SZJZT v Minister for Immigration

Case •

[2007] FMCA 1194

•

12 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJZT & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1194
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicants are citizens of India claiming fear of persecution as first applicant was subject to sexual harassment – claim of being misled by migration agent – allegation of bad faith – credibility – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474
The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
SBBS v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 361
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
First Applicant: SZJZT
Second Applicant: SZJZU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 53 of 2007
Judgment of: Scarlett FM
Hearing date: 12 July 2007
Date of last submission: 12 July 2007
Delivered at: Sydney
Delivered on: 12 July 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicants are to pay the First Respondent's costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 53 of 2007

SZJZT

First Applicant

SZJZU

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal, in a decision signed on 28th November and handed down on 19th December 2006 affirmed the decision of a delegate of the Minister not to grant Protection (Class XA) visas to the Applicants.  The Applicants seek judicial review of that decision.

Background

  1. The background to this matter is that the Applicants are husband and wife. They are citizens of India who arrived in Australia on 5th June 2006. Two days later, on 7th June, they applied for Protection (ClassXA) visas. Their applications for visas were refused on
    26th August 2006.

  2. On 18th September in that year the Applicants then applied to the Refugee Review Tribunal for a review of that decision. The application to the Refugee Review Tribunal was accompanied by a two-page handwritten statement from the First Applicant, the wife. That statement was written in English and sets out factual matters relating to her claim.

  3. In that statement the Applicant sets out how she met a stranger named Dada who claimed to be a relative of Bala Thakarai, the leader of the opposition ruling party in India. That person, she said, harassed her continually and the Applicant claimed that this man eventually tried to force her to get into a car with him.  Fortunately, the Applicant was able to escape.

  4. The matter was reported to the police but the man concerned refused.  The Applicant, however, claimed to have been so stressed by the incident that she stopped going to work. The Applicant was not able to receive any meaningful assistance from the police.  The man, Dada, the Applicant claimed, even went to the Applicant's home and threatened her.

  5. The Tribunal wrote to the Applicant on 28th September 2006 inviting her to attend a hearing which was to take place on 14th November.  The Applicant provided to the Tribunal a letter from Linda Burney MP, the State Member of Parliament for the electorate of Canterbury who requested the Tribunal to consider her case sympathetically, noting that the Applicant had told Ms Burney that the advice she received from her migration agent was misleading, resulting in the Applicant and her husband applying for the incorrect visa. Ms Burney pointed out that the Applicant and her husband had been asked to return to India and reapply under the correct visa category, and then return to Australia.  However, Ms Burney noted in her letter that the Applicant was unable to do that as she was fearful for herself and her family's life and well-being.

  6. The Applicant provided a handwritten statement to the Tribunal which again set out factual aspects of her claim. The Applicant attended the hearing. An interpreter, in the Hindi language was made available.  The Applicant gave evidence to the Tribunal about her claims and told the Tribunal that she feared returning to India, but this had nothing to do with her being a Muslim.  She said that she feared returning because of the man who had been harassing her who was connected to a political leader in Mumbai. The Applicant told the Tribunal that she had been a hairdresser since the age of 16, and provided other details of her history. The Applicant also claimed that the man, Dada, had tried to assault her sexually as well as harassing her. 

  7. The Tribunal handed down its decision on 19th December 2006 and a copy of the Tribunal decision record can be found in the Court Book at pages 66 through to 77. The Tribunal set out the Applicant's claims, including her fear of assault or detention or serious abuse or torture or rape or being killed if she returns to India, and set out how the Applicant was depressed and traumatised over her helpless situation.  The Tribunal also noted the Applicant's concern that politically motivated radical Hindus would harass her or seriously harm her, or perhaps kill her.

  8. The Tribunal set out, on pages 70 through to 73 of the Court Book, a description of the Applicant's evidence to the Tribunal, both written and documentary.  The Tribunal's findings and reasons are set out on pages 73 through to 77 of the Court Book. 

The Tribunal’s findings and reasons

  1. The Tribunal was satisfied that the Applicant was a citizen of India, and was satisfied that she is a Muslim of the Sunni sect. The Tribunal noted that the Applicant appeared upset at the hearing, and the Tribunal did accept as plausible, despite some doubts, the Applicant's evidence that she did not know the nature of the claims that had been made and the application for a protection visa, and noted the difference between those claims and the claims made at the review stage.  The Tribunal went on to say that in reaching its conclusions the Tribunal had not relied on those differences.

  2. The Tribunal did accept as plausible that when in India the Applicant was pursued by the man called Dada and accepts as plausible that this man may have spoken to the Applicant, pursued her, grabbed her hand, tried to kiss her and may have tried to put her in his car.  The Tribunal also accepted as plausible that the Applicant reported these incidents to the police who had told her that without a witness they would not pursue the matter or write out a report.

  3. However, the Tribunal expressed doubts about the Applicant's claims and, in fact, expressed doubts about the credibility of the nature of the claims as put by the Applicant. The Tribunal was satisfied that the Applicant had exaggerated her claims and her fear of harm from the man, Dada, to support her application for a protection visa.

  4. The Tribunal noted that the Applicant was a Muslim, and although she had said that her fear of returning to India was not related to being Muslim, the Tribunal decided that the nature of the claims warranted the Tribunal's consideration of that issue and as such the Tribunal accepted that there were human rights issues in India, and considered independent country information on that fact.

  5. The Tribunal, on looking at the evidence cumulatively, was satisfied that the Applicant and her husband would be able to obtain State protection that would accord with international standards for any private harm that they feared.

  6. The Tribunal was not satisfied that the First Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The Tribunal noted that no specific Convention claims were made on behalf of the Applicant's husband and that the fate of his application depended on the outcome of the First Applicant's application.  The Tribunal affirmed the decision not to grant the two Applicants Protection (Class XA) visas.

The application for judicial review

  1. The Applicants commenced proceedings in this Court by filing an application and an affidavit in support on 8th January 2007. The Applicant filed an amended application on 12th April 2007 which unfortunately does not appear to have been served on the solicitors for the Respondent Minister.  However, a copy was made available in Court and counsel for the First Respondent was able to meet the matters raised in the amended application without the proceedings being adjourned.

  2. The First Applicant attended Court but the Second Applicant did not.  The First Applicant told the Court, however, that she was speaking on behalf of her husband, the Second Applicant.  As I note that the Second Applicant has no second claim, I am satisfied that it was appropriate for the First Applicant to appear without the Second Applicant.

  3. In the amended application under the Migration Act filed on 12th April 2007 the First Applicant seeks: 

    An order or declaration that the notification by the delegate and Tribunal to refuse to grant the protection visa is invalid and has no effect to section 44C of the Judiciary Act 1903 (Cth).

  4. The Applicant seeks a writ of certiorari quashing the decision of the Department of Immigration & Multicultural Affairs or the Refugee Review Tribunal and later in the application claims what is said to be interlocutory relief, that the application may be heard and an order made to redirect the Applicant's claim to the Department of Immigration & Multicultural Affairs or the Refugee Review Tribunal for further consideration and to advise the Tribunal to make a favourable decision.

  5. I have pointed out that it is the decision of the Refugee Review Tribunal that the Court has the jurisdiction to review, and that the decision of the Minister's delegate has already been reviewed by the Refugee Review Tribunal.  Accordingly, it is not open to the Court to make an order in the nature of certiorari quashing the decision of the then Department of Immigration & Multicultural Affairs, nor is it appropriate to redirect the Applicant's application for a visa to the Department of Immigration & Citizenship, as it now is.

  6. I indicated to the Applicant that the Court has no power to reconsider the factual matters on the evidence, and its power to set aside a decision of the Refugee Review Tribunal is predicated on the Court being satisfied that that decision is in some way affected by a jurisdictional error.

  7. I note that one of the orders sought is to redirect the Applicant's claim to the Department of Immigration & Multicultural Affairs, or the Refugee Review Tribunal for further consideration, and to advise the Tribunal to make a favourable decision. As I said, the Court does not redirect the matter to the Department of Immigration & Citizenship, and if the Court makes an order in the nature of mandamus that order would be made against the Second Respondent, the Refugee Review Tribunal.  The Court does not have the power to advise the Tribunal to make a favourable decision. It can only remit the matter to the Tribunal for reconsideration according to the law.

  8. The Applicant sets out grounds for relief described by Mr Reilly of counsel, who appeared for the Respondent Minister, as template grounds.

  9. The first ground is that the Tribunal applied the wrong test and that is divided into two parts: 

    a)By requiring independent evidence of a fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing too high an onus of proof on the applicant, and failing to give the applicant the benefit of the doubt. 

    b)The Tribunal left out individual elements of the applicant's claims, and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.

  10. The second ground sets out ways in which review under s.39B of the Judiciary Act 1903 can be made of a decision said to be a privative clause decision.  The ground sets out the various Hickman grounds in The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and claims erroneously the following:

    However, review under section 39B has gained the decision of the Refugee Review Tribunal dated 31 May 2006 can be reviewed if the following four factors are observed:

    (a)     the decision-maker acted in good faith;

    (b)the decision is reasonably capable of reference to the power granted to the decision-maker;

    (c)the decision relates to the subject matter of the legislation, that is, the Migration Act;

    (d) Constitution limits are not exceeded.

  11. The fact is that the way in which the ground is expressed sets out features of the decision in a positive sense and if in fact those four conditions are met, there will, under the authority in the King v Hickman be no ground for review.  It is only if one of those matters has not been complied with that the decision will be capable of the error.  The amended application claims that the Tribunal did not act in good faith. The Applicant claimed that the decision-maker acted in bad faith.

  12. No written outline of submissions was filed, but the First Applicant attended the Court, indicated that she was acting on behalf of her husband, the Second Applicant, and made oral submissions. She reiterated her claim that whatever she told the Tribunal was the truth; that if she were to go back to India she would be in trouble and she fears to return to India. She reiterated that she was a qualified hairdresser, and that were people, hairdressers, no doubt, who would sponsor her if she were to apply for a visa in that regard.  However, she reiterated her claim that she feared to leave Australia to return to India to apply for a visa because she said she cannot leave Australia.

  13. She indicated that she had obtained some legal advice to the effect that she should not have applied for a refugee visa, but said that this was wrong advice given to her by a migration agent.  I note that this matter was raised with the Tribunal.  The fact is, as I explained to the Applicant, that there is not an application before me in respect of any other visa except a protection visa, and that the application for review by the Court is the application for review of a decision of the Refugee Review Tribunal. 

  14. Whether or not the Applicant would be eligible to obtain another visa if she were to apply offshore, based on her qualifications as a hairdresser, is not a matter that this Court can consider.  The task of this Court is to conduct judicial review of a decision of the Refugee Review Tribunal.

  15. The Applicant was asked why she felt the Tribunal acted in bad faith.  The Applicant said that the Tribunal Member asked her about what had happened to other people in India, and appeared not to believe the Applicant's explanation in respect of matters that related to her. 

  16. The fact that a Tribunal Member does not believe an applicant does not of itself establish bad faith.  It is well established that bad faith or bias is a matter that is raised not infrequently.  An allegation of bad faith is a serious matter involving personal thought on the part of the decision-maker.  It is not to be lightly made, and must be clearly alleged and proved.

  17. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so with all that the Applicant relies upon as the written reasons for the decision under review (see SBBS v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 361, see at [43] - [44]. See also SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16]).

  18. I am not satisfied that any evidence of bad faith appears in the Tribunal decision or in any supporting material. 

  19. As to the Applicant's claim that the Tribunal acquired independent evidence of a fact before it would accept a claim being made by the Applicant which was, in effect, placing too high an onus of proof on the Applicant, the decision does not contain any reference to that requirement.  Mr Reilly of counsel submitted that this ground appears to have been prepared by the person who assisted the Applicant with her application, without reference to the Tribunal decision. 

  20. The Applicant also claims that the Tribunal left out individual elements of the Applicant's claims and tested whether they individually amounted to persecution, rather than looking at the claim as a whole to determine whether the claim so considered amounted to persecution.  That is not the case. I am satisfied that the Tribunal did conduct a thorough investigation of the Applicant's claims, and considered, indeed, the Applicant's religion without being satisfied that the Applicant had a claim in that regard, even though that was one that the Applicant had specifically disavowed.

  21. As to looking at matters individually and not as a whole, at page 77 of the Court Book the Tribunal referred to the fact that it was "looking at the evidence cumulatively."  It was satisfied that the Applicant and the husband would be able to obtain State protection in accordance with international standards for any private harm that they feared.

  22. The Applicant's grounds, to my mind, have not been made out. It is the case that the Tribunal accepted some of the Applicant's claims but considered the Applicant to have exaggerated those claims and, indeed, had fabricated some of them. That involves a credibility finding by the Tribunal against the Applicant, and the Tribunal's conclusions that the applicant was not credible and that her claims were not true are, in fact, findings of fact. This, of course, is a matter for the Tribunal Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. As is submitted by counsel for the Minister, so long as the Tribunal's findings were open to it no error is demonstrated. (See Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559).

  23. The fact is that the Tribunal did not accept the Applicant's evidence as to some of her claims and as to the magnitude of her claims.  As such, the Tribunal was not satisfied that on the basis of the evidence as a whole that there was a real chance of Convention-related harm which the Applicants would not be able to obtain adequate State protection in the reasonably foreseeable future. The Tribunal noted that the Applicant's husband had no separate claim for relief, and that his case stood or fell on the success of the first applicant's case.

  24. I am mindful of the fact that the Applicant is not legally represented. I am not able to discern any other arguable case of any jurisdictional error.  It certainly appears that there may well be some substance in the applicant's claim that she was misled by a migration agent.  It may well be that if the Applicant had applied offshore for a visa on the basis of the fact that she is a qualified hairdresser that she may have been successful in obtaining that visa. That, however, is a matter of speculation and is not a matter the Court can take into account in deciding the case under review.

  25. No jurisdictional error has been made out. The decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. As a privative clause decision it is final and conclusive, and it is not subject to orders in the nature of certiorari or mandamus. It is not subject to any declaration as to invalidity.

  1. It follows that the application must be dismissed.

  2. There is an application for costs on behalf of the First Respondent Minister. The Applicants have been unsuccessful in their claim, and this is a matter where costs should follow the event.  The amount of $4,000.00 is sought, which I presume is inclusive of counsel's fees.  In my view, that is an appropriate figure and within the scale envisaged by the Federal Magistrate Court Rules.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  24 July 2007

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