SZJOO v Minister for Immigration
[2007] FMCA 294
•1 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 294 |
| 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 – no Convention reason – credibility – no reviewable error. PRACTICE & PROCEDURE – Handwritten documents – almost illegible handwriting – documents must comply with the Rules. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 425 |
| SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 |
| Applicant: | SZJOO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3106 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 March 2007 |
| Date of last submission: | 1 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Griffin |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3106 of 2006
| SZJOO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 11th September 2006 and handed down on 3rd October. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa. The Applicant now seeks judicial review of that decision.
Background
The background to this matter is that the Applicant is a citizen of India who arrived in Australia on 29th December 2005. He applied for a Protection (Class XA) Visa on 1st February 2006 but a delegate of the Minister refused that application on 4th May in that year. The Applicant then applied to the Refugee Review Tribunal on 29th May 2006 for a review of the delegate's decision. The application for review did not contain any other documents.
The Tribunal wrote to the Applicant on 4th July 2006 and invited him to attend a hearing of the Tribunal which was to take place on
16th August.
The Applicant attended the hearing and told the Tribunal that he was a citizen of India and that he feared harm if he were to return India due to the fact that he is a Hindu who had fallen in love with a girl from a Muslim family and that her brother and other people connected to the brother's family threatened him, started fighting with him and threatened his life. After the brother had threatened to kill him again the Applicant says that members of his family advised him to abroad and by doing so this would solve the problem for himself and the other family members. The Applicant said that he did not wish to return to India and cause further problems for his family.
The Applicant attended the hearing and brought a copy of his passport with him. The Tribunal member set out at page 64 of the Court Book that she had information which was not consistent with his claim for refugee status, was required to put this information in writing and give him an opportunity to make comments on this information which he sets out and which he handed to the Applicant a letter of hearing setting out the information and said he had no need to respond to the letter of hearing but could provide his comments in writing at a later date. A copy of that letter appears at pages 48 to 49 of the Court Book.
The Applicant had told the Tribunal that he was not feeling well; a wish that the Tribunal records that the Applicant said he wished to continue with the hearing and it was, the Tribunal recorded, that the Applicant was offered an adjournment and the Applicant said that he wished to go ahead. The Applicant did not require the services of an interpreter and the Tribunal recorded that the Applicant appeared to be able to speak and understand English quite well.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 64 and 65 of the Court Book. The Tribunal noted the Applicant's claim to fear persecution from members of a family of his girlfriend who was a Muslim and disapproved of his relationship with her because he was Hindu. The Tribunal accepted that the Applicant was a citizen of India and the Tribunal had evidence upon which to make that finding; namely the Applicant's passport.
The Tribunal did not however find the Applicant to have been a truthful or credible witness. The Tribunal noted at page 65 of the Court book:
The applicant made claims in writing and at hearing that he feared harm from certain persons because of his relationship with a girl from a Muslim family who he met at a tuition centre in 2005. Information available to the Tribunal from the Department’s visa records show that the applicant and his wife applied for tourist visas in November 2005 as part of a tour group. The information given to the Department in connection with the application for tourist visas included documents and photographs showing that the applicant had been married in a traditional Hindu ceremony some years before his application for a tourist visa and included personal details of his wife and her family. The information obtained from the Department was given to the applicant in accordance with s.424A of the Act and he was invited to comment on this information. He did not make any comments on, or provide any explanation for, the significant inconsistency between his claims and the information of his personal circumstances contained in the Department's records.
The Tribunal did not accept that the Applicant had become involved in a relationship with a Muslim girl and was threatened or harmed by members of her family. The Tribunal considered that the Applicant had fabricated those claims to support his application for refugee status. The Tribunal did not accept that the Applicant faced a real chance of persecution for reason of his religion or any other Convention based reason if he were to return to India.
The Tribunal was not satisfied that the Applicant faced a well-founded fear of persecution for any Convention related reason and affirmed the decision of the delegate minister not to grant the Applicant a protection visa.
The application for judicial review
The Applicant has sought judicial review of that decision by means of an application and an affidavit in support, both of which were filed at Court on 25th October 2006. I note that the application is handwritten. It does not comply with Rule.2.01 of the Federal Magistrates Court Rules 2001 because parts of it are illegible. It should have been either typed or hand printed. It is so badly written it should not have been accepted for filing. I presume that the application seeks judicial review of the decision and it is well nigh impossible to ascertain what orders the Applicant seeks.
I will proceed on the basis that the Applicant seeks orders in the way of certiorari and mandamus. In other words, he seeks orders setting aside the decision of the Tribunal and remitting the decision of the Tribunal for reconsideration according to law.
The Applicant sets out three grounds in his application. The first two of them do no more than set out the Applicant's history of application; both the Department and the Refugee Review Tribunal. The third ground says:
I think it was a wrong decision so I want to put my case to the Federal Magistrates Court in Sydney for the hope of something in favour of me.
The fact is that the application does not set out any grounds of review. It does not recite any jurisdictional error. The Applicant has attended Court and set out that his life was in danger in India. He denied that he was married in India and said that he did not wish to return to India for the reasons set out in his application.
For the Respondent Minister, Ms Griffin, solicitor, pointed out that the Applicant's claims so far as they were not related only to merits review. In other words; a challenge to the factual findings of the Tribunal. The Court does not conduct merits review. That position was looked at quite recently on appeal by Gyles J in the decision of SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205. His Honour said at [3]:
Insofar as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
The solicitor for the First Respondent submits that there is no jurisdictional error that has been shown. In fact, there has been no allegation of jurisdictional error. I am unable to discern any jurisdictional error from my reading of the decision. I note that the Tribunal did indeed write to the Applicant and the Tribunal Member said that she handed a copy of that, or the original of that letter to the Applicant on the day of the hearing, 16th August. A copy of that letter is set out on pages 48 and 49 of the Court Book and sets out the information upon which the Tribunal sought comment. That information is at variance with the Applicant's claim that he left India for Australia because of problems with the Muslim family of his Muslim girlfriend. The relevant paragraph of the letter says:
Departmental records show that you and your wife applied for visas to visit Australia with a tour group in November 2005. Documents accompanying your application include various documents which indicate that you and your wife were married in a traditional Hindu ceremony and you have been married for a number of years.
The letter sets out why the Tribunal considers the information to be relevant and invites the Applicant to comment on the information in writing in English by 31st August. The Tribunal noted that it did not receive a reply to that letter. In my view the Tribunal has complied with the requirements of s.424A of the Migration Act. The Tribunal complied with the requirements of s.425 by inviting the Applicant to a hearing which he attended. I am unable to discern any other jurisdictional error or apparent jurisdictional error from my reading of the decision.
I note that the Applicant when he first appeared at Court, he was unrepresented, although a solicitor appeared on a pro-bono or amicus curiae basis for him on that date. He indicated that he wished to take advantage of the Panel Legal Advice Scheme and a referral was made to a barrister. The Applicant told the Court that he had not received any advice from any lawyer and I stood the matter down to make inquiries. The Applicant was able to produce a letter from the Court indicating a referral to a barrister. I arranged for my associate to make inquiries and the inquiries revealed that the barrister concerned indicated that he had sent a written advice to the Applicant at the Applicant's address. A copy of that advice was made available to my associate. I did not look at the document and it did not in any way come into my consideration. I did not read that document at all. A copy of that document was given to the Applicant when I stood the matter down to enable him to read it. When the hearing resumed the Applicant then made oral submissions.
In my view, no jurisdictional error has been made out. The decision is a privative clause decision as defined in s.474 of the Migration Act and accordingly no remedy such as certiorari, mandamus, prohibition or declaration applied. The application will be dismissed.
There is an application for costs on behalf of the Respondent Minister. The Applicant has been wholly unsuccessful in his claim and I see no reason why I should not make a costs order in favour of the successful party. The amount of $2,500.00 which is sought is an appropriate figure and comes well within the Federal Magistrates Court Rules. I propose to make the order sought.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 9 March 2007
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