SZFEC v Minister for Immigration - [2005] FMCA 803

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFEC v MINISTER FOR IMMIGRATION

[2005] FMCA 803

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – no reviewable error.

PRACTICE & PROCEDURE – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424(1)(c), 474A, 474, 477

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Minister for Immigration & Multicultural Affairs; ex parte S154/2002 (2003) 201 ALR 437
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:

SZFEC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3551 of 2004

Judgment of:

Scarlett FM

Hearing date:

30 May 2005

Date of Last Submission:

30 May 2005

Delivered at:

Sydney

Delivered on:

30 May 2005

REPRESENTATION

Solicitors for the Applicant:

Chandra Jayawardena

Counsel for the Respondent:

Ms McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
That the application is not competent as the Court has no jurisdiction to hear the application.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $5,725.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3551 of 2004

SZFEC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant seeks judicial review of a decision of the Refugee Review Tribunal that was made on 28^th August 2002. The Tribunal affirmed the decision of a delegate of the Minister not to grant a Protection Visa to the applicant.
The applicant is a citizen of India. He arrived in Australia on

12^th September 2000 and on 23^rd October of that year he lodged an application for a Protection Class XA Visa.
The applicant claimed to have a well founded fear of persecution arising from imputed political opinions.
The background to this case is that the applicant is a Sikh man from the Punjab of India. He lived with his parents and his five sisters, although his mother is now sadly deceased. There were a number of incidents of violence in the 1980s in India which, as the Tribunal pointed out, arose from the Sikh claim for an independent nation to be called Khalistan. The applicant was not involved in the uprisings or the violence involved but in 1996 three people came to the farm belonging to the applicant's family. Those three people were apparently insurgents connected to the Khalistan movement. They were armed and they demanded food and shelter for the night. Hardly surprisingly, the applicant's family agreed to this request. The men later left and two of them were killed in a shoot out with the police. The third man, whose name was Jamsher Singh Shera, was taken into custody. According to the applicant, this third man, Jamsher Singh Shera, had told the police when he was being interviewed that he and his late colleagues had stayed at the house of the applicant's family.
As a result of that the police took an interest in the family and came to the applicant's home and the applicant was taken into custody, was threatened and he said was actually beaten by the police. He was subjected to a number of interrogations and was eventually released, although was in a state of some physical injury after having suffered repeated beatings.
The applicant says that although this incident happened in the year 1996, he remained an object of suspicion and intimidation by the police until he left India. He said the police had threatened to kill him, especially if they found out that he was in fact a supporter of the Sikh militant movement or if he gave any support to the movement.
He said that eventually he left his home farm. He stayed with his grandparents, 40 kilometres away, for a while and also spent some time in the city of Delhi. In Delhi he said that he had to remain indoors and the only time he went out was when he went to get a meal. He was concerned that he would be subject to arrest and further beating.
Eventually the applicant, with the aid of his family, left for Australia.

A contract was organised for him to work on a ship which was already on its way to Australia. He flew out to Australia to join the ship and did that but remained on the ship for a very short period of time and whilst still in Australia jumped ship and remained in Australia.

He applied for a protection visa.
A delegate of the Minister refused his application for a protection visa. So the applicant sought a review by the Refugee Review Tribunal.

The applicant attended a hearing of the Tribunal and gave oral evidence.
After considering his evidence, the Tribunal released a decision, signed on 9^th September 2002. The Tribunal member said:
I am not satisfied that there is a real chance that the applicant would face persecution for a Convention reason if he were to return to Punjab and I find that his fear of what might happen to him there is not well founded.
The Tribunal reached a conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee Convention and did not satisfy the criteria set out in sub-s.36(2) of the Act for a protection visa.
The Tribunal affirmed the decision not to grant a protection visa to the applicant.
The applicant commenced proceedings in this Court seeking

a review of that decision. The original application was made on

6^th December 2004. An amended application was filed on behalf of the applicant by his current solicitor, Mr Jayawardena on 2^nd May 2005 and it is on the basis of that amended application that the case has proceeded today.
The respondent's solicitors filed a notice of objection to competency. The notice says that the respondent Minister objects to the jurisdiction of the Court to try the application under the provisions of s.477(1) (a) of the Migration Act because the decision is a privative clause decision as defined in s.474 and the application to the Court was not made within 28 days of the notification of the decision.
The Minister says that the decision was notified to the applicant on

18^th September 2002 and the applicant's application to the Court was not made until the 6^th December 2004, which is of course outside the 28 day time limit.
The Court has no power to extend that time limit and if the decision is in fact a privative clause decision, then an application must be made within 28 days.
Needless to say, if the Court finds the decision is not a privative clause decision as defined by s.474 of the Migration Act, then the time limit does not apply.
In his amended application filed on 2^nd May this year, the applicant seeks orders for writs of certiorari, prohibition and mandamus as well as orders for costs and any other related.
There are five grounds for the application which are set out in some very helpful detail in the amended application. They are also covered in the applicant's outline of submissions filed on the 11^th May 2005.

I have also had the benefit of hearing Mr Jayawardena speak briefly and succinctly to each of the grounds set out in his submission this morning. I have, of course, had the opportunity of reading the written submissions on behalf of the respondent prepared by Ms McNaughton of counsel and I have heard her speak to those submissions today.
The grounds of the application or as set out in the amended application are these; first, that the Tribunal made a serious jurisdictional error by making a conclusion contrary to the facts and all of the information constructively available on file, refuting the credibility of the applicant openly and acting biased. Second; that the Tribunal was Wednesbury unreasonable in holding that the applicant was not able to provide certain information. Third; that the Tribunal was procedurally unfair and failed to comply with s.424A of the Migration Act and thereby made a serious jurisdictional error by concluding that certain information available to the Tribunal without providing to the applicant the opportunity to make a counter argument against that information. Fourth; that the Tribunal made a jurisdictional error by breaching

sub-ss. 431C and 431D of the Migration Act in relation to certain factual conclusions and five; that the Tribunal was manifestly unreasonable in concluding that the Tribunal was not satisfied that there was a real chance that the applicant would face persecution for a Convention reason if he were returned to Punjab and found that his fear of what might happen to him there is not well founded.
The applicant's outline of submissions set out the reasons why the applicant relies on those five grounds and I have had the advantage of hearing from the applicant's solicitor speak to them again today. Dealing first of all with the first ground; the applicant asks whether the Tribunal in fact acted very harshly and in a biased way to discredit the application, notwithstanding that there was corroboration regarding his claims between the first statement that he made in his oral evidence given at the hearing before the Tribunal by concluding and I quote, page 69 of the Court Book:
I do not accept that this occurred and therefore do not accept that it prompted the police interest in the applicant he has claimed followed.
That blunt statement was criticised by the applicant, not only for its harshness but also in a way that raises some apprehension of bias.

I note that I am referred to the decision of NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 328, a decision handed down on 22^nd December 2004, where the Full Court of the Federal Court held that the manner in which the RRT member debated the religious beliefs of the applicant for a protection visa established an apprehended bias was established.
The decision in NADH (supra) is relevant to in fact several grounds of the applicant's submission and the applicant relies upon that decision in respect of more than one of these grounds. So I will refer to NADH again shortly.
To my mind, the second of the applicant's grounds relating to what is described as point blank rejection of certain information, namely, that at page 69 the Tribunal said:
I am unable to accept ten officers came to his home very early one morning and that he was detained and questioned a number of times as he has claimed. I do not accept that he has been or would be suspected of involvement with the SSF.
The applicant asks, rhetorically, did not the Tribunal's point blank rejection of the following information given by the applicant amount to an undue and unreasonable expectation of information via the Tribunal? Against this, in respect of each of those grounds, counsel for the respondent submits that these amount to no more than an application for a merits review. And of course the Court has no jurisdiction to conduct a merits review. See Minister for Immigration & Multicultural Affairs; ex parte Applicant S154/2002 (2003) 201 ALR 437.
In each case, Ms McNaughton submits that the Tribunal note the cogent reasons for rejecting the applicant's claims and the findings therefore were open to the Tribunal. She refers the Court to

Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham
(2000) 168 ALR 407 at paragraph 67 and Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 pp 558, 559.
In my view, each of those two grounds must fail because the immediate consideration that I have is that both of these findings are just credibility findings. Credibility is entirely a matter for the decision maker, not for the Court conducting the judicial review. It must be remembered that this is a case where the applicant gave oral evidence, was asked questions by the Tribunal member and answered those questions but in the long run, the applicant's evidence was not sufficient to satisfy the Tribunal member that the fact situation which he claimed in fact existed. That is in fact entirely a matter of credibility and that must remain a matter for the Tribunal. The decision in fact contains references to plausibility and the lack of it.
Turning to the third ground; the applicant claims that there was a failure by the Tribunal to provide to the applicant all the information that it relied upon to dismiss his application and that this violated

s.424(1)(c) of the Migration Act 1958. I think it is important to look at, not only s.424 but s.424A. The reference that is made to s.424(1) (c) is in fact a reference to s.424A (1) (c) because s.424(1) is not divided into subparagraphs.
Section 424A(1)C says:
i)Subject to sub-s.3 the Tribunal must
(a)Give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review and
(b)Ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review and
(c)Invite the applicant to comment on it.
At the same time; it must be remembered that sub-s.(1) is at all times subject to sub-s.(3) which says:
This section does not apply to information
(a) That is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member or
(b) That the applicant gave for the purpose of the application or
(c) That is non-disclosure of information.
Sub-s (1) cannot be read without reference to sub-s.(3) because

sub-s.(3) governs the entire operation of sub-s.(1). True it is that the Tribunal relied upon independent country information. An example of this is a general statement made at page 69 at about point seven:
The situation is now calm in Punjab and I do not consider that this will be affected in the material by the recent victory of the Congress Party at the State Election. The police in Punjab are not arresting Sikhs on the vaguest of suspicion and subjecting them with impunity to serious mistreatment as they did a decade or more ago. These changed circumstances have been sustained for several years now and there is no sign of a resurgence of militancy which could lead to a police campaign such as occurred in the 1980s and early 1990s.
These reasons, which form a substantial part of the factual reason of the Tribunal are quite clearly taken from independent country information. In my view, that independent country information falls squarely within the ground of sub-s.(3) of s.424A because it is not information that is specifically about the applicant or another person but it is about a class of persons. It is not information that the applicant gave but it does not have to be. It is just general information which should be known by a person in the capacity of the applicant. In my view, therefore, ground three must fail.
Turning to ground four; the applicant asks rhetorically:
Did not the Tribunal's finding on this fourth ground amount to a finding that was not based on any material question of fact related to the claims made by the applicant? It is imperative that the Tribunal should have acted according to s. 431(c) and (d) of the Act which reads: "Where a Tribunal makes its decision on review, the Tribunal must prepare a written statement. (c) sets out the findings on any material questions of fact and (d) refers to the evidence or any other material on which the findings of fact were made."
The respondent submits that the particular findings, to which I have previously referred, about the situation now being calm in Punjab, that those passages do represent a fair summary of the relevant independent country information set out by the Tribunal. He submits also that the Tribunal was entitled to find, as it did in relation to the effective new election of the Congress Party, given the nature of the independent country information which essentially recorded a fundamentally profound improvement of the political situation in the Punjab such as would justify a finding that he was unlikely to be affected by a change of government at the state level.
The Tribunal was setting out one of its reasons and in my view, one of its principal reasons for finding that there would be no adverse interest in the applicant on his return to the Punjab. The Tribunal, as Ms McNaughton also submits, was in fact not satisfied that there had ever been adverse interest in the applicant for reasons that it set out on pages 68 and 69 of the Court Book. Therefore she submits and in my view correctly, that the Tribunal did set out its findings on all material questions of fact and did refer to the evidence of other material on which those findings were based.
The question of apprehended bias; a matter that appears in the last paragraph of the applicant's submissions. Before I do that, I would also comment that the applicant submits that the Tribunal ignored the applicant's imputed political opinion as a tradition and orthodox member of the Sikh community and Sikh religion with the main reason that he suffered arbitrary arrest, torture and assault in the hands of the police. The applicant asks rhetorically:
Was not this manifestly unreasonable?
In my view, this is again a finding of fact. With respect, I am unable to see that the Tribunal's finding that there was a real chance that the applicant would face persecution if he returned to the Punjab and that his fears were not well founded is no more than a finding of fact. It is not, to my mind, with respect, manifestly unreasonable. The Tribunal had arrived at this process in two ways. One; by not being satisfied as to the credibility of the applicant's evidence on a variety of factual issues and two; by relying upon and setting out information contained as to the current situation or the situation then current in the Punjab as far as the actions of the police and the government were concerned.
In effect, the Tribunal was saying that the independent country information then available in 2002 did not support the applicant's views that he would come under notice and face threats, intimidation and in fact beatings or other violence as a result of an incident that had occurred some six years earlier, because the factual situation had changed.
In my view, that is an appropriate decision for the Tribunal to have arrived at, having regard to the nature of the evidence which it considered, in the independent country information, which led it to that conclusion. It is fair to say; something that might have occurred had the Tribunal accepted the applicant's evidence, which caused the problem in 1996, would not cause a problem six years later. With this independent country information it shows that the situation has changed, the Tribunal is entitled to rely on it and that as there is that information a finding cannot be made that it is manifestly unreasonable.
Turning to the question of apprehension of bias; the applicant has referred the Court to NADH v Minister for Immigration & Multicultural & Indigenous Affairs where the Full Court held that the manner in which the RRT member debated the religious beliefs of the applicant for a protection visa established its apprehended bias could be inferred.

A decision of the Full Federal Court is of course binding on the Federal Magistrates Court. But to my mind, with respect, there needs to be something more than a reference to the applicant's membership of the Sikh community and membership of the Sikh religion. In my view, it appears that the way in which the Tribunal referred to the applicant's membership of that community and that religion was in an objectively neutral way. There was no pejorative inference or critical inference that could be attached to the Tribunal's reference to the applicant's membership of those particular groups. The Tribunal accepted those matters as facts and considered the applicant's position from that view point.
As Mr Jayawardena, for the applicant, pointed out, a transcript of the proceedings was not obtained and it has not been put into evidence, so if there was any evidence that the Tribunal had referred disparagingly or pejoratively to the applicant's membership of either the Sikh community or the Sikh religion, it certainly does not appear on the face of the record. There is not, to my mind, evidence upon which I can see that would allow a finding of apprehended bias on the basis of the applicant's membership of a community or the applicant's adherence to a particular religion.
In fact, it is quite clear that an allegation of bias must be clearly made and clearly proved. The respondent refers me to Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 and I am also referred to findings by Von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668.
There is, in fairness to the applicant, no real suggestion of actual bias. There is no evidence to my mind of apprehended bias. To my mind; there is no reviewable error and as such I am satisfied that the decision of the Refugee Review Tribunal is a privative clause decision. It is therefore a decision as defined by s.474(2) of the Migration Act and the application for review was made outside the 28 day period provided by s.477(1)A of the Act. As I said earlier, that time limit of 28 days is a strict time limit and the Court has no power to extend it or vary it in any way.
It is for these reasons that I am satisfied that the decision under review is a privative clause decision, that there is no jurisdictional error and that the application for review is not competent because the application was ruled outside the required time so the Court has no jurisdiction to hear it.
There is an application for costs. In my view, costs follow the event and there is nothing which would indicate that an order for costs should not be made. I note the matter was before me on the 18th and the matter had to be adjourned because of the fact that the applicant had a medical reason for not being able to attend the Court and that had occurred relatively recently as most of these things do. I did take the view that the matter should be adjourned to a time when the applicant would be well enough to attend Court as he has done today.
Looking at the quantum of the costs, a sum of $5,500.00 is sought. This was a matter where counsel was briefed on the last occasion and of course today and it's a matter where the applicant was legally represented and had submitted written submissions and of course argued the case and in my view this was a necessary matter, at least a desirable matter for the respondent to be represented by counsel.
I do certify for counsel. Taking perhaps a relatively stingy view of the question of costs; whilst I'm of the view that a lump sum should be awarded, taking into account the adjournment and the necessity to brief counsel, in my view a sum of $5,275.00 will be appropriate.

I certify that the preceding forty-eight-(48) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 16 June 2005