed by the Tribunal in its decision making process that was not permitted by the Act. These allegations cannot be sustained.
Similarly, in the absence of any specific pleading and particularisation, and on the face of the Tribunal’s decision, the allegation that the decision maker identified wrong issues, wrong and irrelevant questions and ignored relevant material cannot be sustained.
The ground identified generally as the “doctor’s certificate” goes to the obligation on the applicant to make out his own case. The relevant facts pertaining to the applicant’s claim need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out: Minister for Immigration & Ethnic Affairs v Guo & Anor per Kirby J at 596.
The allegations that the Tribunal mislead the applicant during the Tribunal hearing would need the applicant to identify those questions in which he alleges he was misled. That claim should be supported by the presentation of a copy of the transcript of the Tribunal hearing which would provide the Court with an opportunity to be privy to the discourse that occurred. The applicant should also provide a clear indication as to what was misleading and the significant issues raised in the questioning that were ignored by the Tribunal in its decision. At the directions hearing, the applicant was provided with information dealing with the requirements of obtaining and preparing a transcript for filing as evidence. The applicant was advised that the transcript would have to establish the material he supplied had been ignored by the Tribunal notwithstanding that the decision contained the applicant’s statutory declaration in full and made reference to various pieces of country information that had been sourced. I am satisfied that the applicant was aware that any information submitted by him and drawn to the Tribunal’s attention which was significant and had been ignored, would need to be evidenced by a transcript of the hearing.
Conclusion
As the grounds in the application were general and without particularisation, for the reasons I have identified above, 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-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 May 2005
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