SZIZJ v Minister for Immigration

Case •

[2007] FMCA 876

•

17 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 876
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant the applicant a visa – applicant is a citizen of India claiming persecution for reasons of his political opinion – credibility – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474(2)
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SBVF v Minister for Immigration & Indigenous Affairs [2002] FCAFC 3058
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
Applicant: SZIZJ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 282 of 2007
Judgment of: Scarlett FM
Hearing date: 17 May 2007
Date of Last Submission: 17 May 2007
Delivered at: Sydney
Delivered on: 17 May 2007

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mrs Sirtes
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent’s costs fixed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 282 of 2007

SZIZJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 18th December 2006 and handed down on 16th January 2007.

  2. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.  The applicant seeks judicial review of that decision.  In his amended application he seeks an order or declaration that the notification by the delegate and Tribunal to refuse to grant the protection visa is invalid and has no effect.  Second, he seeks a writ a certiorari quashing the decision of the Department of Immigration & Citizenship as it now is or the Refugee Review Tribunal.  Third, he seeks an injunctive order restraining the respondent Minister from taking action to remove the applicant from Australia while a decision is pending.

  3. The Court does not make declarations or orders relating to the delegate's decision because the delegate's decision has already been subject of review by the Refugee Review Tribunal.  These proceedings are directed to judicial review of the decision of the Refugee Review Tribunal.

  4. I have also explained to the applicant that the function of the Court is not to second guess the Tribunal as to fact or judgment.  The Court can only set aside a decision of the Refugee Review Tribunal if it is satisfied that there is jurisdictional error (see SZHCJ v Minister forImmigration & Multicultural Affairs [2007] FCA 205 at [3]).

  5. The background to this matter is that the applicant is a citizen of India.  He arrived in Australia on 14th November 2005 and applied for a protection (Class XA) visa on 2nd December in that year. 


    His application was refused on 1st March 2006.  The applicant sought review of that decision from the Refugee Review Tribunal which affirmed the decision of the delegate on 11th May 2006.  The applicant then sought judicial review of the Tribunal's decision in the Federal Magistrates Court.  On 26th September 2006 the Court set the decision aside and remitted the application to the Tribunal to be determined according to law.

  6. The Tribunal wrote to the applicant on 12th October 2006 advising him that the matter had been remitted to the Tribunal.  The Tribunal wrote again on 6th November 2006 inviting the applicant to attend a hearing on 30th November.  The applicant attended the hearing on that day and gave evidence with the assistance of an interpreter in the Tamil language.

  7. A copy of the Tribunal decision record can be found at pages 100 through to 111 of the Court Book. The Tribunal considered the fact that the applicant was a young man from Tamil Nadu in India of Tamil ethnicity.  He claimed that he had been a member of Tamil organisations and feared persecution if he were to return to India.

  8. The Tribunal summarised the applicant's claims of evidence and that summary appears on pages 103 through to 107 of the Court Book.


    The Tribunal also considered external evidence by way of independent country information.  The Tribunal asked the applicant a number of questions about his experiences within the Tamil organisation and about circumstances in which he said that he was being assaulted and injured at Chennai airport in June 2005 when returning from a trip to Singapore and Malaysia.

  9. The Tribunal's findings and reasons are set out on pages 108 to 111 of the Court Book.  The Tribunal was satisfied that the applicant is a citizen of India and relied on his Indian passport.  The Tribunal made this comment about two Tamil organisations:

    The Tribunal notes, as it did at hearing, that the Tamil Nadu Liberation Army, the Tamil National Retrieval Troops, are listed as two separate organisations in both state Tamil Nadu and federal Indian legislation outlawing terrorist groups.

  10. The Tribunal went on to reject the applicant's claim that they were one and the same organisation.

  11. The Tribunal went on to find that it was not satisfied that the applicant had any particular or detailed knowledge Tamil Separatist Organisations such as would fit a person who was not only a member of the organisation but a recruiter and fundraiser.  The Tribunal noted independent country information about the fact that both organisations have been outlawed as a terrorist organisation.  The Tribunal noted the applicant's claims but found at page 110 that the applicant was not a credible witness. The Tribunal had this to say:

    The Tribunal found the applicant not to be a credible witness.


    His testimony was inconsistent at the hearing.  He would answer a question in one way then contradict himself later.  Many of his claims were far-fetched and implausible.  He exaggerated incidents.  He reiterated his claims to be an activist in the TRNT although his knowledge of this organisation and the Tamil Separatist Organisations in general was only of a rudimentary and general sort.  It lacked any of the detail that could be expected of a full-time cadre of five or six years standing. 


    He gave the impression of saying things to support his claims rather than making factual statements.  For example; his belated claim that friends had been in touch to warn him that the police are after him.  It is an unsupported assertion and the tribunal rejects it.

  12. The Tribunal was not satisfied that the applicant had suffered serious harm let alone harm amounting to persecution in the past for a Convention reason and found that the chance of such harm befalling him in the reasonably foreseeable future to be remote.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and affirmed a decision not to grant the applicant a protection (Class XA) visa.

  13. The applicant commenced proceedings for judicial review by filing an application and an affidavit on 31st January this year.  He filed an amended application on 28th March 2007.  That application sets out three grounds.  First; the applicant says that by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant, the Tribunal was in fact placing too high an onus of proof on the applicant, failing to give the applicant the benefit of the doubt.

    Second, the applicant claims that the Tribunal left out individual elements of the applicant's claims and:

    Tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered what amounted to persecution.

    The third ground refers to review of privative clause decisions and asserts that the Tribunal did not act in good faith.

  14. The applicant did not file any written outline of submissions but addressed the Court briefly, mainly on factual matters.  Counsel for the first respondent Minister Mrs Sirtes prepared a written outline of submissions.  This document was filed on 10th May.

  15. The applicant, in his oral submission, took exception to a statement in the first respondent's submissions that the Tribunal had rejected the applicant's claim that the Tamil Nadu Liberation Army, TNA, the Tamil Nadu Retrieval Troop, TNRT, were one and the same organisation based on independent country information.  The applicant said that he never mentioned anything at the hearing about the Tamil Nadu Retrieval Troops as it is asserted counsel pointed out.  The Tribunal decision record shows that the applicant had referred to these organisations and reference can be found at page 103 of the Court Book.  The Tribunal had also noticed that the applicant had made that claim in his protection visa application and I see such a claim appears on page 19 of the Court Book.

  16. The applicant claimed that he sustained a fracture when police beat him at Chennai Airport.  He said that he showed an x-ray to the Tribunal which confirmed his injury and complained that the Tribunal did not refer to his x-ray.  Mrs Sirtes of counsel pointed out the Tribunal did refer to the applicant's claims of assault.  I accept this as a fact.  At 105 of the Court Book the Tribunal said first of all:

    The applicant claimed they also confiscated a quantity of mobile phones he was carrying and furthermore they assaulted him.

  17. Again, the applicant described, on page 105 of having been detained and interrogated by the police and released on bail:

    He got bail because of his injuries – the injuries sustained at the airport.

  18. Counsel for the Minister submitted, and I believe correctly, that it is clear that the Tribunal had considered the applicant's claim of having been assaulted and there is no need for the Tribunal in its decision to mention every piece of evidence so long of course that the claim is considered.

  19. The applicant told the Court that if he returns to his home country he is likely to be in danger because he believed that the authorities were looking for him.  I have pointed out the Court cannot undertake a challenge to the factual decisions of the Tribunal as merits review is not available on judicial review.

  20. Turning to the applicant's claims in his amended application; he first of all claims that the Tribunal placed too high an onus of proof on the applicant.  However, there is nothing in the Tribunal's decision to show that the Tribunal misdirected itself as to where the onus lay or what standard of proof is required.  I refer to the decision of Kirby J in the High Court of Australia and Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at [78] where his Honour said:

    That the function of the Tribunal is to respond to the case advanced before it by an applicant.  The Tribunal does not have an obligation to make an applicant's case for him.  The onus was borne by the applicant.

  21. Again, on reading the Tribunal's decision, it is not apparent at all the Tribunal required independent evidence in order to accept the claim.  Certainly, the Tribunal was mindful to inquire and consider independent country information and to compare independent country information with the applicant's evidence in order to verify the applicant's claims.  This is a common practice in the Refugee Review Tribunal and there is no reason why that practice would be regarded as any form of jurisdictional error.  It is certainly clear from the Tribunal decision that on occasions the Tribunal raised items of information that had occurred in independent country information and discussed those matters with the applicant.

  22. I am not satisfied that there is any evidence that the Tribunal placed too high an onus of proof on the applicant.  The applicant's first ground fails.

  23. The second ground claims that the Tribunal left out individual elements of his claims and assessed whether the claims individually amounted to persecution rather than looking at the claim as a whole to determine whether that claim amounted to persecution.  Counsel for the respondent has pointed out that there is an inconsistency within that ground.  The applicant has not provided particulars of any part of his claims that have not been considered.  There is no evidence before me that the Tribunal overlooked any part of the applicant's claims.


    The Tribunal considered various integers of the applicant's claim which is not an error and counsel for the respondent submitted the Tribunal was required to undertake its task in precisely the manner that it did in order to avoid an error of either failing to address an integer or a particular social group which may have occurred by taking a global approach.  The second ground failed.

  24. The third ground is an allegation of bad faith.  No particulars are provided of this.  It is well known that bad faith is a serious allegation which must be strictly alleged and proved.  The circumstances, in which a Court will find evidence of bad faith merely, from the written reasons of the Tribunal, are rare and exceptional (see SBVF v Minister for Immigration & Indigenous Affairs [2002] FCAFC 3058 at [16] and SBBS v Minister for Immigration & Multicultural & IndigenousAffairs [2002] FCAFC 361 at [44]). There is no particularisation of bad faith. There is no evidence of that and the third ground fails.

  25. I am mindful of the fact that the applicant is not legally represented.


    I have read the decision independently of the applicant's claims and the respondent's submissions in order to ascertain whether there is an arguable case of jurisdictional errors that have not been raised. I am unable to discern anything. I am satisfied that no jurisdictional error has been made out and it follows from that that the decision is a privative clause decision as defined in s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus and are not subject to declaration. Accordingly, the application will be dismissed.

  26. There is an application for costs on behalf of the respondent Minister. Costs follow the event and I am satisfied that this is an appropriate matter for a costs order.  The amount, sought, namely $4,200.00 inclusive of counsel's fees is well within the scale allowed by the Rules.  I note that I have previously made an order noting the change of name of the Minister.

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

Associate: S.Polley

Date: 29 May 2007

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Cases Citing This Decision

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SZIZJ v Minister for Immigration [2008] FMCA 721