SZEXR v Minister for Immigration

[2007] FMCA 1856

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1856

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZEXR”.

Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 412
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214
NAAH v Minister for Immigration [2002] FCAFC 354
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NARE v Minister for Immigration [2004] FCA 554
SZBYR v Minister for Immigration & Anor [2007] HCA 26
SZCIJ v Minister for Immigration and  Multicultural and Indigenous Affairs [2006] FCAFC 62
SZDFO v Minister for Immigration [2004] FCA 1192

Applicant: SZEXR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2980 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 12 September 2007

Delivered at: Sydney

Delivered on: 7 November 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Bengali interpreter

Solicitors for the Respondents: Ms Z McDonald of DLA Phillips Fox

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application filed on 16 October 2006 is dismissed.

3. 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

SYG2980 of 2006

SZEXR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant is a Muslim male of Bangladeshi ethnicity, born in 1970 in the city of Barisal. He moved to South Africa in November 1998 and owned a business in Johannesburg from March 2001 to December 2002. He claims he was married to a Christian woman in 2001 and that his wife remained in South Africa while he moved to Australia in 2003. His parents and three sisters live in Bangladesh.

2. He claims he was an active member of the Freedom Party and, as a result of his political activities, was harassed by political opponents and falsely charged with murdering a leader of the Awami League in 1998. He claims that he had to escape to South Africa where he applied for refugee status. As a consequence of his marriage to a Christian he was targeted by Muslim fundamentalists in South Africa so he moved to Australia to seek protection.

3. A delegate of the Minister refused to grant the applicant a protection visa. The applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”) who upheld the delegate’s decision. This Court dismissed the review application but on appeal to the Federal Court, the matter was remitted by consent to the Tribunal. The Tribunal again upheld the delegate’s decision. The applicant seeks judicial review of the Tribunal’s decision.

4. A Court Book (“CB”) was prepared and filed by the first respondent's solicitors and I have marked it Exhibit “A”. This document was read into evidence.

5. The original application contains six grounds of review.

Consideration

1. At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The Court file indicates that the applicant did attend a conference with his panel adviser. The applicant was also granted leave, after receiving his panel advice, to file an amended application giving complete particulars of each ground of review relied upon. The applicant confirmed that he had not filed an amended application nor any written submissions in support of his application.

Grounds (a) and (b)

(a)     The Tribunal denied procedural fairness and, in so doing, made a jurisdictional error and error of law.

(b)     The procedure that required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision were not observed.

1. Ms McDonald, for the respondents, submits that this is a matter to which s.422B of the Migration Act 1958 (Cth) (“the Act”) applies and common law procedural fairness is excluded: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 at [66]-[67]; SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 62 at [7]-[8]. It is submitted that unless the applicant can demonstrate a breach of s.424A or s.425 of the Act or bias, his application must fail. It is submitted that there is no breach of s.424A by the Tribunal as inconsistencies are not capable of constituting information: SZBYR v Minister for Immigration & Anor [2007] HCA 26 at [18].

2. Ms McDonald further submits that the Tribunal sent the applicant two s.424A letters, one of which was sent by the previously constituted Tribunal. Further, the information relied upon by the Tribunal in its decision was information given by the applicant for the purposes of his application. The consisted of oral evidence and documents submitted to the Tribunal both at the first instance and on remittal. This information was either put to the applicant in the s.424A letters or falls within the exclusion in s.424A(3)(b), as it was given by the applicant for the purpose of his application. The Tribunal on remittal is entitled to rely on what occurred before the Tribunal at first instance: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [39]. In SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [16], Emmett J applied the principles in SZEPZ which had almost identical facts. The Tribunal in SZJBE relied on inconsistencies in the applicant’s evidence from the first to the second hearing. Ms McNamara submits that the applicant was properly invited to a hearing which he attended and gave oral evidence. Further there is no evidence of bias on the face of the Tribunal decision.

3. These broad formulaic grounds contained in (a) and (b) are unparticularised and unsupported by either written or oral submissions. They are no more than statements of general principles which arise in judicial review of administrative decisions. The applicant has not specified or referred to where the alleged error arises and is inviting the Court to undertake a general review of the whole decision and consider whether an error could have occurred. I am satisfied that the first respondent’s written submissions broadly cover any of the issues that could arise under these two grounds. I am satisfied that none of the issues identified give rise to any jurisdictional error and that these two grounds cannot be sustained.

Ground (c)

(c) The Tribunal ignored the merits of the review application.  The Tribunal made its decision on the basis of the unrelated country information.  The Tribunal made its decision without making an investigation of the persecution that I faced in my former country.

1. Ms McDonald contends in her written submissions that the applicant is essentially complaining about the merits of the Tribunal’s decision. This is not part of a function of this Court or in judicial review proceedings: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 412 at [420] per Mason CJ. It is submitted that the selection and reliance on country information is a matter for the Tribunal. The Tribunal investigated the applicant’s claims but was not satisfied that he was involved with any political party or was a member of a particular social group. This again is an attempt by the applicant to cavil with the findings of facts made by the Tribunal.

2. Merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. 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 be made in the circumstances. Merits review provides a complete rehearsal of all the issues relevant to the application which is a task not to be undertaken by this Court: SZDFO v Minister for Immigration [2004] FCA 1192; NARE v Minister for Immigration [2004] FCA 554; NAAH v Minister for Immigration [2002] FCAFC 354. I agree with Ms McDonald’s submissions and this ground of review cannot be sustained.

Grounds (d) and (e)

(d)     The Tribunal failed to take relevant consideration into account in exercising its power to determine the applicant review application.

(e)     The Tribunal is involved with jurisdictional error and it led the incorrect interpretation of the applicable law.

1. Ms McDonald submits that as no particulars have been provided as to what the relevant consideration was, it is difficult to know what the case is to be met. I accept that submission and agree that this ground is nothing more than a sweeping statement of general principle unsupported by any form of evidence.

Ground (f)

(f)     The Tribunal was unjust and it’s was made without taking in to the account of full gravity of the circumstances of the applicant’s Review Application.

1. Ms McDonald submits that the claim that the decision was “unjust” is a further attack on the Tribunal’s findings of fact. I am satisfied that this ground is no more than the applicant expressing dissatisfaction with the final outcome of the decision and is not a genuine attempt to identify any jurisdictional error in the decision-making process.

Conclusion

1. The applicant in these proceedings is a self-represented litigant and was assisted at the hearing by a Bengali interpreter. The applicant was assisted in earlier proceedings by a registered migration agent. However that agent has since been deregistered and the assistance has ceased. The applicant seems to have more recently been assisted by somebody with very limited knowledge of this jurisdiction and who appears to have listed the grounds of review with no specific reference to the Tribunal decision. The applicant himself clearly has little understanding of the issues before the Court and did not file written submissions or make oral submissions in support of his application. He indicated that he would rely totally on the grounds in the original application. I am satisfied that none of the grounds in the application identify any error made in the Tribunal’s decision-making process. Further it is not apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error. This review is limited to an assessment from the material in the Court Book and on the face of the Tribunal decision. Consequently, the application should be dismissed.

2. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  7 November 2007