SZISS v Minister for Immigration
[2007] FMCA 1470
•16 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZISS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1470 |
| MIGRATION – Review of RRT decision – where applicant’s solicitor did not appear – where applicant’s solicitor did not file notice of ceasing to act – where applicant sought adjournment – where applicant attempted to obtain further legal representation – whether any grounds for jurisdictional error – whether Tribunal had a duty to investigate or make its own inquiries. |
| Migration Act 1958, s.424A |
| SZATG v Minister for Immigration [2004] FCA 1595 VCAK of 2002 v Ministerfor Immigration [2004] FCA 459 |
| First Applicant: | SZISS |
| Second Applicant: | SZIST |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1152 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 August 2007 |
| Date of last submission: | 16 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2007 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4750.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1152 of 2006
| SZISS |
First Applicant
SZIST
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicants in this matter are husband and wife who are citizens of India. They arrived in Australia on 9 July 2004. On 16 August 2004 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 22 July 2005 a delegate of the Minister refused to grant a protection visa and on 18 August 2005 the applicants applied for review of that decision.
The applicants attended a hearing on 4 November 2005 which was continued on 8 December 2005. In the meantime letters under s.424A Migration Act 1958 (“the Act”) had been sent to the applicant on
7 November 2005 and responses received which were discussed at the later hearing. The applicants provided a considerable number of documents to the Tribunal, some of which were submitted to the document examiner. On 7 March 2006 the Tribunal determined to affirm the decision under review and handed that decision down on
23 March 2006.
On 20 April 2006 the applicant, through a solicitor, Mr Jayawardena, filed an application in this court seeking review of the decision of the Tribunal on the following grounds:
“1. That the Tribunal exceeded its jurisdiction by failing to assess the Applicant’s claim on the basis of information provided, rather than making its own inferences to nullify the applicant’s claims of Convention connection for his persecution.
2. That the Tribunal erred in law by its failure to analyse the Applicant’s claims as per the criteria laid down in Article 1(A)(2) of the 1951 United Nations Convention.
3. That the [Tribunal] failed to analyse the Applicant’s claims in a constructive and consistent manner and thereby failed to consider the Applicant’s claims properly and fairly.”
On 18 May 2006 Mr Jayawardena attended a callover of this matter before Registrar Lackenby when the case was set down for hearing today. The applicant husband has confirmed in evidence that he was aware of today’s hearing and that he had been told by Mr Jayawardena to contact him about a month before the hearing. He told me that he had contacted Mr Jayawardena about six weeks before the hearing. He met with Mr Jayawardena not in that gentleman’s office but in an hotel. Mr Jayawardena returned to the applicant his papers and said that he could no longer represent him. Mr Jayawardena never filed with this court a Notice of Change of Solicitor or a Notice of Ceasing to Act. He did not appear today.
The applicant sought an adjournment. The applicant was questioned by myself and cross-examined by Mr Reilly. I accept that after he had been let down by Mr Jayawardena the applicant made some effort to obtain further legal representation. He went to a solicitor who told him that he would try and find a barrister for him, but within approximately two weeks the solicitor told him that he could not find such a barrister. He went to another solicitor, but was equally disappointed. Finally he went to a barrister, Mr Ashok Kumar, about 10 days ago. Mr Kumar told him that he should apply for an adjournment and that if he obtained it, Mr Kumar could act for him.
I have determined not to allow the applicant an adjournment because having made a close reading of the Tribunal’s decision, I am unable to see any grounds upon which it could be successfully argued that the Tribunal fell into jurisdictional error in the manner in which it came to its decision. To grant the applicant the adjournment he wished would be, in my view, of no practical use.
The grounds upon which the applicant claims to be entitled to the protection of Australia is the Convention reason of political opinion. The applicant’s story is that for some considerable time he had been a member of the Congress Party in his home area and had risen high in that organisation, to the extent of being a city councillor and even a senior vice-president of the Municipal Council and an acting president. In the course of his political activities he appears to have run foul of a Mr Dogra, who, he told the Tribunal, was a Minister in the Indian government. Mr Dogra was himself a member of the Congress Party but it would seem that he led a different faction from that to which the applicant belonged. Over a period of almost 10 years, as the applicant rose in the Party within his locality and the other localities within which he had lived, he became more and more antipathetic to Mr Dogra. He claimed that Mr Dogra organised a series of attempts to kill him and that whilst these were all unsuccessful he found himself in hospital on several occasions. The Tribunal commented upon this story at [CB337]-[338]:
“The Tribunal does not accept the applicant’s evidence as plausible. On the basis of this evidence, the applicant survived at least three attempts to kill him with a truck. The Tribunal finds that, if Mr Dogra intended to kill the applicant as the evidence of the applicant and applicant wife suggest, he had ample opportunity to do so. If Mr Dogra and his men were prepared to go to the lengths described by the applicants and were able to act with impunity, the applicant’s ability to survive such a sustained campaign verges on the miraculous. On the applicant’s evidence, Mr Dogra’s interest in him began in 1994. The Tribunal did not find the applicant’s evidence about these repeated attempts to do him extreme harm over an extended period to be credible. In spite of the violence at Mr Dogra’s disposal and his apparent willingness to use it the applicant claims that he was able to continue to engage in politics and to oppose Mr Dogra until 2004. The Tribunal does not accept this as plausible.”
The applicant also told the Tribunal that, because of the status of his relationship with Mr Dogra, in about 2000 he changed political allegiance from the Congress Party to the BJP. Notwithstanding this, he submitted to the Australian authorities in support of his application for a tourist visa a document found at [CB11] dated 24 September 2001 from the Punjab Pradesh Congress Committee.
I do not propose to go into any further detail concerning the applicant’s claims. They are all contained in the Tribunal decision commencing at [CB293] and concluding at [CB348]. Suffice to say that the Tribunal provided a detailed history of the applicant’s claims and the reasons why it was unable to accept them. The Tribunal concluded with a summation at [CB347]-[348]:
“In summary, the Tribunal accepts that the applicant has been involved in politics. It finds that he has been a member of the Congress Party and no other party. For reasons set out above it does not accept as credible the applicants’ claims in relation to the sustained interest in him and targeting of him by Mr R.C. Dogra. It does not accept as credible the applicants’ claims regarding the targeting of them and their family in the past. It follows that the Tribunal does not accept that the applicants have been denied state protection in relation to such matters in the past. The Tribunal does not accept that the applicants or their family are of particular interest to Mr Dogra now. The Tribunal accepts that the applicant has faced a number of charges in the past. He was charged in 1998 in relation to a number of offences in relation to which he was found innocent. The Tribunal finds that he was properly dealt with by the courts in relation to these cases and that state authorities did not act contrary to his interests in connection with these matters. The applicant was charged in 2000. While the Tribunal accepts that this matter may have been related to political rivalry, it does not accept that it was connected with Mr Dogra’s claimed enmity towards him. The Tribunal finds that this matter did not constitute harm directed at him by the State and that he was able to utilise the institutions of the State to clear his name. In relation to the claimed charges in Kulu, the Tribunal is not satisfied that these are politically motivated and finds in any event that he can access fair and impartial processes to protect his rights and interests.
With regard to the applicant’s wife, the Tribunal does not accept that she has been harmed in any way in the past as a consequence of her husband’s political activities. She and her husband have indicated that the charges relating to the fruit and herbs business do not relate to her.”
The applicant had provided the Tribunal with a large quantity of documents which he said supported his case. The Tribunal expressed some concern about the veracity of these documents. The applicant invited the Tribunal to make inquiries about them. The Tribunal did in fact make inquiries about certain documents which it considered may have been created for the purposes of the application and referred them to the document investigation unit. The document investigation unit considered the documents and came to the view that as they all appear to have been typed on the same typewriter and purported to be documents which had come into existence over a period of approximately 10 years from different organisations, they were unlikely to be genuine. Before me today the applicant made much of the fact that there were a lot more documents and he seemed to be under the impression that the Tribunal had not accepted these. As Mr Reilly pointed out, that is not the case. The Tribunal did not find against any other documents.
The grounds of the application which I set out at the commencement of these reasons do not in themselves particularise any alleged jurisdictional error. Although there was an order made by Registrar Lackenby that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 13 July 2006, none was filed. In the circumstances it is not appropriate for me to try and guess what particular parts of the Tribunal decision are said to have fallen within the three grounds set out.
The representations made to me by the applicant may have suggested that he was of the view that the Tribunal should have gone further to investigate and make its own inquiries concerning his claims. But as Hely J said in SZATG v Minister for Immigration [2004] FCA 1595 at [22]:
“Section 427(1)(d) of the Act empowers the RRT to require the secretary to arrange for an investigation that the RRT thinks necessary with respect to the review, and to give the RRT a report of that investigation. However, s 427 confers a power on the RRT, but does not impose any duty or obligation on the RRT to exercise that power: Minister for Immigration v SGLB (2004) 78 ALJR 992 at [43] (Gummow and Hayne JJ).”
In VCAK of 2002 v Ministerfor Immigration [2004] FCA 459 Crennan J noted at [27]:
“The fact that the Tribunal did not use enabling provisions like s 424 (to seek additional information) and 427(1)(d) (to make further enquiries) does not indicate any error of law on its part.”
I accept Mr Reilly’s submission that it is for the Tribunal to assess the truth or otherwise of documents and that this, being purely a factual matter for the Tribunal, is not one which this Court can interfere with on a review. That comment applies equally to the matter raised by the applicant during the course of my giving this judgment. He attempted to point out to me that the Tribunal was in error when it suggested that some of the offences for which he had been charged bore no present sentence. If the Tribunal did say that, and did make a mistake, it was a mistake of fact rather than a mistake of law as the Tribunal was referring to a law of a foreign country.
In all the circumstances I am unable to see how the Tribunal may have fallen into jurisdictional error in this particular case. The Tribunal performed its duties thoroughly. It proceeded to give the applicant a lengthy hearing, it provided the applicant with a letter under s.424A, and then considered the applicants’ responses and additional documentation provided by them.
The application is dismissed. I order that the applicants pay the respondent’s costs which I assess in the sum of $4750.00.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 August 2007
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