SZHZR v Minister for Immigration
[2006] FMCA 710
•11 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHZR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 710 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reason of political opinion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 474 |
| SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1033 SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1200 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZHZR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3861 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 May 2006 |
| Date of Last Submission: | 10 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,870.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3861 of 2005
| SZHZR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 30th November 2005 and handed it down on 20th December 2005.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on
1st September 2003 and applied for a protection (class XA) visa in October 2003. When his application was refused he sought a review of that decision from the Refugee Review Tribunal. The Tribunal affirmed the delegate’s decision.
The applicant sought a review of the decision in the Federal Magistrates Court. His application was dismissed on 14 December 2004 (SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1033) but he was successful on appeal (SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200).
The applicant’s application was remitted to the Refugee Review Tribunal for rehearing.
When the applicant applied to the Tribunal for a review of the delegate’s decision on 9 March 2004, he submitted with the application a six-page written statement and copies of letters from three people in Bangladesh. On 18th October 2005, the Tribunal wrote to the applicant seeking information about a number of matters raised in the statement. The letter told the applicant that the information was relevant to the review for a number of reasons, including the possibility of an unfavourable assessment of the applicant’s credibility and the possibility that the Tribunal might conclude that certain documents he had provided may not be valid. The letter invited the applicant to comment on the information by 11th November 2005.
By means of a letter dated 18th October 2005, the Tribunal invited the applicant to attend a hearing to be held on 16th November 2005.
The applicant provided written comments to the Tribunal by means of a statement dated 9th November 2005, which appears to have been faxed the next day.
The applicant attended the hearing of the Tribunal on 16th November and gave oral evidence. The Tribunal noted that he did not require an interpreter (Court Book 190). The applicant also provided a number of documents to the Tribunal, including various medical documents, photographs, newspaper clippings and letters. He told the Tribunal he was only seeking temporary protection in Australia until the Awami League returned to power in Bangladesh (Court Book 192).
In its decision, the Tribunal referred to the applicant’s documents that he had submitted, including the six-page statement. The Tribunal also referred to its letter to the applicant of 18th October and the applicant’s statement in reply dated 9th November 2005. The Tribunal also referred to country information about Dr H.B.M. Iqbal and about the Awami League.
The Tribunal’s findings and reasons
The Tribunal found that the applicant was a citizen of Bangladesh but was not satisfied that the applicant was a credible witness, due to inconsistencies in the applicant’s evidence. The Tribunal also found that the applicant had persistently attempted to mislead it in introducing new claims and providing reasons why he did not raise those claims earlier (Court Book page 197. The Tribunal noted that the applicant was unable to answer a question about Dr Iqbal’s electorate, which he should have been able to answer.
The Tribunal affirmed the delegate’s decision.
The applicant’s application for judicial review
The applicant raises the following grounds for review in his application:
i)Denial of procedural fairness.
ii)Failure to observe procedures required by the Migration Act or the Migration Regulations.
iii)Ignoring the merits of the applicant’s claim and giving a decision on the basis of dated information without any investigation.
iv)Failure to take a relevant consideration into account.
v)Making a jurisdictional error involving an incorrect interpretation of the applicable law to the facts as found by the Tribunal.
vi)The Tribunal decision was unjust and made with(out) taking into account the full gravity of the circumstances and consequences.
The applicant filed an affidavit in which he stated that everything he had said to the RRT was true and they did not believe him. He said that this was not fair.
Submissions
The applicant did not file a written submission but he told the court that that he had been denied procedural fairness because he had given the Tribunal all the documents he had but the Tribunal did not believe him. He complained that the Tribunal had said that his documents were not valid and they did not believe he was working with Dr Iqbal. He said that everything he told the Tribunal was true and he was not seeking citizenship. When the problem is fixed up in his country he would return. He said that the scars on his body were proof of the veracity of his account.
Counsel for the respondent Minister submitted that the applicant was unsuccessful before the Tribunal because of the view the Tribunal took of the facts, particularly its strong finding that the applicant was not credible and his claims were untrue. The respondent also submitted that the applicant’s application is in “template” form that does not properly particularize any error in the Tribunal’s decision. In the absence of particulars the application was meaningless and raised no case to answer.
Conclusions
The applicant’s grounds relate entirely to a challenge to the factual findings made by the Tribunal. His oral submissions went entirely to the fact that the Tribunal did not believe his evidence and questioned the authenticity of his documents.
As the Respondent’s counsel submitted, credibility findings are matters of fact for the Tribunal (Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]).
So long as the Tribunal’s credibility findings are open to it, no error is demonstrated (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547). The Tribunal’s findings were open for the reasons it gives. The court cannot review the merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137]).
It should be made clear that a finding that a person is not a credible witness is a factual finding. There must be evidence to support that finding. So long as there is evidence which would allow the Tribunal to find that a person is not a credible witness, either generally or in relation to a particular issue, then there is no jurisdictional error.
There is no evidence that the Tribunal denied procedural fairness to the applicant. It wrote to him about his statement in a way that complied with the provisions of s.424A of the Migration Act and considered his comments in reply. The applicant gave evidence to a hearing of the Tribunal.
There is no evidence that the Tribunal ignored any procedural requirement under the Act or the Regulations.
The Tribunal was not required to carry out its own investigation of the applicant’s claim. There is no evidence that the Tribunal ignored any part of the applicant’s claim or failed to take any relevant consideration into account.
The applicant has not shown any incorrect interpretation of the law as it applied to the applicant’s case or to the facts found by the Tribunal.
The applicant’s claim that the decision was unjust is no more than a challenge to the Tribunal’s factual findings. Merits review is not permissible in judicial review.
Mindful that the applicant is not legally represented, I have perused the Tribunal decision carefully. I am unable to discern any jurisdictional error.
The decision is a privative clause decision as defined in s.474 of the Migration Act. There is no jurisdictional error. The application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 May 2006