SZKLO v Minister for Immigration

[2008] FMCA 48

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKLO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 48

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 – applicants are citizens of India claiming to be victims of extortion by a Muslim group – credibility issues – no reviewable error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.91X, 424A

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

First Applicant: SZKLO

Second Applicant: SZKLP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1106 of 2007

Judgment of: Howard FM

Hearing date: 17 January 2008

Date of last submission: 17 January 2008

Delivered at: Sydney

Delivered on: 17 January 2008

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms McDonald

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The Application is dismissed.

2. The Applicants are to pay the First Respondent’s costs fixed in the sum of $3,000.00. The Applicants have six (6) months to pay the costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1106 of 2007

SZKLO

First Applicant

SZKLP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The First Applicant in this case, is a male born in 1956. The Second Applicant, a female, is his wife who was born in 1955. The First Applicant is noted as SZKLO, the Second Applicant is noted SZKLP.

Background

1. The Applicants are citizens of the Republic of India. They arrived in Australia on 3^rd July 2006 and they applied for a Protection visa on 14^th August 2006. 

2. A delegate of the Minister (that is, a delegate of the First Respondent) considered the application for a Protection visa but decided to refuse the application on 9^th October 2006. The Applicant, within time, applied for a review of the delegate's decision.  This application was filed or received on 3^rd November 2006. 

3. The Applicant then attended at the Refugee Review Tribunal on 13^th December 2006. The Tribunal sent to the Applicant a letter in accordance with s.424A of the Migration Act 1958 on 13^th December 2006 setting out information which would be a part of the reason for affirming the decision under review and the Applicant quite rightly responded on 27^th December 2006. I also note that he provided a medical certificate.

4. The Refugee Review Tribunal handed down its decision on 8^th March 2007 and the Applicant seeks judicial review of that decision. His application for judicial review was filed in the Federal Magistrates Court of Australia at Sydney on 4^th April 2007. 

5. The basis for the claim by the Applicant for a Protection visa for he and his wife is essentially that he has been persecuted and fears further persecution for himself and for his wife should they be required to return to live in India. The Applicant stated in his application and in evidence at the Refugee Review Tribunal that this persecution has been perpetrated by members of the Muslim religion who live in the same area as the Applicants in India.

6. I note this is in the state of Gujarat in India. Indeed, the Applicant's case is essentially based on the fact that a group of Muslim families have been working on the Applicant's land. It may be that the Applicant's land is currently owned by his father, but in any event it is family land.  The problems between the Applicants and the Muslim families arose apparently because of disagreements between the First Applicant and those Muslim workers. 

7. The Refugee Review Tribunal questioned the First Applicant extensively at the Refugee Review Tribunal in relation to his claims of being attacked by the Muslim workers and generally persecuted by the Muslim families at the place where his family owns the land in India.

8. It is to be noted and it is worthwhile for the First Applicant to understand that it is the role of the Refugee Review Tribunal to ask questions.  They have to investigate claims that are made by applicants.  Their role is what we call, inquisitorial.  That is; they essentially ask questions in order to determine the facts and then they make a decision.  So that is why they questioned him so extensively in relation to each incident that he claimed had occurred and so on.

9. The Applicant's claims therefore are basically that he is afraid to return to India because the Muslims had overtaken his land and he is worried that they will harm him and his wife if they return.  The First Applicant also claims that the police have failed to provide protection to him. 

The Refugee Review Tribunal’s Findings

1. The Refugee Review Tribunal in conducting the hearing and seeking further comments from the Applicant came to some conclusions.  In essence the Refugee Review Tribunal made findings against the credibility of the First Applicant. 

Application for Judicial Review

1. In this Court today there has not been any evidence put forward by the First Applicant. I do note that the Second Applicant is not in attendance in Court, but in any event there is no reason to comment on that further because it is not relevant.  So there has been no evidence put forward by the First Applicant in relation to this particular judicial review application. 

2. The Court in this situation, is not in a position to make a finding on the credibility of the First Applicant and nor is it the role of this Court to do so. As I explained to the First Applicant via the interpreter who assists him today; this Court is bound by the rules relating to judicial review.  His application to this Court can only be successful if he is able to point to some jurisdictional error made by the Refugee Review Tribunal. 

3. The Refugee Review Tribunal, as I noted earlier, made findings against the Applicants based primarily on the fact that the Refugee Review Tribunal did not believe the claims made by the First Applicant.  That is; they made a finding against him in relation to his credibility. 

Grounds for Review

1. The Applicants have noted in their application filed 4^th April 2007 for judicial review, three grounds for review. 

Ground 1

1. The Applicant submitted that the Tribunal exceeded its jurisdiction due to the following:

   “Generally in relation to First Applicant's claims as to the problems he had with the Muslim family stealing and their claimed continuous use of the First Applicant's agricultural land,  this is a criminal or civil matter that should be dealt with by the Police and the Courts. It is not persecution for a convention reason and the tribunal finds accordingly”.

2. The Tribunal in making such a finding has not in fact exceeded its jurisdiction.  Such a finding by the Tribunal was open to the Tribunal on the evidence before it. 

Ground 2

1. The second ground noted by the Applicant in his document is that the Tribunal erred in law in making the particular finding; that finding was:

   “The inconsistency as to what was stated at the hearing in relation to where the First Applicant resided during the working week and when the two incidents were claimed to have happened;  the First Applicant's pay slips do not support his statement that he took leave when there was trouble, all indicate that the two incidents did not happen”.

2. In fact at the hearing today the Applicant made further submissions in relation to that point. I find that the Tribunal did not err in law in making that finding. That finding was open to the Tribunal on the evidence that was before the Tribunal.

Ground 3

1. In ground number three the Applicant states:

   “The Tribunal acted outside the Convention’s scope when it concluded in the light of the Tribunal's finding made above, particularly in relation to the Applicant's credibility,  the Tribunal also finds that the evidence does not establish that there is a real chance that the First Applicant will suffer persecution for a Convention reason, either now or in the reasonably foreseeable future”. 

2. Essentially that finding was open to the Tribunal on the evidence available to it.  There is no basis for a claim that the Tribunal acted outside the Convention scope. 

3. It is worth noting that - and indeed I agree with the submissions of the First Respondent at paragraph 16 in particular:-

   The established proposition is that mere factual error by the RRT will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. (See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1) An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:

   ‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’ Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.

   In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, the Full Court applied this standard in a matter where, because of the RRT’s error, it had failed to consider an unexpressed claim of want of effective State protection against persecution by a militant group (PLOTE). Nevertheless, the Court concluded at [68] that although the RRT’s adverse finding of credibility could have affected the outcome of the review, it did not constitute jurisdictional error but was merely an error of fact within jurisdiction.

Conclusion

1. The First Applicant's submissions and his grounds for application essentially relate to complaints that he has concerning the findings made by the Refugee Review Tribunal.  In particular, it seems that the First Applicant was seeking to have this Court in some way consider the merits of his claims, but as I have attempted to explain to the First Applicant, it is not the role of this Court to consider the merits of his claims for a protection visa.  The role of this Court is to see whether there can be identified any jurisdictional error in the decision of the Refugee Review Tribunal. I have not been able to find any jurisdictional error in the Court Book (Exhibit 1), in the file generally or anywhere in the record.

2. I find that the decision of the Refugee Review Tribunal was open to it on the evidence available to it.  The findings that the Refugee Review Tribunal made were open to the Tribunal on the evidence available to the Tribunal. My view in that regard of course includes the findings concerning apparent inconsistencies in the evidence of the First Applicant. The adverse finding in relation to the First Applicant's credibility was also open to the Refugee Review Tribunal on the evidence available to it. Accordingly, that leads me to the unavoidable conclusion that this application for judicial review must be dismissed.

3. The adverse findings against the credibility of the First Applicant also mean that the Second Applicant’s position is similar. Her application for review is also dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Howard FM

Associate:  V Lee

Date:  17 January 2008