SZIJK v Minister for Immigration

Case •

[2006] FMCA 1241

•

17 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIJK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1241

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – citizen of Pakistan claiming fear of persecution because of membership of student union – credibility – challenge to factual findings of Tribunal – no reviewable error.

PRACTICE & PROCEDURE – Address for service – notice of address for service – notice of appearance – a party who wishes to give an address for service must file a notice of address for service – notice of appearance under order 9, rule 3(1) of the Federal Court Rules not to be filed – order 9, rule 3(1) of the Federal Court Rules is not a rule applied in the Federal Magistrates Court.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.476
Federal Court Rules order 9, rule 3(1)
Federal Magistrates Court Rules 2001 rr 6.01, Schedule 3
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Attorney General of New South Wales v Quin (1990) 93 ALR 1
W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679
Applicant: SZIJK
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 514 of 2006
Judgment of: Scarlett FM
Hearing date: 17 August 2006
Date of last submission: 17 August 2006
Delivered at: Sydney
Delivered on: 17 August 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms McNamara
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,000.00.

  3. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 514 of 2006

SZIJK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 3rd January and handed down on 24th January 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant. The Applicant now seeks orders:

    a)That he be permitted to remain in Australia until this application has been determined.

    b)That the Tribunal's decision should be quashed.

    c)Costs.

Background

  1. The Applicant is a citizen of Pakistan who arrived in Australia on a temporary business visa in July 2005. He applied for a Protection (Class XA) visa on 6th September but it was refused on 30th September 2005. 

  2. The Applicant lodged an application for review with the Refugee Review Tribunal on 27th October 2005.  The Applicant appeared before the Tribunal and gave evidence on 21st December 2005. He told the Tribunal that he feared for his life if he were to return to Pakistan because he had been a member of a student union called the Anjuman Tulba Islam which he claimed not to be involved with any political party.

  3. The Tribunal put to him that information available from the Department of Foreign Affairs indicated that Anjuman Tulba Islam was the student wing of the Jamiat-E-Ulema-E-Pakistan or JUP but the Applicant denied this. 

Tribunal’s Findings and reasons

  1. The Tribunal's findings and reasons are set out at pages 71 to 74 of the Court Book.  The Tribunal found at 72 that the Applicant did not make a favourable impression upon the Tribunal as a witness. Whilst the Tribunal accepted that the Applicant's then migration agent, a


    Mr Mollah, wrote material in his original application for a visa that did not accurately reflect his claims, the Tribunal did not accept that the Applicant was telling the truth about his reasons for leaving Pakistan or his fear of what would happen if he were to return. 

  2. The Tribunal did not find it credible that someone involved with student politics in Pakistan to the degree to which the Applicant claims to have been, would not be aware of the links of these student wings to the mainstream political parties. 

  3. The Tribunal described the Applicant's account of how he eventually left Pakistan and could not go to other parts of Pakistan for safety but went on to say, at page 73:

    I do not consider that the Applicant's evidence with regard to how he managed to evade the police and his opponents from the MSF despite continuing to live in Sialkot is credible.

  4. The Tribunal went on to find that having regard to the view that the Tribunal had formed of the Applicant's credibility, the Tribunal did not accept that the Applicant was involved in the Anjuman Tulba Islam as he had claimed or that he was involved in fights with people from the MSF or that a first information report had been lodged against him by the police on 14th May 2003 or that the police tried and failed to arrest him in the intervening period of two years.  The tribunal did not accept that the police had tried to arrest the applicant or failed to protect the applicant from his opponents in the MSF. 

  5. The Tribunal did not accept that people from the MSF came to his home or that there was a real chance that if he were to return to Pakistan he would be threatened or attacked by people from the MSF or that the police would try to arrest him or that he would otherwise be persecuted for reasons of his real or imputed political opinion.

  6. In short, the Tribunal was not satisfied that the Applicant had a well-founded fear of being persecuted for a Convention reason if he were to return to Pakistan. Thus, the Tribunal found that the Applicant was not a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol and therefore did not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa. Needless to say, he was not the spouse or a dependent of a person who held a protection visa as required by paragraph 36(2)(b).

  7. The Tribunal affirmed the decision not to grant a protection visa.

Application for judicial review

  1. The Applicant sought review of that decision from this Court by means of an application filed on 17th February 2006. The Applicant sets out three grounds.

    i)That the RRT did not give due weight to the evidence adduced by the Applicant. The credit of witness was not given to the Applicant. The RRT was bound to give or attribute more evidence of the Applicant. There is a legal error in the decision.

    ii)That the Applicant was the leader of the Anjuman Tulba Islam.  The Applicant was persecuted by the Muslim Student Federation and was beaten and was extended threats of being killed. The authorities in the country are also aware of the applicant.  As such the applicant has a well-founded fear of being killed.

    iii)That the RRT has failed to take into consideration the claims of the Applicant. The fact was not taken into consideration that the student union of the Applicant, the Applicant being a member, was not given the protection. There is a jurisdictional error in the findings and decisions of the RRT.

  2. The Applicant filed a written submission on 4th August 2006. That submission covers two pages and sets out in typed form the factual matters of the Applicant's claim. The Applicant attended Court and made oral submissions which were restricted to first, relying on his written submissions, second, informing the Court that he was unrepresented and was not himself a lawyer and as such did not have the technical legal knowledge to point out legal errors. Third, he conceded that the Tribunal Member did raise with him during the hearing the fact that the member did not believe significant parts of his evidence and fourth, that he had told his story truthfully to the Tribunal but the Tribunal did not believe his account. 

  3. The solicitors for the Respondent Minister have filed written submissions and Ms McNamara, solicitor for the Respondent made oral submissions. The oral submissions on behalf of the Respondent were, in brief:

    a)That the Applicant's claim essentially challenged the factual findings of the Tribunal and that merits review of a Tribunal decision was not available at the hearing of a judicial review application.

    b)That the applicant's claim that the Tribunal did not consider all aspects of his claim had not been made out as it is clear from the Tribunal decision that the Tribunal had in fact considered the Applicant's claim but did not believe significant parts of it or did not give a great deal of weight to parts of it.

    c)That the adverse findings of credibility in relation to the Applicant's evidence that had been made by the Tribunal were open to the Tribunal on the evidence before it and that credibility findings are, in essence, factual findings and so long as there is evidence upon which those findings can be made then it is not open to the Court to interfere.

  4. I summarise the Respondent's solicitor's oral submissions for the benefit of the Applicant who told the Court that he had told his story to the Refugee Review Tribunal which heard his story but did not believe it.  He indicated that he had obtained legal advice over the telephone from a barrister who is on the panel of the Refugee Review Tribunal legal advice scheme.

  5. In my view this is a case where the Applicant is essentially challenging the factual findings of the Tribunal and in particular the credibility findings of the Tribunal. It is clear that the Tribunal did consider the Applicant's claim but did not believe the Applicant's claim to be a credible one.  It is clear from the decision and from the Applicant's submission to the Court that the Tribunal Member did raise with the Applicant at the hearing the Tribunal's doubts about the Applicant's credibility.  In my view this decision was essentially based on lack of credibility.

  6. As to the first ground in the Applicant's application it is the function of the Tribunal and not the Court to make findings of fact and give appropriate weight to an Applicant's answers. (See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [291] and [292] in the judgment of Kirby J).

  7. In my view, ground two of the application, which is a recitation of the factual claims made by the Applicant is an attempt to engage the Court in merits review or a challenge to the factual findings. It is well established that merits review is not allowable in Courts conducting judicial review. The third ground, it is submitted on behalf of the Respondent and in my view correctly, is also an attempt to engage in merits review.  Whilst the phrase, "jurisdictional error" appears, there is no particularisation of jurisdictional error and essentially it is a claim that the Tribunal failed to take the Applicant's claims into account.  In my view, it is apparent from the detailed decision of the Tribunal that the Applicant's claims were taken into account.

  8. It is put to me, and I believe correctly, that the merits of an administrative decision lie in the hands of the decision maker.  It is worthwhile quoting the decision of Brennan J in Attorney General of New South Wales v Quin (1990) 93 ALR 1 at [26] where his Honour said:

    The duty and the jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.  If in so doing the Court avoids administrative injustice or error so be it. But the Court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action to the extent that they can be distinguished from legality are for the repository of the relevant power and subject to political control and the repository alone.

  9. In summary; the Tribunal declined to accept the Applicant's evidence because it was not satisfied of the credibility of the Applicant's claims and as I have indicated previously, a finding as to credibility is a finding of fact and the Respondent refers me to a decision of W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 at [64] where the Court said:

    A finding as to credibility is a finding of fact and as the authorities indicate a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against or even strongly against the finding.

  10. In my view, no jurisdictional error appears. I am mindful of the fact that the Applicant is not legally represented. I read through the decision myself in an effort to ascertain whether any arguable case for jurisdictional error can be made out not referred to by the Applicant. In my view that is not the case. Because I am satisfied that there is no jurisdictional error the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act and a private clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any Court and is not subject to prohibition, mandamus, injunction, declaration or certiorari. It follows that the application must be dismissed.

  11. On one point, however, I note that a Notice of Appearance was filed on 27th February on behalf of the First and Second Respondents.  The First Respondent followed that with a Response on the 1st March.  In my view the practice of filing a Notice of Appearance in this Court is not a practice that should be followed.  The Notice of Appearance as set out refers to Order 9, Rule 3(1) of the Federal Court Rules.  It is not one of the Federal Court Rules that is applied in the Federal Magistrates Court. 

  12. In my view, the appropriate document to be filed by the Refugee Review Tribunal is a Notice of Address for Service which is referred to in Rule 6.01 of the Federal Magistrates Court Rules. It is unnecessary for the First Respondent to file a Notice of Appearance where a Response is being filed because a Response is sufficient to provide an address for service. If it is considered that there is a need for the Minister to get on the record very early in the proceedings, and I accept that there will often be, the appropriate document to be filed is a Notice of Address for Service and not a Notice of Appearance. That is, however, a minor administrative matter which does not affect the Applicant today.

  13. There is an application for costs on behalf of the First Respondent Minister.  Those costs are assessed at $3,000.00. The Applicant has said that he cannot afford to pay that amount which is quite high because he is only working on a part-time basis. In my view, it is appropriate to make an order for costs because the Applicant has been wholly unsuccessful in his claim and the Respondent has been successful. The fact that an applicant does not have the immediate means to pay the costs is not a reason why, in this jurisdiction, an order for costs should not be made. 

  14. It is a factor, however, that may well be relevant to allowing time to pay.  Having decided that it is appropriate for an order for costs to be made, I consider the amount sought, which is $3,000.00.  That is within the range provided by the scale.  I note that this is a matter that has had only two Court events, namely the First Court Date on 8th May and the hearing today.  That is of course the aim of the Federal Magistrates Court, to deal with matters of a less complex nature quickly and with a minimum of Court events. The sum of $3,000.00 to my mind is an appropriate figure, although I accept the fact that from the Applicant's point of view it is a sum that is quite high. I propose to allow costs in that amount but I will allow six months to pay. I make the following orders.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  24 August 2006

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0