SZIAK v Minister for Immigration
[2006] FMCA 1115
•7 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1115 |
| 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 a fear of persecution because he became a supporter of the movement for a separate state of Khalistan – claims that supporters of other parties have targeted the applicant to kill him – credibility – Tribunal found a claim by the applicant to be recent invention – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.414 – no reviewable error. PRACTICE & PROCEDURE - Order 9 of the Federal Court Rules does not apply in the Federal Magistrates Court – address for service – change of address for service – if a party’s address for service changes during a proceeding that party must file a notice of address for service and serve the notice on each other party within 7 days. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91R, 414, 424A, 476
Federal Magistrates Court Rules 2001 Rules 6.01, 6.02
Federal Court Rules Order 9
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 referred to
SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 referred to
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed
SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857 distinguished
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 followed
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 followed
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 followed
Plaintiff S157/2002 v Commonwealth of Australia (20030 211 CLR 476 followed
Applicant: | SZIAK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 18 of 2006 |
| Delivered on: | 7 August 2006 |
| Delivered at: | Sydney |
| Hearing date: | 2 August 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Chandra Jayawardena |
| Counsel for the Respondent: | Mrs Sirtes |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
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 18 of 2006
| SZIAK |
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 18th November and handed down its decision on 8th December 2005.
The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of India who arrived in Australia on 3rd July 2002. He applied for a Protection (Class XA) visa on 14th August 2002, but it was refused on 26th August. He applied to the Refugee Review Tribunal for a review of that decision on 4th September 2002. He submitted two affidavits to the Tribunal with his application.
Application for RRT review
The Refugee Review Tribunal affirmed the delegate’s decision so the Applicant sought judicial review of the decision of the Tribunal. Eventually, the Full Court of the Federal Court made orders by consent on 20th September 2005 which had the effect of remitting the application to the Tribunal.
The Applicant gave oral evidence to the Tribunal on 17th November 2005. He also provided a letter to the Tribunal, not in English, which he said confirmed that his father was in gaol in 1983 and 1984.
The tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 64 through to 67 of the Court Book. The Tribunal stated at page 65:
The Tribunal accepts that there has been some violence in India involving Sikhs and also violence involving Congress party members and members of other political groups, including the political group of which the Applicant claims to be a member. Clearly however the Tribunal must determine whether the Applicant before it has a genuine fear founded upon a real chance of persecution for a convention reason if he returns to his country.
The Tribunal accepted that the Applicant was a national of India who had lived in the village that he had named for about 30 years.
The Tribunal did not accept the Applicant as a witness of truth.[1] The Tribunal referred specifically to a claim made by the Applicant that he had been beaten, which he said that he had told the earlier Tribunal. However, the Applicant told the Tribunal at the hearing that he had been arrested and detained by the police in March 2002 but that he had not mentioned it before, even to his adviser. The Tribunal had this to say at page 66:
The Tribunal considers that if this claim were genuine the Applicant would have mentioned it before this Tribunal hearing and he gave evidence to this Tribunal that he has not done so. The Tribunal finds that this claim is recent invitation by the Applicant to assist his application for a protection visa. Given this finding, the Tribunal considers that the evidence given to the Tribunal about his other claims is not reliable.
[1] See Court Book, page 66.
The Tribunal went on to find that that the documents submitted by the Applicant in support of his claim assisted him. The Tribunal did not accept that the document submitted by the father purportedly certifying that the Applicant’s father was in gaol in 1983 and 1984 was a genuine document from the source claimed by the Applicant. The Tribunal gave reasons for that finding on page 67. As to the other two documents, the affidavits, the Tribunal said:
The Tribunal does not accept the documents submitted by the Applicant, namely the two documents described as affidavits and the document submitted at the hearing on 17 November 2005, are reliable evidence of the facts contained in those documents.[2]
[2] See Court Book at page 67.
The Tribunal went on to set out other matters it considered not to be consistent with the Applicant’s claims, and then found:
In the Tribunal’s view there is no plausible evidence before it that the Applicant has suffered persecution in his country because of his political opinion, his religion or for any other Convention reason. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country.[3]
[3] Court Book page 67
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution in India within the meaning of the Convention and, at page 68, affirmed the decision not to grant a protection visa.
Application for judicial review
The Applicant filed an Application under Migration Act on 3rd January 2006 seeking orders in the nature of certiorari, mandamus and prohibition. He obtained legal representation on 7th July, when his solicitor filed a Notice of Appearance under Order 9 of the Federal Court Rules. On 17th July 2006 the Applicant’s solicitor filed an Amended Application and an outline of submissions.
At the hearing of the application, counsel for the First Respondent Minister consented to leave being given to rely on the Amended Application, as it had been filed and served in sufficient time to allow a supplementary outline of submissions to be filed by the solicitors for the First Respondent.
In his Amended Application, the Applicant seeks orders for writs of certiorari, prohibition, mandamus and costs. The Applicant relies on two grounds.
Applicant’s first ground
The Applicant claims that the Tribunal failed to accord procedural fairness to the Applicant because of its failure to carry out its role in an inquisitorial manner “when it said ‘having considered the evidence as a whole’ whereas it really made a contrary finding that:-
‘The Tribunal finds that this claim is recent invitation by the Applicant to assist his application for a protection visa. Given this finding the Tribunal considers that the evidence given to the Tribunal about his other claims is not reliable.’
The Applicant submits that the Tribunal fell into jurisdictional error by breach of a statutory provision of the Migration Act ‘in assessing the Applicant’s claims in a manner that was required as mandatory under sec 414 of the Migration Act 1958’. It appears that the word ‘not’ has been left out of the wording of that ground.
The Applicant’s solicitor, Mr Jayawardena, told the court that in the first paragraph that appears on page 66 of the Court Book, quoted at [8] above, the Tribunal completely rejected the whole of the Applicant’s claims, which are very clearly set out in the Court Book. He submitted that the Tribunal had comprehensively stated that the Applicant was not a witness of truth and had said that none of the Applicant’s claims was accepted.
He went on to submit that the second Tribunal hearing (i.e. the one under review) was a completely fresh hearing. The Tribunal was obliged by s.414 of the Migration Act to review the delegate’s decision but did not do so in the proper way, in that the Applicant’s claims were not properly reviewed. The Tribunal, he submitted, did not give reasons but just said that it did not accept the Applicant’s claims.
Counsel for the First Respondent, Mrs. Sirtes, submitted that there was no inconsistency of reasoning between the Tribunal’s ultimate conclusion, which was prefaced with a statement that it considered “the evidence as a whole” and the finding that the Tribunal did not accept the Applicant as a witness of truth, upon which the tribunal based a finding that the evidence given to the Tribunal about the Applicant’s other claims was not reliable.
The First Respondent also submitted, correctly in my view, that the finding on page 66 of the Court Book was not one that was analogous to the circumstances addressed by Allsop J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [221]–[224], which also made reference to his Honour’s earlier decision in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200. In the case before this court, the Tribunal’s findings were based upon the Applicant’s own evidence that he had not raised the claim earlier despite having had an opportunity to do so at the first Tribunal hearing. The Applicant explained why he had elected not to do so but the Tribunal did not accept that explanation.
Accordingly, the First Respondent submits that the information that formed part of the Tribunal’s decision was not the comparison between a fresh claim and the absence of that claim from the protection visa application but upon evidence submitted by the Applicant that he had not previously made that claim and information as to why that was. With respect, that submission appears to me to be correct.
I also note that the argument that the First Respondent seeks to refute was never advanced by the Applicant’s solicitor.
Applicant’s second ground
The Applicant submitted that the Tribunal acted in a manifestly unreasonable towards the applicant because of its failure to consider those claims in accordance with the criteria in Article 1(A)(2) of the Refugees Convention when it concluded at page 67 of the Court Book:
In the Tribunal’s view there is no plausible evidence before it that the Applicant has suffered persecution in his country because of his political opinion, his religion or for any other Convention reason.
The Applicant submitted that:
The Tribunal acted in a manifestly unreasonable way when dealing with the Applicant’s claims and ignoring the aspect of persecution or serious harms of s.91R of the Act in order to be satisfied whether the Applicant has a well founded fear of serious harm or a ‘real chance’…The Tribunal’s failure to observe this obligation amounted to a breach of statutory obligation and thus becoming a jurisdictional error.
The Applicant’s solicitor, in an oral submission, told the court that because of the complete refusal of the Applicant’s claim the Tribunal had failed to consider the claim under s.91R. By completely rejecting the Applicant’s claim on the grounds of credibility the Tribunal had not given any reason why all the Applicant’s claims were refused.
He submitted that the Tribunal had not followed the decision in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1. He went to submit that the Tribunal was incorrect when it found that there was no plausible evidence that the Applicant had suffered persecution, because he had suffered due to the fact that the police had raided his farm every week. The Applicant submitted that the Tribunal misconstrued the meaning of ‘persecution’. If the Tribunal decides that the Applicant is a liar, it must give reasons why he is a liar. Mr Jayawardena referred the court to the decision of Wilcox J in SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857.
For the First Respondent, Mrs. Sirtes submitted that it was clear from the context of the Tribunal’s findings that the conclusion reached on the basis of the evidence before the Tribunal did not establish there to be a real chance of convention based harm. This is different to a mere dismissal of all claims. Credibility, she submitted, is a matter for the Tribunal (see Durairajasingham (supra) at [67]) and detailed reasons for such a finding are not required. The Tribunal’s overall finding was open to it on the evidence, which it found to be unsatisfactory.
It is the submission of the First Respondent that the Applicant’s second ground is merely an attempt to challenge the merits of the Tribunal decision. Merits review is an “impermissible exercise” and no part of the function of the Court in dealing with an application for relief under s.39B of the Judiciary Act (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 at 420; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-42).
Conclusions
Turning first of all to the Applicant’s claim that the Tribunal fell into jurisdictional error by failing to comply with s.414 of the Migration Act, it is clear that no such breach occurred. The Tribunal’s duty under s.414 is quite straightforward:
1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
It has not been argued that the delegate’s decision is not an RRT-reviewable decision or that there was any breach by the Tribunal of s.412. The Tribunal invited the Applicant to attend a hearing under s.425 and the Applicant duly attended and gave evidence. The Tribunal considered his application and made a decision affirming the decision of the delegate. The Tribunal has reviewed the delegate’s decision and had therefore complied with its obligation under s.414.
The Tribunal considered the Applicant’s evidence. Once it had found that the Applicant was not a witness of truth, the Tribunal found that the Applicant’s evidence was not reliable. Contrary to the Applicant’s submission, the Tribunal did give reasons as to why it did not find the Applicant to be a witness of truth, and they are to be found at page 66 of the Court Book.
The Tribunal did not accept that the two affidavits submitted by the Applicant contained reliable evidence of the matters to which they referred and found that it did not accept that the untranslated document submitted by the Applicant was genuine (see at page 67 of the Court Book).
The Tribunal did not consider that the Applicant had led reliable evidence, either in oral or documentary form, to support his claim that he was a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (Migration Act, s.36). As a result, the Tribunal was not satisfied that the Applicant met the criterion for a protection visa.
The Applicant’s first ground must fail.
The Applicant’s second ground, claiming that the Tribunal acted in a manifestly unreasonable manner in not considering the Applicant’s claim in terms of s.91R of the Migration Act, must also fail. The Tribunal was not satisfied that the Applicant’s evidence was reliable. Quite the reverse, in fact – it decided that the Applicant was not a witness of truth. As such, there was no evidence upon which the Tribunal could conduct an analysis according to the matters set out in s.91R. The Applicant seems to be suggesting that the Tribunal should have accepted the evidence at face value in order to ascertain whether or not a reason had been made out to show that Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol before deciding whether or not the evidence was credible.
The Applicant’s submission misconstrues the meaning of s.91R. If there is no reliable evidence, no reason can be made out under s.91R.
The Applicant appears to be seeking a merits review when submitting that the circumstances claimed by the Applicant amounted to persecution. It is trite law that a court conducting judicial review does not perform that function. The Tribunal found that the Applicant was not a witness of truth and gave reasons for that finding. A finding on credibility is a factual finding, and one for the Tribunal to make, provided that there is evidence upon which the Tribunal can do so (see Durairajasingham at [67] per McHugh J).
In my view, which I raised during the hearing and which counsel for the First Respondent adopted in her oral submission, the Applicant is inverting the ratio of the decision on credibility in the well-known paragraph in Durairajasingham.
It appears to me also that the decision of Wilcox J in SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs (supra) can be distinguished on the facts. In SZAYT at [35] Wilcox J held that the Tribunal was not entitled to reject the genuineness of the threat claimed by the applicant without giving some consideration to its nature and the circumstances under which it was made, but in the case before me the Tribunal was not satisfied that there was any reliable evidence, largely due to its comprehensive finding about the Applicant’s lack of credibility.
The second ground has not been made out. There is no jurisdictional error.
As I am satisfied that no jurisdictional error has been made out, the Tribunal decision is a privative clause decision for the purpose of s.474 of the Act. (See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). It follows that the application will be dismissed and I will hear submissions on costs.
Practice and procedure
There is one matter of procedure which needs to be mentioned. When the Applicant’s solicitor accepted instructions to appear, he sought to put himself on the record by filing a Notice of Appearance under Order 9, sub-rule 3(1) of the Federal Court Rules. That procedure is incorrect. Order 9 of the Federal Court Rules is not one of the rules applied in the Federal Magistrates Court (Federal Magistrates Court Rules 2001, Schedule 3 Part 2).
The correct procedure is to file a Notice of Address for Service (Rule 6.01). If a party’s address for service changes for any reason during a proceeding, that party must file a Notice of Address for Service and serve the notice on each other party within 7 days of the change (Rule 6.02)
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 7 August 2005
9
0