SZJWW v Minister for Immigration - [2007] FMCA 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJW & MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 211

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister do not grant the applicant a protection visa – applicant is a citizen of India claiming fear of persecution for reason of political opinion – credibility – no reviewable error.

Applicant:

SZJJW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2760 of 2006

Judgment of:

Scarlett FM

Hearing date:

15 February 2007

Date of last submission:

15 February 2007

Delivered at:

Sydney

Delivered on:

15 February 2007

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms McDonald

Solicitors for the Respondent:

Phillips Fox

ORDERS

The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2760 of 2006

SZJJW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 23^rd August 2006. It was in fact an oral decision made that same day. A written copy of the decision was forwarded to the Applicant the following day. The Tribunal affirmed the decision by a Delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa. The Applicant by means of an application filed on 20^th September 2006 seeks the following:
i)A writ of certiorari quashing the Tribunal's decision.
ii)A writ of prohibition preventing the Respondent Minister from implementing the decision.
iii)A writ of mandamus compelling the Tribunal to rehear and re-determine the application for refugee status.
I would comment that the Court would not normally be making an order in the nature of mandamus requiring the Tribunal to rehear the Applicant's application unless the Court found that in some way the hearing itself before the Tribunal was flawed. What the Court normally does when making an order in the nature of mandamus is require the Tribunal to re-determine the application according to law. It is usually a matter for the Tribunal to decide whether or not there should be a further hearing
The background of this matter is that the Applicant is a citizen of India. He arrived in Australia on 25^th March 2006 and applied for a Protection (Class XA) Visa on 8^th May 2006 claiming a well founded fear of persecution for reasons of his political opinion. His application was refused on 17^th June 2006 so the Applicant sought a review of that decision from the Refugee Review Tribunal. The Tribunal invited the Applicant to appear at a hearing on 23^rd August 2006 and he appeared at that hearing and gave oral evidence with the aid of an interpreter in the Gujarati language.
The Tribunal found that the Applicant was a national of India but found that it could not accept as credible the Applicant's claims at having been a member of a political party called the BJP. The Tribunal did not accept the Applicant's claim that he had been chosen as a BJP candidate for election in the state of Gujarat. The Tribunal in fact found that claim to be far fetched and described it as inconceivable that a powerful and established party like the BJP would take an interest in presenting the Applicant as an election candidate.
The Tribunal dismissed the Applicant's claim about an election in May 2003 as a concoction and an invention. The Tribunal dismissed the Applicant's claims for want of credibility and was not satisfied that he faced a real chance of Convention related persecution in India. The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Applicant, with the assistance of a solicitor who was not on the record, commenced proceedings in this Court on 20^th September 2006. I note that the application and affidavit in support were accepted for filing by the Registry even though they were quite clearly handwritten which does not comply with the Court rules. The solicitor who had assisted the Applicant no longer practices as a solicitor.
There are three grounds set out in the application - first that the Tribunal exceeded its jurisdiction; second that the Tribunal misconceived the Applicant's evidence and third that the Tribunal erred in law when it came to the conclusion that it dismissed the Applicant's claim about the election in 2003 as a concoction. No particulars were provided in support of any of these assertions and the Applicant has not filed any written outline of submissions, he is of course not legally represented.
The Applicant attended Court today and rather disturbingly told the Court at first that what he told the Refugee Review Tribunal was all that he wanted to say but then went on to say that when he attended the hearing at the Refugee Review Tribunal a person who helped him had told him to say things which he realised were not true. The solicitor to the First Respondent Minister, Ms McDonald quite properly expressed a concern at that statement and it is quite clear that if people tell things to the Refugee Review Tribunal which are not true and in fact seek to deceive the Tribunal that this is a matter that needs to be dealt with quite seriously.
If the person who the Applicant said advised him to tell a story which was untrue was in fact his Migration Agent then it is a matter that should be investigated by the Migration Agents Registration Authority. Whilst I have not taken evidence on oath or affirmation about this point I am sufficiently concerned to forward a copy of the decision to the Migration Agents Registration Authority.
To my knowledge whilst the solicitor who was acting for the Applicant no longer acts as a solicitor, he is still acting as a Migration Agent. I do not know whether he is the person to whom the Applicant is referring or not. It is, as I said, a matter of some concern.
The fact is that the grounds in the application are no more than assertions and do not identify any jurisdictional error. What the Applicant has said in his oral submissions to the Court not only do not identify any jurisdictional error they do not refer to any error whatsoever. I have read through the Tribunal decision, independently of what the Applicant has claimed and independently of what the First Respondent has submitted in order to make my own investigation as to whether there is any arguable case for jurisdictional error. I am not able to discern any.
The fact is that the Tribunal did not accept the Applicant as a credible witness. The Applicant was rejected entirely on the basis that the Tribunal did not believe what the Applicant had to say. As it turns out from what the Applicant has told the Court today what was being told to the Tribunal at the time was in fact not true. It would seem, therefore, that the Tribunal had an ample basis for rejecting the Applicant's evidence on credibility grounds.
But in any event it is a task for the Tribunal and not for the Court to make an assessment of the credibility of the witness. That is purely a task for the Tribunal. There is no jurisdictional error. As I am satisfied there is no jurisdictional error the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act and attracts the protection of sub-s.474(1). Consequently the decision is not subject to the orders in the nature of certiorari, prohibition or mandamus that the applicant seeks. The application will be dismissed.
There is an application for costs on behalf of the First Respondent in the sum of $2,600.00. This is an appropriate matter, in my view, to make a costs order in favour of the First Respondent as the Applicant has been wholly unsuccessful. The amount of $2,600.00 which you sought is well within the range envisaged by the Federal Magistrates Court Rules. I propose to make that order.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 27 February 2007