SZLST v Minister for Immigration
[2008] FMCA 315
•17 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLST v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 315 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 162 ALR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421 NAAG of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2002) 195 ALR 207; [2002] FCA 713; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; SCAS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 397 |
| Applicant: | SZLST |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3767 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 March 2008 |
| Date of last submission: | 6 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr O’Donnell |
| Solicitors for the Respondent: | Ms P. Nandagopal, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3767 of 2007
| SZLST |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 October 2007 and handed down on 13 November 2007.
The Applicant claims to be from India, a Muslim and previously a businessman in Mumbai (“the Applicant”).
The Applicant arrived in Australia on 5 April 2007 having departed legally from Mumbai on a passport issued in his own name and a visitor visa.
On 16 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by members of the “shiv-sena political party which belong to Banlasaheb Thackery the leader of Mumbai people” as well as corrupt police who had previously “cruelly tortured” him and threatened him with false charges and arrest.
On 12 June 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate found the Applicant’s claims to be lacking in detail and doubted the credibility of the Applicant. The Delegate also found that “whilst there have been religious tensions in India, there is no clear evidence to conclude that any religion in particular is subject to systematic State sponsored persecution”.
On 4 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of the review application. On 25 October 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 7 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal reasons and decision
On 2 August 2007, the Tribunal wrote to the Applicant inviting him to attend a hearing on 3 September 2007 and informing him that it was unable to make a favourable decision on the information already received from the Applicant. The Applicant attended that hearing and gave oral evidence.
The Applicant gave oral evidence before the Tribunal.
The Tribunal identified with particularity the oral evidence given by the Applicant and quoted in full the Applicant’s statement provided in support of the protection visa application. The Tribunal noted aspects of the Applicant’s evidence that it explored with the Applicant. In particular, the Tribunal noted matters of concern that it put to the Applicant and noted the Applicant’s responses.
The Tribunal found the Applicant to be “a poor witness and much of his testimony unpersuasive”. The Tribunal noted unsatisfactory aspects of the Applicant’s explanations of matters put to him by the Tribunal and the lack of detail in the Applicant’s claims; for example, the exact dates on which various allegedly significant incidents took place.
The Tribunal also noted that it put to the Applicant discrepancies between his written claims and his oral evidence and that the Applicant did not offer an explanation.
The Tribunal noted new claims made by the Applicant at the hearing that led it to state that “the Applicant appeared to the Tribunal to be making up his evidence as he went along to fill gaps in his statement of claims”. The Tribunal found that the Applicant’s conduct in this respect was “an attempt to make a credible response to the Tribunal’s observations of discrepancies, omissions in his testimony and implausible explanations when his oral evidence is juxtaposed with his statement of claims or his oral evidence in the hearing”.
The Tribunal also found the Applicant to have exaggerated his claims and gave the example of the Applicant’s written allegation of having been “tortured mercilessly”. When the Tribunal explored this allegation with the Applicant, it noted that the Applicant said that police did not physically harm him, however, they swore at him and threatened to “lock him up on trumped up charges”.
The Tribunal found the Applicant to be an unreliable witness with poor credibility. The Tribunal comprehensively rejected the Applicant’s claims of persecution and extortion. Further, the Tribunal found that the Applicant’s claim to have unsuccessfully sought police protection was “merely a subterfuge to create a Convention-related claim of persecution where there is none present”.
Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear for any Convention-related reason. Moreover, the Tribunal noted that the Applicant, in accordance with his own evidence, had successfully relocated to another part of India where he was not persecuted. The Tribunal found his allegations of persecution from extortionists “to be a subterfuge to create the basis for the grant of a protection visa to him”.
The Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court.
The Applicant confirmed that he relied on the grounds identified in the amended application filed by him on 22 February 2008. The Applicant confirmed that he no longer relied on the grounds of his initiating application filed 7 December 2007, in which bare assertions of error were made.
The grounds of the amended application are as follows:
“1. The Refugee Review Tribunal failed to consider my claims as whole:
Particulars:
A. The Tribunal failed to consider my claim as whole that:
i) the Tribunal found me to be a poor witness and much of my testimony unpersuasive.
2. The Refugee Review Tribunal made the decision in bad faith:
Particulars:
A. The Tribunal made the decision in bad faith by making the following comment that:
i) the Tribunal finds him to be an unreliable witness with poor credibility.
3. The Tribunal acted in excess of its jurisdiction:
Particulars:
A. The Tribunal acted in excess of its jurisdiction by making the following comment that:
i) The Tribunal finds that the applicant has not been discriminated against on the basis of his race, religion, nationality, political opinion or membership of a particular social group or that he would face such discrimination on return to India.”
The Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant made no meaningful submission. Rather the Applicant relied on his “written legal submission”.
Ground 1 - The Tribunal failed to consider the Applicant’s claim as whole in that the Tribunal found him to be a poor witness and much of his testimony unpersuasive
The particulars in support of ground 1 suggest that the Applicant’s complaint was with the Tribunal’s adverse credibility finding. The Applicant’s “written legal submission” stated the following:
“I submit before this Honourable Court that the Tribunal did not consider my claim as a whole. The Tribunal found small discrepancy and made conclusion that I was a poor witness and my testimony persuasive.
The Tribunal concluded that I was not a credible witness. In W148/00A v MIMA (2001) 185 ALR 703 held in the majority that “on the cumulative weight of the matters referred to by the Tribunal, it was open to the Tribunal to reach its conclusion as to credibility”.
In my case, on the cumulative weight of the evidence it was not open to the Refugee Review Tribunal to its conclusion as to credibility. Lee j(sic) in the minority held that the Refugee Review Tribunal erred in relation to the credibility finding. I say that the refugee(sic) Review Tribunal erred in my case.
…
I submit before this Honourable Court that the Tribunal did this comment in bad faith. I expressed my claim before the Tribunal whatever was true and whatever happened to my life. Unfortunately the Tribunal did not consider my claim as whole rather the Tribunal made up its mind that I was unreliable witness with poor credibility.”
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support, and, made findings based on the evidence and material before it. Those findings of fact, including the adverse credibility findings, were open to the Tribunal on the evidence and material before it and for which it provided reasons. Credibility findings are a matter “par excellence” for the Tribunal of fact (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, ground 1 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 195; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491). A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings in reaching its conclusions.
Accordingly, ground 1 is not made out.
Ground 2 - The Tribunal made the decision in bad faith by finding the Applicant to be an unreliable witness with poor credibility.
Ground 2 makes the serious allegation that the Tribunal made its decision in bad faith. The particular provided in support of the allegation is the Tribunal’s adverse credibility finding.
I agree with the written submission of counsel for the first respondent, Mr O’Donnell, that ground 2 is either a repetition of ground 1 or an unparticularised allegation of bias. To the extent that it is a repetition of Ground 1, such complaint has been dealt with above.
If Ground 2 is alleging bias, then such an allegation requires evidence and must be properly particularised (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421). A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion.
A fair reading of the Tribunal’s decision does not disclose any lack of an honest or genuine attempt by the Tribunal to make a decision, including in the conduct of its review (NAAG of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2002) 195 ALR 207; [2002] FCA 713 at [24]; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 at [107]-[108]; SCAS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19]).
A fair reading of the decision makes clear that the Tribunal made a detailed and accurate summary of the Applicant’s claims; invited the Applicant to come to a hearing to give oral evidence and present arguments in support of his review; canvassed with the Applicant the detail of his claims; put to the Applicant its concerns about various aspects of his claims, particularly his new claims made for the first time at the hearing; noted the Applicant’s responses; made findings that were open to it on the evidence and material before it; applied the correct law to those findings in reaching its conclusion that the Applicant had not suffered harm for a Convention-related reason.
A fair reading of the Tribunal’s decision makes clear that it complied with the statutory regime in the making of its decision, including the conduct of its review.
Otherwise, ground 2 is a re-formulation of the Applicant’s disagreement with the Tribunal’s adverse credibility findings. This issue is dealt with in ground 1 above.
Accordingly, ground 2 is rejected.
Ground 3 – that the Tribunal erred in its conclusion that the Applicant was not discriminated against for a Convention-related reason
Ground 3 appears to be no more than a disagreement with the Tribunal’s conclusion following its application of the law to the facts as the Tribunal found them to be.
As stated above in these Reasons, in reaching its conclusions the Tribunal applied the correct law to its findings of fact in circumstances where those findings were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, ground 3 is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 17 March 2008
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