SZJSZ v Minister for Immigration & Anor
[2007] FMCA 985
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 985 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – in the interests of justice the time for bringing the proceedings was extended – Tribunal need not refer to evidence on which no findings are based – merits review not available in judicial review proceedings. |
| Migration Act 1958, ss.91X, 424A, 477 |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicants: | SZJSZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3462 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 June 2007 |
| Date of Last Submission: | 15 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 the time for the applicant to commence these proceedings be extended to 23 November 2006.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3462 of 2006
| SZJSZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 22 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 29 September 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 13 September 2005 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 8 February 2006 which was quashed by order of this Court (Court Book (“CB”) page 131).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Preliminary issue – leave to commence proceedings out of time
Section 477 of the Act provides that unless leave to commence proceedings out of time is sought within eighty-four days of an applicant being notified of a Tribunal decision, the applicant’s proceedings in this Court must be commenced within twenty-eight days of that notification. These proceedings were commenced on
23 November 2006 and although the applicant seeks an order extending the time in which to bring the proceedings, his application does not specify when he received the Tribunal’s decision.
The decision in question was signed on 29 September 2006 so there is no issue of the applicant being too late to seek an extension of time if he needs one. In his evidence to the Court the applicant was unable to remember when he received the Tribunal decision but he thought it was about a week after the date it was signed. Accepting this to be so, the proceedings were commenced out of time and he needs leave pursuant to s.477(2) if he is to argue his application for orders that the Tribunal’s decision be set aside.
At the hearing the applicant’s evidence was that he believed, following a conversation with his case officer, that a solicitor would be appointed to look after his judicial review application and therefore he thought that the application would be handled by that legal adviser. When he subsequently discovered that he had been mistaken he then lodged his application.
The Minister did not oppose the application for an extension of time to bring the proceedings.
Given the applicant’s explanation for the delay in filing his application with this Court and the Minister’s attitude to the application in the proceedings, I am satisfied that it is in the interests of justice that the time for the bringing of these proceedings be extended to the day on which they were filed in order that proper consideration may be given to the principal application and that the issues raised by it be finally determined.
Background facts
The Tribunal described the applicant as follows:
… a 29-year old citizen of Syria born in Alhyrab. He is a Sunni Muslim. He underwent 9 years of education, and describes his occupation as car dealer. The applicant was employed from 1992-1994 in Cyprus working as a fruit picker. From 1992-94 he worked for his father’s business as a car dealer, and then underwent his military service from 1996-1999. From 1999-2000 he worked again for his father. The applicant’s father, mother and seven siblings reside in Syria. (CB 133).
The applicant arrived in Australia on 16 August 2000.
The applicant claims to fear future persecution in Syria because of the pregnancy of his girlfriend outside marriage.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-9 of the Tribunal’s decision (CB 133-138). Relevantly, they are in summary:
a)the applicant began going out with a Bedouin girl by the name of Warda in January 2000. He does not know her surname. He stated that they had met in their village and commenced having a sexual relationship around June 2000. They saw each other approximately once every two days;
b)the applicant states that he stopped seeing Warda about one month prior to coming to Australia at about the time he found out that she had become pregnant (ie. July 2000);
c)the applicant was not told by Warda that she had fallen pregnant but deduced it from the fact that, according to one of his acquaintances in his village, Warda’s parents and others, totalling seven or eight people, were looking for him;
d)the applicant did not speak to Warda after he found out she was pregnant;
e)the applicant claimed in his visa application that three months before he arrived in Australia, Warda’s family threatened to kill him but at the Tribunal hearing he said this threat occurred one month before coming to Australia, a threat which was not serious having been made three months before his arrival; and
f)the applicant fears that if he were to return to Syria, he would be killed by Warda’s family because of strict customary laws and the Islamic culture.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found it far-fetched that the applicant does not know the surname of a person with whom he claims to have had an intimate relationship. The Tribunal was of the opinion that this raised doubts about the veracity of the claim and might have indicated that the applicant had fabricated a name in order to support his claims, raising doubts about the applicant’s credibility generally;
b)the Tribunal found it difficult to accept that within the same month of engaging in sexual intercourse, Warda became aware of her pregnancy, yet she did not tell the applicant whom she was still seeing, but somehow other villagers knew;
c)when asked by the Tribunal how he found out that Warda was pregnant, the applicant gave vague answers and had to be asked a number of times for specific details, raising doubts about the veracity of the claims and the applicant’s credibility generally;
d)the Tribunal was of the opinion that given the seriousness of the pregnancy in its cultural perspective, it was very difficult to accept that Warda’s parents who were enquiring about the applicant, which suggests that they knew him, did not speak directly to him. The applicant lived in a small village where he could have easily been found by her parents if they were really looking for him;
e)given the seriousness of a pregnancy in such circumstances, the Tribunal finds it difficult to accept that if indeed this occurred, the applicant has no idea what happened to the young woman in question. The applicant claimed that his parents have not said anything to him about her because they did not want to worry him. However, the Tribunal is of the opinion that the applicant’s own parents would have been very concerned about her and it is implausible that they would not have said anything to the applicant who had left the country;
f)the inconsistency in relation to when Warda’s family allegedly threatened him raised doubts about the veracity of the claims and the applicant’s credibility generally;
g)the applicant arrived in Australia on 16 August 2000 and applied for a protection visa on 1 September 2005 after being detained by the Australian authorities. The Tribunal was of the view that the delay in lodging the application was very significant, raising serious doubts about the genuineness of the applicant’s fear of persecution.
In essence the Tribunal found:
… the Tribunal does not accept that the applicant had a girlfriend called Warda with whom he had an intimate sexual relationship that resulted in pregnancy. It follows that the Tribunal rejects the applicant’s claims that members of the girlfriend’s family (if they exist) have ever threatened the applicant, or that they would threaten him if he returned to Syria. (CB 140).
Proceedings in this Court
The grounds of the application as they appear in that document are incomplete and not well expressed. At the hearing the applicant clarified them and stated that they were:
1. The Refugee Review Tribunal did not consider my case
2. The Tribunal has made a jurisdictional error.
At the hearing the applicant also challenged the Tribunal’s conclusion on the merits of his claim.
Dealing with each of these grounds in turn:
Tribunal did not consider the applicant’s case
The applicant’s case is set out in the Tribunal’s decision and summarised above at [12]. Further, at its hearing the Tribunal discussed with the applicant various details of his claim, asked him questions and put various propositions to him. After the hearing the Tribunal sent to the applicant, care of his adviser, a letter pursuant to s.424A(1) in which comment was sought from the applicant on a number of issues arising out of his application.
In that part of its decision record under the heading “Findings and Reasons” the Tribunal canvassed relevant elements of the applicant’s claim in some detail. Subject to the comments made by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423 [65] regarding evidence which is rejected or not accepted, it is not necessary for the Tribunal to refer in its reasons to all of the applicant’s evidence and contentions: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. The statute only requires that the Tribunal refer to the evidence and other materials on which its findings of fact are based and no error is committed by not referring to evidence and materials which are not used as the basis for findings.
Therefore, the fact that the Tribunal may not have referred in its “Findings and Reasons” to every element of the applicant’s case does not demonstrate that what he put before the Tribunal was not considered. A review of all the matters set out by the Tribunal indicates the contrary and this aspect of the applicant’s claim is not made out.
Jurisdictional error
The applicant’s claim of jurisdictional error is not particularised but in submissions he said that the Tribunal erred by making an incorrect decision on his application and by rushing its decision.
In relation to the first of these points, an error of fact committed by the Tribunal does not amount to a jurisdictional error unless it relates to a jurisdictional fact, which is not the case here. Fact finding and conclusions on the merits of the applicant’s application are matters reserved to the Tribunal and the role of the Court in judicial review proceedings such as these is to examine whether there has been a fair process, not to reconsider the application on its merits. No jurisdictional error has been demonstrated in relation to this particular of the claim.
As to the second point, that the Tribunal rushed into its decision, for the reasons expressed at [18] to [20] above I am of the view that the Tribunal’s consideration was a thorough one and not one which was rushed or evidenced inattention to relevant issues.
The applicant has failed to make out this ground.
Merits review
For the reasons expressed in relation to the merits review element of the previous asserted ground of review, this Court cannot undertake a re-hearing of the applicant’s claim in these proceedings to determine whether the Tribunal is guilty of jurisdictional error.
The applicant’s submissions as to the consequences for him of a return to Syria do not amount to a ground of judicial review of the Tribunal’s decision and fail to show jurisdictional error on its part.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 26 July 2007
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