SZIGA v Minister for Immigration
[2006] FMCA 1641
•5 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1641 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 476 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Kopalapilliai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407 Minister for Immigration v Guo & Anor (1997) 191 CLR 595 |
| Applicant: | SZIGA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG325 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Tamil interpreter |
| Advocate for the Respondents: | Ms T Quinn |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application filed on 2 February 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG325 of 2006
| SZIGA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 2 February 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 21 December 2005 and handed down on 17 January 2006, affirming a decision of the delegate of the first respondent made on 10 October 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIGA”.
Background
The Tribunal decision of Ms Mila Males, reference N05/52547, provides the following background information. The applicant, who claims to be a citizen of India, arrived in Australia on 29 July 2005. On 17 August 2005, he lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act.
On 10 October 2005, a delegate of the Minister refused to grant a protection visa and on 25 October 2005, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 80)
The applicant’s original visa application indicates that he is a 48 year old Tamil-speaking Muslim from Tamil Nadu in India. He completed 15 years of education in 1979 and has a Bachelor of Commerce degree and other qualifications. He worked as a manager of the Emirates Plaza Hotel in the UAE from March 1991 to March 2005.(CB 82)
Applicant’s claims
A convenient summary of the applicant’s claims are contained in the written submissions prepared by Ms Quinn, solicitor for the respondents. I adopt paragraphs 4 to 6 of those submissions:
4.In his protection visa application, the applicant claimed to fear persecution from the RSS, a major fundamentalist Hindu party in India, because he ‘had donated to a charity for orphan Muslim children in Abu Dhabi. He claimed that the RSS thought that he was donating to terrorist Muslim groups.
5.However, he repudiated these claims at the RRT hearing, saying that they were not true and were not his claims. He had signed the protection visa application form without knowing its contents.
6.The applicant’s real claims were contained in the statutory declaration provided to the RRT and in his oral evidence at the hearing. He claimed that:
6.1 The applicant supported the cause of bringing the Islam religion to the people of Tamilnadu in their own language, which attracted condemnation from a large section of the Muslim community. He faced opposition from Urdu speaking Muslims. He was labelled a heretic because of his belief that Islam can be practiced even in the Tamil language.
6.2 The applicant was involved with the Tamil Nadu Liberation Army (TNLA), and was given a position to organise Tamil Muslims of this organisation. He now regretted being a member, but would have to re-join if he returned to India, or else they would kill him. However, this would put him in conflict with the Indian authorities, who had declared the TNLA a banned terrorist organisation.
6.3 The applicant moved to the United Arab Emirates (UAE) in 1991. He faced problems in the UAE, as he worked to set up a workers association for workers’ welfare. This was considered to be against the law, and he was detained many times. He was also charged with not complying with the practice of fasting during the month of Ramadan, despite being a Muslim. He returned to India five times during his stay in UAE.
6.4 He claimed to fear arrest and prosecution for his activities within the TNLA in 1989, and that this had been the reason for his move to the UAE in 1991. He could not relocate anywhere within India.
Tribunal’s findings and reasons
The Tribunal affirmed the decision of the delegate refusing to grant the applicant a protection visa. Its decision turned on findings of adverse credibility. The Tribunal did not accept that the applicant had expressed any views in India about the Koran or Muslim prayers in the Tamil language, engaged in any activities in relation to the Tamil language, or that he was a member of the TNLA.(CB 94) It made its findings for the following reasons:
a)The evasiveness of the applicant’s responses to questioning.(CB 92.6, 93.3)
b)His failure to mention important parts of the claims, such as his fear of the TNLA itself, in his statutory declaration.(CB 92.7)
c)The vague answers to questions when the RRT asked him for details of the claims in his statutory declaration.(CB 92.8)
d)Inconsistencies between the applicant’s claims at the hearing and the claims in his statutory declaration.(CB 93.5)
e)The implausibility of the applicant’s claims in light of independent evidence and the applicant’s own conduct.(CB 93.9)
f)The fact that the applicant had returned to India five times after he claimed to have fled in 1991.(CB 94.3)
Application for Review of the Tribunal Decision
On 2 February 2006, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.The RRT decision was affected by jurisdictional error. And decision was based on the (question) conclusion that these was insufficient evidence.
2.RRT decision was not supported by a proper enquiry in to the material facts related to the subject matter of the threat.
3.The RRT relied upon independent country information report to reach a conclusion satisfying members for the applicant threat in the hands of state.(copied without alteration or correction)
On 24 April 2006, the applicant filed an amended application containing the following grounds:
1.There was a jurisdictional error.
2.That the decision led to the omission of principles of natural justice while making a decision.
Particulars: I
The Tribunal advanced questions which were not relevant to the discrimination experienced by me because of our radical approach to propagate Islam in tamilnadu.
The purported decision of the Tribunal was infected with error: the Tribunal did not have the jurisdiction to make such a decision and failed to exercise its jurisdiction. Consequently the purported decision was not “decision” 1 the purposes of the definition of a “private clause decision” under s 474 of the Migration Act 1958 and therefore was not such a private clause decision.
Particulars: 2
The situation is very hostile and it is very dangerous for me to go back to my country given the amount of hostility existing because of our organizations effort to bring new values for Islam.
In the light of unfavourable and hostile situation, I fear for the safety of my life.
Reasons
The applicant appeared as a self-represented litigant with the aid of a Tamil interpreter. He attended a directions hearing on 29 June 2006 where orders were made requiring him to file and serve a short written outline of submissions and list of authorities, 14 days prior to the final hearing. The applicant confirmed at the final hearing that this had not been done. When invited to make oral submissions in support of his application, the applicant indicated that it was not safe for him to return to India and sought the Court’s assistance for him to remain in Australia. He indicated that he did not wish to raise any other issue.
Ms Quinn, in her written submissions, submits that the sole reason for the Tribunal decision was its finding of the applicant’s adverse credibility based entirely upon the material he provided to the Tribunal. This material consisted of:
a)A statutory declaration sworn on 8 December 2005 and filed at the Tribunal on the same date.(CB 52-55)
b)The oral evidence given by the applicant at the Tribunal hearing of 14 December 2005.
c)The applicant’s passport which was provided to the Tribunal at its hearing.(CB 56-71)
The Tribunal also considered some general country information in relation to the applicant’s claims.(CB 99 – 171)
Ms Quinn submits that the Tribunal’s findings of adverse credibility were reasonably open to it on the evidence before it. She submits that the findings are properly the function of the decision-maker and not susceptible to judicial review by this Court and there is no jurisdictional error in the approach taken by the Tribunal.
Ms Quinn submits the following in respect of the ground contained in the original and amended applications, that the Tribunal did not require any further evidence in order to reach its conclusion. The Tribunal’s consideration of country information was entirely appropriate in the circumstances. She submits that in a situation such as this where the Tribunal did not believe the applicant’s claims, it was unnecessary to consider whether there was a Convention reason for the claimed harm. The Tribunal did not misapply the relevant law but simply found that it did not believe the applicant’s claims. This was the only reason for dismissing the application.
Ms Quinn submits that there is no evidence before the Court that the Tribunal asked inappropriate questions at its hearing. The description of the hearing in the Tribunal decision, which is the only evidence of it in this Court, clearly shows that the Tribunal was attempting to clarify the applicant’s claims with him. The Tribunal also brought the applicant’s attention to the parts of his evidence it was having difficulty with. There is nothing in this to suggest a breach of natural justice without considering the application of s.422B of the Act.
The Tribunal only had before it the facts as alleged by the applicant and contained in his statutory declaration and presented in his oral evidence at the hearing. This was the only material upon which it could proceed. The relevant facts pertaining to the application needed to be supplied by the applicant himself in as much detail as necessary to establish the facts. It is for the applicant to make out his own case: Minister for Immigration v Guo & Anor (1997) 191 CLR 595 at 596 per Kirby J. The Tribunal accurately summed up the nature of the applicant’s claims, taking into account all the matters provided to it in arriving at its conclusion. This was probative of the issues before the Tribunal: Kopalapilliai v Minister for Immigration (1998) 86 FCR 547.
The Tribunal’s conclusion concerning the facts, including the plausibility of the applicant’s claims, was open to it.
The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claim are a matter for the Tribunal par excellence: Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407. The Tribunal decision set out the inconsistencies, confusion and unreliability of the applicant’s evidence. The Tribunal decision indicates that it raised with the applicant in the course of the hearing its concern in relation to many aspects of the applicant’s claims.
The Tribunal made the following observation:The applicant gave his oral evidence in a very confident and assertive manner. However, the Tribunal did not find him or his claims credible.
Often times the applicant was not responsive to straightforward questions. He had to be asked twice whether his fear of persecution was based largely on the activities he had engaged in prior to 1991 before he confirmed that was correct. Similarly, when he was asked whether he engaged in any activities on his subsequent trips to India he initially did not address the question and instead said he could not return to India because he feared the TNLA itself, a claim he had not mentioned in his statutory declaration. Not only did the applicant seem evasive but his responses seemed contrived.(CB 92.6)
The Tribunal decision then continued with an analysis of each of the applicant’s claims in his statutory declaration (which was signed six days prior to the Tribunal hearing). This finally led the Tribunal to the conclusion that the applicant was not a truthful witness and that he had invented his claims.(CB 94.8)
Conclusion
The applicant appeared at the hearing as a self-represented litigant with the assistance of a Tamil interpreter. I acknowledge that he faces great difficulty as he does not speak the language, nor does he understand the legal system in which he has brought these proceedings. I briefly explained to the applicant the nature of these proceedings and how they differ from the proceedings before both the delegate and the Tribunal. I am satisfied that the applicant has been given the opportunity to receive independent legal advice under the Court sponsored scheme and that he has amended his written application. It was clearly apparent that the applicant did not comprehend aspects of the proceedings or how he was to succeed in his case. Ms Quinn, appearing for the respondents, assisted the Court with written and oral submissions.
The Court has an independent obligation to consider whether any argument based on the material contained in the Court Book, the Tribunal decision, or any of the issues raised by the applicant could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I am satisfied that no grounds are identified in the applicant’s original or amended application. Neither is it apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision-making process.
The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 28 November 2006
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