SZJWR v Minister for Immigration
[2007] FMCA 837
•31 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 837 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 424C, 425 Migration Legislation Amendment (Judicial Review) Act 2001 |
| Minister for Immigration v Eshetu (1999) 197 CLR 611 SZBEL v Minister for Immigration [2006] HCA 63 |
| Applicant: | SZJWR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3762 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 31 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr J Singh, appearing pro bono publico Jack Singh & Associates |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court directs that applicant be excused from personal attendance at court for the hearing, noting that the applicant is legally represented.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3762 of 2006
| SZJWR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 2 November 2006 and was handed down on 22 November 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of religious persecution. The background to his protection visa claims and the Tribunal decision on them are set out in written submissions filed on behalf of the Minister on 28 May 2007. I adopt as background for the purposes of this judgment paragraphs 5 through to 21 of the Minister’s written submissions:
The applicant claimed that he lived in the Punjab region in India from his birth in January 1985 until June 2004 when he moved to Manila in the Philippines (court book (CB) 57.3). The applicant claimed that his father was an Amritdhari Sikh who was an active member of the Khalistan Liberation Front and an “extremist Sikh leader” (CB 57.4-5). In Manila, he claimed to have attended the Gurdwara (Sikh temple) and had good relations with leaders and members of the Khalistan group in Manila (CB 57.6).
The applicant claimed that, in July 2004, he met a Christian Filipino woman with whom he fell in love, moved in (in July 2004) and subsequently married (in August 2004) (CB 57.7). He claimed that he then converted to Christianity (CB 57.7).
Following his conversion, the applicant claimed that extremist Sikhs in Manila came to his home and threatened that he should return to Sikhism or he would be killed (CB 57.8). He claimed that he was fired upon by three armed men on 10 October 2005 (CB 58.1), that he returned to India in December 2005 (without his wife and child who stayed with relatives) to seek his family’s support but that they did not want anything to do with him and he was threatened with death if he did not return to Sikhism (CB 58.2).
The applicant claimed that he was also confronted by four men, two of whom were armed, at his home on 10 January 2006 but that he managed to escape (CB 58.3). The applicant then made his way to Australia (CB 58.3).
Review before the Tribunal
By letter dated 8 September 2006, the Applicant submitted three documents to the Tribunal, one from a parish priest and two police reports (CB 35-38). The first stated that the applicant attended Church and had converted, the second referred to an incident involving three armed men on 18 March 2005 and the third referred to a further incident involving three armed men on 5 August 2005 (CB 58.4-6).
The hearing
On 13 September 2006, the applicant attended a hearing before the Tribunal (CB 39, CB 58).
At the hearing, in addition to asking about his claims generally, the Tribunal questioned the applicant about Christianity and the process of conversion (CB 59.2-9). The Tribunal raised with the applicant its concerns about the genuineness of the documents submitted by him (CB 60.4-6). The Tribunal also asked the applicant why he did not travel to Australia in November 2005, when he had been granted a visitor visa to do so, rather than returning to India (CB 60.10). The Tribunal further asked the applicant about a previous application for a student visa (in July 2003) (CB 61.2).
Invitation to comment on information
On 28 September 2006, the Tribunal wrote to the applicant in accordance with s.424A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on information and setting out why that information was relevant (CB 41-43). The information related to:
a)the applicant’s claims to marriage;
b)the dates of the alleged incidents in Manila;
c)the applicant’s return to India at a time when he had a visitor visa to Australia;
d)the applicant’s previous student visa application.
The Tribunal noted that the information was relevant because it raised doubts about the applicant’s credibility and his real motives for entering Australia (CB 41-43, CB 61.9-63.8).
The applicant did not respond to the Tribunal’s letter within the time stipulated and, in accordance with s.424C of the Act, the Tribunal proceeded to make a decision on the review (CB 63.8-9).
Tribunal’s findings and reasons
The Tribunal was not satisfied that the applicant had married a Christian Filipino woman in August 2004 (CB 65.5). This was because the Tribunal had “significant doubts” about the veracity of both the applicant’s account of when he commenced living with his wife (two weeks after meeting) and his claim to have married her before he had become a Christian (CB 65.3). Further, the Tribunal noted that there was no evidence of the marriage apart from the applicant’s assertion. The applicant did not provide any documentary evidence in support of his marriage, even though he said he could and he was given an opportunity to do so (CB 61.8, CB 65.4).
The Tribunal was not satisfied that the applicant converted from Sikhism to Christianity or that the applicant is a practising Christian (CB 66.3). This finding was based on the applicant’s lack of knowledge about Christianity and the process of becoming a Christian (CB 65.7-66.2). Because of this finding, the Tribunal placed no weight on the letter from the parish priest (CB 66.4).
In the light of these findings, the Tribunal was not satisfied that the applicant was threatened or targeted by Sikhs in Manila, or persons acting on their behalf, for any Convention reason during the period he was in the Philippines (June 2004 to December 2005) (CB 66.5).
The Tribunal placed no weight on the letters (police reports) provided by the applicant, given the errors in the letters and the ease with which fraudulent documents can be obtained in the Philippines (CB 66.6-7). These were matters which were raised with the applicant by the Tribunal at the hearing (CB 60.4-6).
The Tribunal therefore did not accept that the applicant was the subject of any threat or actual harm for a Convention reason during the period he was in the Philippines (CB 66.8).
The Tribunal also rejected the applicant’s claims that he was threatened with harm in India on account of his actual or imputed religion, or any other Convention reason (CB 66.9-10). The Tribunal did not accept that there is a real chance that the applicant will suffer serious harm amounting to persecution for a Convention reason if he returns to India (CB 67.1).
Accordingly, the Tribunal found that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns to India (CB 67.2).
These proceedings began with a show cause application filed on 15 December 2006. I find that it was filed within time. The application was supported by a short affidavit annexing a copy of the Tribunal decision. That application was filed personally by the applicant but when the matter came before me for directions on 9 February 2007 the applicant was represented by a solicitor, Mr Jack Singh. I made directions at that time for the filing of additional material and for the hearing today.
The applicant now relies upon an amended application filed on 22 May 2007 and written submissions filed on the same day. Both were filed by the applicant’s solicitor on the applicant’s behalf. The documents were defective in that they identified the wrong Court and the submissions repeatedly referred to the version of s.476 of the Migration Act which was repealed in 2001. I warned the applicant’s solicitor that I would not expect to see such an error again.
Nevertheless, on their face, the amended application and submissions assert jurisdictional error. The Minister relies upon the written submissions filed on 28 May 2007. I also have before me as evidence the court book filed on 31 January 2007.
The amended application contains three grounds. The first asserts that the Tribunal did not observe procedures required by the Migration Act in connection with the making of the decision. In particular, the amended application points to a failure to act according to substantial justice and the merits of the case in its treatment of the applicant’s claims. This is apparently a reference to s.422B of the Migration Act. The High Court found in Minister for Immigration v Eshetu (1999) 197 CLR 611 that a breach of that provision would not found an application for judicial review under s.476 of the Migration Act as it then stood.
It appears that under the current state of the law that a breach of that provision would still not amount to a jurisdictional error. In any event it is not apparent to me from my reading of the Tribunal decision and the record of the review which preceded it that there was any failure on the part of the Tribunal to act in accordance with substantial justice and the merits of the case. It is clear from the Tribunal decision that the applicant was not believed but the adverse credibility findings made by the Tribunal were reasoned ones and were open to the Tribunal on the material before it.
The amended application asserts in addition without particulars that the Tribunal did not have jurisdiction to make the decision and that the decision was an improper exercise of the power conferred by the Migration Act. It appears to me from a reading of the applicant’s submissions that the real dispute here is with the merits of the Tribunal decision. That impression was reinforced on hearing the applicant’s oral submissions put by his solicitor today. I find myself in agreement with the Minister’s submissions at paragraphs 22 to 35. I adopt with necessary amendments those paragraphs for the purposes of this judgment:
On 22 May 2007, the applicant, through his solicitor, served two documents on the Minister’s solicitors. The precise form of the documents is unclear. However, one document purports to be an amended application, the second submissions on behalf of the applicant. There is, however, a substantial degree of overlap between the two documents, as well as the original application. Where possible, the Minister’s submissions deal with the documents simultaneously.
To the extent that both documents, particularly those headed “Submissions”, refer to s.476 of the Act as the jurisdictional basis for review in this Court, those references are wholly misconceived. Those references can only refer to s.476 of the Act as it appeared in Pt 8, Div 2 of the Act before it was repealed by the Migration Legislation Amendment (Judicial Review) Act 2001.
Turning to substance of the amended application for review. The following must first be noted briefly. Under the heading “Decision sought to be reviewed”, the amended application refers to a decision of the Tribunal that “the Tribunal does not have jurisdiction to review the decision to grant the applicant protection Visa [sic]”. It is unclear what is meant by this, nor does such a statement appear referential to the Tribunal’s reasons in this case. This statement is reflected further under the heading “The applicant is aggrieved”, where it is said that the applicant is aggrieved “because he meets the requirements for the jurisdiction to review of the decision to grant of protection visas [sic]”. If it is suggested that the Tribunal did not have jurisdiction to review the Minister’s delegate’s decision, such a submission should be rejected for the reasons set out by the Tribunal (at CB 55.5).
The amended application sets out three grounds of review.
The first ground is that “the Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision”. (See also par 3 of the “Submissions”.) There is then a submission that the Tribunal “did not according to substantial justice and the merits of the case”, followed by nine dot points.
In relation to the main ground, the assertion that the Tribunal did not follow statutorily required procedures is made without providing proper particulars. In any event, the ground must simply fail in this case. The applicant was invited to attend a hearing (in accordance with s.425 of the Act) and he did so. During the hearing, the Tribunal put the issues arising on the review to the applicant for his comment.[1] The Tribunal then invited the applicant to comment on information, as required by s.424A of the Act. The applicant failed to do so and the Tribunal proceeded to make its decision, as authorised by s.424C of the Act. In this regard, no error on the part of the Tribunal is, nor can it be, demonstrated.
In relation to the nine dot points, the first three seek to cavil with the merits of case and, as such, are beyond the scope of this Court in its function of judicial review.
The fourth and fifth assert broadly that the proper procedures were not followed or that the requirements of natural justice were not complied with.
The sixth dot point asserts that there was no evidence or material to justify the Tribunal’s decision, and that the Tribunal considered irrelevant material. This submission should be rejected. The Tribunal carefully set out the evidence and material on which it based its decision. The Tribunal’s decision was clearly open on the evidence before it and no error arises.
The seventh dot point is repeated as the third ground and is addressed below.
The eighth asserts that the Tribunal “took the narrow meaning of the Refugee Convention instead of the broad meaning”. This ground as presently drafted is simply meaningless. To the extent that this ground suggests that the Tribunal asked itself the wrong question, the complaint is incapable of properly being sustained and should be rejected.
The ninth, and final, dot point asserts, again without the provision of proper particulars, that the Tribunal committed an error by incorrectly interpreting the law or incorrectly applying the law to the facts. Without particulars, this complaint, as with the previous one, is incapable of properly being sustained and should be rejected.
The second ground asserts that the Tribunal had no jurisdiction to make its decision. It is far from clear whether this ground asserts that the Tribunal never had jurisdiction to conduct the review or that, during the review process, it committed an error going to jurisdiction. If the former, the submission should be rejected for the reasons given by the Tribunal (at CB 55.5). If the latter, no error on the part of the Tribunal has been demonstrated, nor is any such error discernible.
Finally, the third ground (and seventh dot point) says that the Tribunal’s decision was an improper exercise of the power conferred by the statute. Again, no particulars are provided. Moreover, no evidence has been advanced by the applicant to support such a contention. This ground must fail.
[1] SZBEL v Minister for Immigration [2006] HCA 63.
One final matter should be mentioned. Yesterday the applicant’s solicitor notified the Court by facsimile that his client had suffered an injury to his eyes. A medical certificate from Dr Masood Ahmed was attached to the facsimile which stated that the applicant would be unfit to attend court today. The applicant’s solicitor sought an adjournment. The adjournment was opposed by the Minster’s solicitors and after hearing argument today I refused the adjournment request. This was on the basis that the applicant would be excused from personal attendance today because he is represented by a solicitor and because he was not required to give evidence or for any other purpose. The applicant’s solicitor said that he had had difficulty obtaining instructions from his client, however that difficulty had not prevented the filing of written submissions and an amended application as recently as 22 May 2007.
I find that the decision of the Tribunal is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
On the question of costs, the application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,750. Scale costs in this instance would be $5,000. The applicant’s solicitor said that his client is not working and the he was appearing without fee. The applicant’s financial circumstances, however, are not the relevant issue. The relevant issue is whether the costs claimed have been properly and reasonably incurred when assessed on a party and party basis. I find that they have been. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application which I fix in the sum of $3,750.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 June 2007
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