SZHVX v Minister for Immigration

[2007] FMCA 804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 804

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case.

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

SZANI v Minister for Immigration [2004] FCA 1298
WAEJ vMinister for Immigration [2003] FCAFC 188
WAIJ v Minister for Immigration [2004] FCAFC 74

First Applicant: SZHVX

Second Applicant: SZHVY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG899 of 2007

Judgment of: Driver FM

Hearing date: 28 May 2007

Delivered at: Sydney

Delivered on: 28 May 2007

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms Z McDonald
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG899 of 2007

SZHVX

First Applicant

SZHVY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 23 February 2007 and was handed down on 6 March 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protections visas.  The applicants come from India and arrived in Australia on 24 March 2005.  They applied to the Minister’s Department for protection visas on 21 April 2005.  The delegate refused the protection visa application on 6 July 2005.  The applicants sought review of the delegate’s decision before the Tribunal, differently constituted.  The delegate’s decision was affirmed by the first Tribunal on 12 October 2005.  That decision of the Tribunal was set aside by this Court on 5 April 2006.  The Minister appealed to the Full Federal Court.  That appeal was dismissed.  The matter was remitted to the Tribunal and the applicants now seek review of the second Tribunal decision. 

2. These proceedings began with a show cause application filed on 19 March 2007. The applicants assert actual notification of the Tribunal decision on 6 March 2007. I find that the application was filed within time. The applicants now rely upon an amended application filed on 11 May 2007. That application asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) by reference to passages in the Tribunal reasons. Secondly, the amended application asserts that the Tribunal decision was manifestly unreasonable in that no weight was given to a letter from a Mr Patel which on its face corroborated the applicants’ claims. Thirdly, the amended application asserts that the Tribunal failed to apply s.91R of the Migration Act properly.

3. The first applicant filed an affidavit in support of the amending application on 11 May 2007.  I treated that affidavit as a submission.  Annexed to that affidavit is a document which on its face supports the first applicant’s protection visa claims.  This is apparently a document which the first applicant has acquired recently.  It was not before the Tribunal and does not support the claims of jurisdictional error.  It may support the first applicants’ claims to be a refugee but that is a matter for the Minister to consider should he wish to.  The first applicant told me from the bar table that he expects to receive additional supportive documents from India.  I suggested that he raise any further such documents with the Minister’s Department. 

4. The first applicant took the opportunity to file written submissions in support of the amended application.  I also have before me a court book filed on 3 May 2007.

5. The asserted breaches of s.424A of the Migration Act are based upon the Tribunal’s recitation of what occurred at the hearing conducted by the Tribunal. As I pointed out to the first applicant, an obligation under s.424A of the Migration Act may arise at any time before the Tribunal makes its decision. It is hypothetically possible that at the time of a tribunal hearing there may be issues in the mind of the presiding member that the member thinks might determine the outcome of the review. However, ordinarily, until such time as the Tribunal makes its decision, there is no indication of what information the Tribunal regards as determinative.

6. The fact that certain issues are discussed with an applicant at a hearing does not mean that those issues are ultimately determinative.  They may be considered by the Tribunal ultimately to be irrelevant.  I accept that the Tribunal at the hearing conducted by it discussed with the first applicant aspects of his protection visa claims.  I also accept that the Tribunal concluded that the first applicant was not truthful or credible.  The factors that led to that Tribunal conclusion are set out on page 124 of the court book.  Those factors were based upon information given to the Tribunal for the purposes of the review by the applicant.  In particular, the Tribunal was concerned about implausible evidence given at the Tribunal hearing.

7. The finding that the applicant was not truthful or credible was not based upon information contained within the applicant’s original protection visa application. I find that the asserted breaches of s.424A of the Migration Act are not arguable.

8. The second ground concerns the corroborative letter from Mr Patel.  The Tribunal gave no weight to that letter.  The Tribunal relevantly said at page 125 of the court book:

   … given the degree of the credibility problems with the evidence of the applicant, the Tribunal cannot give any weight to the statements of this witness.  In light of the fundamental lack of credibility within the applicant’s evidence the Tribunal cannot be satisfied that the statements in the letter are true.

9. The first applicant asserts that this finding is unreasonable.  The Tribunal had regard to the decisions of the Federal Court in SZANI v Minister for Immigration [2004] FCA 1298 and WAEJ vMinister for Immigration [2003] FCAFC 188. Also relevant is the decision of the Full Federal Court in WAIJ v Minister for Immigration [2004] FCAFC 74. In that case, at [26]-[28], the Full Court considered the circumstances in which a failure to consider corroborative evidence may amount to jurisdictional error. The Full Court noted at [28] that the case before it did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness.

10. The reverse is the case here.  The Tribunal made stark findings of untruthfulness (court book, page 124).  In the circumstances, there was nothing unreasonable or otherwise unlawful about the manner in which the Tribunal dealt with the letter from Mr Patel.  I find that the second ground of review is not arguable. 

11. The third ground asserts a failure to apply properly s.91R of the Migration Act but it is apparent from the particulars and the first applicant’s written submissions that he is simply contesting the merits of the Tribunal decision. There is no arguable breach of s.91R. I find that the application as amended fails to disclose an arguable case. Neither is any other jurisdictional error apparent to me.

12. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

13. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,400. That is less than the costs prescribed in the Federal Magistrates Court Rules. I have no difficulty in accepting that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister in dealing with the application. The applicant told me that he would have difficulty paying the costs sought, however that is not a reason for the Court to refrain from making a costs order.

14. I will order that the first applicant pay the costs and disbursements of and incidental to the application of the first respondent, fixed in the sum of $2,400. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  1 June 2007