SZGOD v Minister for Immigration
[2007] FMCA 1543
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1543 |
| 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, 425, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZHUI v Minister for Immigration & Anor [2006] FMCA 1042 SZILQ v Minister for Immigration & Anor [2007] FMCA 483 |
| Applicant: | SZGOD |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3259 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 June 2007 |
| Date of last submission: | 22 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with assistance of Malayalam interpreter |
| Counsel for the First Respondent: | Mr S Lloyd |
| Solicitors for the First Respondent: | Blake Dawson Waldron |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 8 November 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incident to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3259 of 2006
| SZGOD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| 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 Act1958 (Cth) and has been given the pseudonym “SZGOD”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act and filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 November 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 26 September 2006 and handed down and sent the applicant on 19 October 2006. It affirmed a decision of the delegate of the first respondent made on 16 September 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with the 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 on 19 December 2006. I have marked it Exhibit "A" and it was read into evidence.
An affidavit of Felicity Ann Minzlaff, solicitor, and sworn on 6 June 2007 was tendered at the commencement of the hearing. No objection was raised to the affidavit and it was read into evidence.
Background
The Tribunal decision of B MacCarthy reference 060599267 provides the following background information:
The applicant, who claims to be a citizen of India, arrived in Australia on 9 August 2004 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) Visa on 16 August 2004. The delegate decided to refuse to grant a visa on 16 September 2004 and notified the applicant of the decision and his review rights. The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugee Convention. The applicant sought review of the delegate's decision and the Tribunal, differently constituted, affirmed the delegate's decision on 6 May 2005.
The applicant sought review of the Tribunal's decision by the Federal Magistrates Court on 3 July 2006 and the Court set aside the decision and admitted the matter to the Tribunal to be determined according to law. (CB 159)
A summary of the applicant's claims are contained in the Tribunal decision under heading "Findings and Reasons":
The applicant claims to fear persecution in India because of his activities as a trade union official in India. He claims that he was arrested on false charges in the state of Orissa and forced to return to his home state of Kerala. He claims that there, he was arrested, physically abused and threatened with death, and his home was destroyed. He claims he had gone once to Madras where again, people came looking for him with the intention of killing him. Belatedly he claimed that he was attacked by "scheduled cast people" because he was being a volunteer at a Christian church…
The applicant's key claims are based upon assertions that he was involved in the Communist Party and in a union allied to that party, and that he was involved in strikes in the transport industry in India. However, he has provided no corroborating evidence to support those assertions, either to confirm an association with any Indian Communist Party, or to confirm an association with the transport industry unions.(CB 167)
Mr Lloyd, counsel for the first respondent, provided a convenient summary of the Tribunal's findings in his written submissions. I rely on paragraph 5 of those submissions for the purposes of this decision:
5. The RRT was not satisfied that the applicant had a well founded fear of persecution as it was not satisfied that the applicant was truthful in his evidence and his claims. There were a number of reasons for the RRT’s conclusion that it did not believe the applicant's claims.[CB 168-9]
(i) the absence of independent evidence to support the applicant's claim that there was a transport strike in Kollam in early May 2004;
(ii) the RRT evidence that Mr K.P. Somarajan, who had been described by the applicant as the "Chairman of the Kerala Transport Association" (a union of transport workers), was in fact the Transport Commissioner. This cast doubt on the applicant's original claim that he had burned two of "Somarajan's lorries";
(iii) the applicant in his written claim stated that he was arrested and imprisoned in Orissa following an incident in which he and other Communist Party members looted and burned a "godown" owned by the BJP leader called Saroj Patro. This was inconsistent with the applicant's statement elsewhere in his protection visa application, that he had never been convicted of any crime or offence;
(iv) the applicant had stated at the RRT hearing that a man named Rajendran, a member of the Communist Party, was behind the destruction of his house and attempts to have him arrested. The RRT considered that it was difficult to accept that a person from the applicant's own party would seek to have him killed because of his political activities. The RRT was of the view that the applicant had not explained the factional differences that might explain this situation;
(v) the applicant claimed that he had fled Kollan to Madras following a strike in May 2004, that a hit man had come to Madras with the intention of killing him in July 2004 and that after that incident he was introduced to a travel agent who helped him get a visa to travel to Australia ("temporary resident visa") by telling the applicant to pretend to be a film director. The timing of these events was inconsistent with the timing of the application for the temporary residence visa that the applicant lodged in India. That application was dated in May 2004 and the supporting documentation was dated April 2004, these being dates "well before the time when the applicant was allegedly introduced to the travel agent." On this basis the RRT found that it could not accept the applicant's claims that his desire to leave India was prompted by adverse events in May, June and July, 2004 and that the applicant's claims regarding these events was false.;
(vi) the applicant had provided no corroborating evidence to support his assertions of his involvement in the Communist Party and the unions. In contrast, his application for temporary residence visa had contained extensive evidence to support his claim that he was a film director. The RRT considered this evidence to be "overwhelmingly more persuasive than the unsubstantiated claims made by the applicant in Australia with their contradictions and implausibilities"; and
(vii) the RRT did not accept the applicant's claims made at the hearing that he was a victim of an attack for religious reasons in December 2003 because the RRTs broader findings about the applicant's credibility and the lack of explanation as to why the applicant would be singled out for attack when half the people in the area were, like the applicant, Christians. The RRT noted that in any event the issue behind the confrontation had been settled and there was no real chance of the applicant suffering persecution for the religious reasons if he should return to India.
Application for Review of the Tribunal Decision
On 8 November 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. The original application contained the following eight grounds:
(1) The Tribunal made a jurisdictional error and factual error in concluding that the applicant is not entitled to a protection visa.
(2) The Refugee Review Tribunal failed to see that the applicant satisfies all the criteria that it required for a refugee status under the Act and Rules.
(3) The Tribunal committed factual and legal errors in failing to conclude that the applicant falls under article 1A (2) of the Convention which defines a refugee.
(4) The applicant satisfies all four key elements to convention definition.
(5) The Tribunal failed to accept real and correct facts as stated by the applicant in person but has relied on some other facts and stories which are not correct. Therefore the Tribunal has committed factual error. By committing such factual error the Tribunal committed jurisdictional error.
(6) The Tribunal erred in stating that no corroborating evidence to support involvement in Communist Party were filed by the applicant. The applicant had to flee for his life. Therefore he could not bring any documents here.
(7) The Tribunal has erred in stating that no convention reason or reasons for persecution had been provided.
(8) The Tribunal erred in concluding that the applicant does not have a well founded fear of persecution.
At first Court date directions, the applicant indicated to the Court that he wished to participate in the Court’s legal advice scheme. The applicant's request was forwarded to the scheme coordinator and he was given leave to file an amended application giving complete particulars of each ground of review relied upon, after he received his independent legal advice.
On 29 January 2007 the applicant filed an amended application which contained the following grounds:
(1) Page 3 of the decision of the Tribunal refers to four key elements that are required to satisfy the convention definition. The applicant stated that he has the four key elements and therefore entitled to get protection visa.
The first element - the applicant must be outside his country.
The second element - the applicant must fear persecution. If the applicant returns to India his life would be in danger.
The third element - the persecution which the applicant fears must be one or more reasons emanating in the convention definition - race, religion, nationality, membership of a particular social group or political opinion.
The fourth element - the fear of persecution for a Convention must be a "well-founded" fear.
The applicant fulfils all the four elements.
(2) The Tribunal has not considered the case of the applicant in detail. A seeing of the decision record, especially the "findings and reasons" of the Tribunal will go to show that the matter has been decided in haste.
(3) The Tribunal had stated that "none of this definitely proves that the applicant's evidence is to be believed" should have allowed the application.
(4) The Tribunal failed to see that the applicant was nervous at the time of the interview and the Tribunal should have considered this aspect when rejecting the claim. This is a jurisdictional error.
(5) The Tribunal has completely ignored the hardship faced by the applicant and has simply stated that there are inconsistencies and therefore dismiss the claim of the applicant.
(6) The Tribunal has committed factual and legal errors in the following way. The Tribunal does not believe the applicant but believes the documents produced by the applicant to get visitor's visa.
(7) The Tribunal has not accepted what has to be accepted and has accepted what could not be accepted. (Page 9 of the reasons)
(8) The Tribunal has accepted the documents filed by the applicant for visitor's visa but has rejected the claims of the applicant.
(9) The applicant states that his matter has not been considered properly and therefore he has been denied procedural fairness and the principles of natural justice have been denied to him.
(10) The Tribunal in order to dismiss the case of the applicant has relied on some research advice. In that some third party sources are searched and that has been put against the applicant. The Tribunal erred in accepting that third party sources and not accepting the real situation stated by the applicant. The applicant states that the Tribunal has already decided to dismiss the case and used irrelevant materials to discuss the case. Therefore the matter should be dealt with afresh.
(11) The Tribunal has completely ignored the sufferings suffered by the applicant and has committed factual error.
(12) The Tribunal erred in saying that the applicant does not have a well founded fear and that he does not satisfy the criteria set out in s.36(2) of the Act.
(13) The Tribunal has committed legal, factual and jurisdictional error and the applicant requests the Federal Magistrates Court to remand the matter to the Tribunal to decide the matter afresh.
Submissions and Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Malayalam interpreter. The applicant confirmed that he had filed an amended application but had not prepared any written submission in support of his application. When the applicant was invited to make oral submissions in support of his application, he sought to tender a medical certificate prepared on 5 June 2007 which indicated that he was suffering from flu symptoms and was unfit for work from 5 June 2007.
The expiration date of the medical certificate was crossed out. Although the applicant made no formal application for an adjournment, I said that if he wished to make further written submissions to the Court in respect of any issue that arose during today's hearing, he had until 15 June 2007 to do so. The first respondent had until 22 June 2007 to reply.
As the applicant appeared in Court and did not appear to be suffering from the adverse effects of the flu, I declined to adjourn the matter and proceeded on the basis that I had indicated. The applicant declined to make any further oral submissions in support of his application.
Mr Lloyd indicated that he would rely on the written submissions prepared by Mr Stephen Free of counsel, who had been previously briefed in this matter, and that he would make supplementary submissions in support of the material filed by Mr Free. I will deal with the written submissions before considering the supplementary submissions.
Mr Free’s written submissions set out eight grounds of review. Many of the grounds in the application do no more than assert that, on the facts of the case, the applicant is entitled to a protection visa and the Tribunal should have held accordingly. He submits that none of the grounds described in the application form a proper basis for alleging jurisdictional error in the second Tribunal decision. The application, in effect, calls upon this Court to consider the merits of the applicant's claims, which is not the role of the Court on an application for judicial review.
The written submissions, while acknowledging deficiencies in the application, submit that it is appropriate to consider whether there is any jurisdictional error in the second Tribunal decision handed down on 19 October 2006. The second Tribunal took into account information to which s.424A applied and fulfilled its obligation under that section by giving the applicant particulars in writing of that information, and explained its relevance and invited a response. The s.424A letter of 7 August 2006 set out a number of issues raised by the applicant and gave the Tribunal's reasoning as to why this information might be the reason, or a part of the reason, for affirming the delegate's decision.(CB 149-150) The first s.424A letter of 11 March 2005 set out information relating to the applicant’s temporary residence visa application and that, in the Tribunal's view, that this may be a reason for affirming the decision under review because it might show that the applicant's claim to fear persecution because of his activities as a trade union official in the transport industry was not true.(CB 71)
Although the first s.424A letter related to the first Tribunal decision (which was quashed), it remains a relevant part of the record for the purposes of the second Tribunal decision, on the basis that it forms part of the same process of review of the application, see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [39] per Emmett, Siopis and Rares JJ:
In any event, when s.421, 422 and 422A refer to a "a particular review", they identify the review initiated under s.414(1) and culminating in a decision in accordance with s.430, being the review that a particular person, naming the applicant for review, has initiated in respect of an RRT-reviewable decision. The expression does not depend upon the identity of a particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to refuse a decision. 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 valid 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.
The written submissions state that the approach of the second Tribunal, in making its decision without a further hearing, was consistent with the Migration Act and the authorities. Section 425 of the Migration Act requires that "the Tribunal must invite an applicant for review to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review". Such an invitation was issued to the applicant for the purposes of the first Tribunal hearing.(CB 64, 67, 69)
The Tribunal in SZEPZ issued a s.424A letter to the applicant in connection with the review application. That Tribunal made an adverse decision which was subsequently quashed. After the matter was remitted, the Tribunal as reconstituted made a further decision taking into account the information referred to in the earlier s.424A letter and without issuing a fresh letter in the same terms. The Full Federal Court held that this did not give rise to a breach of s.424A: SZEPZ at [39] (reproduced at [18] above).
Mr Lloyd submits that the significant factor for the purposes of s.424A was that the relevant obligation was imposed upon the Tribunal rather than upon a particular Tribunal member: SZEPZ at [41]-[43].
The written submissions submit that a similar approach applies to s.425(1) of the Migration Act which requires that "the Tribunal" must invite the applicant to appear before it. This did occur and a hearing preceded the first Tribunal decision. The fact that the first Tribunal decision itself was subsequently quashed does not mean that the steps taken leading to that decision, including the invitation to a hearing, should not be taken to have occurred, for the reasons set out in SZEPZ. There has also only been one application for review in the present case, although that single application was the subject of two separate Tribunal decisions: SZHUI v Minister for Immigration & Anor [2006] FMCA 1042 at [63].
It is submitted that the Migration Act does not specify when the invitation to a hearing must occur. Nor is there anything to indicate that an additional hearing must be scheduled if the matter is remitted to the Tribunal. In the circumstances, the procedure adopted by the Tribunal leading to the second Tribunal decision did not involve a jurisdictional error.
At the hearing, Mr Lloyd addressed the 13 grounds raised by the applicant in his amended application filed on 29 January 2007. Although not expressed in identical terms, a number of these grounds repeat the grounds listed in the original application. Further, none of the grounds are particularised. They only assert that errors exist without identifying what they are or where they were made.
Because of the manner in which the additional 13 grounds had been drafted, Mr Lloyd dealt with them in the following manner:
i)The applicant’s assertion that he falls within the four elements in the definition of “refugee”. Mr Lloyd contends that is a question of the merits of the decision and does not constitute jurisdictional error.
ii)That the Tribunal did not consider his case in detail. This is contrary to the Tribunal decision as it appears that the Tribunal did consider each issue that the applicant raised.
iii)The applicant claims that the Tribunal said:
“None of this definitely proves that the applicants evidence is to be believed”
The Tribunal explained clearly why it disbelieved the applicant’s evidence in respect of each of the claims.
iv)The Tribunal failed to see that he was nervous at the interview. This does not disclose any jurisdictional error even if it were true.
v)The Tribunal completely ignored hardships that applicant faced. Mr Lloyd submits that the Tribunal did not ignore those claims, it rejected them.
vi)The Tribunal committed factual and legal error in not believing the applicant. Although it is conceded that there could have been a factual error, there was no legal error and therefore no jurisdictional error.
vii)The Tribunal did not accept what had to be accepted. It accepted what could not be accepted. This claim was not particularised but the Tribunal made findings on the applicant’s credibility which was clearly in issue.
viii)The Tribunal accepted documents filed by the applicant for his Visitor’s visa but rejected his claims. Mr Lloyd is acknowledged this, but submits it does not identify a jurisdictional error.
ix)The applicant alleges a denial of procedural fairness but this is not particularised.
x)The applicant questioned the Tribunal’s reliance on research which was put to him in the s.424A letter. Mr Lloyd submits that that is a matter for the Tribunal and goes to the merits of the decision.
xi)The Tribunal ignored the applicant’s suffering. This is a claim similar to ground (v) and should be rejected for the same reason.
xii)Both grounds (xii) and (xiii) are assertions on critical facts in issue, which are not grounds of review.
I agree with the brief submissions made by Mr Lloyd in respect of the 13 grounds of the amended application, that they do not identify nor particularise any ground of jurisdictional error in the Tribunal decision.
Mr Lloyd drew the Court's attention to orders made by Driver FM on 3 July 2006 when the matter was remitted by consent to the Tribunal. The first respondent’s solicitors state that the reason for the consent orders was as follows:
We are instructed to advise that our client consents to the granting of prerogative relief in this matter, to remit the matter to the Refugee Review Tribunal for reconsideration, in light of the Federal Court's decision SZEEU v Minister for Immigration & Multicultural Affairs [2006] FCAFC 2. The Minister considers that there is an arguable jurisdictional error affecting the Tribunal's decision because the Tribunal failed to put the information gained from its own researches about Mr Somaraj and Mr Rajendran (CB 141.8) to the applicant in a s.424A letter. Our client considers that arguably this information formed a part of the Tribunal's reasons and concerned "another person".
The reconstituted Tribunal sent to the applicant an invitation to comment on information letter on 7 August 2006. The applicant responded to the invitation on 29 August 2006, but the Tribunal did not invite the applicant to a second hearing. Mr Lloyd submits that there is no obligation on the Tribunal to have a second hearing and referred to NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179 at [43]-[46] per Scarlett FM:
(43) The contention by the applicant that the Tribunal was under an obligation to hold a second hearing is misconceived. The Tribunal had held a hearing. The Tribunal was entitled to take into account information of claims that had been made to the earlier Tribunal at the hearing. The Migration Act and the Migration Regulations do not require that the Tribunal, in the decision under review before me, should have treated the hearing before the earlier Tribunal as if it had never existed.
(44) The Court made orders by consent setting aside the decision of the Tribunal, it was the decision that was set aside. There was no finding that the Tribunal itself was in some way invalid, or that there was some failure of a procedural nature n the hearing.
(45) It was not the hearing that was set aside, the Tribunal had no obligation to regard the evidence before the Tribunal hearing as if he had not been given. It was the decision that was set aside, and the Court remitted the applicant's application to the Tribunal for re-determination.
(46) The Court did not order a re-hearing, even if it had the power to do so. What the Tribunal did was consider the evidence given to the Tribunal at the first hearing.
Mr Lloyd also referred to SZILQ v Minister for Immigration & Anor [2007] FMCA 483 at [24]-[37] where Smith FM considered this issue and relied on SZEPZ v The Minister or Immigration & Multicultural Affairs [2006] FCAFC 107 at [39].
Mr Lloyd drew the Court's attention SZILQ at [35]-[36] where His Honour said:
Nor, in my opinion, did determine the Court's order for remission in the present case give rise to any duty to perform duties which had previously been badly performed in their review proceedings. In the present case, the terms of order for the writ of mandamus were that the Tribunal "re-determined the matter according to law". This required only that the Tribunal should make a decision on review under s.415(2) and s.430(1) which validly determined the matter. It made no requirement which is not otherwise found in the legislation as to any procedure to be followed, or repeated, before the ordered re-determination was to be made.
(36) In my opinion, the Tribunal in the present case performed its duty to send an invitation under s.425(1) in relation to the applicant's application for review when it invited the applicant to a hearing held on 6 February 2006. The relevant precondition on jurisdiction was therefore performed at that time. (cf Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572 at [58]-[62]. In my opinion, the Tribunal was correct in thinking that, although it had a direction to invite the applicant to a further hearing, it was not bound to do so. (cf SZFML (Supra) at [82], Liu & Anor v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541 at [54] and SZFAS v Minister for Immigration & Anor (2006) FMCA 1029 at [17].
I accept the written submission prepared by Mr Free and the oral submissions made by Mr Lloyd in this matter that the Tribunal has carried out its function according to the Migration Act and that it did not commit any jurisdictional error by adopting the procedures that it had. The applicant is a self-represented litigant with little knowledge of the issues before this Court. He relies on an application and amended application, which appear to have been prepared by an unidentified party with cursory knowledge of the jurisdiction and who was in fact of little assistance to the applicant.
Conclusion
I am satisfied that none of the grounds in the original or amended application identify any jurisdictional error on the part of the Tribunal. Mr Lloyd assisted the Court in reviewing the decision to determine whether any other jurisdictional error can be identified. I agree with his submissions that the Tribunal carried out its functions in accordance with the Migration Act and it is not apparent from the face of the record that any jurisdictional error occurred. In the circumstances, the application must 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 thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 10 September 2007
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