SZMJP v Minister for Immigration
[2008] FMCA 1399
•15 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1399 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming fear of persecution on the ground of religious belief – Christian claiming oppression by Hindus – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – procedural fairness – credibility – no reviewable error. |
| Migration Act 1958 (Cth) ss.422B, 424A, 425, 474 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 followed. |
| Applicant: | SZMJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1503 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 October 2008 |
| Date of Last Submission: | 1 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms Kelso |
| 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 $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1503 of 2008
| SZMJP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of India, asks the Court to set aside a decision of the Refugee Review Tribunal handed down on 15th May 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant seeks orders in the nature of certiorari and mandamus, quashing the decision of the Refugee Review Tribunal, the Second Respondent, and remitting his application for a visa to the Tribunal for determination according to law.
The Applicant claims that the Tribunal fell into jurisdictional error by:
a)not providing relevant information to him for his comment;
b)failing to consider the totality of his claim; and
c)making irrelevant findings and failing to accord procedural fairness.
The Minister, the First Respondent, has filed a response claiming that the Applicant has not raised an arguable case for the relief claimed.
Background
The Applicant arrived in Australia on 13th September 2007. He applied for a Protection (Class XA) visa on 12th October 2007, claiming a fear of persecution on the Convention ground of his religion. He is a Christian and he claimed to have been oppressed by the mainstream Hindu community. A delegate of the Minister refused the application for a visa on 17th December 2007. The delegate referred to the lack of substantiating or supporting evidence[1] of his claim to have been persecuted and also found that the Applicant could reasonably relocate to a number of regions within India.[2]
[1] Court Book 44
[2] Court Book 45
Application for Review by the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for a review of that decision on 11th January 2008. He did not provide any supporting documents to the Tribunal to accompany his application. The Tribunal invited the Applicant to attend a hearing on 15th April 2008. The Applicant attended the hearing and gave evidence to the Tribunal in English. He provided a copy of his passport to the Tribunal and a number of documents in support of his application, including documents relating to his baptism and church membership and material downloaded from the Internet regarding the treatment of Christians in India.
The Tribunal asked the Applicant a number of questions about his claim. At the end of the hearing, the Tribunal offered the Applicant an opportunity to provide further comments:
I asked the applicant if he wished to comment and/or respond to the Tribunal’s concerns orally or in writing. He stated that he wished to respond and comment at the hearing. He then stated that he had nothing to add.[3]
[3] Court Book 126
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 28th April 2008 and handed the decision down on 15th May 2008. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicant was a citizen of India on the basis of his Indian passport. The Tribunal did not, however, find the Applicant to be credible witness. The Tribunal found:
The Tribunal has formed the view that the applicant lacks credibility and his claims relating to persecution cannot be accepted. His evidence was inconsistent, implausible and contradictory. The following contradictions, implausibility and inconsistencies lead the Tribunal to conclude that the applicant is not truthful or credible in relation to some key aspects of his claims.[4]
[4] Court Book 127
The Tribunal then set out some six areas where it found the Applicant’s evidence to be implausible, inconsistent and contradictory. The Tribunal went on to find:
It is the Tribunal’s view that there is no credible evidence before it that the applicant has suffered or will suffer harm from Hindus or members of the RSS or anyone else in his country, because of his religion or for any other Convention reason, either now or in the reasonably foreseeable future, if he returns to India.[5]
[5] Court Book 128
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for a Convention reason should he return to India and affirmed the delegate’s decision not to grant him a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit on 11th June 2008. He has not filed any further documents, although given leave to file an amended application.
In his application, the Applicant relies on these grounds of relief:
i)The Tribunal made a jurisdictional error in not providing the relevant information, which the Tribunal relied in making its decision.
ii)The decision by the Tribunal was asserted inconsistency and the Tribunal adequately to consider the totality of the claim.
iii)The Tribunal made irrelevant findings in deciding the relevant matter. The Tribunal failed to accord the procedural fairness.
The Applicant did not file any written submissions. He attended Court and made oral submissions with the aid of an interpreter in the Hindi language. In reply to questions from the Bench, the Applicant conceded that the information relied on by the Tribunal had all been provided by him as part of his application. He said that he thought the decision was not proper according to his claim. He asserted that all of the evidence was not considered by the Tribunal, but he did not identify any particular piece of evidence that the Tribunal did not take into account. The Applicant claimed that the Tribunal made its decision “in a hurry”.
As to his claim of a denial of procedural fairness, the Applicant said that overall the hearing was “OK” but at times he felt that there was rudeness on the part of the Tribunal Member. He did not give any example of this asserted rudeness and he did not seek to tender a transcript or a recording of the Tribunal hearing.
For the Minister, Ms Kelso, solicitor, submitted that:
a)There was no breach of s.424A of the Migration Act, as the Tribunal only had regard to information that the Applicant gave for the purpose of the application for review or during the process that led to the decision under review, all of which falls within the exceptions in s.424A(3)(b) and (ba) of the Act.
b)The Applicant had not provided any particulars to identify what aspects of his claim the Tribunal did not address. The Tribunal’s rejection of the factual basis of the incidents described by the applicant and its credibility findings are all findings of fact and are not open to review by the Court (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[6], per Mc Hugh J at [67]).
c)The Applicant did not provide any particulars of the irrelevant findings made by the Tribunal. There was no evidence of any unfairness.
d)If the claim of the Tribunal Member’s alleged rudeness was a claim of bias, there was no evidence to support it.
e)There was no evidence of any undue haste by the Tribunal in making its decision.
[6] (2000) 168 ALR 407
The Applicant did not make any submission in reply.
Conclusions
The Tribunal rejected the Applicant’s claims because it was not satisfied that the Applicant was a credible witness about the persecution he claimed to have suffered. It is well established that matters of credibility are findings of fact that are within the province of the Tribunal and, provided that there is evidence upon which those findings can be made, there is no scope for a court conducting judicial review to interfere. In this case, the Tribunal set out its reasons as to why it found the Applicant lacked credibility, and they appear in the Tribunal Decision Record at pages 127 and 128 of the Court Book.
The Applicant’s first ground appears to claim a breach of s.424A of the Migration Act, but the Applicant himself conceded that the only evidence considered by the Tribunal came from him. Thus, as Ms Kelso submitted, the information is excluded by the operation of sub-section 424A (3)(b) and s.424A (3)(ba).
I note, too, that the Tribunal, after putting its concerns about his evidence to the Applicant, offered him the opportunity to make further submission in writing after the hearing, an offer the Applicant declined. This appears to be an attempt by the Tribunal to put matters to the applicant under s.424AA of the Act, even though there was no necessity to do so.
The Tribunal was not obliged to put to the Applicant its disbelief of aspects of his claim, as this does not constitute “information” for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship[7] at [18]).
[7] ([2007] HCA 26
The Applicant’s ground 1 fails.
The Applicant’s ground 2 claims that the Tribunal failed to consider the totality of his claim. The applicant did not identify any aspect of his evidence that the Tribunal overlooked. The Tribunal considered the Applicant’s claim that he had a well founded fear of persecution on the basis of his religion. There was no evidence that the Applicant had any other claim under any of the other four Convention grounds.
The Applicant’s ground 2 fails.
The Applicant’s ground 3 claims that the Tribunal made irrelevant findings and failed to accord the Applicant procedural fairness. The Applicant did not identify any finding that was irrelevant, and no such finding is apparent.
As to the claimed failure to provide procedural fairness, this is case that is covered by the provisions of s.422B of the Migration Act, which provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.
There is no breach of s.424, or s.424A. The Tribunal invited the Applicant to attend a hearing under the provisions of s.425 of the Act. He was invited by a letter dated 17th March 2008, and the hearing date was the 15th April 2008. The letter of invitation referred to the provision of an interpreter, saying:
Interpreter: Please advise immediately if required.[8]
[8] Court Book 53
The Applicant’s Response to Hearing Invitation, received by the Tribunal on 31st March 2008, indicated that he did not need an interpreter.[9] The Applicant made no complaint at the Tribunal hearing or at the hearing of this Court that he had any difficulty in making himself understood. The fact that he requested the services of a Hindi interpreter for the purpose of these proceedings is a matter of no consequence, as it is well known in the Courts that people whose ability to speak English is quite adequate in the community may feel more comfortable with the assistance of an interpreter in their first language when they are required to speak in the more formal and unfamiliar surroundings of a court of law.
[9] Court Book 59
The delegate refused the Applicant’s claim for a protection visa because the delegate was not satisfied that the Applicant had made out his claim. The delegate referred to “the lack of supporting evidence”[10] and the Applicant’s “unsubstantiated claims”[11] in his Decision Record, so the Applicant should have been on notice that the credibility of his claim of persecution was in issue. There is no breach of s.425 of the Migration Act.
[10] Court Book 44
[11] Court Book 45
There is no evidence of any failure to accord procedural fairness and the Applicant’s ground 3 has not been made out.
There is no substance to the Applicant’s claim of “rudeness” by the Tribunal. I am not of the view that the Applicant made a claim of bias on the part of the Tribunal and there is certainly no evidence of bias, either actual or apprehended.
The Applicant complained that the Tribunal made its decision quickly, “in a hurry”. Undue haste is not of itself a jurisdictional error. In any event, the Applicant appeared before the Tribunal on 15th April 2008. The Tribunal signed its decision on 28th April and handed the decision down on 15th May 2008. There is no evidence of any undue haste on the part of the Tribunal.
The Applicant has not made out any jurisdictional error. I am unable to discern any jurisdictional error, whether alleged by the Applicant or not. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. It is not subject to the orders in the nature of certiorari or mandamus which the applicant seeks.
The application will be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 8 October 2008
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