SZNKA v Minister for Immigration
[2009] FMCA 884
•7 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 884 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal considered the applicant’s claims – whether the Refugee Review Tribunal denied the applicant procedural fairness – whether the Refugee Review Tribunal’s findings were open to it on the evidence and material before it – whether the Refugee Review Tribunal was obliged to investigate the applicant’s claims – whether the Refugee Review Tribunal approached its task with bias or an apprehension of bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65; 65(1); 91R; 91S; 422B; 424A; 424A(1); 424A(3); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 425; 474; pt.8 div.2 |
| VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 SZHWI v Minister for Immigration and Multicultural Affairs & Anor (2007) 95 ALD 631 Abebe v The Commonwealth (1999) 197 CLR 510 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 66 ALR 299 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZBEL v Minister for Immigration and Indigenous Affairs (2006) 231ALR 592 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 SZNAV v Minister for Immigration and Citizenship [2009] FMCA 693 SZNJT v Minister for Immigration and Citizenship [2009] FMCA 730 Minister for Immigration and Citizenship vSZNAV [2009] FCAFC 109 Minister for Immigration and Citizenship vSZKTI [2009] HCA 30 |
| Applicant: | SZNKA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 774 of 2009 |
| Judgment of: | Emmett FM |
| Hearing dates: | 12 August 2009 & 7 September 2009 |
| Date of Last Submission: | 12 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr J. Knackstredt |
| Solicitors for the Respondent: | Mr G. Conomos, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 774 of 2009
| SZNKA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 9 March 2009 and handed down the same day.
The applicant claims to be a citizen of India and of Roman Catholic faith (“the Applicant”).
The Applicant arrived in Australia on 7 July 2008 having departed legally from Bangalore on a passport issued in his own name and a visitor visa issued on 18 June 2008.
On 21 July 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 1 October 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 23 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 6 March 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa application.
On 3 April 2009, 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 (“the Convention”).
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, 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 Applicant’s application for a protection visa
In his protection visa application the Applicant stated that he feared persecution by Hindus; in particular, the National Association of Self-helpers (“the RSS”) and Bharatiya Janata Party (“the BJP”) for his involvement with Christian charitable groups, including the “Divine Retreat Centre”.
The Applicant claimed the Divine Retreat Centre was perceived as converting Hindus to Christianity and was also involved in blood donations. The Applicant claimed that the RSS and BJP were angered by the blood donations as they saw it as taking blood from Hindus to Christians and vice versa. The Applicant claimed such conduct caused “big religious riots” and the Divine Retreat Centre was raided.
The Applicant claimed that, as a result of his Christianity and involvement in the Divine Retreat Centre his wife, children and parents were threatened and assaulted resulting in hospitalisation. The Applicant claimed that rumours were spread about him and he was prevented from returning to his village after he fled and received death threats. He claimed he decided to leave his wife and children in a “convent” and flee the country.
The Delegate’s decision
On 16 September 2008, the Applicant attended an interview with the Delegate.
On 1 October 2008, 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 Convention.
The Tribunal’s review and decision
On 23 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of his application.
On 2 December 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 30 December 2008 to give oral evidence and present arguments. This hearing was rescheduled twice by way of letters from the Tribunal dated 17 December 2008 and 5 January 2009 to 30 January 2009.
On 30 January 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
Then Applicant’s claims and the decision of the Tribunal are accurately summarised by counsel for the First Respondent, Mr Knackstredt, in his written submissions as follows:
“10. The Tribunal summarised the claims made by the Applicant to the Minister’s delegate and the evidence given by him during the Tribunal hearing (CB 63 to 68). The Tribunal also referred to independent country information (CB 68 to 73).
11. The Tribunal accepted that the Applicant:
a. Is a citizen of India (CB 73.10);
b. Grew up in a Roman Catholic family, and that he, his wife, parents and children are Roman Catholics (CB 74.1);
c. Lived in the village of Thumbakode in Trichur in Kerala and ran a general provisions store there (CB 74.2); and
d. Had been involved in some minor charity work in his village and may have been involved in blood donation campaigns (CB 74.4).
12. However, the Tribunal:
a. Did not accept that:
i. The Applicant worked for a charity known as “Vision in Action”, although it accepted that his friend worked for that charity (CB 74.3);
ii. The Applicant was involved in assisting persons with drug and alcohol problems to attend the Devine Retreat Centre (CB 74.8);
iii. The Applicant was perceived by Hindu extremist groups as being involved in converting Hindus to Christianity (CB 74.9);
iv. The Applicant would be targeted because some of the blood donors were Hindus giving blood to other religious groups (CB 75.1);
v. The Applicant or his family were assaulted by members of any Hindu extremist groups (CB 75.2);
vi. The Applicant’s home was damaged by extremists (CB 75.2);
vii. If the Applicant returns to India, he will face a real chance of persecution because of perceptions that he was involved in conversion activities (CB 75.2); and
viii. The Applicant faces any chance of harm for reason of his Catholic religion should he return to India now or in the foreseeable future (CB 75.6); and
b. Was not satisfied that the Applicant has a well-founded fear of persecution for any Convention-based reason (CB 75.8).
13. As a result of its findings, the Tribunal affirmed the decision of the Minister’s delegate not to grant the Applicant a protection visa (CB 76.1).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 21 April 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing. The applicant was also directed to file and serve written submissions in support of the grounds of his application. No further application, evidence or submissions were filed by or on behalf of the Applicant.
At the commencement of the hearing before this Court, the Applicant confirmed that he relied on the grounds contained in an application filed on 3 April 2009 as follows:
“1. The Tribunal did not give to the applicant before the hearing the information that it had about the history of Kerala and it did not give to the applicant the country information it had about Kerala and India. The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.
2. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that: a. it failed to properly apply the consideration that applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant claims are plausible, which was the case here.
3. The Tribunal did not use the country information as a specific, however, the general information gathered by the Tribunal considered to weight against the applicant claims in the final outcome. The Tribunal used the all information for matter of reasoning and evaluation of the case for protection visa.
4. The decision made by Refugee Review Tribunal based on the country information, which are dominated and censored by the government. The personal circumstances and claims have ignored while considering the application by the Refugee Review Tribunal.
5. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
6. The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.”
The grounds are in a form commonly seen in this Court.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant did not make any relevant submission in support of any of the grounds save to repeat that the Tribunal had not made the right decision.
The Applicant did assert to this Court that he had been unable to give any evidence or documents to the Tribunal because he did not have anyone to send any such relevant material over from Kerala. However, a fair reading of the Tribunal’s decision record does not support that any request was made by the Applicant for further time to send further material, nor did the Applicant articulate such a complaint to this Court.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 21 April 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing. Accordingly, there is no evidence before this Court to suggest that any request was made by the Applicant to the Tribunal for further time to provide documents and which was refused by the Tribunal.
Ground 1
Ground 1 was not supported by evidence or submissions. Ground 1 appears to assert that the Tribunal was obliged to give to the Applicant the information it had about the history of Kerala and India and that the Tribunal’s failure to do so was a breach of s.424A of the Act. Such an assertion is misconceived.
While s.424A(1) of the Act requires the Tribunal to give to an applicant particulars of any information that would be the reason or part of the reason for affirming the decision under review, s.424A(3) excludes certain information from those obligations. It is well settled that country information of the type referred to by the Applicant in Ground 1 is no more than information about a class of persons of which the Applicant is a member. Such information is specifically excluded from the obligations of s.424A(3) of the Act by reason of s.424A(3)(a) of the Act (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 at [123]-[138] per Merkel and Hely JJ; SZHWI v Minister for Immigration and Multicultural Affairs & Anor (2007) 95 ALD 631 at [11]).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 was not supported by particulars, evidence or submissions. Ground 2 appears to be a complaint by the Applicant that the Tribunal failed to be satisfied on the evidence before the Tribunal that the Applicant was a refugee.
It is for an applicant to satisfy the relevant decision-maker, in this case the Tribunal, that he meets the criteria required for being a refugee (Abebe v The Commonwealth (1999) 197 CLR 510 (“Abebe”) at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]). If the Tribunal is not so satisfied then the decision-maker must refuse the Applicant a protection visa pursuant to s.65 of the Act.
A fair reading of the Tribunal’s decision record makes clear that it considered carefully the criteria required for a protection visa and the elements in support of which the Tribunal needed to be satisfied in determining if the Applicant has a well founded fear of persecution for a Convention related reason. The Tribunal’s decision record correctly set out the relevant law in considering whether or not the Applicant satisfied the Refugee’s Convention.
The Tribunal accurately summarised the Applicant’s written claims and explored those claims with the Applicant at a hearing before the Tribunal. The Tribunal noted various exchanges it had with the Applicant about his claims and noted matters of concern that the Tribunal put to the Applicant about his evidence and noted his responses.
The Tribunal’s decision recorded noted with specificity the independent information to which it had regard, including country information in relation to state protection in Kerala and country information about the Divine Retreat Centre.
The Tribunal rejected the Applicant’s claims of being involved in Christian conversion through blood donations and other charitable work in his village. The Tribunal rejected the Applicant’s claims of past harm by Hindu extremists groups and was not satisfied that the Applicant faced a real chance of persecution by reason of any perception that he was involved in conversion activities in Kerala.
The Tribunal also considered the situation for Roman (Latin) Catholics in Kerala and whether the Applicant would face persecution for that reason if he were to return to India now or in the foreseeable future. The Tribunal relied on country information before it that the national government of India and the government of Kerala strongly supported religious harmony and tolerance and that Kerala has a large and established Christian community. The Tribunal found that Christians in Kerala are “relatively safe”. The Tribunal found that government authorities in India are willing to provide non-discriminatory and reasonable and effective protection by international standards. The Tribunal did not accept that the Applicant faced a real chance of harm in the foreseeable future by reason of his Catholic religion if he were to return to India now or in the foreseeable future.
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that it considered carefully the Applicant’s evidence before it and made findings that were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Otherwise, Ground 2 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 (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 is not supported by particulars, evidence or submissions. It is difficult to understand the complaint made in Ground 3 and the Applicant was unable to explain at the hearing before this Court what was meant by Ground 3. Ground 3 appears to assert that the Tribunal used all the information before it in reasoning and evaluating the applicant’s case for a protection visa. Such an assertion plainly does not disclose any error.
There is no suggestion by the Applicant to this Court that the Applicant provided contrary country information which the Tribunal failed to consider. It is otherwise a matter for the Tribunal the country information to which it has regard and the weight it gives that information (Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 66 ALR 299 at 328 per Brennan J; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11] per the Court (Gray, Tamberlin and Lander JJ)).
The country information to which the Tribunal had regard was relatively recent and relevant to the Applicant’s claims. It was open to the Tribunal to accept the country information before it and to prefer that information to the Applicant’s evidence. As stated above in these reasons, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.
Ground 4
Ground 4 is not supported by particulars, evidence or submissions. Ground 4 appears to complain about the country information to which the Tribunal had regard. As stated above, there is no suggestion in the Tribunal’s decision record, nor did the Applicant make any such complaint, that the Applicant provided to the Tribunal country information to the Tribunal which it failed to consider.
To the extent that Ground 4 appears to complain that the Tribunal ignored the Applicant’s “personal circumstances and claims”, such a complaint is not made out. As stated above, the Tribunal’s decision record makes clear that the Tribunal considered carefully and in great detail the claims made by the Applicant about his personal circumstances and explored in detail those claims with the Applicant at a hearing. The Applicant did not identify at this hearing any particular personal circumstance that he asserts the Tribunal ignored.
As stated above in these reasons, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.
Otherwise, the terms of Ground 4 would appear to invite merits review which, as stated above, this Court cannot undertake.
Accordingly, Ground 4 is not made out.
Ground 5
Ground 5 is not supported by particulars, evidence or submissions. Ground 5 appears to assert that the Applicant was denied procedural fairness because the Tribunal reached adverse conclusions in respect of the Applicant’s claims.
The assertion in Ground 5 that the Applicant was not given an opportunity to be heard in respect of his claims is not made out on a fair reading of the Tribunal’s decision record, including its review. The Applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments. The Applicant did so. As stated above in these reasons, the Tribunal explored in great detail the Applicant’s claims with him at a hearing and put to the Applicant concerns the Tribunal had about his evidence and noted the Applicant’s responses.
There was no information upon which the Tribunal relied that gave rise to any obligation under s.424A of the Act. The information upon which the Tribunal relied in affirming the decision under review was information given by the Applicant to the Tribunal for the purposes of its review. Such information is specifically excluded from the obligations of s.424A of the Act by reason of s.424A(3)(b) and s.424A(3)(ba). The other information to which the Tribunal had regard was information which was not specifically about the Applicant but was about a class of persons of which the Applicant was one. Such information is specifically excluded from the obligations of s.424A of the Act by reason of s.424A(3)(a) of the Act.
Ground 5 does identify any particular aspect of procedural fairness with which the Tribunal failed to comply, other than the Applicant’s general disagreement with the Tribunal’s conclusions. Such disagreement does not establish a denial of procedural fairness on behalf of the Tribunal. It is now well established that s.422B of the Act is an exhaustive statement of the rules of natural justice that apply in this case (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62).
A fair reading of the Tribunal’s decision record does not identify any issue that the Tribunal failed to put to the Applicant in accordance with its obligations under s.425 of the Act (SZBEL v Minister for Immigration and Indigenous Affairs (2006) 231ALR 592 at [35], [37], [47]).
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal complied with the statutory obligations in the making of its decision, including the conduct of its review.
Accordingly, Ground 5 is not made out.
Ground 6
Ground 6 appears to be no more than a statement of disagreement with the findings and conclusions of the Tribunal. As stated above, such a complaint invites merits review which this Court cannot undertake.
Further Grounds
In his affidavit filed 3 April 2009 in support of his application, the Applicant asserts the following:
“The RRT has failed to investigate my claim, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 9 March 2009 was effected by actual bias constituting judicial error (sic).”
To the extent that the Applicant appears to complain that the Tribunal had failed to investigate his claims, there is no such obligation on the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
To the extent that the Applicant makes the serious unparticularised assertion of “actual bias” such an allegation is not made out. Such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly the Applicant’s complaints in his affidavit are not made out.
Other Matters
At the hearing before this Court, the Applicant sought an adjournment to consider the issue raised in the recent decision of SZNAV v Minister for Immigration and Citizenship [2009] FMCA 693 (“SZNAV”) per Raphael FM. The First Respondent was directed to provide the Applicant and the Applicant’s panel adviser forthwith:
a)copies of the reasons for judgment in SZNAV and SZNJT v Minister for Immigration and Citizenship [2009] FMCA 730 (per Smith FM);
b)a covering letter to the Applicant and panel advisor enclosing those decisions and explaining to the Applicant and the panel advisor the issue arising as a result of those decisions;
c)a copy of the written submissions of counsel for the First Respondent filed 4 August 2009; and
d)a copy of the Notice of Appeal in SZNAV filed in the Full Court of the Federal Court of Australia on 10 August 2009.
The matter was adjourned for further directions until today pending any decision of the Full Court of the Federal Court of Australia or any other authority by which this Court would be bound. I should note that, although no such directions were made, there has been no further document filed by or on behalf of the Applicant in support of his application. At the conclusion of the directions hearing this afternoon, the Court invited the Applicant to make any further submissions he wished in support of his application generally. The Applicant had nothing further to say.
The Full Court has now handed down its decision in Minister for Immigration and Citizenship vSZNAV [2009] FCAFC 109 which upheld the Minister’s appeal on the basis that the High Court had finally disposed of the issue in Minister for Immigration and Citizenship vSZKTI [2009] HCA 30. Accordingly, I do not propose to consider this issue any further.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 should be dismissed with costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 7 September 2009
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