SZNOG v Minister for Immigration
[2009] FMCA 690
•21 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNOG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 690 |
| MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424, 424A, 424AA, 424B |
| Applicant: | SZNOG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1072 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 21 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms T Quinn DLA Phillips Fox |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) 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 in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1072 of 2009
| SZNOG |
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 decision was made on 8 April 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of religious and political persecution. He arrived in Australia on 12 August 2008 and applied to the Minister's Department for a protection visa on 18 September 2008. The Minister's Delegate refused that application on 15 December 2008. On 13 January 2009, the applicant sought review before the Tribunal. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing. The applicant appeared before the Tribunal on 16 March 2009 to give evidence and present arguments. He was assisted by an interpreter in the Tamil and English languages.
The Tribunal raised with the applicant during the course of the hearing doubts and concerns it had about the applicant's claims. The Tribunal purported to go through a process of oral disclosure pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to an inconsistency of significance between his claims to the Department and his claims to the Tribunal. That inconsistency concerned the period he said he was detained by the Indian authorities. The Tribunal advised the applicant of the options available to him for a response and he sought more time so that he could obtain records. The Tribunal considered that request but declined it. The applicant again sought more time to produce documents. The Tribunal advised the applicant that it would consider any material he submitted before it made its decision in the matter. No further material was provided.
The Tribunal did not accept the applicant's claims concerning the asserted harm he suffered in India. The Tribunal formed the view that the applicant's case was overwhelmingly fabricated and was, to a great degree, improvised at the Tribunal hearing. The Tribunal took into account inconsistencies arising within the body of the applicant's oral evidence at the hearing on 16 March 2009 on the basis of the discrepancy raised with him under s.424AA of the Migration Act and on the basis of the vast difference between the claims made in his initial protection visa application and the claims made to the Tribunal in writing and orally.
These proceedings began with a show cause application filed on 4 May 2009. The applicant now relies upon an amended application filed on 7 July 2009. I incorporate in this judgment the grounds in that application:
1. The Tribunal did not give to the applicant before the hearing the information it had about the TMMK and other relevant country information it had about Tamil Nadu. The Tribunal member used this information (Green book pages 14 to 16). This was against section 424A of the Migration Act 1958.
2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant was not a witness of truth, 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.
3. The Tribunal failed to comply with s424 of the Migration Act 1958.
Particulars
i. The Tribunal asked question invited the applicant to give information additional to that which the Tribunal had obtained.
(a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act.
i. The invitation did not specify the way in which the additional information may be given.
ii. The invitation did not specify the period within which the information was to be given.
4. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in s424A which relevantly states:
424A applicant must be given certain information
1. 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 and lacked credibility; therefore the Tribunal had erred by denying me procedural fairness in respect of this issues. If I would provide a submission prior to [Tribunal] decision, I believe that I would have a different decision.
Therefore … I submit that the Tribunal failed to analyse properly the “future harm” that I may face if I have 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 my claim.
I have before me, as evidence, paragraphs 1 and 2 of the applicant's affidavit filed on 4 May 2009. The third paragraph I received as a submission. I also have before me the court book filed on 3 June 2009 and a statement of advice provided to the applicant by Mr Norman Potts, dated 16 July 2009. The applicant tendered Mr Potts's advice notwithstanding my advice to him that the advice was privileged. The applicant elected to waive privilege in the advice. In essence, the advice is that there was no error in the Tribunal decision or process and that the application before this Court could not succeed.
In his affidavit, the applicant asserts that the Tribunal failed to investigate his genuine claims of persecution in India. It is abundantly clear, however, from the Tribunal's decision that his claims were considered. They were simply not accepted. The applicant also asserts actual bias but there is no evidence whatsoever to support that assertion.
The amended application in grounds 1 and 4 asserts a failure to comply with s.424A of the Migration Act. There is no substance to that claim because the Tribunal decision relevantly turned on the applicant's own written and oral evidence as put to the Minister's Department and the Tribunal. The information given to the Tribunal falls within s.424A(3)(b). The information given to the Department was not adverse information. In my view, s.424A was not engaged in this case. Although the Tribunal purported to go through a process of oral disclosure pursuant to s.424AA in relation to an inconsistency of significance as between the applicant's claims to the Department and the Tribunal, in my view, the Tribunal probably exceeded its obligations. In any event, the Tribunal met whatever obligations that arose under s.424AA. In particular, the Tribunal considered the applicant's request for more time to produce documents. The applicant did not produce any further documents to the Tribunal after the Tribunal hearing and the applicant continued to assert before me today that he needed more time to obtain documents from India. The exercise of discretion by the Tribunal to refuse additional time was a reasoned decision and reasonably based.
Ground 2 in the amended application asserts procedural unfairness. The applicant asserts that the Tribunal did not give him an opportunity to be heard. However, the Tribunal decision record sets out in some detail the discussion that occurred between the applicant and the Tribunal at the hearing (see court book, pages 82 to 88). In my view, the applicant was afforded a real hearing opportunity by the Tribunal. The Tribunal was frank and open in drawing attention to its concerns about the applicant's claims.
Ground 3 in the amended application asserts a failure to comply with s.424 of the Migration Act. The applicant appears to be under a misapprehension in relation to that ground. The Tribunal did not invite additional information from the applicant. He sought an opportunity to provide additional documents which was refused, although the Tribunal indicated that it would take into account any further documents provided up to its decision. In my view, there was no invitation for additional information pursuant to s.424.
I conclude that the amended application fails to disclose an arguable case of jurisdictional error. Neither is any arguable case of error discernible by me from my own perusal of the material.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks costs in accordance with the Court scale in the sum of $2,935. The applicant asserts an inability to pay but impecuniosity is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 July 2009
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