SZLVK v Minister for Immigration - [2008] FMCA 1218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLVK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1218

MIGRATION – Judicial Review of decision of Refugee Review Tribunal.

Migration Act 1958 (Cth), ss.91R(3), 424A and 424AA

SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 648
Nahi v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24
SLXI v Minister for Immigration and Citizenship [2008] FCA 1270

Applicant:

SZLVK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3982 of 2007

Judgment of:

Howard FM

Hearing date:

20 August 2008

Date of Last Submission:

20 August 2008

Delivered at:

Sydney

Delivered on:

17 October 2008

REPRESENTATION

The Applicant in person:

SZLVK

Counsel for the First Respondent:

Mr Godwin

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,500.00.
I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3982 of 2007

SZLVK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The Applicant is a citizen of India. The Applicant was born on 3 November 1986.
The Applicant arrived in Australia on 4 July 2007 and applied to the Department of Immigration and Citizenship for a Protection Visa on 5 July 2007.
The Minister’s delegate refused to grant a Protection Visa on 3 September 2007 and notified the Applicant of that decision by letter also dated 3 September 2007.
The Minister’s delegate decided to refuse the Protection Visa application on the basis that the Applicant was not a person to whom Australia had protection obligations under the 1951 Convention relating to the status of Refugees as amended by the 1967 Protocol relating to the status of Refugees (hereinafter referred to as the Refugees Convention).
The Applicant applied to the Refugee Review Tribunal on 24 September 2007 seeking a review of the decision of the Minister’s delegate. The Refugee Review Tribunal’s decision is dated 14 November 2007 and it was handed down on 4 December 2007. The Refugee Review Tribunal (hereinafter “the Tribunal”) affirmed the decision of the Minister’s delegate not to grant to the Applicant a Protection Visa.

Application for Judicial Review

On 28 December 2007 the Applicant filed an Application for review of the decision of the Tribunal. The grounds of the Application stated in the Original Application were very broad.
On 22 May 2008 the Applicant filed an Amended Application and provided some particulars for the grounds of the Application.
The grounds of the Application included in the Amended Application filed 22 May 2008 are as follows:-
“1. The Tribunal failed to comply with the s424A of the Act.
Particulars:
The Tribunal failed to invite the applicant to contest with the information it had which was a reason or part of the reason to affirm the decision that was under review.
The Tribunal relied on information obtained from the departmental file and failed to disclose those information to the applicant under s.424A of Act.
2.The Tribunal failed to identify that the possible investigation of the applicant would face in India on return would be as a result of his political opinion.
Particulars:
The applicant gave evidence to the tribunal that the riot he was involved in was as a result of his political opinion and he harmed another person as a way of self defence.”
The Applicant is therefore alleging a breach of s.424A of the Migration Act 1958 (Cth) (hereinafter “the Act”).
The breach alleged is that the Tribunal relied upon information from the Applicant’s departmental file but failed to disclose such information to the Applicant as required under s.424A of the Act.
Section 424A of the Act states:-
“SECTION 424A
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.
(4)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.
(5)    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 gave for the purpose of the application for review; 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.”
Section 424A(3)(ba) commenced on 29 June 2007. It therefore applies to the relevant application for review by the Tribunal which (as noted earlier) was lodged on 24 September 2007.
In my view s.424A(3)(ba) of the Act excludes the information referred to by the Applicant from the operation of s.424A of the Act.
I agree with the submission made by Mr Godwin, counsel on behalf of the First Respondent (in paragraph 12 of the First Respondent’s written submissions filed 14 August 2008) that:-
“No breach of the obligations under s.424A could have occurred through the RRT not inviting the applicant to comment on information in his departmental file”.
This ground for review cannot succeed.
The second ground referred to in the Amended Application filed 22 May 2008 states that the Tribunal failed to identify that the possible investigation the Applicant would face in India (if he were required to return) would be as a result of his political opinion. In particular the Applicant has asserted that he gave evidence to the Tribunal that he was involved in a riot as a result of his political opinion and he harmed another person in an act of self defence.
The Statement of Decision and Reasons of the Tribunal (handed down 4 December 2007) does not refer to any such evidence as alleged by the Applicant. The Tribunal stated at pages 7 and 8 of the decision, inter alia:-
“At this point (the Applicant) volunteered that the people with whom he had argued about politics had lodged a complaint with the police about him three days before he left India. This complaint related to his ‘fighting with people’. As to why the police had not arrested him during that three days, he said that they had tried but he had escaped. I reminded him that he had told the Tribunal he was living at his home until he came to Australia, and he then claimed that he was in Delhi for the final week. He said that other members of the Congress party had told him the police were seeking him. I questioned him about the allegations made against him, and he revealed that, about five days before he went to Delhi, he had seriously injured a person during a fight. This person had been ‘close to death’. A complaint was lodged about him related to this matter. He agreed that under the circumstances the police had a duty to investigate him. I put to him that any such investigation appeared to be unrelated to the Refugees Convention. He responded that the Congress party was not in power now in his area.
As to whether the reason he had left India was his fear that the police might charge him in relation to the fight, he said that it was.”
On 2 April 2008 His Honour Federal Magistrate Nicholls ordered, inter alia:-
“2.The applicant file and serve any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 28 May 2008.”
No such transcript of the Tribunal hearing was ever filed by the Applicant.
There is no evidence before the Court to back up the Applicant’s claim that he, “gave evidence to the Tribunal that the riot he was involved in was as a result of his political opinion and he harmed another person as a way of self defence”. (Note the Amended Application filed 22 May 2008).
This ground for review therefore cannot succeed.

Other matters for consideration

Whilst not referred to by the Applicant, counsel for the First Respondent referred the Court to the decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105. That decision relates to s.91R(3) of the Act. That section states:-
“(3)For the purposes of the application of this Act and the Regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:-
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
The Applicant had claimed to be homosexual and said he feared persecution in India because of this fact. The Tribunal gave (as one of its reasons) that it was not satisfied that the Applicant was homosexual.
At page 8 of the Decision the Tribunal noted, inter alia:-
“As to whether he had had any partners in Australia, he said he had not had sex with any men here, as he could not find anyone here.”
In SZJGV (supra) at paragraph 22 the Full Court of the Federal Court stated:-
“Inaction can constitute conduct within the meaning of section 91R(3).”
Counsel for the First Respondent submitted that the Applicant’s homosexual inaction is not “conduct”. It was submitted on behalf of the First Respondent that the “conduct” is only relevant conduct for the purposes of s.91R(3) if such conduct in Australia is relied upon by an applicant, “to support a claim to have a well founded fear of persecution”. Note in particular the decision of Jacobson J in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 648 in particular at paragraph 30 where the entire quotation from His Honour reads as follows:-
“[30] The effect of the submission is that s.91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution. In my opinion this is plainly the effect of s.91R(3) and the subsection is not enlivened in the present case.”
I agree with the submission made on behalf of the First Respondent that the Applicant’s homosexual inactivity in this case was not “conduct” within s.91R(3). Section 91R(3) is not enlivened because the Applicant did not seek and does not seek to rely upon the homosexual inactivity (as conduct) in Australia to support a claim of a fear of persecution in India.

Conclusion

This Court cannot embark upon a merits review of the hearing before the decision of the Tribunal; note Nahi v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 at 40-42. The Tribunal made credit findings against the Applicant. Those credit findings related to, inter alia, the Applicant’s claim to be homosexual and the Applicant’s claim concerning the extent of his involvement in politics in India. It is not open to this Court to review the credit findings made by the Tribunal.
In SLXI v Minister for Immigration and Citizenship [2008] FCA 1270 Cowdroy J stated at paragraph 19:-
“Scarlett FM found that the Tribunal’s assessment of the Appellant’s credibility was based upon his evidence to the Tribunal, independent country information, inconsistencies within the Appellant’s own evidence and inconsistencies between his evidence and the independent country information. His Honour relied upon the decision in Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 168 ALR 407, which held that the assessment of the credibility of an applicant is a matter of fact and is a matter solely for the administrative decision maker. Scarlett FM observed that there is no basis for conducting a judicial review and interfering with the Tribunal’s findings provided there is evidence upon which a credibility finding may be made.”
In the present case I am satisfied that the Applicant’s own evidence and the independent country information were sufficient to enable the Tribunal to make the findings which it made in relation to the Applicant’s credibility.
It is also worth referring to paragraph 26 of the decision of Cowdroy J in SLXI (supra) where His Honour stated:-
“26.The Tribunal found that there were inconsistencies in the Appellant’s evidence. Scarlett FM noted that it was well established that inconsistencies in evidence do not constitute ‘information’ for the purposes of s.424A of the Act (see SZBYR & Anor v Minister for Immigration & Citizenship & Anor (2007) 235 ALR 609 at [18]) and accordingly do not constitute ‘information’ for the purposes of s.424AA.”
The Applicant in this case had relied upon an alleged breach of s.424A of the Act. The Tribunal noted inconsistencies in the Applicant’s evidence. Such inconsistencies, “do not constitute ‘information’ for the purposes of s.424A of the Act” and nor do they constitute “information” for the purposes of s.424AA of the Act.
In respect of the two specific grounds for review relied upon by the Applicant I have concluded that the Applicant cannot succeed on either ground.
I have also concluded that the Applicant is not assisted by the decision of the Full Court of the Federal Court in SZJGV (supra).
For the reasons stated herein I conclude that there is no jurisdictional error in this case.
The Application should be dismissed with costs.

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

Associate: J Witenden

Date: