SZKQA v Minister for Immigration

[2007] FMCA 1612

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKQA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1612

MIGRATION – Weight given to evidence matter for the Tribunal – no error in Tribunal relying on country information.

Migration Act 1958 (Cth), ss.422B, 474

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant:           SZKQA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1535 of 2007

Judgment of: Turner FM

Hearing date: 18 September 2007

Date of last submission: 18 September 2007

Delivered at: Sydney

Delivered on: 18 September 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms L. Clegg

Solicitors for the Respondents: Ms B. Anniwell of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1535 of 2007

SZKQA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 16 May 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 3 April 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

Background

1. On 6 October 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution from the Shiv-Sena party and police in India.

2. This application was refused by a delegate of the first respondent on 4 December 2006 (CB 47) and by the Tribunal on review on 3 April 2007 (CB 85).

3. The matter is before this Court pursuant to an application for judicial review filed on 16 May 2007.

Issues for determination

1. The issues before the Court are as follows:

   ·Whether rejection of evidence is a denial of procedural fairness;

   ·Whether acceptance of country information in preference to the evidence of the applicant involves an error of law.

The application

1. In his application, the applicant set out the following grounds:

   (1)The RRT made decision on 3 April 2007. The RRT handed down decision on 24 April 2007.

   (2)The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.

   (3)I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence. The Tribunal’s decision is totally contradictory of Professor Hathaway’s quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.

   James Hathaway 1991 “The law of refugees status”, Butterworths Canada, contrary to its claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that.

   The applicant fees [sic] that the Tribunal did not give weight to the statements made by him in particular harassment. The member based his whole decision on one sided information prepared for denying the application for the people coming from India.

Findings of the Court in relation to the grounds in the application

1. Ground one merely states the date of the Tribunal’s decision and raises no ground for review.

2. Ground two alleges an incorrect application of the law. Nothing has been put to the Court to establish this ground: it is rejected.

3. Ground three alleges a denial of procedural fairness because the Tribunal did not believe the applicant’s evidence, and did not give it the weight that the applicant thinks appropriate. As stated in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

   The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.

4. Section 422B of the Act means that Division 4 of Part 7 of the Act is an exhaustive code of the natural justice hearing rule applicable to this matter. A breach of that Division has not been established.

5. The applicant complains that the Tribunal has taken an overly stringent approach to his credibility. The Court rejects this contention. The Tribunal accepted much of what was said by the applicant (CB 95-97) and set out its reasons for not accepting other evidence given by the applicant. The Tribunal was entitled to reject that evidence: Lee (ante).

6. The applicant complains that the Tribunal accepted country information in preference to his evidence. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [11] as follows:

   There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function

   Ground three is rejected.

Conclusion

1. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

2. Accordingly, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate:  Mary Giang

Date:  27 September 2007