SZGVT v Minister for Immigration - [2006] FMCA 1785

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGVT & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1785

MIGRATION – Review of decision by second constituted Refugee Review Tribunal – whether second constituted Refugee Review Tribunal complied with s.424A(1) of Migration Act 1958 (Cth) – whether obligations of earlier constituted Refugee Review Tribunal under s.424A(1) were met by operation of s.424A(3)(b) of Migration Act 1958 (Cth) in later Refugee Review Tribunal hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1); 424A(3)(b); 474; pt.8 div.2

SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107

First Applicant:

SZGVT

Second Applicant:

SZGVU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1991 of 2005

Judgment of:

Emmett FM

Hearing date:

24 November 2006

Date of last submission:

24 November 2006

Delivered at:

Sydney

Delivered on:

24 November 2006

REPRESENTATION

The Applicants appearing on their own behalf

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Mr G. Carroll, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1991 of 2005

SZGVT

First Applicant

SZGVU

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 16 June 2005 (“the later‑constituted Tribunal”) and handed down on 12 July 2005. The later‑constituted Tribunal’s decision is made in circumstances where the decision of an earlier‑constituted Refugee Review Tribunal, dated 17 March 1998 (“the earlier constituted Tribunal”), was quashed by consent pursuant to an order made by Smith FM on 9 March 2005.
The first‑named applicant, being the husband of the second named applicant, arrived in Australia on 22 April 1996 and lodged an application for a protection visa on 9 July 1996. On 11 November 1996, the second‑named applicant lodged an application as a member of the family unit of the first‑named applicant, in a form that stated that the second‑named applicant did not have claims of her own to be a refugee but was included in the application of the first‑named applicant.
The first‑named applicant claims to be from Indonesia and of Chinese‑Indonesian ethnicity and Muslim faith.
In his protection visa application, the first-named applicant claimed that he feared persecution by authorities in Malang because they suspected him of being connected with an Islamic fundamentalist group called Darul Arqam. The first-named applicant claimed to fear persecution in Indonesia by reason of his race, religion and political opinion, although such claims were made at different times throughout the course of his application for a protection visa.
The first‑named applicant’s application for a protection visa was refused by a delegate of the first respondent (“the Delegate”) on 4 June 1997, and the applicants lodged their application for review by the Refugee Review Tribunal on 24 June 1997.
The second-named applicant made no written claims for refugee status in her own right, although the decision of the later‑constituted Tribunal dated 16 June 2005 purports to consider claims made by her at the hearing before that earlier constituted Tribunal.
Before the later‑constituted Tribunal, the first-named applicant claimed to have resisted government attempts to acquire his father’s land and thereby be imputed with a political opinion. Further, he claimed to have briefly joined an Islamic fundamentalist group, the Darul Arqam, and to have been charged with assault of a police officer at a Darul Arqam meeting in 1997, and to be of Chinese ethnicity. The first‑named applicant claimed that the police would kill him if he were to return to Indonesia.
The later‑constituted Tribunal decision noted at the outset that it had before it the Department’s file, including the protection visa application, and the Delegate’s decision record.
The applicants appeared unrepresented before the Court this morning, although with the assistance of an interpreter. The applicants confirmed that the application upon which they relied was a further amended application presented for filing on 16 October 2006 and filed in this Court at the hearing this morning. The further amended application identifies a single ground in the following terms:
“1. That the Tribunal exceeded its jurisdiction in failing to comply with section 424A of the Migration Act 1957 (sic) (Cth).
Particulars:
(a) The Tribunal erred in holding (at page 185 of the Application Book) that information given by the applicants to the first Tribunal, whose decision was subsequently quashed, was information to which section 424A(3)(b) applied.”
Despite several invitations to each of the applicants to make submissions in support of that ground, neither was able to provide any meaningful submission.
What appeared to me to be the relevant paragraph at page 185 of the Court Book was read to the applicants and each was asked if this was the passage to which they were referring in their ground. Neither was able to confirm or deny whether or not that was the relevant passage. However, the first‑named applicant suggested that there may be many other passages upon which they relied. Despite being invited, again on more than one occasion, to identify those passages, neither applicant was able to take the Court to any other passage. Certainly, it would appear to the Court that the only relevant passage on page 185 of the Court Book is the passage read to the applicants. That passage is as follows:
“In this case the Tribunal accepts that the Applicants are citizens of Indonesia as claimed and as supported by their Indonesian passports. The Tribunal has set out the Applicant’s evidence in some detail above because the Tribunal finds his evidence very unsatisfactory; it is inconsistent and unconvincing. The Tribunal considered whether to send the Applicant a letter in accordance with s.424A as in some respects, the claims the Applicant made in the protection visa application were inconsistent with the evidence he gave to the first Tribunal and/or to this Tribunal. However the Tribunal has concluded that these matters fall with (sic) the s.424A(3)(b) exception. This is because the main claims in the Applicant’s protection visa application were repeated in the 26 June 1997 submission to the (first) Tribunal, and those claims, as well as his oral evidence to the first Tribunal, were clearly set out in the first Tribunal’s decision as was the significance of the differences. Therefore the Tribunal is satisfied that it is information “that the applicant gave for the purpose of the application”.”
The later‑constituted Tribunal decision found that the first‑named applicant’s claims made in his protection visa application had been repeated to the earlier constituted Tribunal in a submission dated 26 June 1997.
Counsel for the first respondent referred the Court to the reasons in the Full Court decision of the Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [39] in a joint judgment, in which their Honours confirmed that the review process encompasses the various hearings, including hearings by differently constituted tribunals.
The Refugee Review Tribunal is charged with the responsibility for undertaking a review according to law based on the application for review lodged by the applicants.
In the circumstances, there was no obligation on the later‑constituted Tribunal to give to the applicants, by letter, information to which it had regard in affirming the decision under review, being inconsistencies in various claims made by the first‑named applicant in his evidence before the earlier constituted review and this later‑constituted Tribunal.
The later‑constituted Tribunal found the evidence of the first‑named applicant to be “very unsatisfactory, inconsistent and unconvincing”. The later‑constituted Tribunal concluded that the first‑named applicant did not have a well‑founded fear of persecution by reason of his actual or imputed political opinion, actual or imputed religion, or membership of a particular social group, if he were to return to Indonesia.
The later‑constituted Tribunal went on to consider that, even if the first‑named applicant’s key claims were all true, that it still was not satisfied that the first‑named applicant had a well‑founded fear of persecution. The later‑constituted Tribunal expressed those reasons to be because of the passage of time – it has now been a decade since the incidents occurred – and because the first‑named applicant’s family have not had any serious problems from the authorities or anyone else for many years now. The later‑constituted Tribunal noted that the first-named applicant’s father still owns the land and lives there at times. The later‑constituted Tribunal noted that, even if the summonses in relation to the assault are genuine, no further summonses were received after August 1997. In the circumstances, the later‑constituted Tribunal found that the first‑named applicant is no longer of interest to the authorities.
The later‑constituted Tribunal’s findings and conclusions, based on the credibility of the first‑named applicant, are matters for the Tribunal and were open to it on the material and evidence before it, and for which it provided reasons. Further, as referred to above, the later‑constituted Tribunal considered the situation if the key claims of the first‑named applicant were true, and, again, provided reasons for the conclusions that it made. In the circumstances, those conclusions were open to the later‑constituted Tribunal on the material and evidence before it and for which it provided reasons.
In considering the first-named applicant’s claim of a fear of persecution arising because of his Chinese ethnicity, the later‑constituted Tribunal concluded that the first‑named applicant seemed confused and uncertain about his ethnicity. However, the later‑constituted Tribunal considered that, even if the first‑named applicant is of Chinese ethnicity, or was perceived to be of Chinese ethnicity, it was not satisfied that the first‑named applicant had a well‑founded fear of persecution for this reason. In reaching this conclusion, the later‑constituted Tribunal found that, although, at the earlier constituted Tribunal hearing, the first‑named applicant claimed that some of the problems were because of his and the family’s Chinese ethnicity, when these claims were explored at the hearing, his other evidence did not support such claims.
The later‑constituted Tribunal also had regard to independent country information in respect of the situation of ethnic Chinese in Indonesia and also in respect of the government’s attitude to Darul Arqam members or suspected members. The later‑constituted Tribunal concluded, on the evidence and material before it, that it was not satisfied that the first-named applicant has a well‑founded fear of persecution for a Convention‑related reason. Again, that finding and conclusion was open to the later‑constituted Tribunal on the evidence and material before it and for which it provided reasons.
The later‑constituted Tribunal noted that the second‑named applicant had not attended the earlier constituted Tribunal hearing. However, before this later‑constituted Tribunal, the second-named applicant claimed, for the first time, that she feared she would be suspected of being a member of Darul Arqam because she is a Muslim and because of her husband. The later‑constituted Tribunal concluded that it was not satisfied that her fear is well‑founded because she had never had any problem from the police as the result of her husband’s actual suspected membership of Darul Arqam, and that most of the Indonesian population are Muslim, yet are not suspected of being members of Darul Arqam.
The later‑constituted Tribunal rejected the second‑named applicant’s claim that her family reported to police or that police are looking for her husband, noting that such claim was made in 1996. The later‑constituted Tribunal’s rejection was because the second‑named applicant told the later‑constituted Tribunal that she lived at her home at Madiun from early 1996 until she came to Australia, and she never had contact with the police; nor has her family. For those reasons, the later‑constituted Tribunal was not satisfied that the second‑named applicant has a well‑founded fear of persecution within the meaning of the Convention. Again, those are findings and conclusions that were open to the later‑constituted Tribunal on the evidence and material before it and for which it provided reasons.
The later‑constituted Tribunal decision otherwise identifies with particularity the various claims made by the applicants before it at the various hearings attended by either of the applicants. The later‑constituted Tribunal also identified independent country information to which it had regard. The later‑constituted Tribunal, having considered the evidence as a whole, concluded that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. That conclusion was open to it on the evidence and material before it and for which it provided reasons.
The later‑constituted Tribunal decision is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere in the later‑constituted Tribunal’s decision. The applicants’ proceeding before this Court is dismissed.
The first respondent seeks costs fixed in an amount of $5,200. I note that such sum is in fact less than that provided for under the applicable costs schedule, being the old Federal Magistrates Court Rules schedule. For the purposes of the costs application, in my view, it was reasonable that counsel be briefed in the matter. Having regard to the costs schedule, the costs sought by the first respondent are reasonable. .

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 18 December 2006