SZJSE v Minister for Immigration

Case •

[2007] FMCA 354

•

7 March 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 354
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India – applicant claims fear of persecution for reasons of religion applicant is a Muslim in India – credibility – whether Tribunal failed to comply with Migration Act 1958 s.424A – misconceptions about s.424A – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.422B, 424A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Applicant: SZJSE
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3391 of 2006
Judgment of: Scarlett FM
Hearing date: 7 March 2007
Date of Last Submission: 7 March 2007
Delivered at: Sydney
Delivered on: 7 March 2007

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Jordan
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I will allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3391 of 2006

SZJSE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The application before the Court today is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 29th September and handed down on 24th October 2006.  The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.

  2. The applicant, by means of an application and an affidavit filed on


    17th November 2006, seeks from this Court judicial review of the Tribunal decision. 

  3. The background to this matter is that the applicant is a citizen of India.  He arrived in Australia on 6th May 2006 and applied for a protection (Class XA) visa on 16th June.  His application for a visa was refused on 18th July 2006.  On 1st August the applicant then applied to the Refugee Review Tribunal for review of the delegate's decision. 

  4. The Tribunal invited the applicant to attend a hearing.  The applicant indeed appeared before the Tribunal on 29th September 2006.  He gave evidence and made submissions to the Tribunal.  A copy of the Tribunal's decision record can be found in the Court Book commencing at page 84 and going through to page 94. 

  5. The Tribunal noted that the applicant claimed to have a well founded fear of persecution in India on the ground of his religion.  He is a Muslim and he claims to fear persecution because of that religion from Hindu extremists, including supporters of the BJP Shiv Sena and also the TDP.  The Tribunal noted that the applicant was originally from Hyderabad in India; although his current Indian passport was issued in Jeddah in Saudi Arabia in 2000.  The Tribunal noted that the applicant claimed to have witnessed riots and killings of Muslims in India in 1992 and feared that people from the TDP still wished to harm him. 

  6. The applicant obtained a visa to go to Saudi Arabia and went there in 1995.  He returned two years later but found that the situation had not eased.  One of his friends was killed and he himself was attacked. 


    He returned to Saudi Arabia but returned to India from time to time.  Each time he hoped the situation in India would be better. 


    The Tribunal asked him a number of questions about his case and put to him information taken from independent country information about the religious situation in India. 

  7. The decision records at page 89 of the Court Book that the applicant agreed that Hyderabad had been a place where Hindus and Muslims had co-existed peacefully for centuries and that religiously and culturally the city was divided between Muslims and Hindus. 


    The Tribunal asked him questions about this and other matters and put to him that the Tribunal member found it difficult to believe his account.  The applicant told the Tribunal that the stamps on his passport indicated that he had returned to India for visits of only two months and the Tribunal put to him that this merely seemed to indicate that he had to abide by his work contract by returning to his job in Saudi Arabia.  The applicant was informed that his visa would not be renewed in Saudi Arabia.  He in fact told the Court today that he has lost his job there.

  8. The Tribunal conducted independent country information and a summary of that appears on pages 90 through to 92 under the heading; "Evidence From Other Sources."  The Tribunal's findings and reasons can be found at pages 92 through to 94. 

  9. The Tribunal accepted that the applicant was a national of India and accepted that he is a Muslim.  The Tribunal had of course seen the applicant's passport which had been produced for the purpose of the hearing.  However, the Tribunal found, at page 92 of the Court Book that the applicant gave oral evidence to the Tribunal in a vague manner and the Tribunal member did not form a favourable impression of his general credibility. 

  10. The Tribunal then went on to provide reasons as to why the Tribunal did not form a favourable opinion of the applicant's credibility. 

    i)The Tribunal found the applicant's account of the problems he had in India before 1995 and during his visits to India since then to be vague. 

    ii)According to the applicant's oral evidence he continued to live at a single address in Mumbai for almost three years after serious riots of December 1993. 

    The Tribunal found that this casts serious doubt on his claim that he considered himself to be at risk at this time.

    iii)The Tribunal considered highly implausible the applicant's claim that there was an attempt to kill him on each of the occasions when he returned to his home in Hyderabad from Saudi Arabia. 

    iv)The Tribunal found that it was simply not credible, if there had been attempts to kill him in Hyderabad on some six previous occasions that he would have chosen to return there in February 2006 as he told the Tribunal he did.

    The Tribunal did not consider it was true that he was again attacked in April of 2006.  The Tribunal went on to say this at page 93 of the Court Book:

    In sum; I consider it highly implausible, the applicant's claim that he was targeted by Hindus in Hyderabad whether because of his religion or political opinions or because they wanted to stop him giving evidence against them.  The Tribunal is not satisfied that the applicant had a well founded fear of persecution in India for reasons of his religion or any other Convention related reason and affirmed the delegate's decision not to grant a protection visa.

  11. The applicant filed an amended application on 9th February 2007. 


    In that application the applicant seeks orders in the nature of certiorari and prohibition.  The grounds of the application are first; that the Tribunal made a jurisdictional error in not following the criteria of


    s.424A of the Migration Act 1958.  And second; that the Tribunal denied the applicant natural justice. 

  12. As far as the first ground is concerned; the applicant set out five particulars as to why he believed the Tribunal did not follow requirements of s.424A of the Migration Act. First, the applicant refers to the Tribunal's finding that he had continued to live at a single address in Mumbai for almost three years after the events of


    December 1993 and referred to a report from the Department of Foreign Affairs and Trade.  The Tribunal found that this issue casts serious doubt on the applicant's claim but as the Tribunal did not give the applicant an opportunity to comment on that issue, he claims that the Tribunal fell into jurisdictional error. 

  13. Second; the Tribunal did not accept the attempt to kill the applicant and observed that if he feared any serious harm in Hyderabad he would not have returned or he would have arranged to see his family elsewhere. The applicant claimed the Tribunal did not consider the financial disability of the applicant and did not consider other security concerns of the applicant's family or children.

  14. Third; the applicant referred to the Tribunal's finding that he had chosen to return to India from Saudi Arabia when his visa was not due to expire for a further five months but he claims again that the Tribunal fell into jurisdictional error by not asking the applicant to comment upon it. 

  15. Fourth; the applicant refers to information contained in paragraphs two and six of page 93 of the Court Book which shows that there is systematic and discriminatory conduct involved in India.  He claims that the observation in paragraph two at page 94 of the Court Book is contradictory, which is an error of law. 

  16. The applicant's fifth claim is that the Tribunal fell into jurisdictional error by not giving the applicant particulars and information as required by s.424A of the Migration Act relating to the difference between the information in his statement of claims to the department and his protection visa application.

  17. In respect of the second ground that the Tribunal denied the applicant natural justice; the applicant relies on those same particulars plus, he claims, a denial of natural justice when the Tribunal did not consider information which supported his claims.  That information is unparticularised. 

  18. I have read the outline of the submissions prepared by Mr Jordan of counsel on behalf of the first respondent about the issue Mr Jordan pointed out when the submissions had been prepared before a copy of the applicant's submissions had been served on the first respondent. 

  19. Turning to the applicant's claims; the first thing that needs to be dealt with is that s.424A of the Migration Act is probably the section most commonly relied upon by applicants in applications for judicial review of decisions of the Refugee Review Tribunal. It is fair to say that there is a widespread misconception about the meaning of s.424A. In many cases, including this one, an applicant refers to the provisions of


    s.424A(1) in the requirement that the Tribunal must give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review and (b) ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review and (c) invite the applicant to comment on it. What is so often overlooked is that sub-s.424A(1) is expressed to be:

    Subject to sub-s. 3.

  20. Sub-s. 3 is important because it sets out the exceptions to the requirements in sub-s. 1.  Sub-s.424A(3) says:

    This section does not apply to information:

    (a)  That is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member or

    (b)  That the applicant gave for the purpose of the application or

    (c)  That is non-disclosable information.

  21. It is not the case here that there is any non-disclosable information.  But a number of matters referred to by the applicant in his particulars relate to information given by the applicant to the Tribunal as part of his application for review.  The applicant's living at a single address in Mumbai for almost three years, the details of the applicant's visa to Saudi Arabia and his travels to and from India during that time and other matters.  They relate to information provided by the applicant for the purpose of the application to the Tribunal.  They are not covered by sub-s.424A(1).  They are specifically excluded by sub-s.424A(3)(b).

  22. Independent country information referred to in 1(iv) and 1(i) for that matter, is also excluded by sub-s.424A(3)(a).  It is information that is not specifically about the applicant or another person.  It is just about a class of persons of which the applicant or other person is a member.  There is no obligation on the Tribunal under sub-s.424A(1) in respect of either of those points. 

  23. Again, several of the applicant's claims do not relate to s.424A at all but relate to the Tribunal's conclusions arising from the evidence which is not of course information but in other cases relates to the Tribunal's factual findings. In paragraphs (ii) and (iii) in particular the applicant is, in effect, seeking merits review by challenging the Tribunal's factual finding. In sub-paragraph four of paragraph one the information about systematic and discriminatory conduct is no more than an attempt at merits review. A contrary observation by the Tribunal is not itself an error of law. So long as there is evidence that could sustain the finding the Tribunal made, it is not the function of the Court on judicial review, to second guess the Tribunal in arriving at a different conclusion.

  24. In respect of ground one sub-paragraph five; the claim that the Tribunal made a jurisdictional error in not giving to the applicant particulars of information under s.424A relating to the difference between the information and his statement of claims to the department for a protection visa application, Mr Jordan of counsel, submitted in his written outline of submissions at paragraph nine that particular five to ground one asserts that the Tribunal did not give particulars of information that was required by s.424A of the Act relating to the difference between:

    The information.

    And the applicant's statement of claims in support of his protection visa application.  No details of the information are provided.  In any event, there is no substance to this complaint because the Tribunal's findings were based upon its assessment of the oral evidence given by the applicant to the Tribunal and did not rely on any inconsistency between that evidence and the applicant's initial claims in support of his protection visa application.  In my view that submission is a correct statement and I am satisfied that the respondent's counsel is correct in submitting that there is no jurisdictional error. 

  25. Turning to the claim of a denial of natural justice; the applicant relies on the particulars in respect of the s.424A point and in my view those particulars do not support a claim of denial of natural justice.

  26. The applicant also claims that the Tribunal did not consider information which supported the applicant's claim and thereby denied him natural justice.  In my view the applicant's claims were understood and were considered by the Tribunal.  The applicant's submissions expanded on those points and referred to the decisions of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 and also SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. Both of those decisions refer to the scope of s.424A of the Act. In my view they do not assist the applicant as I am satisfied there is no breach of s.424A. I am not satisfied that the evidence discloses any failure to provide natural justice, whereas (d) scope for natural justice is restricted by the requirements of s.422B of the Migration Act. There is no scope for a finding that common law natural justice applies.

  27. The fact is that this is a matter that was decided on the basis of credibility.  Credibility is a factual finding.  So long as there is evidence upon which the Tribunal can be satisfied that the applicant's evidence is not credible then there is no jurisdictional error.  It is clear that the credibility of the applicant's account was not accepted by the Tribunal and there is no scope therefore for the Court to overturn that finding.  There was evidence before the Tribunal, both written and oral from the applicant, which allowed the Tribunal to form that conclusion. 

  28. I am mindful of the fact that the applicant is not legally represented in these proceedings. It is necessary for a Court to consider the Tribunal's decision and supporting material independently of the submissions of the parties of those circumstances in order that the Court may be satisfied that no other jurisdictional error can be discerned. I am satisfied that there is no jurisdictional error; whether it is one referred to by the applicant or not. The decision is a privative clause decision which is defined by sub-s.474(2) of the Migration Act. It is not therefore, under sub-s.474(1) subject to certiorari, mandamus, declaration or prohibition in any Court on any account.

  29. I will make an order that the title of the first respondent Minister is changed to the Minister's current title of Minister for Immigration & Citizenship and I will dismiss the application.

  30. There is an application for costs on behalf of the first respondent Minister. The amount sought is $5,000.00 which is within the scope provided by the Federal Magistrates Court rules. The applicant has been wholly unsuccessful in his claim and there is nothing before the Court which would indicate that an order for costs should not be made in favour of the Minister. I accept the fact that the applicant is financially in a very bad situation and that he is without a job at present. Unfortunately, that is not a ground for not making an order for costs in this jurisdiction. It is however a reason to be considered when ascertaining whether time to pay should be allowed. If time to pay is not given then costs would have to be paid within 28 days. In my view it is appropriate to allow time to pay.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  19 March 2007

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