SZIPK v Minister for Immigration - [2006] FMCA 1298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIPK v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1298

MIGRATION – Review of decision by Refugee Review Tribunal – Applicant not a credible witness at Refugee Review Tribunal hearing – whether Refugee Review Tribunal complied with s.425 of Migration Act 1958 (Cth) – whether Refugee Review Tribunal discretion to refuse further time for documents miscarried – whether open to Refugee Review Tribunal to find applicant not a credible witness.

Judiciary Ac 1903 (Cth), s.39B
Migration Act 1958(Cth), ss.425; 474; pt.8 div.2
Federal Magistrate Court Rules 2001, sch.1 pt.2 r.1(c)

Applicant:

SZIPK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG981 of 2006

Judgment of:

Emmett FM

Hearing date:

24 August 2006

Date of last submission:

24 August 2006

Delivered at:

Sydney

Delivered on:

24 August 2006

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent:

Mr J. Bird, Phillips Fox Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG981 of 2006

SZIPK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 February 2006. The Tribunal decision affirmed a decision of a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 7 December 2005.
The applicant was born on 5 June 1963 in India and has a wife, two daughters and a son who remain in India. The applicant arrived in Australia on 12 September 2005 having departed legally from Mumbai Airport on a passport issued in his own name and holding a temporary business class 456 visa, issued on 7 September 2005.
On 4 October 2005, the applicant lodged an application for a protection class XA visa with the Department of Immigration and Multicultural and Indigenous Affairs. In his protection visa application the applicant claimed that he feared persecution by his tribal Muslim community due to his conversion from Islam to Christianity. In a statement lodged in support of his visa application he commenced his conversion to Christianity in September 2004 as a result of which he was threatened and assaulted by members of his Muslim tribal community.
On 7 December 2005, the Delegate refused the applicant’s application for a protection visa and noted in that decision that the applicant’s claims are “vague and lack detail and no evidence has been provided to substantiate them.”
The Delegate concluded that the applicant was not a person to whom Australia had a protection obligation and accordingly refused a protection visa. On 4 January 2006 the applicant lodged an application for review of the Delegate's decision by the Tribunal. In the conduct of its review the Tribunal wrote to the applicant on 4 January 2006 inter alia asking the applicant to:
“immediately send us any documents, information or other evidence you want the Tribunal to consider.”
On 10 January 2006, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter went on to invite the applicant to attend a hearing on 13 February 2006 and again requested that the applicant send any new documents or written arguments that he would wish the Tribunal to consider.
On 13 February 2006, the applicant attended a hearing before the Tribunal at which time the applicant's claims were explored in some detail with the Tribunal. The Tribunal noted that it had put its concerns to the applicant about the applicant's claims and noted the responses made, or given, by the applicant.
The Tribunal also noted that the applicant requested more time to collect evidence from India and noted that it had asked the applicant what that evidence would be and the applicant responded that he would like to get a letter from the Catholic Church in Hyderabad. The Tribunal noted that it told the applicant it would not delay making its decision awaiting such a letter but that the applicant had the opportunity at the hearing to elaborate further on his religious beliefs, if he wished to do so. The Tribunal noted that the applicant declined the offer and stated that he had only limited knowledge and nothing further to say.
The Tribunal in its decision did not find the applicant to be a credible witness on key aspects of his claims and that, in giving his evidence, his response was “often weak and unconvincing.”
The Tribunal noted that the applicant was unable to provide any relevant detail to the Tribunal about his conversion and his reception into the Catholic Church and was unable to provide relevant detail on Catholic beliefs and practises beyond the bare minimum. For example, the Tribunal noted that the applicant was unable to identify the head of the Catholic Church.
The Tribunal also noted that the applicant had not engaged in the practice of the Catholic faith in any substantive matter since arriving in Australia. The Tribunal noted that the applicant had attended church on only one occasion and that he intended to attend church once he had learned English. The Tribunal noted the various explanation proffered by the applicant to concerns put to him by the Tribunal but found that the explanations were not sufficient to satisfy the Tribunal that the applicant had in fact converted to Catholicism as claimed.
For those reasons the Tribunal did not accept that the applicant faced harm in the past, or is likely to face harm in the reasonably foreseeable future, by reason of his conversion from Islam to Catholicism.
The applicant filed an application seeking judicial review of that decision in this Court on 3 April 2006, that application being in the following terms:
“1. The Tribunal did not observe procedure that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
That the tribunal did not act according to substantial justice and merits of the case in
Its treatment of claims that the tribunal member did not consider the facts of the case that applicant has a well founded fear of persecution.
Its treatment of the fact that Tribunal member did not act according to natural justice and merits of case.
Its treatment of the claim that Tribunal mermber did not gave opportunity to the applicant to provide documentary evidence regading his conversion to Christian faith.
The tribunal failed to appreciate that as a recent convert the applicant is not supposed to have knowledge of Christian faith in depth.
Its treatment of the claim that Tribunal did not adopt the proper legal procedure or followed the guidelines and rules while deciding the case
Its treatment of the applicant’s claim that there was no evidence or other material to justify the Tribunal’s decision.
Its treatment of the applicant claim that the decision was an improper exercise of the powers by the Act and the regulation
Its treatment of the applicant claim that the decision involves an error of law being incorrect application of the law to the facts as founded by the Tribunal
Its treatment of claim that applicant did not breach any visa conditions or any Australian law and there is no criminal record. Applicant is law abiding citizen and highly respect person in his community.
2. The Tribunal did not have jurisdiction to make the decision
PARTICULARS
Insofar as the Tribunal was in breach of the Act in relation to the decision including any failure to follow procedure required by the 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”
Other than a change of address for service no other document has been filed by, or on behalf of the applicant in this proceeding. I note that the applicant participated in the Panel Advice Scheme and met with a legal advisor.
The applicant's grounds are unparticularised. Despite being invited and taken through each of the grounds identified in his application, the applicant had nothing further to say in support of any of the grounds. The applicant simply stated that he did not have the language, that he had told his story to the Tribunal and they had made a decision against him. He said he had told them the truth but they did not believe him, so what could he do.
I explained to the applicant that several of his grounds appeared to cavil with the findings of fact made by the Tribunal and that unless those findings and conclusions were not open to the Tribunal on the evidence and material before it, his disagreement with those findings could not amount to jurisdictional error.
The applicant in his grounds also complains that the Tribunal did not observe the statutory procedure in respect of the conduct of its review. However, when invited to identify what part of the procedure the Tribunal failed to comply with, the applicant had nothing further to say. Certainly none is apparent to me.
The Tribunal is obliged to invite the applicant to attend a hearing, pursuant to s.425 of the Act, and did so in accordance with that section.
The Tribunal was not obliged to accede to the request by the applicant for the provision for further time to provide documents and was entitled to exercise its discretion in the manner in which it did.
There has been no evidence provided by the applicant as to the existence or availability of the evidence to which he referred before the Tribunal, namely a letter from the Catholic Church in Hyderabad, or indeed evidence of any effort made by him to obtain such a letter prior to the Tribunal hearing or that he brought to the attention of the Tribunal any such effort. The applicant's request to provide for further time to provide that letter is a matter for the discretion of the Tribunal and I find that that discretion was exercised according to law.
There is no procedural irregularity apparent on the face of the Tribunal's decision, nor the conduct by it of its review.
It is a matter for the Tribunal to assess the weight given to evidence before it and the truthfulness and credibility of any witness before it. The Tribunal explored with the applicant his claims, identified its concerns and made findings in respect of the applicant's claims based on evidence arising from the exploration of those issues with the applicant.
The Tribunal gave reasons in its decision why it did not find the applicant to be a credible witness and in the circumstances that finding was open to it on the evidence and material before it. In the circumstances, the Tribunal's finding that it did not accept the applicant's claim that he had converted to Catholicism was a conclusion that was open to it.
The decision is not affected by jurisdiction error. Accordingly the decision of the Tribunal is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction.
The proceeding is dismissed.
The first respondent seeks costs fixed in the amount of $3200. I note that is less than the amount provided for under the rules of the Federal Magistrate Court Rules 2001 contained in Schedule 1 Part 2 r.1(c) the relevant provision of costs being $5000 where a proceeding is concluded at final hearing.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S.Kwong

Date: 12 September 2006