SZIHA v Minister for Immigration - [2007] FMCA 982

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 982

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)
Migration Regulations

Minister for Immigration v Yusuf (2001) 180 ALR 1
SZKFY v Minister for Immigration & Anor [2007] FMCA 941

Applicant:

SZIHA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG42 of 2007

Judgment of:

Driver FM

Hearing date:

22 June 2007

Delivered at:

Sydney

Delivered on:

22 June 2007

REPRESENTATION

Solicitors for the Applicant:

Mr J Singh
Jack Singh and Associates

Solicitors for the Respondents:

Mr G Johnson
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG42 of 2007

SZIHA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal. The decision was signed on 28 November 2006 and was handed down on 19 December 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and had made claims of political persecution, perhaps with a religious connection. He arrived in Australia on 22 June 2005 and applied for a protection visa on 18 July 2005. That application was refused by a delegate on 1 September 2005. The applicant sought review of that decision by the Tribunal on 26 September 2005. The Tribunal affirmed the decision of the delegate on 30 December 2005 but that decision was set aside by this Court on 5 June 2006. The Tribunal was reconstituted for the reconsideration of the review application. The Tribunal conducted two hearings, the first prior to the decision on 30 December 2005 which was set aside, and the second on 24 August 2006. The applicant attended both hearings and gave evidence.
The applicant’s claims centred upon his asserted membership of the Akali Dal Party in Punjab in India. He asserted having suffered serious harm in the past by reason of his political activities on behalf of that party. At the second Tribunal hearing the evidence given by the applicant at the first Tribunal hearing was reviewed and, according to the court book, which I had before me today as evidence, there was a further extensive discussion between the presiding member and the applicant about the detail of his claims. It is apparent from the record of that discussion on pages 146 to 151 of the court book that the Tribunal had difficulty with a number of matters of detail of the applicant’s claims. Following the hearing the applicant’s agent made submissions to the Tribunal.
The Tribunal found that the applicant’s evidence about his claims was problematic. The applicant at the first hearing had asserted that he suffered from memory problems but the Tribunal did not accept, following the second hearing, that he had such problems. The Tribunal found that the applicant’s evidence about his role in the Akali Dal youth wing was imprecise and confused. The Tribunal had regard to apparent inconsistencies between what the applicant told the first Tribunal and what he said at the second hearing. The Tribunal also found that the applicant’s evidence at both hearings about his alleged arrest was vague and inconsistent. The Tribunal was also dissatisfied with the applicant’s evidence about the role of the Congress Party in his asserted problems at both the state and national level.
The Tribunal was further concerned that the applicant’s conduct, based upon his own evidence, was not indicative of a person who faced persecution in India. The applicant had travelled outside India and had returned to India prior to coming to Australia. The Tribunal concluded (court book, page 155) that the applicant was not a credible witness. The Tribunal took into account documentary evidence the applicant had submitted in support of his review application but gave those documents no weight owing to the applicant’s lack of credibility. The Tribunal also noted that one of those documents in the form of a letter merely conveyed what the applicant’s father had allegedly told the author of the letter and was therefore not based upon the writer’s firsthand knowledge of the applicant’s claims.
Three affidavits had been presented from the applicant’s father, mother and a friend of the applicant’s father which had been worded similarly. The Tribunal expressed some concern about the similarity in the wording of the affidavits. The Tribunal also expressed concern about the spelling of the Akali Dal Party name on letterhead which varied. The Tribunal concluded:
In light of the applicant’s lack of credibility and having given no weight to the documents he submitted the Tribunal does not accept that he was a member, leader or president of the youth wing of the Akali Dal at college nor that he led a protest against the arrest of [a named person] or that he engaged in any political activities in India. Hence, it does not accept that he was arrested, classified a criminal or otherwise targeted by the Congress Party or the police as he claims or that his family has been harassed because of him. The Tribunal therefore finds that there is not a real chance that the applicant will be persecuted by the Congress Party or police in the reasonably foreseeable future if he returns to India for reasons of political opinion, religion or any other Convention reason. Consequently, the Tribunal finds that the applicant does not have a well-founded fear of Convention related persecution in India.
These proceedings began with a show cause application filed on 5 January 2007. That application asserted actual notification of the Tribunal decision on 19 December 2006. On that basis I find that the application was filed within time.
The applicant filed an affidavit with his original application on 5 January 2007. In that affidavit the applicant deposes as to the procedural history of the matter. I received that affidavit as evidence for the purposes of today’s hearing. When he filed his original affidavit the applicant was not legally represented. He is now represented by a solicitor. The applicant now relies upon an amended application filed on 12 June 2007 and a statement of particulars filed on 14 June 2007.
The parties made brief oral submissions in relation to the amended application and statement of particulars today. The amended application contains two grounds of review. The first is that the Tribunal did not observe procedures that were required by the Migration Act 1958 (Cth) (“the Migration Act”) or the Migration Regulations (“the Regulations”) to be observed in connection with the making of a decision. The amended application does not identify which procedures were not observed under the Migration Act or Regulations but refers to particular issues dealt with by the Tribunal in its decision. The second ground in the amended application is that the decision was an improper exercise of the power conferred by the Migration Act or Regulations. No particulars are provided.
I see no substance in the unparticularised second ground in the amended application of an improper exercise of the power conferred by the Migration Act or Regulations.
Somewhat confusingly, the statement of particulars includes other grounds. The first ground is the same as the first ground in the amended application. There is also some commonality in the particulars in the form of reference to particular issues considered by the Tribunal. The statement of particulars asserts that the Tribunal failed properly or at all to set out its reasons for the decision, its findings on material questions of fact and the evidence upon which those findings were based in relation to the consideration of the identified issues. I see no prospect of the applicant succeeding on that ground by reference to the detailed decision of the Tribunal. Even if some failure to comply with s.430 of the Migration Act could be proven, a breach of that section does not constitute a jurisdictional error[1].
[1] Minister for Immigration v Yusuf (2001) 180 ALR 1
The second ground identified in the statement of particulars is that the Tribunal did not have jurisdiction to make the decision. The particulars state that insofar as the Tribunal was in breach of the Migration Act in relation to the decision including any failure to follow procedures required by the Migration Act and any error in interpreting or applying the law, the Tribunal thereby acted without or in excess of jurisdiction in relation to the decision. The problem here is that the argument is theoretical and circular. The statement of particulars does not identify any failure by the Tribunal to comply with the Migration Act in relation to this ground.
The third ground in the statement of particulars is that the decision was not authorised by the Migration Act or the Regulations made under the Act. Again, the assertion is theoretical and circular and no particular failure by the Tribunal is identified.
Fourthly, the statement of particulars asserts that the decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. The particulars in relation to this ground are, first, that the Tribunal erred in failing to consider on their merits the evidence of matters from the applicant, the rejecting of the applicant’s claim and consequently determining that that evidence was of no weight in relation to specified matters. The particulars further refer to the Tribunal’s treatment of claims that the applicant was an active member and leader of the youth wing of the Akali Dal group and that he took part in activities and therefore that his life is in real danger.
It is correct that the Tribunal rejected the applicant’s factual claims in relation to his asserted political activities. However, no error can be demonstrated from the simple fact of the Tribunal’s adverse credibility finding. The Tribunal considered the applicant’s claims. There is no evidence that the Tribunal overlooked any element or integer of those claims.
The particulars in relation to the fourth ground also assert that the Tribunal applied the wrong test in effectively requiring more than a real chance of persecution of the applicant before being satisfied that he had a well-founded fear of persecution. I see no support for that contention on the face of the record.
Thirdly in relation to the fourth ground, the particulars assert that the Tribunal erred in law by incorrectly applying the real chance test for well-founded fear of persecution to the facts as properly found by the Tribunal. Again, I see no support for that contention on the face of the record of the Tribunal decision.
The fifth ground identified in the statement of particulars is that there was no evidence or other material to justify the making of the decision. The particulars refer to the Tribunal’s conclusions reached in relation to the applicant’s claims. I see no basis upon which the applicant could succeed on that ground. The Tribunal plainly relied upon the evidence provided by the applicant himself in reaching its decision. The Tribunal also appears to have had some regard to independent country information that it was entitled to take into account. The no evidence ground must fail.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error in relation to this decision. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) and I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,000. The applicant’s solicitor did not wish to be heard on costs. I am satisfied that costs of not less than $2,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,000. There is no need to consider whether the applicant’s solicitor should pay those costs[2].
[2] SZKFY v Minister for Immigration & Anor [2007] FMCA 941

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

Associate:

Date: 27 June 2007