SZHZX v Minister for Immigration - [2006] FMCA 1065

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZX v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1065

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 India claiming fear of persecution for reason of political opinion – credibility issue – merits review impermissible – applicant’s claim of erroneous findings of fact by Tribunal go only to the merits of the claim – credibility findings are findings of fact – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474

Applicant:

SZHZX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3869 of 2005

Judgment of:

Scarlett FM

Hearing date:

21 July 2006

Date of last submission:

21 July 2006

Delivered at:

Sydney

Delivered on:

21 July 2006

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms Sirtes

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 $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3869 of 2005

SZHZX

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 signed its decision on 17^th November 2005 and handed down its decision on 8^th December 2005.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration & Multicultural Affairs not to grant a protection visa to the Applicant.

Background

The Applicant is a citizen of India who arrived in Australia on 11^th June 2005. His application for a Protection (Class XA) visa was refused on 11^th August 2005, so the Applicant sought a review of that decision by the Tribunal.
The Applicant attended a hearing of the Tribunal on 11^th November 2005 and gave oral evidence. The Applicant called one witness to give evidence on his behalf.
The Applicant told the Tribunal that he had been a member of a nationalist Hindu group in India called Shiv Sena and, as a result, had received threatening telephone calls. He believed that these calls came from members of the Congress Party seeking revenge.
The Tribunal was satisfied that the Applicant was a national of India. The Tribunal was not satisfied that he was a member of the Shiv Sena group or that he was at risk of politically motivated harm at the time he left India. The Tribunal found that the Applicant did not have a well founded fear of Convention related persecution in India.

Application for judicial review

In his Amended Application filed on 18^th April 2006, the Applicant seeks writs of certiorari, mandamus and prohibition on the following grounds:
i)That the Tribunal committed jurisdictional error of law in that it made erroneous findings of fact from which it drew adverse inferences as to the Applicant's credibility, which formed the basis of its ultimate decision.
ii)That the Tribunal committed jurisdictional error of law in that its findings were unreasonable, illogical and not based upon findings or inferences of fact supported by logical grounds.
The Applicant relies on the same particulars for each ground, and I quote:
(a)The Tribunal did not accept that the Applicant was a member of Shiv Sena because the Tribunal made erroneous findings of fact about the authenticity and claimed history of the Applicant's membership card. The evidence was that the Applicant had claimed to have had a membership card but this was replaced with a new photograph shortly before the Applicant left India.
(b)The Tribunal rejected the Applicant's claim that he was threatened in 2004 on the basis that the Applicant had claimed that his home city of Kadi was ‘safe’ for him. In fact, the Applicant had stated: "The Congress Party is all over India. They have got leaders in all the states of India and, to my understanding Gujarat is safest compared to others. But I feel unsafe, so if I go to other states it is worse."
(c)The Tribunal noted that the Applicant had occasionally worked as a volunteer at the Shiv Sena office and by "occasionally", the Applicant meant once a month. In fact, the Applicant said that the work he had done for Shiv Sena was voluntarily and his attendance depended upon him. He would work when called upon or sometimes once a month. When he was doing his Bachelors degree, he used to go often.
The Applicant did not file any written outline of submissions. The Respondents submit that the decision of the Refugee Review Tribunal is a privative clause decision as defined by s.474(2) of the Migration Act. With respect to privative clause decisions, s.474(1) provides that:
A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court, on any account.
The Respondents submit that s.474 validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.
The Respondents submit that the Tribunal's findings were reasonably open to it on the evidence. The Tribunal conducted a proper assessment of the evidence before it and reached the conclusion that the Applicant was not a member of Shiv Sena as he had claimed. They assert that the Applicant is seeking to challenge the merits of the Tribunal decision.
The Respondents also submit that there is no reviewable error on the face of the Tribunal's decision, and the Tribunal's conclusions were confined to the matters arising at the hearing. The Tribunal accepted the Applicant's changed evidence about his Shiv Sena card, namely that it was only issued nine months beforehand rather than four years before, as he had initially claimed. The Tribunal concluded that the Applicant had not been truthful about the history of the card.
In the alternative, the Tribunal considered the proposition that the Applicant did have a link with Shiv Sena, but gave reasons why that did not amount to a well founded fear of persecution.
The Applicant attended Court on the hearing of this application. He made oral submissions which were largely confined to the history of the Shiv Sena card and related to a challenge to the Tribunal's factual findings. The Applicant, in response to a question from the Bench, indicated that he had seen a lawyer who provided legal advice under the Refugee Review Tribunal Legal Advice Scheme. The Applicant's oral submissions, notwithstanding that advice, dealt entirely with his challenge to the Tribunal's factual findings.
It is well established that a Court conducting judicial review of an administrative decision does not embark on a rehearing of the original application and make its own findings on the factual matters that were before the Tribunal. The findings of fact are exclusively the province of the Tribunal, so long as there is evidence upon which those findings of fact can be made. In my view, this is very much a case where the Tribunal based its decision and made its factual findings upon the evidence that was presented to it by the Applicant and his witness.
Turning to the grounds of the Applicant's application for judicial review, the Applicant complains, first of all, that the Tribunal committed jurisdictional error of law by making erroneous findings of fact from which it drew adverse inferences as to the Applicant's credibility, which formed the basis of its ultimate decision.
It is trite law that findings of fact are a matter for the Tribunal. Even if the Tribunal's findings of fact are erroneous, this is not a basis for the Court to find jurisdictional error. Findings as to an applicant's credibility are, by definition, findings of fact and those findings are made by the decision maker on the basis of the evidence of the applicant before the Tribunal. That is not a basis for an error of law. It is not a jurisdictional error. Accordingly, that first ground must be rejected.
The second ground is an allegation that the Tribunal committed jurisdictional error of law in that its findings were unreasonable, illogical and not based upon findings or inferences of facts supported by logical grounds. The Applicant has provided no evidence in support of that assertion, and indeed has made no submissions upon that basis.
It is apparent from the Tribunal decision that the Tribunal's findings were very much based upon findings of fact that were made arising out of the evidence presented to it at the hearing. There is no evidence of unreasonableness or illogicality in any of the Tribunal's findings. No specific example has been submitted to the Court and I am unable to discern any illogical finding or any unreasonable finding, certainly of such an extent to constitute a jurisdictional error. I am not of a view that this ground can be maintained.
I am mindful of the fact that the Applicant is not legally represented. Nevertheless, he has had the opportunity to obtain legal advice from a legal practitioner who provides legal advice as far as the Refugee Review Tribunal legal advice scheme is concerned. I am not aware of the nature of that advice, although the Applicant's submissions were based entirely on factual matters rather than matters of law.
I have read through the decision myself, and I am unable to discern any jurisdictional error which would warrant a finding that there was jurisdictional error which would remove the Tribunal's decision from the protection given by s.474 of the Migration Act. In my view, the decision of the Tribunal is a privative clause decision. I am not satisfied that any jurisdictional error has been made out, and as the decision is a privative clause decision, it is not subject to prohibition, mandamus, injunction, declaration or certiorari in this Court on that account.
Accordingly, the application must be dismissed.
There is an application for costs on behalf of the Minister. The Applicant has been wholly unsuccessful in his claim and in my belief, this is an appropriate matter to make a costs order in favour of the successful party. I note that this matter had to be adjourned on one occasion for a reason that was of no fault of the Applicant, and I note that no amount is sought for that particular day, which I think seems to be appropriate.
The amount sought is $5,000.00, which is the standard amount under the rules for matters of this type commenced after 1^st December 2005. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00. I propose to make the following formal orders.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 28 July 2006