SZHTR v Minister for Immigration - [2007] FMCA 312

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 312

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa decision – applicant claiming political persecution in India – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.65, 91R, 414, 424A

Applicant:

SZHTR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3592 of 2005

Judgment of:

Driver FM

Hearing date:

13 March 2007

Delivered at:

Sydney

Delivered on:

13 March 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The title of the first respondent is amended to the Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3592 of 2005

SZHTR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 10 November 2005. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant sought review of that decision in this Court by application filed on 7 December 2005. Although the applicant neglected to state in that application when he was notified of the Tribunal decision, it is apparent that that application was filed within 28 days of the handing down of the Tribunal decision. I find that the application was filed within time.
The background to the applicant’s protection visa claims and the Tribunal’s decision on them is summarised in the Minister’s written submissions. I adopt as background with necessary amendments paragraphs 2 to 4 of those submissions for the purposes of this judgment:
The applicant applied for the visa on 20 April 2005: court book, pages 1-36. The delegate refused the visa on 9 August 2005: court book, pages 39-47, and the applicant applied to the Tribunal for review on 23 August 2005: court book, pages 48-51. The Tribunal held a hearing on 18 October 2005.
The applicant claimed to fear persecution for reason of his political opinion in India. He claimed to be an active member of the Akali Dal (Badal Group) party in Punjab; that members of the rival Congress Party and the police kidnapped and tortured him on 15 August 2004, after which he claimed to have been hospitalised, and that they had caused false charges to be laid against him. He claimed the Congress Party were still looking for him. See generally court book, pages 72-80.
The Tribunal found that the applicant was not credible. It noted contradictions in his claims, his inability to provide any evidence of his claimed membership of the Akali Dal (Badal Group) or his hospitalisation, his delay in leaving India until 21 December 2004 for New Zealand, his return to India of his own volition in March 2005, and his procuring of an Australian visa while he was in New Zealand. The Tribunal concluded that the applicant was not a member of the Badal Group and had not been attacked or made the subject of false charges as he claimed. See generally court book, pages 80-83.
The applicant now relies on an amended application filed on 27 February 2007. That application asserted three jurisdictional errors. The first is an assertion that the Tribunal failed to assess his fears of harm according to the refugee criteria and misapplied the applicant’s claims due to an identified finding from the Tribunal decision. The particulars assert a failure to assess his fears of persecution in accordance with s.91R of the Migration Act 1958 (Cth) (“the Migration Act”). The particulars also asserts a failure to consider vital information given by the applicant. The second ground is an assertion that the Tribunal failed to reach the degree of satisfaction required of it by ss.65 and 414 of the Migration Act. The applicant again refers to particulars of the Tribunal decision. Finally, the application asserts bias by reference to an adverse credibility finding in the Tribunal decision.
In support of the amended application the applicant relies upon an affidavit filed on 26 February 2007 to which is annexed a transcript of the hearing conducted by the Tribunal on 18 October 2005. I received that affidavit and transcript as evidence. I also received as evidence the book of relevant documents filed by the Minister on 24 February 2006.
Both parties have taken the opportunity to file written submissions. Both parties relied upon those written submissions and made only brief oral submissions. Having considered the available material and the submissions I conclude that there is no substance to any of the asserted jurisdictional errors.
The applicant failed before the Tribunal because it did not believe his claims. It is obvious from the record of the Tribunal decision that the presiding member had serious concerns about the internal consistency and plausibility of those claims. The adverse credibility findings made by the Tribunal were open to it on the material before it.
Having rejected the applicant’s claims as a fabrication in unequivocal terms, it was unnecessary for the Tribunal to consider those claims as if they were true. Accordingly, there was no relevant failure to apply the relevant test of persecution under either the Convention or s.91R of the Migration Act. Neither was there any failure on the part of the Tribunal to perform its statutory functions under either s.65 or s.414 of the Migration Act. There was also nothing procedurally unfair about the manner in which the Tribunal performed its functions.
The Tribunal met its statutory obligations to invite the applicant to a hearing and to give him the opportunity to present his claims and address the Tribunal’s concerns. The Tribunal did not fail to meet its obligations under s.424A of the Migration Act to disclose in writing adverse material that appeared to be determinative. I note in that connection that, although the Tribunal was concerned about inconsistencies between what the applicant said at the hearing conducted by the Tribunal and what he had put in his protection visa claims, the latter were re-presented by the applicant to the Tribunal in writing at the hearing.
Neither is there any substance to the assertion of bias. While the applicant was not believed, the manner in which the presiding member expressed himself does not indicate either a closed mind or pre‑judgement.
I find that the applicant has failed to establish any jurisdictional error on the part of the Tribunal. Neither on my own perusal of the material, is any jurisdictional error apparent to me. Accordingly, the decision is a privative clause decision and the application must be dismissed. I will so order.
I will direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,000. I understand from Mr Reilly that the Minister’s party and party costs exceed that amount. The applicant did not wish to be heard on costs.
I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(c) of Part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) in the sum of $5,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 March 2007