SZJWS v Minister for Immigration - [2007] FMCA 598

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 598

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 claiming fear of persecution for reasons of his Muslim religion and political opinion – credibility – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 91R, 424A, 474(2)

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Re Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407
SZHCJ v Minister for Immigration & Multicultural Affairs[2007] FCA 205

Applicant:

SZJWS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3771 of 2006

Judgment of:

Scarlett FM

Hearing date:

5 April 2007

Date of Last Submission:

5 April 2007

Delivered at:

Sydney

Delivered on:

5 April 2007

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3771 of 2006

SZJWS

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 Tribunal signed its decision on 8^th November 2006.

The Tribunal handed that decision down on 28^th November 2006.
The Tribunal decided to affirm the decision not to grant the applicant a protection (Class XA) visa.
The applicant, on 18^th December 2006, filed an application for review and an affidavit in support seeking judicial review of the Tribunal's decision. The applicant has since filed an amended application and an affidavit on 29^th March 2007.
The solicitors for the first respondent Minister have filed a written out line of submissions, although I note an error in the title in that the Minister is referred to by the Minister's previous title of Minister for Immigration & Multicultural Affairs.
I did, on 12^th February 2007; order that the title of the first respondent was changed to Minister for Immigration & Citizenship.

However, nothing turns on that point.
In his amended application the applicant seeks relief by way of the issue of constitution of writs. He seeks a writ of certiorari to quash the Tribunal decision. He seeks a writ of prohibition directed to the first respondent Minister, preventing the Minister from acting on the delegate's decision to refuse him a protection visa. He also seeks a writ of mandamus directed to the Tribunal to redetermine his application for a protection visa according to the law.
The applicant has set out two grounds for review. The first ground is that the Tribunal failed to consider the applicant's refugee claims in a constructive and articulate matter because of the following contradictory findings it made during the assessment of the claims supported by written and oral evidence.
The applicant then sets out two factual findings made by the Tribunal on pages 111 and 114 of the Court Book. The ground goes on to say that the Tribunal made a later statement, which is reproduced on page 114 of the Court Book, and hereby submits that the Tribunal failed to refer to the detail and consistent evidence of the applicant, which had been given during the Tribunal hearing.
The applicant has, with his affidavit filed on 29^th March, annexed a transcript of the Tribunal hearing. The ground, which is more in the nature of the submission, continues:
Hence the applicant submits that the Tribunal had acted in a highly unfair and unreasonable manner in dealing with the applicant's claims, which was a jurisdictional error made by the Tribunal.
The second ground is that the Tribunal failed to assess the applicant's fears of harm suffered according to the refugee criteria, and misapplied the applicant's claims due to a finding, which the applicant quotes, and thereby failed to evaluate the applicant's fears as set out in s.91R of the Migration Act, referred to as a finding that the Tribunal did not accept the applicant had suffered any harm in India in the past for the reasons he had claimed, or that there was a real chance that the applicant would suffer harm in the reasonably foreseeable future.
The ground goes on to submit that the Tribunal failed to assess the applicant's written claims and the detailed consistent evidence given at the Tribunal hearing and shown in the full transcript of the proceedings. Hence the applicant submits that when the Tribunal has misapplied and misconstrued the applicant's claim, it is strange and unacceptable when it is concluded. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution, in the meaning of the convention.
The applicant submitted that the Tribunal's finding was inconsistent and cannot be sustained at all.
For the applicant's claims to be considered in context, it is necessary to look at a brief background to the Tribunal decision and to the decision itself. The applicant is a citizen of India. He arrived in Australia on

6^th May 2006, and applied for a protection (Class XA) visa on

17^th June 2006.
A delegate of the Minister refused that application on 8^th July of that year. Later that same month, on 19^th July, the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.

The application did not contain any additional information other than that originally submitted.
The Tribunal wrote to the applicant and invited him to attend a hearing where he could give evidence and present arguments in support of his case. That hearing took place on 21^st September 2006, and the applicant attended, and gave oral evidence with the assistance of an interpreter. He has the assistance of an interpreter today in the Hindi language.
The applicant claims a well-founded fear of persecution for convention reason due to his political opinion, and coupled with that is his religion. The applicant is a Muslim and has been a member of various organisations whilst he was at university, and later became involved in political matters. There was a considerable amount of unrest in India between Muslims and the majority Hindus.
The applicant gave evidence to the Tribunal about his history and about his involvement in politics, including giving evidence that he had been arrested by the police and imprisoned. The Tribunal referred the applicant to independent country information, and after the hearing wrote a letter to the applicant under the provisions of s.424A of the Migration Act inviting him to comment on what the Tribunal considered to be inconsistent evidence between his statement, which he provided to the department on his application, and his oral evidence of the Tribunal hearing.
The applicant replied to that letter on 11^th October 2006 and made a number of comments in reply.
In its decision the Tribunal referred to independent evidence about such relevant matters as the demolition of the Babri Masjid Mosque in India, and the subsequent rioting, about an organisation known as the radical student's union, about another organisation known as the People's War Group.
The independent evidence referred to evidence from Canadian sources, and also from the United States Department of States. The country reports on human rights. The independent evidence also referred to bomb blasts and communal violence in Hyderabad and Adilabad in 2005.
The Tribunal's summary of the independent country information is set out on pages 108 through to 111 of the Court Book. The Tribunal's findings and reasons are set out on pages 111 to 116 of the Court Book. The Tribunal noted that the applicant was a national of India and accepted that based on the production of the applicant's Indian passport. The Tribunal noted the applicant's claims of his history, and set out a detailed summary of the applicant's evidence.
However, the Tribunal did not accept a number of important matters about the applicant's claims. At page 112 of the Court Book the Tribunal said:
The Tribunal also considers that the applicant's evidence in relation to his claimed involvement with the RSU and PWG -
meaning the Radical Students Union and the People's War Group:
including hiding in the jungles of Adilabad for over one year to be highly implausible and lacking in credibility.
The Tribunal had previously, and on that same page of the Court Book, not accepted that the applicant had been arrested or detained in 1992 and did not accept that there was any reason why he would have been required to hide in the jungle in any event. The Tribunal did not accept the applicant's claim that his family was forced to move because he was wanted by the police.
The Tribunal went on to refer, on page 113 of the Court Book, what it describes as the applicant's:
Highly inconsistent evidence -
in relation to such things as his claimed involvement with the PWG in 2005, and his claim for having escaped from the police and gone into hiding in that year.
As far as the inconsistency of the evidence is concerned, the Tribunal said at page 113:
On the basis of the highly inconsistent evidence in relation to the claimed police interest in the applicant, the Tribunal does not accept that the police visited the applicant's home and asked his father about him. Nor does the Tribunal accept that the applicant fled from his home and fled to Australia because of his fear of police arrest and detention as a result of his claimed involvement in the PWG in the early 1990s.
The Tribunal did accept the applicant may have been involved in demonstrations opposing the demolition of the Mosque in 1992, and that he may have had some limited involvement in student politics, either at high school or university. The Tribunal did not, however, accept further claims, including his significant claims that he was wanted by the police or that he was a member of the PWG or the RSU, or that he was perceived as a sympathiser or a supporter or a member of those groups.
It is for those reasons that on page 114 of the Court Book the Tribunal did not accept that the applicant had suffered any harm in India in the past for the reasons he had claimed, and did not accept that there was a real chance that he would suffer harm in the reasonably foreseeable future in relation to his political opinion, imputed political opinion or for any other convention reason.
The Tribunal was not satisfied that the applicant had a well founded fear of persecution within the meaning of the convention, and was therefore not satisfied that he was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugees Protocol.
Accordingly, the Tribunal found the applicant had not satisfied the criterion set out in sub-s.36(2) of the Migration Act for a protection visa, and therefore affirmed the decision not to grant him such a visa.
It is in this context that the applicant's application for review needs to be considered. As I said, he has made two claims which are set out in some detail.
For the respondent Minister, Mr O'Brien, Solicitor, has told the Court that the grounds in the first respondent's view are grounds which go towards merits review, which in effect is a challenge to the factual findings made by the Tribunal.
In his written submission, he had said that to assert a bare error in the RRT's findings without identifying any specific ground of error is tantamount to a claim for merits review, which is an inadmissible exercise, and no part of the function of the Court in dealing with that application.
He goes on to submit that there was nothing improper in the Tribunal's decision, which was essentially one of adverse credibility based upon the applicant's inconsistent and implausible evidence, and his inability to provide details regarding claims.
It needs to be borne in mind that the function of a Court conducting judicial review of a decision of an administrative decision maker is different from the review conducted by the administrative decision maker itself. In particular, the function of the Federal Magistrates Court is different from that of the Refugee Review Tribunal.
The Tribunal has the power to conduct what is known as a merits review in that it considers the factual basis of an applicant's claim and makes factual findings and determinations based on factual findings. The Court, when conducting judicial review, does not reconsider the factual findings, and substitute its own view of the facts.
The matter has been put into perspective very succinctly, with respect, by Gyles J in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3], where his Honour said:
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 first ground in the applicant's amended application, which is, as I commented earlier, as much a submission as it is a ground, claims that the Tribunal failed to consider the applicant's refugee claims in a constructive and articulate manner because of certain contradictory findings which are set out in the grounds.
The ground, or submission, goes on to claim that the Tribunal failed to refer to the applicant's detailed and consistent evidence and hence it acted in a highly unfair and unreasonable manner in dealing with the applicant's claims. It is submitted that this is a jurisdictional error.
The reality is that the claim set out in ground 1 does not amount to a jurisdictional error. Whether or not a Tribunal considered the applicant's refugee claims in a constructive and articulate manner does not constitute jurisdictional error. I am, with respect, a little unsure as to what that claim actually means.
The fact that the applicant considers that parts of the Tribunal's factual findings are inconsistent amounts to a challenge of those factual findings, or a challenge to the conclusions reached as a result of those factual findings, which is no more than Merits Review.
As far as the factual finding is concerned, so long as there is evidence upon which it is possible for the Tribunal to make a factual finding, then there is no jurisdictional error. It does not matter that the Court, on considering the same evidence, may come to a different conclusion.
The ground, of course, claims that the Tribunal failed to refer to detailed and consistent evidence of the applicant, which may in certain circumstances amount to jurisdictional error by failing to consider a relevant matter or failing to consider an integer of the applicant's claim.
There is no particularisation of that claim and in fact no evidence.

The Tribunal did fail to consider an essential part of the applicant's claim.
The claim that the Tribunal acted in a highly unfair and unreasonable manner amounts in these circumstances to nothing more than a challenge to the Tribunal's factual findings.
As such, in my view, ground 1 does not establish jurisdictional error.
Ground 2 claims that the Tribunal failed to assess the applicant's fears of harm suffered according to the refugee criteria and misapplied the applicant's claims due to the finding that:
The Tribunal does not accept that the applicant has suffered any harm in India in the past for the reasons he has claimed, nor does the Tribunal accept that there is a real chance that the applicant will suffer harm in the reasonably foreseeable future in relation to his political opinion, imputed political opinion, or for any other convention reasons.
The Tribunal is therefore not satisfied that the applicant has a well founded fear of persecution within the meaning of the convention.
The applicant's claim is that the Tribunal failed to assess his written claims in the evidence, and has therefore misapplied and misconstrued his claims. The applicant submits that the Tribunal's finding was inconsistent and could not be sustained at all.
Well, on the question of inconsistency it is the Tribunal which found the applicant's evidence on significant parts of his case to be inconsistent. That matter, of course, goes to the Tribunal's assessment of the credibility of the applicant's claims. It is well established that the assessment of credibility of a witness is a factual matter. It is a matter for the Tribunal, the primary decision maker. Provided there is a rational basis for not accepting the applicant's claims, provided the Tribunal relies upon matters that were illogically probative of the issues it was determining, there is no error.
I am referred to the decisions in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [552] and [559], and also, of course, Re Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at [423], paragraph 67.
In my view the Tribunal set out the reasons from the applicant's evidence as to why it considered the applicant's evidence to be inconsistent, and indeed that issue rose in the Tribunal's s.424A letter to the applicant.
There is no evidence, in my view, that the Tribunal misapplied or misconstrued the applicant's claims, and there is no evidence, in my view, that the Tribunal's findings were inconsistent and cannot be sustained. The inconsistency claimed is no more than a challenge to the Tribunal's factual findings.
I am satisfied that the second ground of review fails.
I am mindful of the fact that the applicant is not legally represented at the hearing. He did have the advice of a legal practitioner, who was also a migration agent who acted for him, a Mr Jayawardena, but he does not have representation today.
I have considered the Tribunal's decision independently of the applicant's claim in order to satisfy myself that there was no arguable case for jurisdictional error not referred to by the applicant, or in fact, not referred to by the respondent.
I am unable to discern any jurisdictional error. Because there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Under sub-s.1 of

s.474, a privative clause decision is final and conclusive, and it is not subject to the orders in the nature of certiorari, prohibition and mandamus that the applicant seeks.
It follows, therefore, that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in this claim, and in my view this is an appropriate matter for a costs order.
The amount sought is $3,500.00. That is a figure that is well within the range envisaged by the Federal Magistrates Court rules. I propose to make that order.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 17 April 2007