SZOVT v Minister for Immigration

[2011] FMCA 162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVT v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 162

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

PRACTICE AND PROEDURE – Referral of the conduct of the applicant’s migration agent, who is a legal practitioner, to the OMARA and the Legal Services Commissioner.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.425, 486I

Minister for Immigration v SZMDS (2010) 240 CLR 611
SZLMK v Minister for Immigration & Anor [2008] FMCA 1372
SZOHY v Minister for Immigration [2010] FCA 1267
SZOOW v Minister for Immigration & Anor [2010] FMCA 960

Applicant: SZOVT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2688 of 2010

Judgment of: Driver FM

Hearing date: 15 March 2011

Delivered at: Sydney

Delivered on: 15 March 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr D Smith
Clayton Utz

INTERLOCUTORY ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The transcript of today’s hearing is to be obtained and be provided, with these reasons, to the Office of the Migration Agents Registration Authority and the Legal Services Commissioner for such action as they deem appropriate.

3. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2688 of 2010

SZOVT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 26 November 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The following statement of background facts is derived from the Minister’s written submissions filed on behalf of the Minister. 

2. On 8 April 2010, the applicant, who is from India, applied for a protection visa (court book “CB” at 1).

3. On 23 July 2010, the applicant attended an interview before the delegate.

4. On 31 August 2010, the delegate informed the applicant that his application for a protection visa had been refused (CB at 36).

5. On 24 September 2010, the applicant applied to the Tribunal for a review of the decision of the delegate (CB at 55).

6. On 9 November 2010, the applicant attended a hearing before the Tribunal.

7. On 26 November 2010, the Tribunal notified the applicant that it had affirmed the decision of the delegate to refuse the applicant a protection visa (CB at 67).

Proceedings before the Tribunal

1. The Tribunal rejected virtually every aspect of the applicant's claims on the basis that it could not be satisfied of the truthfulness of any of his evidence.

2. The Tribunal considered that the applicant had manufactured the entirety of his claims ([48] of the Tribunal's reasons; CB at 85).  The Tribunal characterised the applicant's evidence as vague, confused and inconsistent.

3. The applicant relied upon an incident in which he was stabbed and his brother was murdered as a manifestation of his persecution.  It was alleged that the attack had been perpetrated by two "goons" affiliated with the BJP.  The applicant was a witness at the ensuing court case in which the assailants were tried.

4. When questioned about the dates on which the trial occurred, the applicant was highly evasive and was unable to give the Tribunal a date.  The Tribunal invited the applicant to provide an approximate date but the applicant was unable to do so.  The Tribunal considered that the applicant could be reasonably expected to remember at least the approximate date and that his inability or unwillingness to do so cast doubt upon the truthfulness of his claims (at [49] of the Tribunal's reasons; CB at 85).

5. There were several other incidents of harm alleged by the applicant.  In the written statement that the applicant submitted with his initial protection visa application, the applicant noted that there had been two stabbings, an attempted poisoning, a beating resulting in fractures to the applicant's arms and legs and an incident where petrol was thrown at his house.  When asked at the Tribunal hearing about the incidents that had occurred, the applicant was only able to recall one of those incidents unprompted.  The applicant was afforded the opportunity to think about his response, but it was only when prompted by the Tribunal from his written statements that the applicant was able to recall any other incidents (at [50] of the Tribunal's reasons; CB at 85).

6. The applicant's evidence as to the circumstances of the murder was not consistent.  In the applicant's statement to the delegate, he had stated that the murder had occurred after the applicant and his brother had gone to a house rented by the applicant to see a tenant who was in arrears in payment of rent.  Later, the two assailants had gone to the applicant's house and attacked the applicant and his brother.  However, in his oral evidence to the Tribunal, the applicant stated that he and his brother had gone to a video shop owned by his brother whereupon they had been attacked.  The Tribunal noted that this inconsistent evidence raised serious doubts about the truthfulness of the applicant's claims (at [51] of the Tribunal's reasons; CB at 85-6).

7. There was also inconsistent evidence, noted by the Tribunal, whereby the statement which accompanied the applicant's initial protection visa application stated that the applicant's family were no longer living in his house in Delhi.  However, in evidence to the Tribunal the applicant stated that his family were still living in his house in Delhi (at [52] of the Tribunal's reasons; CB at 86).

8. The Tribunal also noted that the applicant had a visa to travel to Thailand but did not do so despite maintaining that he had an ongoing fear of harm and persecution in India (at [53] of the Tribunal's reasons; CB at 86).

9. In these circumstances, the Tribunal held that it could not be satisfied to the truthfulness of anything the applicant said.  It was on this basis that the applicant's claims were rejected.

10. These proceedings began with a show cause application filed on 13 December 2010.  That application contained grounds of review in template form.  The applicant now relies upon an amended application filed on 28 February 2011.  The grounds and particulars of that amended application are:

    The Grounds of the application are:

    1) The Refugee Review Tribunal exceeded or constructively failed to exercise jurisdiction to affirm the decision of the respondent not to grant the applicant a protection visa and

    2) The RRT erred in law in arriving at the decision to affirm the decision of the respondent not to grant the applicant a protection visa.

    3) The Refugee Review Tribunal made a jurisdictional error when it Misapplied the express and implied meaning of term “well founded fear “And “refugee “from the UN Convention.  The Applicant claims that the Tribunal erred in adopting an unduly harsh approach to the Well-founded fear.

    PARTICULARS (as to each order sought and each ground above)

    (1) Subparagraph 65(1)(a)(ii) of the Migration Act 1958 (the Act) required the Respondent in respect of the applicant’s primary application for a protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or the regulations made there under (the regulations) were satisfied;

    (2) The Act at the time of the applicant’s review application to the tribunal required to review the decision of the Respondent and to that end the  Act vested the tribunal with powers and discretions conferred by the Act on the Respondent;

    (3) The Respondent affirmed the decision of the Delegate.  The decision was infected with error and consequently acted contrary to law, resulting in a constructive failure to exercise jurisdiction;

    (4) The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the Applicant persecute asking why he would be harmed rather than addressing as to the motive.  The witness cannot recall or remember about the happening in their own country.  The Tribunal expected from the applicant to tell all the stories of the particular incident.  The Tribunal identified wrong issue, asked itself wrong question, failed to consider relevant and relied on irrelevant materials.

    (4) The Applicant claims that at the time of interview he was nervous and could not understand questions put by the member.  In the decision of the Tribunal.

    (5) The Tribunal failed to accord procedural fairness to the applicant as the Tribunal failed to put to the for comment its adverse finding in respect of the murder of his brother because of only reason that he was a congress worker and he was killed by the BJP supporters.  The applicant was a truthful witness when clearly said to the Tribunal that he was not a great or famous leader of the Congress party although because of his brothers association he was well known to the local community.  The Tribunal completely failed the nature of the political situations in India.

    (6) The Tribunal did not believe any written or evidence presented by the applicant.  The applicant claims that he was very scared because of his brother’s death.  There was no protection from the local authority.  He could not rely on the local police for safety of life.  The tribunal accepted that not all the criminal cases are reported to the police.  There are hundreds of reasons for that.  The tribunal made decision without looking reality of the situation prevailed at the time of leaving India.  The applicant’s ability to relocate in other parts of India was not possible.  He left India because of fear of his life.

    The applicant claims that he was denied procedural fairness when the Tribunal member formed the view about the Applicant’s status before the hearing.

    The Applicant claims that he has very limited knowledge of English and because of that could not understand the issues rose at the time of hearing.  He could not understand nearly half of the questions raised during the hearing.

11. I received as evidence the court book filed on 2 February 2011.  I also received oral evidence from the applicant in the light of allegations he made from the bar table concerning the circumstances in which his protection visa application, his review application to the Tribunal, and his applications to this Court, were prepared and lodged. 

12. I am not persuaded that the applicant has advanced an arguable case of jurisdictional error by the Tribunal.  The applicant is concerned about the outcome of the review before the Tribunal, and the fact that he was not believed.  However, in dealing with the issue of jurisdictional error, the Court is concerned more with issues of process than outcome.

13. The Tribunal met its obligation pursuant to s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) to invite the applicant to a hearing. It appears from the record of that hearing (CB 79-84) but that hearing opportunity was a fair one. The review turned essentially on the applicant’s credibility. The Tribunal squarely put to the applicant the credibility concerns that figured in the Tribunal’s reasons. In that regard, there is no doubt that the Tribunal put to the applicant the essential and significant issues upon which the review would turn.

14. It does not appear that the Tribunal made any disclosure of adverse information to the applicant pursuant to s.424A of the Migration Act. Neither, however, does it appear that any obligation of such disclosure arose. The Tribunal decision was based upon information the applicant gave to the Tribunal for the purposes of the review and information contained in his original protection visa application. The Tribunal did have regard to oral evidence given by the applicant to the Minister’s Department (see CB 73-78), and also to a visitor visa application the applicant had previously made (Tribunal decision at [30], CB 79).

15. The Tribunal saw inconsistencies between information provided by the applicant in connection with his visitor visa application and also between information he gave orally to the Department and information he provided to the Tribunal. However, the information provided orally to the Department and in support of the visitor visa application was not information which was on its face adverse in connection with the review application. It was not, therefore, information that required disclosure pursuant to s.424A. Neither was the Tribunal’s thought process in relation to the perceived inconsistencies and vagaries in the applicant’s evidence a matter requiring disclosure pursuant to that section[1].  I otherwise agree with the Minister’s submissions concerning the grounds advanced in the amended application. 

    [1] SZBYR v Minister for Immigration (2007) 235 ALR 609

Grounds 1 and 2

1. Grounds 1 and 2 are completely devoid of detail and can only be understood in light of the particulars provided.

Ground 3

1. Ground 3 is an assertion that the Tribunal made a jurisdictional error by misapplying the meaning of the terms "well founded fear" and "refugee" from the Refugees Convention.  This is not responsive to the Tribunal's reasons.  The Tribunal based its decision on its assessment of the applicant's credit.  The Tribunal did not come to consider and apply whether the applicant had a well founded fear of persecution due to his race, religion, nationality, membership of a particular social group or political opinion because its adverse credibility finding entailed that it could not be satisfied of the applicant's claims.  This involves no error by the Tribunal.

Particulars 1,2 & 3

1. Particulars 1, 2 and 3 are cast in general terms and add nothing to the applicant's application. 

Particular 4

1. The first Particular 4 (there are two) is difficult to decipher.  Putting to one side the first sentence, the applicant appears to allege that it was unreasonable for the Tribunal to conclude that the applicant was not a witness of truth on the basis of his inability to recollect particular incidents.  However, it was clear that a conclusion that the applicant was not a witness of truth was open to the Tribunal on the basis of the evidence before it and therefore there cannot be said to be any unreasonableness in the Wednesbury sense (Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]). Secondly, the applicant appears simply to be cavilling with the merits of the case.

2. The second Particular 4, as well as the final paragraph of the particulars on page 4 of the amended application, recounts that the applicant was nervous at the time of the interview and could not understand questions put by the member.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages (see [27] of the Tribunal's reasons, CB 79).  Moreover, an assessment of the applicant's nervousness and the extent to which that affects his demeanour at the hearing is clearly a matter of fact for the Tribunal.

Particular 5

1. The applicant raises a number of matters in Particular 5.  First, the applicant appears to allege that the Tribunal failed to accord procedural fairness as it ought to have put to him for comment that it was proposing to find that it did not accept that his brother was killed because of any association with the Congress Party.  The circumstances surrounding the killing of the applicant's brother were traversed at length by the Tribunal (see [32] to [45] of the Tribunal's reasons, CB 80 to 84).

2. In this particular, the applicant also alleges that he was a truthful witness.  On the contrary, the Tribunal's decision was based upon its finding on the facts that the applicant was not a witness of truth.

3. The applicant alleges that the Tribunal failed to understand the nature of the political situation in India.  However, at [43] of its reasons for decision (CB 84), the Tribunal comments that it had independent country information before it which it took into consideration in assessing the political situation in India.  Moreover, there was no requirement for the Tribunal to consider the political situation in India, it having already concluded that the applicant was not a witness of truth and that it could not be satisfied of any of his claims.

Particular 6

1. The highest that Particular 6 can be put is that it is an allegation that the Tribunal acted unreasonably by making its decision without looking to the reality of the situation that prevailed at the time of leaving India.  Not only is that incorrect on the facts but, as noted above, the Tribunal was not required to go on to consider this issue.

2. Finally, in the paragraph at the top of page 4 of the amended application, the applicant alleges actual bias on the part of the Tribunal; asserting that the Tribunal had made up its mind before the hearing.  As noted by Lloyd-Jones FM in SZLMK v Minister for Immigration & Anor [2008] FMCA 1372 at [22]:

   An allegation of bad faith or bias must be proved other than by perusing the face of the record.  A claim of this nature necessitates proof of extreme circumstances.  An example of this is dishonesty.  It is a serious allegation that should not be made lightly.  (References omitted.)

3. It is clear that this allegation of actual bias cannot be made out.

4. The applicant admitted that there were problems in the comparison of his evidence to the Tribunal and information he had earlier provided to the Department.  He put the blame for those inconsistencies on migration agents who had been assisting him before the Department and the Tribunal.  That was surprising as the court book does not disclose the involvement of any migration agent.

5. The applicant gave evidence in relation to his allegations concerning the assistance that was given to him.  Briefly, the circumstances appear to be that the applicant came to know a person known as Kulwinder Singh in connection with accommodation problems he was experiencing.  Mr Singh introduced the applicant to a person he knew only as Ravi who represented that he could assist the applicant with a protection visa application.  Ravi prepared the protection visa application appearing in the court book, including the handwritten claims appearing on pages 18 and 19 and the statement of claims appearing on pages 25 to 27.

6. The applicant told Ravi about his experiences in India but the applicant did not check the accuracy of what was put in the protection visa application.  He acknowledged that the signature, which appears at various points in the application form and at the end of the statement of claims, is his.  Significantly, page 8 of the court book discloses that the applicant answered “no” to question 14 which asked if he had received assistance in completing the form.  On the basis of the applicant’s evidence today that statement was false.  It is also noteworthy that question 18 in the application form was left uncompleted.  The applicant told me that he paid Ravi $2,800 for his assistance. 

7. The applicant provided accurate address details to the Minister’s Department and acknowledged receipt of correspondence from the Department at the address he had nominated.  Ravi did not attend the interview with the Minister’s Department which the applicant attended.  After the applicant received the decision of the Minister’s delegate he sought other assistance as he had lost contact with Ravi.  He located another person known as Alam, who represented that he could assist the applicant with his review application.  He paid Alam $2,500 to prepare the review application which appears at CB 55 to 58.  The applicant acknowledged that the signature appearing on that application is his.  Once again, the applicant signed the application without any knowledge of its contents.  Significantly, section C of the application at CB 56 also appears to be a false statement in that the applicant answered “no” to the question:

   Do you have an adviser you authorize to act for you in relation to this application?

1. The apparent intention of the applicant was that Alam would assist and represent the applicant in connection with his review application.  However, that assistance was not disclosed to the Tribunal.  The applicant said that the address for correspondence provided at  CB 57 was false in that, although the post office box number was correct, the suburb was not.  The applicant denied receipt of some correspondence from the Tribunal and it appears that the Tribunal may have experienced some difficulty in that, although the first letter sent to the applicant at CB 59 uses the post office box number and the hearing invitation appearing at CB 60 used the same address, later correspondence was addressed to the applicant’s correct residential address.

2. The applicant gave evidence that Alam had informed him of the hearing to which he had been invited and also prepared the letter containing submissions, which appears at CB 65 and 66.  The applicant acknowledged signing the letter but was not aware of its contents.  The applicant also acknowledged receipt of the Tribunal decision sent to him on 26 November 2010 (see CB 67).  The applicant gave evidence that on receipt of the decision he sought other assistance and gave instructions to Mr Jyoti Narayan Bharati, who is a registered migration agent, registered number 05012129.  Mr Bharati is also a solicitor.

3. The applicant gave evidence, which I accept, that Mr Bharati prepared both the original show cause application and the amended application.  Mr Bharati also assisted the applicant to file either or both of the applications in the court registry.  Mr Bharati sought $2,500 in order to represent the applicant before this Court.  The applicant was unable to pay that amount but has made payments of $200, $200, $150, $50 and $100 over time.  The applicant still owes Mr Bharati $1,800 which he intends to pay.  The applicant states that he may need to continue to use the services of Mr Bharati should he seek leave to appeal to the Federal Court. 

4. The original show cause application filed on 13 December 2010 does not provide Mr Bharati’s address for service. Neither was the lawyer certification required by s.486I of the Migration Act completed. Mr Bharati’s address for service was also not provided on the amended application.

5. I am prepared to accept that the applicant was assisted by persons who wished to conceal their identity in making his original protection visa application and his review application to the Tribunal.  Those persons have been paid for their assistance.  They are probably persons acting as unregistered migration agents.  The implication is that the services were provided unlawfully.  It is the Minister’s responsibility to deal with such unlawful activity.  I am aware of numerous cases over the years where such activity has been apparent.  It is a particular problem in relation to protection visa applications.  I have, on several earlier occasions, recommended that more rigour needs to be injected into the process for making a protection visa application[2].  The problems such as those identified in this case could, in my view, be avoided or at least ameliorated if a valid protection visa application was required to be lodged through a registered migration agent who is a legal practitioner.  Unless a more robust process is put in place for the making and lodgement of protection visa applications, these problems will continue to recur. 

   [2] SZOOW v Minister for Immigration & Anor [2010] FMCA 960

6. I am also prepared to accept that Mr Bharati has assisted the applicant with his original show cause application and the amended application.  The circumstances of that assistance should be investigated further.  For that purpose, I will direct that the transcript of today’s hearing be obtained and provided with these reasons to the office of the Migration Agents Registration Authority and the Legal Services Commissioner for such action as they consider appropriate.  I am aware that in Australia (in contrast to New Zealand) migration agents who are legal practitioners are subjected to a process of dual registration.  That is a matter of policy on which it is not appropriate to comment, apart from saying that I do not understand the reason for it.  There is a well established process for dealing with complaints against legal practitioners, which has proven itself to be effective.

7. The involvement of persons assisting applicants in court proceedings without disclosing that involvement has been a concern previously for this Court and the Federal Court.  The Federal Court has in particular drawn attention to the need to deal with the problem of court documents being prepared by persons who fail to disclose their involvement and which do not assist the Court to resolve the real issues actually or potentially in dispute[3].  While the amended application in this case employs legal language, it does not seriously engage with real issues arising in connection with the decision of the Tribunal.  I do not believe that the amended application was competently prepared.

   [3] SZOHY v Minister for Immigration [2010] FCA 1267

8. The involvement of Alam in the review before the Tribunal, while a matter of concern, did not disable the Tribunal’s review function.  The applicant participated in that review and was not inhibited in doing so.  The involvement of Alam and the earlier involvement of Ravi no doubt caused difficulties for the applicant because of the inconsistencies in his evidence.  However, it was the applicant’s responsibility to satisfy himself that documents he submitted to the Minister’s Department and the Tribunal accurately reflected his claims.  He acted with reckless indifference in signing his name on documents that he had not read and which had not been explained to him.  He must bear the responsibility for the consequences of that recklessness.  The circumstances about which the applicant has given evidence do not alter my view that the Tribunal decision is free from jurisdictional error.  Indeed, I am not persuaded, as I have indicated earlier, that the applicant has advanced either in his amended application or in his oral evidence today any arguable case of jurisdictional error.

9. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth)

10. The application having been dismissed, costs should follow the event.  The applicant stated that he would obtain funds from his family in India in order to pay the costs he is required to pay.  The applicant had stated in evidence that he has been assisted by his wife financially and that he understands his family is making arrangements to relocate within India and he wishes to remain in Australia until those arrangements have been completed.  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 $2,700.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  21 March 2011