SZKKB v Minister for Immigration

Case •

[2007] FMCA 1467

•

14 August 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKKB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1467
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 is a citizen of India claiming a fear of persecution by Muslim extremists – applicant a Hindu activist – no breach of Migration Act 1958 (Cth) s.424A – credibility issue – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474
Applicant: SZKKB
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 971 of 2007
Judgment of: Scarlett FM
Hearing date: 14 August 2007
Date of last submission: 14 August 2007
Delivered at: Sydney
Delivered on: 14 August 2007

REPRESENTATION

Applicant: In person
Counsel for the Respondent: Mr Free
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 971 of 2007

SZKKB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 14th February and handed that decision down on 6th March 2007.  The Tribunal affirmed the decision of the Delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa. 

  2. The Applicant commenced proceedings for judicial review by filing an application and an affidavit in support on 22nd March 2007. In that application the Applicant seeks writs of certiorari, prohibition and mandamus.  Although the application asks for a writ of prohibition to quash the Tribunal decision that is not of course the function of prohibition.  I understand that the Applicant would seek an order in the nature of prohibition to restrain the First Respondent, the Minister for Immigration & Citizenship, from taking action as a result of the Tribunal decision.

  3. In any event, as I explained to the Applicant at the commencement of the hearing, in order to make the orders that the Applicant seeks the Court needs to be satisfied that the Tribunal decision is affected by jurisdictional error. 

Background

  1. The Applicant is a citizen of India. She arrived in Australia on 8th June 2006. On 14th June 2006 she applied for a Protection (Class XA) visa from what was then called the Department of Immigration & Multicultural Affairs. On 2nd September 2006 a Delegate of the Minister refused the application for a visa.  The applicant then applied to the Refugee Review Tribunal on 28th September 2006 for a review of the Delegate's decision. 

  2. The Tribunal invited the Applicant to attend a hearing of the Tribunal on 21st November 2006. The Applicant gave evidence with the assistance of an interpreter in the Gujarati language.  The Tribunal also wrote to the Applicant seeking her comments on certain items of information. Each of the two letters was headed “Invitation to Comment on Information’ and set out certain information that would, subject to any comments the Applicant made, be the reason or part of the reason for deciding that the Applicant was not entitled to a protection visa. 

  3. The first letter was written on 27th November 2006 and sought the Applicant's comments in writing by 20th December in that year. The second letter was written on 19th January 2007 and sought the Applicant's comments by 14th February. The Applicant replied to the first letter on 19th December 2006 by providing a fax with comments in English. She had also previously provided a medical certificate from Dr Patel and had provided a photograph. The Applicant replied to the second letter via fax on 1st February 2007. 

  4. The Tribunal handed down its decision on 6th March 2007 and a copy of the Tribunal decision record can be found at pages 92 through to 105 of the Court Book.  The Tribunal noted the Applicant's claims that she described herself as a Hindu activist and fears that if she were to return to India she would be killed by Muslim extremists. She claimed that she was against Muslims and that they were waiting to kill her and that she was a wanted person who was born into an orthodox Hindu family and her father was a Hindu activist. She said that her family was threatened when she was young because her father conducted anti-Muslim meetings. She claimed that she could not return to India because she would be attacked by Muslims and that the BJP Party would help the Muslims attack her. 

  5. The Tribunal noted that the Applicant had provided the Tribunal with photocopies of un-translated newspaper articles and gave evidence that they related to the murder of Mr Babubhai Patel and showed that the man who murdered Mr Patel had been apprehended.

  6. The Tribunal in its decision referred to the Applicant's replies to the s.424A letters which it had written and it is quite clear from those letters that they are intended to comply with the provisions of s.424A of the Migration Act. The Tribunal also noted the medical certificate written by Dr Patel and provided by the Applicant. The Tribunal considered Independent Country Information about India and set out this information on pages 97 through to 102 of the Court Book.

The Tribunal’s Findings and Reasons

  1. The Tribunal found that the Applicant was a national of India based on her passport and has assessed her accordingly. The Tribunal accepted that the Applicant is a Hindu and that she suffered an injury on 2nd October 2005.  The Tribunal noted Dr Patel's report that he treated her on that date. The Tribunal was not satisfied that the Applicant's injury was as a result of attacks by Muslims and was satisfied that the Applicant was not being truthful when she gave evidence that the BJP would help Muslims attack her.

  2. The Tribunal looked at the Applicant's evidence that she was attacked by five or six people in 2005 which was the only attack she suffered.  The Tribunal expressed doubt as to her credibility saying:

    When the Tribunal asked her who these people were, the applicant gave evidence that she does not know who they were.  The Tribunal finds that it is not credible that the applicant claims to be in fear of Muslims and yet is unable to identify Muslims as the perpetrators of the attack in 2005.  

  3. The Tribunal referred to the Applicant's evidence that when she was in hospital she was told by friends that she was attacked because she was standing for election as a congress representative and complained that there was no other reason why she was attacked.  The Tribunal went on to say however:

    The Tribunal does not accept this evidence. The Tribunal does not accept this evidence as it is not credible that the applicant claims to be in fear of Muslims because she is a Hindu, and at the same time be unable to identify Muslims as her attackers in 2005, and then give credible evidence that the reason she was attacked was because she was standing for election as a Hindu. In those circumstances the Tribunal does not accept that the reason for the attack was that she was standing for election.[1]

    [1] See Court Book at page 102

  4. The Tribunal expressed doubts about the Applicant's credibility in other matters of her claims and did not accept that there was a reasonable chance that the Applicant would be persecuted in the reasonably foreseeable future if she were to return to India. The Tribunal did accept the Independent Country Information that shows there is ongoing conflict between the Muslims and Hindus in India and did accept that Babubhai was attacked and killed and that Hindus were attacked by Muslims at Godhra in 2002.The Tribunal has stated that that information did not establish that the Applicant would be subject to persecution should she return to India. 

  5. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

Application for Judicial Review

  1. In her application the Applicant sets out three grounds for review:

    i)That the Tribunal's decision was in breach of s.424A(1) of the Migration Act :

    (a)There was certain adverse information used by the Tribunal to affirm the decision under review.

    (b)The Tribunal did not disclose the information in accordance with s.424A(1).

    ii)That the Tribunal made error of law and there was a lack of procedural fairness and therefore committed jurisdictional error.

    iii)That the Tribunal made a denial of natural justice because it failed to provide further opportunity before the Tribunal.

  2. The Applicant did not file any outline of submissions but attended the Court and made submissions to the Court with the assistance of an interpreter in the Gujarati language.  I asked the Applicant about each of her claims. 

  3. In respect of her claim of a breach of s.424A of the Migration Act the Applicant did not provide details of any information which she said that the Tribunal had used to affirm the decision under review but had not brought to her attention and sought her comments upon. As to a breach of s.424A, the Applicant indicated that she had submitted certain evidence to prove her case but the Tribunal did not consider that evidence.

  4. Whilst the circumstances referred to by the Applicant may be a ground for jurisdictional error they certainly do not contain any reference at all to the requirements of s.424A of the Migration Act. Unfortunately some applicants seem to regard s.424A of the Act as a catchall for any complaint that an applicant may wish to make about a decision of the Refugee Review Tribunal.

  5. As to the claim of a lack of procedural fairness the Applicant said that she had told the Tribunal all of her problems but the Tribunal could not understand her. She went on to say that as a refugee she should get protection in Australia but the Tribunal just dismissed her case.  As to the denial of natural justice and the failure by the Tribunal to provide a further opportunity, the Applicant said the Tribunal had not gone through her case properly. She said that the Tribunal had not checked her evidence and they had not given her the correct decision.  She went on to say that she is not happy with the decision that the RRT had made in her case because they could not understand her problems.

  6. Dealing with those claims it is fair to say that whilst there is an alleged breach of s.424A of the Migration Act no particulars of that breach have been provided. It is clear from the Tribunal decision that the Tribunal decided the matter on the basis of the Applicant's evidence and its assessment of the Applicant's lack of credibility in respect of key features of her claim. Credibility is a factual finding and a finding that a witness is not a credible witness is a matter for the Tribunal, certainly as long as there is evidence upon which that factual finding can be made, in my view there was evidence from the Applicant's evidence to the Court that would entitle the Tribunal to form the view that it did.

  7. There is no breach of s.424A of the Migration Act. I note in this case that the Tribunal wrote to the Applicant twice in order to comply with the provisions of s.424A of the Act and the Applicant replied on each occasion and the Tribunal considered that evidence. As there is no breach of s.424A the first ground fails.

  8. The second ground claims a lack of procedural fairness. It also complains of an unspecified error of law but no particulars are provided of that error of law, nor is there any error of law apparent in the Tribunal's reasonings or the Tribunal's procedure.  As I said, this is a matter that was decided on the basis of the Tribunal's adverse view of the Applicant's credibility. No particulars are provided of any procedural unfairness and the Applicant's claim of procedural unfairness when I asked her about it relates to her claim that the Tribunal did not understand her case.  The Applicant gave evidence to the Tribunal with the assistance of an interpreter in the Gujarati language and provided documentary evidence which the Tribunal considered.

  9. In my view the claim by the Applicant that the Tribunal did not understand her case is a complaint going to the outcome of the proceedings and her dissatisfaction at having received an adverse decision.  In my view a reading of the Tribunal decision shows that the Tribunal had acquainted itself with the particulars of that case and had assessed the facts but unfortunately for the Applicant had not decided in her favour. This Court of course cannot conduct merits review of the case and in my view on the evidence it was open to the Tribunal to form the view that it did. 

  10. As to the claim of a denial of natural justice, again there is no particularisation of the denial of natural justice. The fact that the Applicant does not consider the decision of the Tribunal to be correct does not establish any breach of natural justice. Indeed, this is matter to which s.422B of the Migration Act applies and of course natural justice at common law is not applicable in these circumstances.

  11. The Applicant claims that the Tribunal failed to give her a further opportunity to appear before the Tribunal, but as counsel for the Respondent Minister, Mr Free, pointed out, there is nothing in Div.4 of Pt 7 of the Migration Act that requires the Tribunal to provide the Applicant with a further hearing in respect of her application. In my view, the Tribunal complied with the requirements of s.425 of the Migration Act in that it invited her to a hearing and gave her the opportunity to give evidence about her claim.

  12. There is no suggestion that the Tribunal made any finding about any issue of which the Applicant was unaware. No transcript has been provided which would indicate any irregularity of the hearing itself.   The Tribunal considered Independent Country Information as it was entitled to do. I note that in this case the Applicant did not wish to participate in the RRT legal advice scheme, not that there was any obligation on her to do so.

  13. She has not been legally represented in these proceedings before me and I have read through the decision and the Applicant's case in order to ascertain whether any other jurisdictional error may be arguable. 
    I am unable to discern any. As I indicated during the hearing I have considered whether the Applicant's claim that the Tribunal did not check the matter and has not gone through the matter properly as to whether it was a claim that there was some obligation on the Tribunal to make its own enquiries, either under s.424 or s.427 of the Migration Act.

  14. There is no general obligation on the Tribunal to make further enquiries of the Applicant's claim and there were no circumstances which, in my view, made it incumbent on the Tribunal to make any such enquiry or investigation.  I am not of the view that the decision indicates that the Tribunal failed to take into account any material fact or made any decision without the basis of evidence. 

  15. The Applicant did seek to tender some further letters which she told the Court had not been seen by the Tribunal. I indicated that the Court was not in a position to consider documentary evidence that was not before the Tribunal and I refused the tender. In my view no jurisdictional error has been made out. The decision is a privative clause decision as defined by s.474 of the Migration Act and consequently it is not subject to orders in the nature of certiorari, mandamus or prohibition. The applicant will be dismissed.

  16. There is an application for costs on behalf of the First Respondent Minister and the Applicant has been unsuccessful in her claim and in my view this is an appropriate matter for a costs order. The First Respondent seeks and order of costs inclusive of counsel's fees in the sum of $3,900.00 which in my view is an appropriate figure.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  23 August 2007


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