SZMRR v Minister for Immigration & Anor
[2008] FMCA 1522
•20 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMRR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1522 |
| 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 as a Muslim who fell in love with a Hindu girl – credibility – claim of jurisdictional error – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424 or s.424A – merits review – no reviewable error. PRACTICE & PROCEDURE – Comment on the need for proof-reading of Tribunal Decision Record. |
| Migration Act 1958 (Cth) ss.36 (3), 424, 424A, 424AA, 474 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed |
| Applicant: | SZMRR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2197 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 October 2008 |
| Date of Last Submission: | 29 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2008 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,900.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2197 of 2008
| SZMRR |
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 made on 12th August 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant asks the Court to issue the following writs:
(a)Mandamus;
(b)Certiorari; and
(c)Prohibition.
He relies on the following grounds:
(a)“RRT made a jurisdictional error”
(b)“RRT did not comply with s 424 of the Migration Act.”
The Minister opposes the orders sought
Background
The applicant arrived in Australia on 26th December 2007. He applied for a Protection (Class XA) visa on 5th February 2008. In a statement accompanying his application for a protection visa, the applicant claimed that he was a Muslim. When he was in grade nine at school he fell in love with a girl in his class who was a Hindu. Her father was a prominent figure in a Hindu political organisation called the RSS.
The applicant joined a Muslim organisation called the TMMK in 2001, and in 2002 he joined another Muslim organisation called the Tamil Nadu Tavheeth Jamath (TNTJ).
The applicant claimed that his girlfriend’s father found out about the relationship in May 2003 and warned the applicant not to speak to his daughter anymore. The applicant claimed that later that same month he was attacked by four men, two of whom were the girl’s brothers.
The applicant left Tamil Nadu as a result of this attack and went to live in Gujarath, another Indian State. He continued to write to the girl. The applicant claimed that in June 2003 several came to the house where he was living, attacked him and told him not to have any further contact with the girl.
The applicant claimed that he went to Thailand to work there. He kept in touch with his girlfriend by telephone. He returned to India in March 2006 to see his mother, who was ill. He later returned to Thailand. The applicant claimed that he returned to India in December 2007 and met his girlfriend two or three times. On 20th December 2007 several people, including his girlfriend’s two brothers, came to his house and attacked him with sticks. He left India and travelled to Australia, via Thailand.
A delegate of the Minister for Immigration and Citizenship refused the applicant’s application for a protection visa on 8th February 2008. The delegate found the applicant’s claims to be incredible and stated that the applicant had not provided details of how his love affair would translate into the political sphere and attract the adverse attention of the RSS, other than claiming that the girlfriend’s father belongs to the RSS. The delegate found:
Having considered the above cited country information, I find that the applicant does not face Convention-based persecution if he returns to India. I find that he has access to state based protection, that he can enjoy religious and political freedom and that he can enter into an interfaith relationship. He can relocate of required. Any opposition he faces from his girlfriend’s family is personal in nature and not within the scope of the Convention.[1]
[1] See Court Book at 56
When his application was refused, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Tribunal received the application for review on 6th March 2008. The applicant did not provide any additional documents with his application. The Tribunal wrote to the applicant on 20th March 2008, inviting him to attend a hearing on 23rd April 2008.
The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Tamil language. He produced his Indian passport to the Tribunal and brought a school photograph in which both he and his girlfriend appeared.[2]
[2] Court Book 68
After the hearing, the applicant wrote to the Tribunal on 7th May 2008, asking for an extension of time to produce a document, the Tamil Nadu Police Case Registration, which had been discussed at the hearing.[3] The Tribunal wrote on 9th May 2008 and extended the time until 2nd June.[4]
[3] Court Book 84
[4] Court Book 85
The applicant wrote again to the Tribunal on 2nd June 2008, advising that he was unable to provide the documents.[5]
[5] Court Book 86
The Refugee Review Tribunal Decision
The Tribunal handed down its decision on 12th August 2008, affirming the decision not to grant the applicant a Protection (Class XA) visa). In its Decision Record[6] the Tribunal set out the applicant’s claims from his applicant, a brief reference to material on the Departmental file, and summary of the applicant’s evidence at the Tribunal hearing.
[6] reproduced at Court Book 91-104
The Tribunal’s Findings and Reasons
The Tribunal found that the applicant is a citizen of India, on the basis of his Indian passport, which he produced at the hearing. The Tribunal then considered whether the applicant would be able to enter and reside in another country, referring to the fact that the applicant had lived and worked in Thailand. The Tribunal noted that the applicant’s visas for Thailand did not give him any right to remain permanently in Thailand and found that he did not have the right to enter and remain in another country (Migration Act 1958, s 36(3)).
The Tribunal made adverse findings about the applicant’s credibility, stating:
On the basis of the evidence before the Tribunal, the Tribunal cannot be satisfied that the applicant is a witness of truth, and this finding is made on the basis of the information that was put to the applicant at the hearing.[7]
[7] Court Book 101
The Tribunal set out these reasons:
·The applicant raised claims at the hearing that were not mentioned in his original application and statement.
·There were contradictions in the applicant’s application and the evidence he gave at the hearing.
·The applicant’s evidence was very vague and lacked specific detail.[8]
[8] Court Book 101-102
Because the Tribunal did not accept the applicant to be a witness of truth, it did not accept the applicant’s own evidence about either of the alleged attacks on him, and he was unable to provide any corroborating documentary evidence from the local police.
The Tribunal made these specific findings:
·The attacks on the applicant did not take place.
·The applicant was never involved with the TMMK.
·The applicant was not a member of the TNTJ.
·The applicant had not been threatened by the RSS.[9]
[9] Court Book 103
The Tribunal referred to s 91R (1) of the Migration Act, which requires that the persecution claims must involve serious harm to the applicant and systematic and discriminatory conduct. It then considered the meaning of the term “serious harm”.
The Tribunal found that the applicant would not experience serious harm upon his return to India and did not accept that he would face a real chance of persecution for a Convention-based reason if he were to return to India. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention related-reason and was therefore not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.
The Tribunal found that the applicant did not satisfy the criterion set out in s 36(2) (a) of the Migration Act for a protection visa and affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings in this Court for judicial review by filing an application and affidavit in support on 25th August 2008. He has not filed an amended application or a written outline of submissions.
The applicant attended Court and made oral submissions with the assistance of a Tamil interpreter. When asked from the Bench whether his reference in Ground 2 was indeed to s 424 of the Migration Act or was perhaps a reference to s 424A, he was unable to answer.
The applicant relied on matters relating to the factual merits of his claim. He told the Court that if he returned to India he would have trouble and people would persecute him. He said that his girlfriend’s father belonged to the RSS and the RSS would harass him as he is a member of the TMMK. He claimed that he was afraid to go back to India. If he returns to India they will kill him.
The applicant asked the Court to remit his application to the Refugee Review Tribunal for reconsideration. He asked that the Tribunal should make a proper inquiry and submitted that the Tribunal had not made a proper inquiry previously.
The Minister’s submissions
Ms Anniwell, who appeared for the Minister for Immigration and Citizenship, submitted that the applicant’s ground of review were without merit.
Ground 1 did not identify any jurisdictional error and was meaningless in the absence of particulars.
Ground 2, Ms Anniwell submitted, was misconceived. There was no request by the Tribunal for information under s 424 of the Migration Act. If, however, the ground was intended to refer to s 424A of the Act there is nothing in the tribunal’s findings and reasons to indicate that the Tribunal relied upon any information to which s 424A applied as the reason or part of the reason for affirming the decision under review, necessitating the supply of written particulars and an invitation to comment or respond. The Tribunal’s reasoning was based upon information provided by the applicant to the Tribunal and the Tribunal’s assessment of the applicant’s claims based upon that information.
Conclusions
The Tribunal’s decision was based on its adverse credibility findings against the applicant. The Tribunal did not accept him as a witness of truth for the reasons it gave, based on his own evidence to the Tribunal. It was open to the Tribunal to make this credit finding, which is a factual finding and there is no scope for a court conducting judicial review to interfere (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[10] per Mc Hugh J at [67]).
[10] (2000) 168 ALR 407; [2000] HCA 1
The applicant’s oral submissions went entirely to the factual merits of his claim. Merits review is not open (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[11]).
[11] (1996) 185 CLR 259
The applicant’s Ground 1 is a bald assertion of jurisdictional error. As no particulars have been supplied, it is meaningless. It may just refer to Ground 2, where there is an allegation of jurisdictional error. As a Ground by itself, however, it cannot be made out.
There are two possible meanings for Ground 2. The applicant was not able to assist, but it is clear that he does not speak English and the application was quite obviously prepared for him by someone else.
Ground 2 may in fact mean what it says on its face, in which case it must fail, because, as Ms Anniwell submitted, there was no request for information by the Tribunal under the provisions of s 424 of the Migration Act.
However, it may well be the case that the applicant or his adviser actually meant that there was a breach of s 424A of the Migration Act. Again, however, the ground must fail. The Tribunal relied on the applicant’s own evidence to the Tribunal for its finding that the applicant was not a credible witness. The Tribunal did not rely on any other information that was the reason or part of the reason for affirming the decision. Consequently, the information upon which the Tribunal relied was excluded from the operation of s 424A (1) by s 424A (3) (b).
There is no breach of s 424A of the Migration Act.
Incidentally, it is worth noting that the Tribunal Decision Record shows signs of failure by the Tribunal Member to conduct appropriate proof reading of the decision.
The Tribunal referred to an offer made to the applicant in accordance with s 424AA of the Migration Act:
The Tribunal raised with the applicant the issue of his not mentioning in his original statement that he was involved in converting people to Islam. The Tribunal explained that this may lead to its concluding that he was not a credible witness; and that the claim is not genuine, because of the delay in raising it. He was offered time to respond. The applicant??? did he respond then or did he decline the offer.[12]
[12] Court Book 97
The Tribunal did give the applicant 14 days in which to provide any response to the issues raised at the hearing. The Tribunal also allowed the applicant 14 days to present further documents, and in fact granted the applicant an extension of time.[13]
[13] Court Book 100
No jurisdictional error is apparent.
Similarly, the Tribunal states:
He said that the F??? Incident Report? Of when his arm was injured was in India.[14]
[14] Court Book 99
Later on that same page, the Tribunal states:
He has written letters? But she has not.[15]
[15] Ibid
Nothing turns on these points. No jurisdictional error is disclosed. Tribunal Members are under pressure to produce decisions quickly, which may well explain these oversights, but the Tribunal should check its decisions before they are handed down. The Court reads Tribunal decisions thoroughly and errors of this nature will come to light.
I am aware that the applicant is not legally represented. My independent reading of the Tribunal decision discloses no arguable case for jurisdictional error.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s 474(2) of the Act. Consequently it is final and conclusive and not subject orders in the nature of certiorari, mandamus or prohibition/
The application will be dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. L. Coutman
Date: 20 November 2008
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