SZKOR v Minister for Immigration

[2008] FMCA 270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKOR v MINISTER FOR IMMIGRATION [2008] FMCA 270

MIGRATION – Review of Refugee Tribunal decision – procedural fairness – Tribunal made an adverse credibility finding – applicant sought impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth) ss.422B, 424A, 425

SZBYRvMinister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex part Durairajasingham [2000] HCA 1

Applicant: SZKOR

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File number: SYG 1390 of 2007

Judgment of: Nicholls FM

Hearing date: 3 March 2008

Date of last submission: 3 March 2008

Delivered at: Sydney

Delivered on: 3 March 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms V McWilliam

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application made on 2 May 2007 is dismissed. 

2. The applicants pay the first respondent’s costs set in the amount of $3,700. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1390 of 2007

SZKOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

Background

1. The Minister has formally put before the Court a bundle of relevant documents, which I will refer to as the Court Book. The following background can be discerned from this material. The two applicants, who are husband and wife, are Indian nationals who arrived in Australia on 17 October 2006 and who applied for protection visas soon after arrival. The application is set out in the Court Book at pages 1 to 26.

2. The Minister’s delegate refused the application (the notification of that decision and the decision record are reproduced in the Court Book at pages 59 to 68.)  The material also contains a copy of the application for review made to the Tribunal on 5 February 2007 (at pages 73 to 76).  The applicants were invited to a hearing before the Tribunal scheduled to take place on 13 March 2007.  I note that the invitation was directed to both applicants (page 80).  It appears that only the applicant responded that he did wish to attend the hearing and the applicant did appear at the hearing on 13 March 2007.  The applicant wife does not appear to have attended (at page 101 - Tribunal's hearing record).

The applicants’ claims to protection

1. The applicant husband (“the applicant”) has made a statement (at pages 27 to 29) as to why he says that both he and his wife should be recognised as refugees and given protection visas in Australia. 

2. The applicant wife does not appear to have made separate claims of her own, neither before the Minister’s delegate nor before the Tribunal. I note that the applicant wife has applied for a protection visa as a member of the applicant’s family unit (application reproduced at pages 42 to 46). 

3. The applicant and, to the extent that she was part of the application, the applicant wife, made claims before the Tribunal that the applicant was actively involved in politics in his home area in India, that there had been an extensive involvement in politics, including the applicant’s father’s involvement in politics.

4. The applicant claimed to have been a member of a political party which I will refer to as the BJP.  The applicant also claimed to have enemies and, notwithstanding a victory in particular election by the BJP in Gujarat, the applicant’s home state, the applicant claimed that his enemies had conspired with his business partner and that the applicant’s involvement in that business collapsed.  The applicant claimed that he had been abducted for ransom and subsequently released after a payment had been made, that at some time later he had been attacked and hospitalised, and that following a further attack on both the applicant and his wife, his wife sought refuge at the father-in-law’s house. 

The Tribunal

1. From a reading of the Tribunal’s reasons for its decision the Tribunal found that it was not satisfied on the evidence before it that the applicant was a member of BJP and was not satisfied that the applicant had been persecuted because of his political opinion, whether imputed or otherwise.  The Tribunal was not satisfied, it said, that the attacks on the applicant were politically motivated because it did not perceive the applicant to be of such adverse interest to political opponents for such incidents to have occurred. The Tribunal was not satisfied, it said, on the evidence that the applicant was a victim of any of the incidents as had been claimed. 

2. Ultimately, the Tribunal concluded as a result of its inability to be satisfied by what the applicant had put to it that it could not accept the applicant as a “witness of truth.” The Tribunal found that it could not be satisfied that Australia had protection obligations in relation to the applicant husband and subsequently in relation to the applicant wife, and therefore, it affirmed the delegate’s decision which was the subject of the review. 

Application

1. Now, the application made by the applicants to the Court contains three grounds.  I will state these grounds for the record. 

   (1)That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).

   Particulars:

   (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).

   (2)That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error

   (3)That the tribunal made denial of natural justice. Because it failed to provide more than one or further opportunity before the tribunal. 

   [Errors in original]

2. I also note that at the time of the making of the application to the Court the applicant filed an affidavit annexing the Tribunal’s decision record in which the applicant repeats his complaint that the Tribunal did not provide him with another opportunity to appear before it. 

Hearing before the Court

1. Before the Court today the applicant husband appeared in person.  He was assisted by an interpreter in the Gujarati language.  Ms V McWilliam of Counsel appeared for the first respondent.  I note also written submissions filed on behalf of the first respondent prepared by Ms McWilliam are also before the Court.  The applicant husband told the Court at the commencement of the hearing that the applicant wife was unable to attend because she was sick, but that he would represent her before the Court.  Given that the applicant wife had made no additional or independent claims beyond those made by the applicant husband before the Tribunal, I was content to allow the hearing to proceed on that basis today. 

2. The applicant complained that, as he said the “last time” that he had attended (I understood this to mean the time that he had attended a hearing before the Tribunal), he had put forward his case and had explained everything. I understood this to mean that he had explained as comprehensively as he could his claims to protection.  He complained, however, that the Tribunal did not accept that he had participated in the affairs of the BJP at a particular level and that the Tribunal “was not ready to accept what he had put before it … what he had done.”  He also complained that while the Tribunal gave him an opportunity to speak, it did not listen to him very carefully, and that the Tribunal did not believe his evidence.

3. The applicant notified the Court that he wanted to tell his life history.  I explained to the applicant, in that regard, the difference in role of the Tribunal and the role of the Court. In particular, I explained to him that the issue for the Tribunal was to determine whether or not he and his wife met the definition of “refugee” that is set out in the Refugees Convention, but that this was not the issue that the Court was able to consider. I said that the function and role of the Court was to ensure that the Tribunal had performed its functions and had made its decision according to the law, and that in these circumstances a recitation of the applicant’s life history would therefore, unless it could show such legal error on the part of the Tribunal, would not on its face be of assistance to the applicant before this Court. 

Consideration

Ground 1

1. I turn first to the grounds that are in the application to the Court. I note that the applicant told the Court that these had been prepared with the assistance of a friend who was not available at the present time. The first ground asserts a breach of s.424A(1) of the Act. It must be said that the stated particulars are not helpful. They merely assert that there was certain adverse information used by the Tribunal which the Tribunal did not disclose to the applicant pursuant to s.424A(1).

2. I cannot see that any obligation under 424A(1) is enlivened on the material that is before the Court. The Tribunal’s decision was plainly based on the applicant’s evidence that he gave at the hearing before the Tribunal and, to the extent that it is referred to in the decision record, and certainly by way of background information for the Tribunal, it had regard to country information. Both sets of information, that is, what the applicant said at the hearing and the country information, come within the exceptions that are contained in s.424A(3) from the obligation that is set out in s.424A(1). There is now established authority to support what I have just said, that is, Full Federal Court authority [Minister for Immigration and Indigenous Affairs v NAMW [2004] FCAFC 264, QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC], SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 107].

3. To the extent that it could be said that what the applicant really complains of is the adverse view that the Tribunal took of what the applicant said at the hearing (and this is particularly focused on what the applicant said to the Court today) even though he put forward his case and explained everything to it, the Tribunal did not accept, and was not ready to accept, what he said. What the Tribunal made of the applicant’s evidence, and its thought processes which were adverse to the applicant, is not information for the purposes of s.424A. In this regard, I note reference in the Minister’s written submissions to the High Court judgment in SZBYRvMinister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26, and in particular to paragraph 18 of what the High Court said in that case.  Therefore, that ground does not succeed. 

Grounds 2 and 3

1. The second ground makes a mere assertion of a lack of procedural fairness and the third ground similarly claims a denial of natural justice, which is particularised to some extent by asserting a failure on the part of the Tribunal to provide “more than one or further opportunity before the tribunal,” which I understood to be for a hearing before the Tribunal. 

2. What must be noted at first is that this is a case to which s.422B of the Act applies. That is, that the matters that are set out in Division 4 Part 7 of the Act are the exhaustive statement of the natural justice hearing rule, of course absent bias. As I have already said, the complaint about s.424A does not succeed. I note for the purposes of s.425 of the Act that the applicants were invited to a hearing before the Tribunal, an opportunity which only the applicant husband wished to take up, that the applicant husband did appear and did give evidence before the Tribunal and that the Court only has the Tribunal’s own account of what occurred at the hearing before it in evidence.

3. Bearing in mind what the High Court said in the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) on a plain reading of the Tribunal’s decision record, the determinative issue in the Tribunal’s decision was the credibility of the applicant’s evidence and claims and, in particular, that there was insufficient detail or explanation to satisfy the Tribunal that the claims made were true.  The substratum of factual findings made by the Tribunal that underlie that conclusion plainly show that the Tribunal addressed its mind to the applicant’s claimed membership of the BJP political party and incidents which he claimed had occurred and which it ultimately found it could not be satisfied were for political reasons. 

4. I note, relevantly, given what the High Court said in SZBEL, that the Tribunal’s obligation to provide procedural fairness at the hearing obliges the Tribunal to have given the applicant the opportunity at the hearing to give evidence in relation to the issues that were determinative of the review, unless such issues were determinative before the delegate.  Bearing in mind that the determinative issue was the credibility of the claims based on, essentially, the detail and explanation, I note relevantly in the delegate’s decision, firstly, at Court Book page 66 that the delegate found that the applicant’s claims were vague and lacking in specific details, and that he did not explain when and where the alleged incidents occurred, except in very general terms.  Furthermore, the applicant has not substantiated any of his claims with documentary evidence.  Consequently, I am not satisfied that the applicant has a significant adverse political profile in his local community.

5. Then, secondly, in particular I note the following extract from the delegate’s decision (at page 67):

   “On the basis of the limited information provided by the applicant regarding any adverse incidents he has personally experienced, I cannot be satisfied that the applicant has suffered Convention-related persecution in the past, or will suffer persecution in the reasonably foreseeable future.”

6. Essentially, this situation did not change as a result of the evidence that the applicant gave at the hearing before the Tribunal.  Specifically, the Tribunal was not satisfied on the evidence that the applicant was a member of the BJP or participated in election activities or that he was targeted because of this reason as claimed and, similarly, rejected that the incidents as claimed had in fact occurred. 

7. In terms of the Tribunal’s procedural fairness obligations in relation to s.425, and given that the applicant would have been on notice following the delegate’s decision, I cannot see that there was any failure of procedural fairness on the part of the Tribunal in relation to s.425 of the Act.

8. The applicant’s complaint that the Tribunal failed to provide more than one or further opportunity for him to be heard before the Tribunal also does not succeed as the Tribunal’s obligation to invite the applicant to a hearing was discharged in relation to both applicants.  I cannot see in the circumstances, on what has been put before the Court, that there was any further obligation on the Tribunal to have provided any further opportunity to either of the applicants.  Simply, as Ms McWilliam, in my view, correctly submitted before the Court, the key reason for the Tribunal decision was that the applicant had been unable to provide sufficient information and detail of relevant activities to convince the Tribunal that what he was claiming was true. 

9. The applicant’s complaint before the Court that the Tribunal was not ready to accept his evidence and claims, does not rise above a request for impermissible merits review before this Court.  I am informed in this by such relevant High Court authorities as Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. It is, as has been often stated, findings of fact, including findings on credibility, are for the Tribunal as the decision-maker par excellence, that is, the empowered and relevant decision-maker (see Re Minister for Immigration and Multicultural Affairs; Ex part Durairajasingham [2000] HCA 1 per McHugh J).

10. To the extent that the applicant’s complaint before the Court today that the Tribunal did not listen very carefully, it may be said, as Ms McWilliam noted for the Court, as some allegation of bad faith or, indeed, an allegation of bias on the part of the Tribunal.  Then, with reference to relevant to High Court and Full Federal Court authorities [Re Refugee Review Tribunal; Ex parte H [2001] HCA 28;  (2001) 179 ALR 425, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102], there is simply no evidence before the Court to support such serious allegations.

11. On the evidence that is before the Court, such grounds, if indeed these complaints were to have been articulated as such grounds in the application, would not succeed.  Nor have the applicants put before the Court a transcript of the hearing before the Tribunal to support any allegation that the applicant was otherwise denied the opportunity of properly putting his evidence and claims to the Tribunal during the course of the hearing if this is what was meant by this complaint. 

12. Simply, as I have already said, the Tribunal did not accept the critical parts of the applicant’s claims and the Tribunal’s inability to accept the applicant’s claims were open to it for the reasons that it gave.  In these circumstances, no jurisdictional error is evident. 

13. At the end of the hearing, the applicant asked for more time before the Court. As I understood it, as a result of explanations provided to him by the Court as to what was required for him to have success before the Court, the applicant had achieved some level of understanding of what was required. The applicant now sought an opportunity to take advantage of legal advice, which he had not undertaken previously. 

14. In this regard, I note that the application to the Court was made on 2 May 2007 and since that time the applicant has appeared before the Registrar of this Court on two occasions, the first on 17 May 2007 and the second on 22 June 2007, where the processes to be adopted before the Court for the progress of the applicant’s case were set out for the applicant and were subsequently translated into orders made by the Registrar.  In particular, the applicant was given the opportunity to participate in the Court’s Legal Advice Scheme, an opportunity which the applicant told the Court today he did not take up because of language difficulties. 

15. But I note in this regard, as I said earlier, that the applicant was assisted on both occasions by an interpreter in the relevant language, and had indicated in his application seeking access to the Court’s Legal Advice Scheme dated 17 May 2007 that he needed an interpreter in the Gujarati language for that purpose.  I note also that the applicant has had, on his own submission before the Court, a friend who has assisted him in the past, and certainly assisted in the preparation of the application to the Court.  Given the time and opportunities provided to the applicant to obtain legal advice, I am not satisfied that any further delay in the hearing of this matter, albeit the request made at the end of the hearing, is appropriate. 

16. But I am also persuaded to this view because, on the material that has been put before the Court, and on consideration of the material, I cannot discern jurisdictional error in what the Tribunal has done, such that any further opportunity in this regard would serve no useful purpose.  Simply, any further delay would, as is often said in these circumstances, be futile. 

Conclusion

1. In all, therefore, I cannot, as I said, discern jurisdictional error either by way of the stated grounds of the application, nor on what the applicant has said to the Court today, nor otherwise.  While it is understandable that applicants who have language barriers, and who have come from another country to Australia, would have some hurdles placed in their path in progressing their case before the Courts, opportunities have been placed in the path of these applicants – opportunities derived from the two appearances before the Registrar, enabling them to understand the process involved, and the opportunity to access the Court's Legal Advice Scheme, and the opportunity, given the time since the making of the application, to have arranged any independent legal advice, particularly with the assistance of the friend who the applicant said assisted him with the drafting of the application made to the Court. 

2. Ultimately, whatever hurdles may be said to be faced by persons such as these applicants, I note that these hurdles were not such as to prevent the applicants from making an application for protection visa with an attached statement in the English language, nor to have made an application for review to the Tribunal.  It is the Court’s view, notwithstanding any difficulties, that there is an onus on applicants to take initiative in progressing the preparation of their case before the Court and leading up to the final hearing of their matter. 

3. In all, therefore, I cannot discern jurisdictional error in the Tribunal’s decision and, as a result, I make an order dismissing the application made to the Court. 

4. It is appropriate that an order for costs be made in this matter.  The applicant has chosen not to put anything before the Court to argue against the making of such an order and nor can I otherwise see any such reason not to make the order.  As the amount, the amount $3,700 is well within the amount set out in the relevant schedule to the Federal Magistrates Court Rules 2001 but, in any event, is an amount which, in my view, bearing in mind the work that has been done by the Minister’s legal representatives, is a reasonable amount in all the circumstances. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  6 March 2008