SZNPH v Minister for Immigration & Anor

[2009] FMCA 788

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNPH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 788

MIGRATION – VISA – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision refusing to grant a Protection (Class XA) visa – citizen of India claiming fear of persecution on the Convention ground of religion – credibility – merits review – whether “Wednesbury” unreasonableness – whether Tribunal was under an obligation to conduct its own further investigations – no jurisdictional error.

Migration Act 1958 (Cth) ss.424, 424A, 424B, 425, 425A, 474, 476
Migration Regulations 1994 (Cth) reg.4.35

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
SZNAV v Minister for Immigration and Citizenship [2009] FMCA 693 not followed.
SZNJT v Minister for Immigration & Anor [2009] FMCA 730 followed.
SZNLC v Minister for Immigration & Anor [2009] FMCA 749
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 followed
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed

Applicant: SZNPH

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1172 of 2009

Judgment of: Scarlett FM

Hearing date: 27 July 2009

Date of Last Submission: 27 July 2009

Delivered at: Sydney

Delivered on: 20 August 2009

REPRESENTATION

Applicant: The Applicant appeared in person

Solicitors for the Applicant: No solicitors on the record

Counsel for the Respondent: Ms Wong

Solicitors for the Respondent: Sparke Helmore (Ms Palmer)

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.

3. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1172 of 2009

SZNPH

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant, who is a citizen of India, applies for review of a decision of the Refugee Review Tribunal made on 15^th April 2009. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

2. He appeared unrepresented at the Final Hearing and made oral submissions in support of his claims that the Tribunal fell into error because:

   a)It failed to make a reasonable decision.

   b)It did not use other sources to find out the reasons.

   c)It did not allow him to give his details.

   d)It did not examine all the evidence although the Applicant had given adequate evidence to the Tribunal.

   e)The Tribunal Member did not use all his sources, such as other Websites, to find out the real facts.

Background

1. The Applicant arrived in Australia on 9^th July 2008. He applied for a Protection (Class XA) visa on 22^nd August 2008. In a statement lodged with his application, the Applicant claimed that he was a Christian from Kerala who feared violence from Hindus and Muslims.

2. The Department of Immigration and Citizenship wrote to the Applicant on 3^rd October 2008, inviting him to attend an interview with a Departmental officer on 5^th November 2008. The Applicant attended the interview and, at the interview, told the officer that he “knew nothing” about the claims made in his written statement. Instead, he claimed that a banned Muslim group had attempted to murder him. When he retaliated, the police sided with the Muslims. He claimed that he was subject to various attacks in 2006, 2007 and 2008.

3. The delegate of the Minister for Immigration and Citizenship refused his application on 22^nd November 2008. Whilst the delegate accepted that the Applicant was a Christian and had been involved with martial arts, the delegate expressed concerns about the veracity of the Applicant’s claims.[1]

   [1] Court Book 83

4. The Applicant initially applied to the Refugee Review Tribunal for review of the delegate’s decision on 16^th December 2008. However, his application was incomplete. A complete application was forwarded on 18^th December 2008 and was stamped “received” on that date. The Applicant did not provide any further documentary evidence with his application.

5. The Tribunal wrote to the Applicant on 17^th December 2008, presumably in response to his first, incomplete application, acknowledging receipt of his application. The letter was a standard form letter sent to applicants at that time, although I am aware and take judicial knowledge of the fact that the wording of the letter has been changed since that time. It is not necessary to quote the entire contents of the letter, but, relevantly, under the heading “What does the Tribunal expect me to do?” the letter said (inter alia):

   ·      Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English must be translated by a qualified translator.[2]

   [2] Court Book 92

6. The Tribunal wrote to the Applicant again, on 19^th January 2008, inviting him to attend a hearing scheduled for 26^th February 2009[3]. The hearing was later rescheduled to the following day[4].

   [3] Court Book 93

   [4] Court Book 95

7. The Applicant wrote to the Tribunal. In the undated letter, stamped “received” by the Tribunal on 24^th February 2009, the Applicant told the Tribunal that he had been “extremely depressed” after having been refused a protection visa. He claimed that Muslim fundamentalists in Kerala were trying to kill him, the leader of whom was one Abdul Nazar Madani.[5] He also provided a number of items of country information downloaded from the Internet along with newspaper clippings and photographs.

   [5] Court Book 98

8. The Applicant attended the Tribunal hearing on 27^th February 2009. The Tribunal Hearing Record shows that two interpreters were initially provided, one in the Tamil language and the other in Malayalam. The Applicant gave his evidence with the assistance of the Malayalam interpreter.[6]

   [6] Court Book 129

9. The Applicant provided a copy of his passport and some other documents entitled “Accident Register – Cum – Wound Certificate” to the Tribunal.[7]  

   [7] Court Book 131 - 145

10. The Tribunal wrote to the Applicant on 2^nd March 2009. The letter was headed “Invitation to Comment on or Respond to Information – (Applicant’s name).[8] The letter invited the Applicant to comment on or respond to information that the Tribunal considered would, subject to any comments he made, be the reason, or a part of the reason, for affirming the decision under review. The letter set out eight particular pieces of information, all of which had been given by the Applicant at the hearing, and advised the Applicant that:

    The above information is relevant because on the basis of inconsistencies between your evidence to the Department and your evidence at the review stage, the Tribunal may disbelieve your claims and find that you have not been truthful and/or credible.[9]

    [8] Court Book 146

    [9] Court Book 147

11. The Tribunal’s letter invited the Applicant to comment or respond in writing by 25^th March 2009.[10] It is clear that the letter was intended to comply with the requirements of s.424A of the Migration Act.

    [10] Court Book 148

12. The Applicant replied to the Tribunal’s letter by means of a two-page letter that was stamped “received” on 20^th March 2009.[11] The letter contained seven “explanations”, replying to the different matters raised by the Tribunal.[12]

    [11] Court Book 152

    [12] Court Book 152-153

13. The Tribunal signed its decision on 15^th April 2009, affirming the delegate’s decision not to grant the Applicant a Protection (Class XA) visa. A copy of the decision was posted to the Applicant that same day.

The Refugee Review Tribunal Decision

1. The Tribunal decision summarised the Applicant’s claims:

   a)From his application for a protection visa;

   b)From his interview with a Departmental officer;

   c)From documents submitted to the Tribunal; and

   d)From his evidence at the Tribunal hearing.

2. The Tribunal also considered the Applicant’s answers to its letter written under s.424A of the Migration Act and country information about Kerala.

3. In its Findings and Reasons, the Tribunal stated that the Applicant’s claims were based on the Convention ground of religion, as he had claimed to have been involved in communal riots between Muslims and Christians in Kerala. The Applicant was injured and became a target of local Muslims and of the police. He claimed to fear harm both from the Muslims and the authorities.

4. The Tribunal was not satisfied as to the Applicant’s credibility. It made these findings:

   The applicant did not impress the Tribunal as a reliable, credible and truthful witness. In reaching this view the Tribunal has had regard to the significant inconsistencies between the evidence he presented to the Department and his evidence to the Tribunal, the implausibility of some key aspects of his claims, as well as other reasons detailed below.[13]

   [13] Court Book 169 at [84]

5. The Tribunal then set out, in paragraphs 85 to 95, the reasons why it did not find the Applicant to be a credible witness and found;

   For all the above reasons, the Tribunal did not find the applicant to be a credible witness. The totality of his evidence shows a propensity to shift and tailor evidence in a manner which achieves his own purpose. The Tribunal, therefore, does not accept any of the applicant’s claims, including his written claims.[14]

   [14] Court Book 173 at [96]

6. The Tribunal did not accept that the Applicant had suffered any Convention related harm in India or that there was a real chance that he would be harmed for a Convention reason if he were to return to India. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

Application for Judicial Review

1. The Applicant commenced proceedings on 14^th May 2009. He filed an amended application and an affidavit in support on 6^th July 2009. The affidavit annexed some documents which had not been submitted to the Tribunal and were inadmissible.

2. The amended application set out these grounds of review:

   a) The Tribunal fail to take a reasonable decision.

   b) The Tribunal did not use other sources to find out the reason.

   c) The officer did not allow me to give my details.

   d) The applicant have given adequate evidence to the Tribunal. He did not examine all evidences.

   e) The RRT Member did not use all his sources to find out the real factor. He did not use other web sites.

3. The Applicant attended Court and submitted that the Tribunal did not allow him more time to get evidence from India, particularly from the Law Court in Kerala. He said he had some media evidence about his problem and his involvement but the Refugee Review Tribunal was not willing to look at it because the documents were all in Malayalam. The Tribunal could have asked the interpreter at the hearing to translate the documents.

4. The Applicant also said that he was willing to give more evidence to the Tribunal. He asked the Court to consider his situation and his lack of education.

The Minister’s Submission

1. Counsel for the Minister, Ms Wong, submitted that the Applicant’s grounds of review were unparticularised and sought merits review of the Tribunal’s decision. She summarised the grounds of review as:

   a)The Tribunal failed to make a reasonable decision;

   b)The Tribunal failed to use other sources to “find out the reason” and did not use all his sources “to find out the real factor”;

   c)The Tribunal did not allow the Applicant to give his details; and

   d)The Tribunal did not examine all the evidence.

2. Ms Wong submitted that the Tribunal carefully reviewed the Applicant’s evidence and determined that the Applicant was not a credible witness and his claims should not be accepted. The Applicant had not demonstrated that the Tribunal decision was “so unreasonable that no reasonable Tribunal would have made it” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation[15]).

   [15] [1948] 1 KB 223

3. Further, she submitted that the principal reason for the Tribunal’s determination was that the Applicant’s evidence contained numerous inconsistencies and implausibilities; thus there would have been no utility in the Tribunal’s conducting further investigations. In any event, the Tribunal was under no obligation to exercise its powers to undertake further investigations (VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[16] at [27]).

   [16] [2005] FCAFC 459

4. It was further submitted that the Applicant had been given ample opportunity to give evidence in support of his claims, both in writing and at the hearing.

5. Again, it was submitted that the “Claims and Evidence” section of the Tribunal’s reasons shows that the Tribunal referred to all the documents provided by the applicant and summarised his oral evidence both to the Department of Immigration and Citizenship and to the Tribunal, making it apparent that the Tribunal had regard to all the Applicant’s evidence when making its decision.

6. In any event, it is “plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons” (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[17] at [46]).

   [17] (2003) 75 ALD 630; [2003] FCAFC 184

7. Counsel for the Minister also raised the issue as to whether the Tribunal’s letter to the Applicant, acknowledging receipt of his application for review, was a letter written in accordance with s.424 of the Migration Act and whether it contravened the requirements of s.424B(2) of the Act.

8. This had been a finding in SZNAV v Minister for Immigration and Citizenship[18] and it was submitted on behalf of the Minister that SZNAV has been wrongly decided. To that end, counsel for the Minister relied on supplementary submissions drafted by Mr Cleary of counsel for the purposes of SZNJT v Minister for Immigration and Citizenship, which was heard on the same day as this matter. Smith FM has now delivered his decision in SZNJT[19] in which he declined to follow SZNAV.

   [18] [2009] FMCA 693

   [19] SZNJT v Minister for Immigration & Anor [2009] FMCA 730

9. As was submitted, in SZNAV Raphael FM found the Refugee Review Tribunal committed jurisdictional error because it breached Migration Regulation 4.35 and s.424B(2) of the Act. His Honour held that the letter acknowledging receipt of the applicant’s application for review, sent by the Tribunal to the applicant a day after receiving the application, was an invitation under s.424(2) of the Act for the Applicant to give additional information to the Tribunal (SZNAV at [32]).

10. Raphael FM found that, as the acknowledgment letter did not specify that the applicant must provide within the prescribed period of time, namely 14 days, as provided by Regulation 4.35, it did not comply with the requirements to specify a prescribed period within which the applicant could provide the information requested (SZNAV at [34]). His Honour further found that, as the acknowledgment letter did not comply with the requirements of Regulation 4.35, the Tribunal had breached both s.424B(2) and Regulation 4.35, and that this was a jurisdictional error.

11. The Minister conceded that the acknowledgment letter in the matter under review and the acknowledgment letter in SZNJT were identical to the acknowledgment letter in SZNAV.

12. The Minister submitted that SZNAV was wrongly decided for three reasons:

    i)The acknowledgment letter was sent before the Tribunal was constituted;

    ii)The acknowledgment letter was not sent under s.424; and

    iii)Any breach of s.424B or Regulation 4.35 did not go to jurisdiction.  

Conclusions

1. I will deal with the SZNAV issue first. Since the matter was heard before me, I have had the benefit of reading the reasons of Smith FM in SZNJT, where his Honour declined to follow SZNAV (see also SZNLC v Minister for Immigration and Citizenship[20] at [18]). With great respect to his Honour, I believe that the decision in SZNJ is correct for the reasons that he gave, which follows that I am unable to agree with the correctness of the reasoning in SZNAV.  

   [20] [2009] FMCA 749

2. In SZNJT, Smith FM was not persuaded that Raphael FM was clearly wrong in rejecting the contention that the acknowledgment letter was not sent while the Tribunal was “conducting the review” within s.424(1), because no Member had been appointed at that time to constitute the Tribunal for the purpose of the particular review under a direction by the Principal Member under s.421.

3. In my view, with respect, there may be some force in that point on production of appropriate evidence about the time at which the Tribunal is constituted after lodgement of an application for review. In the matter under review before me, counsel for the Minister tendered a document entitled “MRT/RRT Case Consolidation – Data Integrity Check Pre-constitution” dated “19/12/08” , which may go towards establishing that the Tribunal had not been constituted at that time. It is certainly the case that the Tribunal had been constituted by 19^th January 2009, the date when the Tribunal wrote to the Applicant and invited him to a hearing, saying:

   The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.[21]

   [21] Court book 93

4. It is unnecessary to decide that point, however, in light of my agreement with the finding in SZNJT that the acknowledgment letter cannot be characterised as an invitation to give additional information falling within the statutory language and intent of s.424(2) (at [53] and [58]). In my view, with respect, the letter sent by the Tribunal was clearly not an invitation to give additional information under s.424(2), as a reading of the text of the letter would indicate.

5. This view is reinforced by the fact that the Tribunal clearly did not regard the letter as having that effect, because it proceeded to invite the Applicant to appear at a hearing in a letter written just over a month later. The Applicant had not provided any information to the Tribunal at that stage, other than the copy of the delegate’s decision record submitted with his application for review, but the Tribunal did not proceed to make a decision on the review without taking any further action to obtain the, or any, information, under the provisions of s.424C(1). It invited the Applicant to a hearing.

6. Smith FM also accepted the Minister’s contention that s.424(2) could not have been enlivened in the case before him because the acknowledgement letter could not be construed as inviting the giving of any ‘additional’ information’. (at [64]).

7. His Honour also went on to find that “any non-compliance with the formalities of ss.424(2) and 424B, if it occurred in this case, had no jurisdictional consequences. Alternatively, if a jurisdictional procedural error occurred, it was of such insignificance that the Court should not exercise its power to quash the decision (at [72]). With respect, I agree.

8. The Applicant was able to provide information to the Tribunal before the hearing. He provided a written submission which was hand-delivered on 24^th February 2009[22] together with a number of attached documents, including material downloaded from the Internet, press cuttings and photographs. The Tribunal considered that material.[23]

   [22] Court Book 98-99

   [23] Court Book 163 at [50]

9. I am satisfied that the Tribunal did not fall into jurisdictional error by means on any non-compliance with ss.424 or 424B or Regulation 4.35. Even if there was a jurisdictional procedural error, it was of such insignificance that the Court should not exercise its power to quash the Tribunal decision.

1. Turning now to the Applicant’s grounds of review, the first ground claims that the Tribunal failed to make “a reasonable decision”. This is really a challenge to the Tribunal’s factual findings and amounts to a request to the Court to conduct merits review of the Applicant’s refugee claims, which the Court cannot do.

2. There is no unreasonableness demonstrated, let alone “Wednesbury unreasonableness”. The Tribunal considered the Applicant’s claims but rejected them on the basis that it did not find him to be a credible witness.[24] It is well established that credibility is a matter for the Tribunal and in this case the Tribunal has set out the reasons why it did not find the Applicant to be a credible witness.[25]

   [24] Court Book 173 at [96]

   [25] Court Book 170 - 173

3. The Applicant’s first ground has not been made out.

4. The Applicant’s second ground claims that the Tribunal did not use “other sources to find out the reason”. This is a claim that the Tribunal should have conducted its own independent investigation of the Applicant’s claims. There is no general obligation on the Tribunal to do so (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[26] at [17]-[19] per Gleeson CJ, at [33] per Gummow and Hayne JJ; SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[27] per Bennett J at [8]).

   [26] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32

   [27] [2005] FCA 1811

5. The Applicant’s second ground of review has not been made out.

6. The Applicant’s third ground claims that “the officer did not allow me to give my details”. Insofar as this is a complaint that the Tribunal would not accept documents produced by the Applicant that were in Malayalam without a translation, it is clear that the Tribunal has no obligation to make its own translation of any documents that are not in English.

7. There is no evidence that the Applicant was in any way hindered from giving oral or written evidence. He gave oral evidence to the Tribunal at the hearing with the aid of an interpreter in Malayalam, he produced various written documents (in English) and he provided a two-page written response to the Tribunal’s s.424A letter on 20^th March 2009.[28]

   [28] Court Book 152-153

8. The Applicant’s third ground of review has not been made out.

9. The Applicant’s fourth ground complains that he had given “adequate evidence” to the Tribunal but the Tribunal did not examine all the evidence. However, it is clear from a reading of the Tribunal Decision Record that the Tribunal considered the Applicant’s oral and written evidence given at the interview with the Minister’s delegate and at the hearing, and after the hearing.

10. The Applicant’s fourth ground of review has not been made out.

11. The Applicant’s fifth ground complains that the Tribunal Member “did not use all his sources to find out the real factor. He did not use other web sites”. This is a repetition of the Applicant’s earlier claim that the Tribunal did not carry out its own investigation of his refugee claim. There is no general duty or obligation to make its own investigation:

    It is for the appellant to present to the Tribunal material necessary for it to achieve the requisite satisfaction. (SZBKB[29] at [8]).

    [29] supra

12. The Applicant’s fifth ground of review has not been made out.

13. As to the procedural fairness requirements in Division 4 of Part 7 of the Act, I have already found that there is no breach of ss.424 and 424B. The Tribunal complied with the requirements of s.424A in its letter dated 2^nd March 2009[30], although it appears not to have been strictly necessary for it to do so.

    [30] Court Book 146-148

14. The Tribunal invited the Applicant to a hearing under the provisions of s.425 and provided him with an interpreter in the Malayalam language. He attended the hearing and gave evidence. There is no complaint about the adequacy of the interpretation, nor was any issue raised at the hearing that was not dealt with at the Departmental interview.

15. The letter inviting the Applicant to the hearing complied with the requirements of s.425A of the Migration Act.

16. There is no breach of any section in Division 4 of Part 7 of the Migration Act.

17. There is no jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision as defined by s.474(2). It is final and conclusive and not subject to prohibition, mandamus, injunction, declaration or certiorari.

18. The application will be dismissed with costs.   

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  18 August 2009