SZJYZ v Minister for Immigration
[2007] FMCA 728
•4 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 728 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of India claiming fear of persecution – credibility – merits review – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425 |
| Applicant: | SZJYZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 20 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 May 2007 |
| Date of last submission: | 4 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Godwin |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 20 of 2007
| SZJYZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUANL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal handed down its decision on 14th December 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
In his application for review filed on 3rd January 2007 the Applicant seeks orders setting aside the decision of the Refugee Review Tribunal and remitting his application to the Tribunal for reconsideration.
Background
The background to this matter is that the Applicant is a citizen of India. He arrived in Australia just over a year ago, on 2nd May 2006. He applied for a Protection (Class XA) visa on 26th May but it was refused on 27th July 2006. On 21st August the Applicant applied to the Refugee Review Tribunal for a review of that decision. He did not submit any documentation to the Tribunal at the time he filed the application but after he had received an invitation dated 30th August 2006 to a hearing on 25th September he forwarded a number of documents in support of his case. Those documents included a statutory declaration, a number of photographs and a copy of a pamphlet.
The Applicant indicated in a Response to Hearing Invitation that he wished to attend and would require the assistance of an interpreter in the Tamil language. The Applicant was unable to attend the original hearing. He submitted a letter and a medical certificate showing that he was ill. The Tribunal rescheduled the hearing to 6th October 2006.
The Applicant attended the hearing on that day. The hearing was not able to be completed due apparently to some problem with the interpreter so the Tribunal invited the Applicant to a further hearing on 27th October 2006. The Applicant attended that hearing as well and gave evidence. The Tribunal signed its decision on 24th November 2006 and handed it down on 14th December. A copy of the Tribunal decision record can be found at pages 191 through to 203 of the Court Book.
In the decision the Tribunal sets out in considerable detail the Applicant's claims and evidence, including his claim of a well-founded fear of persecution if he were to return to India on the basis of his Christian religion and on the basis of his political opinion. The Tribunal also referred to independent country information about India.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons can be found at pages 199 through to 202 of the Court Book. The Tribunal was satisfied that the Applicant is a national of India and noted that he was born in Burma and his family fled from Burma to India when he was 6 years of age. The Applicant had produced his Indian passport issued in his name which the Tribunal accepted as a valid document.
The Tribunal at pages 199 and 200 first of all considered the Applicant's original claim, stating that he was a citizen of India and a Catholic by faith. The Tribunal accepted that evidence. The balance of the original claim was that the Applicant feared harm from a dangerous criminal gang and because he had informed the police of the whereabouts of this gang, the gang sought to kill him in revenge for the fact that a number of members of the gang were arrested. The Tribunal found that that evidence did not establish that the Applicant was a refugee. The Tribunal said at page 199:
The Convention provides that the applicant must have a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is outside the country of his nationality.
The Tribunal was not satisfied that the reasons given by the Applicant for his fear of the criminal gang constituted a Convention reason. The Tribunal then went on to consider the Applicant's claims in the statement made to the Tribunal on 4th September 2006. The Tribunal discussed those claims but reached the conclusion that the evidence did not establish that the Applicant was a refugee. The Tribunal said at page 202:
They do not establish that he is a refugee because the Tribunal does not accept the claims as true claims. The Tribunal does not accept the claims are true claims as the Tribunal does not accept as credible the applicant's explanation as to why he did not include these later claims in the statement he made on 26 May 2006. Neither does the Tribunal accept as credible his explanation that he provided all his reasons to the person who helped him fill in the application form and prepare the statement that he provided on 26 May 2006. Neither does the Tribunal accept as credible that the applicant's life could be at risk from so many sources as mentioned in the statement of 4 September 2006 and yet he did not mention any of them in the statement of 26 May 2006 made when he applied for the protection visa. Neither does the Tribunal accept as credible that the applicant could have suffered arrest so many times as mentioned in the statement of 4 September 2006 and yet he did not mention any of them in the statement of 26 May 2006 made when he applied for the protection visa.
The Tribunal noted that it had considered the Applicant's other evidence, that he was advised to tell all of the reasons when he was interviewed, that he was misadvised about not telling all of his story when he applied for a visa, but the Tribunal did not accept that as a credible explanation as to why he did not provide a fuller statement in his original application. The Tribunal noted that it had also considered the various items of documentary evidence that the Applicant had provided.
The Tribunal was not satisfied that the Applicant had a well‑founded fear of persecution and was not satisfied the Applicant set out the criterion set out in sub-s.36(2) of the Migration Act for a protection visa.
The application for judicial review
The Applicant sought judicial review of this decision by filing an application and several affidavits in support on 3rd January 2007. He has not filed any further documentation even though he referred to filing an amended application at some later stage. The grounds that the applicant sets out are these:
1. Jurisdictional error of the RRT, in not granting a protection visa to the applicant and also affirming the decision of the delegate of the Minister for Immigration, not to grant the applicant asylum. Incontrovertible evidence was placed before the RRT that he was subject to persecution on the grounds of religion and political opinion.
2. The RRT committed a jurisdictional error in holding that certain vital segments of evidence were not provided when during two hearings, the applicant submitted not only a complete statement of his claims, but submitted oral and written evidence on issues raised by the RRT member. This is a serious miscarriage of justice. Details of same will be provided in the amended application.
3. The Tribunal did not consider the question of the persecution of Christians in India when there is incontrovertible independent country information of same.
The Applicant did not file any written submissions but attended Court and made an oral submission which was directed largely to factual matters going to the merits of his claim. I advised the Applicant that the Court could not reconsider the factual matters but was concerned with establishing whether or not jurisdictional error on the part of the Tribunal had been made out.
The Applicant told the Court that when he originally applied for a protection visa his friends told him that he had so many problems that if he told them all to the Department the Australian government would bundle him out of Australia. He did not therefore tell all his claims to the Department but waited to tell them to the Refugee Review Tribunal. As I told the Applicant during the hearing, this was a serious mistake. The Applicant confirmed that he was told by his friend not to tell the Department the whole truth. He also confirmed that he had received advice from a barrister under the panel advice scheme.
I have had the benefit of reading a comprehensive set of written submissions prepared by Mr David Godwin of counsel on behalf of the Minister. I also heard a short oral submission from Mr Godwin in reply to the oral submission made by the Applicant.
It is the Minister's case that the Applicant's first ground cannot be made out because it has not been particularised apart from a claim that incontrovertible evidence was placed before the Tribunal that the Applicant was subject to persecution. The Minister submits that there is no error in the Tribunal's conclusion that the evidence did not establish a Convention nexus to the harm feared by the Applicant.
As to the second ground asserting jurisdictional error in finding that certain vital segments of evidence were not provided when the Applicant had made a complete statement of his claims, the Minister submits that this ground is misconceived. Mr Godwin pointed out to the Court that the Tribunal did not rely upon any failure by the Applicant to supply vital segments of evidence. Whilst the Tribunal did rely upon the timing of when significant evidence was provided by the Applicant, it did not make a finding that this evidence had not been provided at all.
As to the third ground, the Tribunal did not consider the question of the persecution of Christians in India when there was allegedly incontrovertible country evidence about that, it is submitted that the Tribunal accepted the Applicant was a Roman Catholic and the Tribunal considered the Applicant's specific claims as to his fear of persecution based upon his religious belief as a Christian. Those claims included the circumstances of Christians generally in India.
The Applicant quite clearly did not set out all of his claims for refugee status in his original application for a protection visa. It is hardly surprising that the Tribunal formed an adverse view of the Applicant's credibility when a number of fresh claims were made to the Tribunal that had not been made to the Department. The Tribunal considered the Applicant's original claim and found that there was no Convention nexus.
The Tribunal considered that the Applicant's explanation for not providing all of these original claims - all of these further claims in his original application went very seriously to the Applicant's credibility. The finding of the credibility of a witness before a Tribunal is essentially a matter for the Tribunal itself so long as there is evidence upon which a credibility finding, which is like anything - which is in essence a factual finding, then there is no ground for the Court conducting judicial review to interfere.
The Applicant's first ground in effect complains that the Tribunal fell into error because the Applicant had provided incontrovertible evidence that he was subject to persecution on the grounds of religion and political opinion. The ground essentially attacks the Tribunal's factual finding. There is no evidence that the Tribunal failed to consider any relevant evidence and whilst the Applicant claims that the evidence he provided was incontrovertible, the Tribunal took a different view. That is a factual finding entirely within the sphere of the Tribunal and cannot be overturned on judicial review. The Applicant's first ground must fail.
As to the second ground of a “serious miscarriage of justice” in that the Tribunal committed a jurisdictional error in finding that certain vital segments of evidence were not provided, that claim must fail because that is not what the Tribunal did. The Tribunal considered the Applicant's evidence but found it wanting. The reason why the Tribunal found the Applicant's evidence wanting was because the Tribunal was not satisfied about the credibility of the Applicant's evidence. The Applicant's second ground must fail.
The Applicant's third ground claims that the Tribunal did not consider the question of persecution of Christians in India. The Tribunal decision did show that the Tribunal considered the Applicant's claims of persecution on the basis that he was a Christian in a country where Christians were in a small minority, but the Tribunal did not accept the credibility of the Applicant's evidence in respect of this issue.
The Tribunal wrote to the Applicant on 31st October 2006. That letter was a letter written under the provisions of s.424A of the Migration Act and advised the Applicant of certain matters, being information that would, subject to any comments that the Applicant might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. A copy of that letter appears at pages 130 to 132 of the Court Book. The Applicant replied to that letter on 16th November 2006 and a copy of the Applicant's letter and statement in reply can be found at pages 133 to 139. The Tribunal considered all that material and refers to it in the decision.
In my view, all of the Applicant's grounds fail. I am mindful of the fact that even though the Applicant has had the benefit of legal advice from a barrister on the legal advice panel, he has not been legally represented in these proceedings. I have considered the Tribunal decision and supporting material independently of the Applicant's claims in order to ascertain whether any arguable case for a jurisdictional error may be made out.
In my view, the Tribunal clearly complied with the requirements of s.425 of the Migration Act in inviting the Applicant to attend a hearing. When the Applicant was unable to attend the hearing due to illness, the Tribunal rescheduled the hearing to another date. When the hearing could not be completed on the rescheduled date, the Tribunal invited the Applicant to attend a further hearing so that his evidence could be completed. There is certainly no breach of s.425 of the Migration Act.
The Tribunal has also complied with the requirements of s.424A of the Migration Act by setting out in writing information which it considered may be the reason or part of the reason for affirming the delegate's decision and inviting the Applicant to comment on it. The Applicant did comment on that information and the Tribunal took this into account. The Tribunal was not, however, satisfied as to the Applicant's account and as to the credibility of large and important parts of the Applicant's evidence.
There is no jurisdictional error. Because no jurisdictional error has been made out, the Tribunal decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Consequently the decision is final and conclusive and the Applicant is not entitled to relief by way of orders in the nature of certiorari or mandamus which he seeks. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The amount sought including counsel's fees is $5,000.00, which is well within the scale provided by the Federal Magistrates Court Rules. The Applicant says that he is unemployed and he is not able to afford that amount. I see no reason to doubt what the Applicant says but that is not a reason why the Court should not make an order for costs in favour of a successful party who has been legally represented. I will, however, allow time to pay. I note that I have already made an order changing the title of the Minister to the Minister's current title.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 May 2007
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