SZKQM v Minister for Immigration
[2007] FMCA 1669
•26 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1669 |
| MIGRATION – Section 424A letter – whether it must be received – having rejected the claimed reasons for fear – whether it was necessary to consider the availability of state protection. |
| Migration Act 1958 (Cth), ss.424A, 424B, 441A, 474 |
| WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 187 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 |
| Applicant: | SZKQM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1552 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 26 September 2007 |
| Date of last submission: | 26 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1552 of 2007
| SZKQM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application 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 2 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
On 8 November 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed to fear persecution because she and her family had been pressured by local Muslims to change their religion to Islam. The applicant claimed that she was abducted and raped; one of her abductors also threatened to kill her if she refused to marry him.
This application was refused by a delegate of the first respondent on 18 November 2006 (CB 27) and by the Tribunal on review on 2 April 2007 (CB 55-64).
The matter is now before this Court pursuant to an application for judicial review filed on 17 May 2007.
Issues for determination
The issue before the Court is:
·Whether it is necessary for the applicant to receive a s.424A letter sent in compliance with the Act.
The application
In her application, the applicant set out three grounds as follows:
(1)The Tribunal failed to provide “information” which is part of the reasons of the decision in writing pursuant to s.424A of the Migration Act. The Tribunal erred jurisdictionally.
Particulars
(a)The Tribunal said that it sent an s.424 letter which the applicant did not receive. Moreover, the Tribunal indicated the information that it sent to the applicant at page 7 that was only related to in 4 points. However, in the finding page it referred to 5 points that was additional information (point) which must be given to the applicant in writing pursuant to s.424A letter. The Tribunal failed to put in writing this 5th (dot point) information to the applicant in writing.
(2)The Tribunal made a jurisdictional error of law by failing to act in accordance with substantial justice and merits of the case and failing make finding of the Convention ground of Particular Social Group.
Particulars:
(a)Independent country information considered by the Delegate was not applied by the Tribunal. The delegate considered that the domestic violence against woman is a serious problem in Thailand.
(b)The Tribunal did not also consider whether the applicant would have a well founded fear of persecution on the basis of the Convention reasons of Particular Social Group in light of her claim and independent country information referred by the Delegate of the Minister.
(c)An applicant who makes a claim to be a refugee on the basis of persecution for being a woman on the basis of Particular Social Group is entitled to have that claim dealt with. Failure to deal with that claim of Convention ground involved jurisdictional error.
(3)The Tribunal based the decision on the existence of a particular fact, and that fact did not exist.
Particulars:
(a)The Tribunal made finding that “In your Protection Visa application you stated that in April 2006 Muslims (sic) people started to run the same business as my family did in the same area. In your evidence before the Tribunal you stated that the Moslem men opened up a competing business in August 2006.” In fact the business they open was same business and therefore a competing business. And the date of this issue was not given wrongly.
Findings of the Court in relation to the grounds in the application
Ground 1 particular (a) alleges that the Tribunal failed to comply with s.424A because the applicant did not receive the letter, and that the letter (CB 49) raised only four issues, while the decision at CB 62-63 shows that the Tribunal relied on five issues. Section 424A states:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant for review gave for the purpose of the application; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
The 424A letter at CB 49 was, according to the note on it, mailed on 5 March to the applicant at the last address provided to the Tribunal by the applicant (refer to ‘Response to Hearing Invitation’ at CB 40). However, the applicant says that she did not receive it.
The letter
·Was addressed correctly;
·Complied with s.424A(1)(b);
·Complied with s.424A(1)(c);
·Complied with s.424A(2)(a);
·Complied with s.424B(2).
The Court accepts the submissions for the first respondent that as the 424A letter was validly sent, notwithstanding the applicant’s claimed non-receipt of that letter, a breach of s.424A cannot be established.
As to the complaint that the information at the fifth dot point (on CB 63) was not put in the 424A letter, that was information from the applicant’s passport that was given to the Tribunal by the applicant (CB 42-46, 59.1), and information given in the applicant’s oral submissions. The whole of that was information that the applicant gave for the purpose of the application for review, which comes within the exception in s.424A(3)(b). A breach of s.424A has not been established. Ground 1 particular (a) is rejected.
Ground 2 alleges that the Tribunal failed to determine whether the applicant was a member of a particular social group. Particulars (a) to (c) assert that the claim of being a member of a particular social group arose from independent country information concerning domestic violence against women in Thailand. As the Tribunal found that the applicant was not a credible witness and rejected her claims to have suffered harm (CB 63.4), the Tribunal was not required to consider whether the applicant was a member of a particular social group, or make specific findings on that issue: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 187 at [47]. The Tribunal found that it was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason upon her return to Thailand (CB 63.5). Having rejected the basis of the claims, the Tribunal was not required to consider the adequacy of state protection in Thailand: WAEE (ante) at [47]. Ground 2 is rejected.
Ground 3 alleges that the Tribunal based its decision on a non-existent fact. Particular (a) states that the Tribunal found that the applicant stated in her protection visa application that Muslims set up a competing business in April 2006, whereas in her evidence she stated that the business was opened in August 2006. The applicant alleges that it was the same business and that “the date of this issue was not given wrongly”. Her visa application records the date as April 2006 (CB 20.3). The Tribunal states that the applicant gave evidence that the date was during August 2006 (CB 59.9). The Tribunal did not rely on a non-existent fact. The inconsistency was apparent from the material before it (CB 62.9). The adverse credibility finding was a finding of fact properly open to the Tribunal on the material before it. The Court agrees with the following submission in another matter:
The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
As stated by the Federal Court of Australia in Lee vMinister 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.
It was stated in Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:
It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.
All grounds in the application are rejected.
Conclusion
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.
Accordingly, the application is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 4 October 2007
0
9
1