SZNLR v Minister for Immigration - [2009] FMCA 584

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 584

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Applicant:

SZNLR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 875 of 2009

Judgment of:

Driver FM

Hearing date:

22 June 2009

Delivered at:

Sydney

Delivered on:

22 June 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr G Conomos
Clayton Utz

INTERLOCUTORY ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 875 of 2009

SZNLR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India. He made claims of political persecution. He arrived in Australia on 27 June 2008 and applied for a protection visa on 25 August 2008. A delegate of the Minister refused that application on 22 November 2008. On 18 December 2008 the applicant sought review of that decision before the Tribunal. The Tribunal was unwilling to make a favourable decision on the papers and invited the applicant to a hearing. He attended that hearing on 26 February 2009. The applicant had previously been interviewed by the Minister's delegate and the Tribunal listened to the recording of that interview. It was apparent that the applicant's claims had changed before the Tribunal. The applicant told the Tribunal that the agent who had been assisting him had made up a story not consistent with his claims.
The Tribunal considered the claims made by the applicant to the Tribunal but found those claims implausible. The Tribunal put its concerns orally to the applicant at the hearing. The Tribunal took into account country information in considering the applicant's claims. The Tribunal concluded that it was not satisfied that the applicant provided a credible account of his circumstances in India. The Tribunal concluded that it was not satisfied that the applicant faced a real chance of serious harm here.
These proceedings began with a show cause application filed on 16 April 2009. The applicant now relies upon an amended application filed on 10 June 2009. There are three paragraphs purportedly setting out the grounds of that application which I incorporate in this judgment:
1. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in sl424A which relevantly states:
424A applicant must be given certain information
I. Subject to subsection (3), the Tribunal must:
a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider 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 understand why it is relevant to the review and
c) Invite the applicant to comment on it.
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue. If I would provide a submissions prior to [Tribunal] decision, I believe that I would have a different decision.
2. The Tribunal did not give to the applicant before the hearing information from external sources that it had about DMK and AIADMK. The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.
3. The Tribunal has failed to investigate my claims, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 2 March 2009 was effected by actual bias constitution judicial error.
Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.
The applicant filed a short affidavit with his original application which I received as a submission. I have before me as evidence the court book filed on 13 May 2009.
I invited oral submissions from the applicant in support of his show cause application. He said that he is at risk of harm in India and cannot return there. He said that he had lost documents which supported his claims of a well-founded fear of harm. The applicant was not able to say anything useful in relation to the grounds in the amended application. He said that the amended application had been prepared by a person he described as "a lawyer" although he could not remember that person's name. He said that previous documents had been prepared by a Mr Sivakumar, who the applicant also described as a lawyer. My associate conducted a computer search during the course of the hearing but was unable to find any record of Mr Sivakumar being either a registered migration agent or a solicitor. The applicant is dissatisfied with the assistance apparently provided by Mr Sivakumar. I invited the applicant to raise his concerns about Mr Sivakumar with the Minister's department. He said that he would do so.
Grounds 1 and 2 in the application both assert a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). Ground 1 asserts a failure by the Tribunal to invite comment on inconsistencies in the applicant's own evidence. However, that was information given by the applicant to the Tribunal for the purposes of the review and is not disclosable information pursuant to s.424A.
Ground 2 asserts a failure to comply with s.424A in relation to country information. The Tribunal decision in paragraph 43 (court book, pages 106 and 107) discloses that the Tribunal relied on country information. However, that information was not disclosed because of the operation of s.424A(3)(a) of the Migration Act.
Ground 3 of the application asserts a failure to investigate the applicant's claims, amounting to actual bias. The applicant's affidavit asserted procedural unfairness because of a failure to investigate his claims.
There is no evidence whatsoever to support the allegation of actual bias. It is clear from the Tribunal decision that the applicant's claims, as articulated to the Tribunal, were considered. There was no obligation on the Tribunal to conduct an investigation into those claims. It was for the applicant to put forward whatever information he wished in support of his claims.
The applicant has failed to disclosure an arguable case of jurisdictional error by the Tribunal. Neither is there any arguable case of error apparent to me from my own reading of the available material.
Accordingly, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). I so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $2,800. That is less than the amount prescribed under the Court Rules. The applicant says that he is impecunious but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 June 2009