SZLIK v Minister for Immigration
[2008] FMCA 325
•5 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 325 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Nepal claiming fear of persecution for reasons of his political opinion – allegation of bias – an unfavourable decision is not of itself evidence of bias – no reviewable error. |
| Migration Act 1958 (Cth), ss.424, 424A, 427 |
| W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 194 ALR 749 followed. SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed. VFAB of 2002 v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 102 followed. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 |
| Applicant: | SZLIK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2868 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 March 2008 |
| Date of last submission: | 5 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Warner-Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2868 of 2007
| SZLIK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Nepal. He asks the Court to set aside a decision made by the Refugee Review Tribunal refusing him a Protection visa. The Applicant had applied for a Protection visa claiming that he was a supporter of the royalists in Nepal and he claimed to have been abducted and tortured by the Maoists and feared persecution by the Maoists if he were to return to Nepal.
He asks the Court to issue:
a)A writ of certiorari quashing the Tribunal decision.
b)A writ of mandamus directed to the Tribunal requiring that his application be heard according to law.
c)A writ of prohibition against the Minister prohibiting the Minister from acting upon or proceeding further on the basis of the Tribunal's decision.
Background
The background to this matter is that the Applicant applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 7th March 2007. He is 39 years of age and claims to have been a teacher in Nepal. He fears that he would face harm to himself and harm to his family from the Maoists. He had faced them in the past and had been able to escape them.
A delegate of the Minister for Immigration & Citizenship refused his application for a visa on 2nd April 2007.
Application to the Refugee Review Tribunal
On 20th April 2007 the Applicant applied to the Refugee Review Tribunal for a review of the decision of the delegate. The Tribunal wrote to the Applicant on 10th May inviting him to attend a hearing to take place on 12th June 2007. The Applicant completed a form of Response to Hearing Invitation and forwarded it to the Tribunal. He indicated that he did wish to attend the hearing and would require an interpreter in the Nepali language.
The Applicant attended the hearing on 12th June 2007 and produced his passport to the Tribunal. He gave evidence before the Tribunal and the Tribunal asked him questions and discussed his case with him.
On the day after the Tribunal hearing, 13th June 2007, the Tribunal wrote to the Applicant. The letter was headed ‘Invitation to Comment on Information’ and told the Applicant that the Tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa.
The letter set out the items of information that concerned the Tribunal. The letter included a statement from the Applicant given to the Department of Immigration & Citizenship dated 5th March 2007. The other information included:
·Evidence about who was taken by the Maoists to Raspat.
·Evidence about where the Applicant and his family lived.
·Issues about the Applicant's travels to Japan and Thailand.
The letter set out why the Tribunal considered this information to be relevant. The letter invited the Applicant to comment on the information in writing in English by 6th July 2007. A copy of the Tribunal's letter is set out at pages 97-99 of the Court Book.
The Applicant replied to the Tribunal's letter on 6th July 2007. He provided comments about a number of matters under the following headings:
·20 April 2004 - Japan Visit (Before the Maoists incident at School).
·King's Birthday Celebration (7 July 2004).
·Maoist attack in celebration (7th July)
·They took all of us.
·Thailand Visit (2006).
·When I and my wife left home permanently.
·Rejoining as teacher (October 2006).
The Tribunal signed its decision on 31st July 2007 and handed that decision down on 21st August. A copy of the Tribunal decision record can be found in the Court Book at pages 107-126.
In the Tribunal decision, the Tribunal set out the Applicant's claims and the evidence which the Tribunal considered. That evidence included the Applicant's oral evidence to the Tribunal. The Tribunal decision also referred to the Tribunal's letter to the Applicant which was written to comply with the requirements of s.424A of the Migration Act. The decision also referred to the Applicant's reply to that letter. The Tribunal considered Independent Country Information about Nepal from a number of sources.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 124-126 of the Court Book. The Tribunal accepted the Applicant is a national of Nepal and based its decision on, amongst other things, the Applicant's passport. The Tribunal noted that the Applicant claimed to be owed protection in Australia because as a result of his support of the monarchy in Nepal and his role as a teacher he had come to the attention in Maoists insurgence in the past.
The Tribunal noted that the Applicant claimed that as a result of those characteristics he would be of negative interest to the Maoists on return to Nepal and that as a result he would come to serious harm which could involve serious personal injury or death. However, the Tribunal was not satisfied about the credibility of the Applicant's evidence. The Tribunal said:
“In the Tribunal's view, the applicant has not presented a truthful account of his past experiences in Nepal and the Tribunal does not accept that he has worked as a teacher, has been involved with the political associations which he claims or has ever come to the attention of Maoists in Nepal or been harmed by them.”[1]
[1] See Court Book at page 124
The Tribunal referred to an incident where the Applicant claimed that he and other teachers were taken from the school by Maoist members, abducted and tortured before they were released. However, the Tribunal noted that the Applicant had given inconsistent accounts of that incident and said:
“In the Tribunal's view, the applicant's inability to give a consistent account of this central incident supports the view that he has in fact fabricated claims of his past experiences in Nepal for the purpose of supporting this application.”[2]
[2] See Court Book at page 124
The Tribunal formed the view that the Applicant had fabricated claims that he and his family were forced to leave their home in Nepal and that his assets had been seized.
“The Tribunal was of the view that the applicant had not been truthful about his past activities, employment or experiences when pursuing his claim. The Tribunal did not believe that the Applicant had been employed as a teacher in Nepal, nor that he had any association with any political group. The Tribunal did not believe that the Applicant had ever been of interest to any political or insurgency group in Nepal, nor that he had ever been harmed in that country in the past.”[3]
[3] See Court Book at page 125
The Tribunal noted that there was evidence of continuing political instability in Nepal and that this instability had resulted in the most serious abuses of human rights. The Tribunal did not believe that there was any risk of harm to the Applicant for reasons of his membership of a particular social group being a teacher or political opinion, being a supporter of the royalty and involved with a political party. The Tribunal did not believe that the Applicant was at risk of harm for any other Convention reason.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision of the delegate not to grant him a Protection (Class XA) visa.
Application for Judicial Review
The Applicant has commenced proceedings for a judicial review of that decision in this Court. He filed an application and an affidavit in support on 17th September 2007. He has not filed any documents since then. In the application he sets out four grounds for seeking relief by way of certiorari, mandamus and prohibition. The four grounds are:
i)The Tribunal made errors of law by misunderstanding the facts of my application;
ii)The Tribunal was biased against me and rejected all my evidence including my employment as a permanent teacher, employed by the government, without probative evidence and substance;
iii)The Tribunal failed to investigate the central issues of my application, i.e. my membership of a political party and my employment as a teacher and that information was readily available to the Tribunal through its resources and they were the main issues in my application;
iv)The Tribunal made an error of law by making a decision to suit itself.
The Applicant did not file a written submission, but attended Court and read from what appeared to be a prepared statement reiterating his factual claims. When asked by the Court to provide particulars of his claim of bias, the Applicant complained that the Tribunal Member did not believe his story although his story was true.
In respect of his third ground, alleging a failure to investigate central issues, the Applicant pointed out that he is in fact a refugee but the Tribunal did not believe him at all when he tried to tell the Tribunal about his real problems. The Applicant believed that there may have been a mistake in translation at the Tribunal hearing.
When asked to provide an explanation of his claim in the fourth ground, that the Tribunal made error of law by making a decision to suit itself, the Applicant stated that he was a person who needs protection and that was his real problem. He went on to tell the Court that he was not satisfied with the decision that the Tribunal made. He said that if he went back to Nepal it was certain that he would be killed.
Ms Warner-Knight who appeared for the Minister submitted the Applicant had not established any jurisdictional error and the Applicant should be dismissed.
Ground 1
In considering the Applicant's claims I note that the Applicant claims in Ground 1 that the Tribunal made an error or law by misunderstanding the facts of this application. He has not shown which facts the Tribunal misunderstood or how misunderstanding those facts would constitute a jurisdictional error. On reading the Tribunal decision record, the Tribunal appears to have addressed the issues raised by the Applicant, but rejected the Applicant's claims on the basis of an adverse finding about his credibility.
A credibility finding is a finding of fact and provided that there is evidence upon which the Tribunal can make such a finding then there is no jurisdictional error. (See W148/00A v Minister for Immigration & Multicultural Affairs[4] at [64]-[65]).The Applicant's first ground fails.
[4] (2001) 185 ALR 703
Ground 2
The Applicant's second ground is an allegation of bias on the part of the Tribunal. It is based on the fact that the Tribunal did not accept the Applicant's claims and indeed roundly rejected them. There is no evidence of that and no other particulars.
An allegation of bias is a serious allegation carrying with it an allegation of personal fault on the part of the decision maker. Bias must be strictly alleged and strictly proved. It is a very rare case indeed where a finding of bias will be made where the Applicant relies on nothing other than the Tribunal's reasons for decision. (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[5] at [42]-[49] and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[6]).
[5] [2002] 194 ALR 749
[6] [2002] FCAFC 358
There is no evidence of bias. The mere fact of an adverse finding in the Tribunal's reasons does not amount to bias. (See VFAB of 2002 v Minister for Immigration & Multicultural Affairs[7] at [21]).
[7] (2003) 131 FCR 102
Ground 3
In the Applicant's third ground he claims that the Tribunal failed to investigate the central issues of his application and that information was readily available to the Tribunal through its resources. There is no obligation on the Tribunal to conduct its own enquiries to investigate the Applicant's claims. It has a power to make enquiries and a power to seek information under ss.424 and 427 of the Migration Act. The power under s.424 is discretionary and the Tribunal does not have any duty to investigate the Applicant's claims. (See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[8] at [42]-[43]; see also, SZIRO v Minister for Immigration & Citizenship[9] at [12]).
[8] (2004) 207 ALR 12
[9] [2007] FCA 260
There is no general obligation on the Tribunal to make further enquiries in the exercise of its power under s.427 of the Migration Act. In my view the Applicant's third ground fails.
Ground 4
The Applicant's fourth ground is that the Tribunal made error of law by making a decision to suit itself. That ground is no more than an allegation of bias or bad faith on the part of the Tribunal. I have already found that there is no evidence to justify that finding.
Conclusion
I am mindful of the fact that the Applicant is not legally represented in these proceedings. In the circumstances, there is an obligation on the Court to read the decision independently of the Applicant's claims or the Respondent's submissions. The Court should endeavour to ascertain whether any arguable case for a jurisdictional error can be made out. My reading of the Tribunal decision and the supporting documents does not disclose any jurisdictional error.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined in s.474 of the Migration Act. Under s.474 a privative clause is final and conclusive and is not subject to orders in the nature of certiorari, mandamus or prohibition. It follows that the application must be dismissed.
There is an application for costs. The Applicant has been unsuccessful in his claim and in my view a costs order is appropriate. The amount of $4,300.00 is a figure within the range proposed in the scale set out in the Federal Magistrates Court Rules.
The application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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