SZHZL v Minister for Immigration - [2006] FMCA 1563

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1563

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, ss.422B, 425

Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
S1152 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2006] FCAFC 98
SCAA vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:

SZHZL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3856 of 2005

Judgment of:

Barnes FM

Hearing date:

12 October 2006

Delivered at:

Sydney

Delivered on:

12 October 2006

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms S. McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the title of the first respondent be changed to ‘Minister for Immigration & Multicultural Affairs’.
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3856 of 2005

SZHZL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 December 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in July 2005 and applied for a protection visa in August 2005. In a statement accompanying his protection visa application he claimed that as a child he had lived with his grandparents who were harassed by local political people and that this had created aversion against corrupt politicians in his mind. He claimed that when he finished college he became a member of the Naxalite Group, that he was involved in a number of public anti-government campaigns, and that having worked for the group since 2002 he had become a well-known Naxalite activist in his area. He claimed that the ruling party of the State in which he lived had become aware of his activities, that they had tried to eliminate him using political thuggery and that since 2002 he had experienced death threats and had been warned by top political figures of the ruling party. He claimed to have been taken into custody by the police in July 2003 during a meeting in a park, detained, interrogated and severely beaten and that he required medical treatment. He claimed the police warned a public hospital not to treat him so that he had to be treated by a private doctor. He was hospitalised and while in hospital the opposition group ruined his house and set his shop and house on fire. He claimed that he complained to the police, but they shouted at him and that senior Naxalites told him to remain silent. He also claimed that in January 2004, during a meeting of the ruling party, a gang of thugs came to the village and took several Naxalite members with them, that he avoided them but that they took his father away to an unknown place and kept on telephoning the house saying that his father would not be released until the applicant surrendered. He claimed that he contacted Naxalite leaders who launched a "massive attack" and found his father. He claimed that subsequently he received a lot of threats and that the police started troubling him by taking him to the police station every now and then.
In its reasons for decision, the Tribunal outlined the applicant's claims and summarised what occurred in the Tribunal hearing and the applicant's responses in relation to a number of issues and questions that it put to him. The Tribunal stated that it had concerns about the veracity of the applicant's claims, and having had the opportunity to explore with him his claims and observe him at a hearing, on the evidence as a whole it was not satisfied that he was a credible witness.
It gave reasons for its finding in relation to credibility. It had regard to the applicant's lack of knowledge at the hearing about many facts relating to the People's War Group (the PWG) despite the fact that independent information indicated that the Naxalites were the Maoist revolutionaries of that group. It also had regard to the fact that the applicant’s views about the PWG were unsupported by the facts before the Tribunal. It elaborated on the particulars of these concerns, finding that the applicant's lack of knowledge was incommensurate with his claims and raised doubt about his credibility. It also found that despite being given an opportunity to clarify, the applicant's responses were vague, confused and internally inconsistent. It elaborated on these inconsistencies in relation to a number of relevant issues (such as the date of his claimed detention). It found that the applicant had fabricated his claims to support his application. Hence and looking at the evidence cumulatively it did not accept that the applicant had ever been a member of the Naxalites or ever involved in activities relating to the Naxalites. Therefore it rejected his associated claims and did not accept that he had suffered any of the claimed harm.
The Tribunal also had regard to the applicant’s claim that his grandparents had been harassed by local people, albeit this was not claimed to relate to the applicant's activities with the Naxalites.

While it accepted as plausible that supporters of various political parties asked for money from wealthy people including the applicant's grandparents it was not satisfied on this basis that the applicant had suffered serious harm as contemplated by the Migration Act 1958 (Cth) (the Act) or that he had a well-founded fear on this basis. Given the adverse credibility finding it had made and on the evidence as a whole, the Tribunal was satisfied that the applicant was exaggerating when he asserted he had been affected by such corruption. It had regard to the evidence that the applicant was an educated person who on his own evidence managed to secure a tertiary teaching position without bribery. It was not persuaded by the applicant's explanations in this respect.
The Tribunal did not accept that the applicant had suffered any Convention-related harm or that there was a real chance of this happening in the reasonably foreseeable future. It was not satisfied that he had a well-founded fear of harm for a Convention reason and affirmed the decision not to grant him a protection visa.
The applicant sought review by application filed in this Court on 29 December 2005. He filed an amended application on 28 March 2006. That amended application states that it relies on additional grounds. However in essence it repeats the first seven grounds in the application with amplification of one ground and adds further grounds. Hence it is convenient to refer to the grounds in the amended application. I note first that the applicant neither filed written submissions nor made oral submissions, other than unsuccessfully seeking an adjournment in order to allow him further time to obtain documents from India in support of his claim that he was a Naxalite.
Insofar as he takes issue with the Tribunal findings in respect of his claim to be a Naxalite and in particular its rejection of his credibility, credibility is a matter for the Tribunal. The Tribunal findings were open to it for the reasons it gave on the material before it.

No jurisdictional error is apparent in the manner in which it dealt with the applicant's claims. As I indicated to the applicant, merits review is not available in this Court. There is no suggestion that the Tribunal failed to consider documents before it or, indeed, that the applicant sought or was refused any further time or opportunity to provide further evidence to the Tribunal.
A number of the grounds in the amended application seek impermissible merits review and must fail. The first and second grounds claim that the Tribunal failed to see that the applicant satisfied the criteria under the Refugees Convention and claim that he did meet the elements in the Convention. Such claims do not establish jurisdictional error.
The third ground is that the Tribunal was wrong in saying that the applicant was not a credible witness and that it committed factual error in not considering the facts in favour of the applicant. As indicated, credibility is a matter for the Tribunal, see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and there is nothing in the material before the Court to suggest that the Tribunal failed to consider any aspects of the applicant's claims. Insofar as this ground seeks merits review it does not establish jurisdictional error.
Similarly, the claims in grounds 7 and 11 (that the Tribunal failed to see that the applicant sought asylum as he could not get protection from the authorities and that the Tribunal completely ignored the sufferings suffered by the applicant and committed factual error) seek merits review. The Tribunal understood and set out the applicant's claims in relation to what he said had happened to him but rejected his underlying claim to be a Naxalite or to have been involved in any activities relating to the Naxalites. Consequently it rejected the claims about past harm said to have resulted from such membership or activities. These grounds must fail.
In ground 5 the applicant contends that the reasons given by the Tribunal for the rejection are vague and that the Tribunal had “simply” stated that the claims were “far-fetched”. The Tribunal does not in fact use the expression “far-fetched”. It did find that there was vagueness, confusion and internal inconsistency in the applicant’s evidence, but did not “simply” make such statements. Rather it gave reasons for such conclusions. No jurisdictional error is established on this basis.
In ground 6 the applicant claims that he was confused and mentally blocked at the time of the Tribunal hearing and that the Tribunal should not have taken advantage of his nervousness. There is no evidence before the Court to support such a contention let alone a finding that there was jurisdictional error. The only evidence of what occurred in the Tribunal hearing is the Tribunal summary, from which it is apparent that the applicant did give answers which could be described as confused and internally inconsistent, although the Tribunal gave him an opportunity to clarify his answers and raised its concerns with him about the credibility of his claims. No failure to comply with s.425 or other jurisdictional error is apparent in the manner contended for on the evidence before the Court.
In ground 8 the applicant claims, without particulars, that the Tribunal seemed to have dealt with this matter with a pre-determined mind. This appears to be an allegation of actual or apprehended bias. There is a heavy onus on an applicant making such a claim (see the principles considered in Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [69]). Moreover, as stated in SCAA vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 per Von Doussa J, a finding of actual bias from the reasons for decision alone would be rare and exceptional. The material before the Court is not such as to establish actual bias. Nor does it establish apparent bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] to [32]. There is nothing in the material before the Court to indicate that a hypothetical, fair-minded layperson properly informed as to the nature of the proceedings, the matter in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend that an impartial mind might not be brought by the decision-maker to resolution of the question before it.
Ground 9 is an assertion that the matter was not considered properly and therefore the applicant was denied procedural fairness.

This ground is not particularised. No lack of procedural fairness is apparent on the material before the Court. Section 422B of the Migration Act is applicable but in these circumstances it is not necessary to consider the scope of that provision.
Ground 10 is that the Tribunal, in order to dismiss the case, relied on some research advice. There is a reference to page 25 of the green book, which appears to be an error as page 25 is part of the applicant's declaration accompanying his application for a protection visa.

The ground goes on to assert that third party sources were searched and that was put against the applicant and that the Tribunal erred in accepting the third party sources and not accepting the real situation as stated by the applicant. It is also contended that the Tribunal had already decided to dismiss the case and used irrelevant materials to do so.
The Tribunal was, however, entitled to rely upon independent country information, S1152 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2006] FCAFC 98 at [10]. Insofar as this ground reiterates the contention of a lack of good faith or pre-judgment constituting actual bias, that is not established on the material before the Court as set out above. Nor is there anything to suggest that the Tribunal had regard to irrelevant considerations in a manner constituting jurisdictional error.
Finally, there is a general claim in ground 12 that the Tribunal committed legal, factual and jurisdictional error. This does not of itself establish any such error.
As no jurisdictional error has been established, the application must be dismissed. The first respondent also seeks that the title of the first respondent be changed to Minister for Immigration and Multicultural Affairs. I will make such an order but first I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and there is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 26 October 2006