SZQXG v Anor v Minister For Immigration and Anor
[2012] FMCA 695
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQXG v ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 695 |
| MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – grounds of application wholly unparticularised – applicants’ oral submissions not identifying any jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) |
| First Applicant: | SZQXG |
| Second Applicant: | SZQXH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2753 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 6 July 2012 |
| Date of Last Submission: | 6 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 17 August 2012 |
REPRESENTATION
| The Applicants: | In person |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 2753 of 2011
| SZQXG |
First Applicant
| SZQXH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 28 October 2011 by which the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant protection visas to the applicants.
The grounds of application asserted were that “The Tribunal committed a jurisdictional error in making the decision” and “The Tribunal was not fair in deciding this case”.
The affidavit in support filed by the first applicant relevantly said only that “I believe the Tribunal was unfair in the way that it treated our application. I enclose a copy of the decision”.
The applicants were represented in the proceedings leading up to the Tribunal’s decision but have been self represented, it would appear, since. It is therefore no surprise that, notwithstanding orders made by Registrar Caporale on 4 April 2012 that the applicants file any amended application, including any additional grounds of review with complete particulars of each ground and any affidavits, the applicants have filed no further material of that character.
At the hearing before the Court the applicants, who are husband and wife, represented themselves with the assistance of an interpreter. The first matter that was raised was an application for an adjournment sought by the applicants of one month.
As I understood the matter, this application arose because of an assertion by the applicants that documents had been sent to their migration agent, and not explained to them. It is not entirely clear, but I took this assertion to cover, at the very least, the first respondent’s outline of submissions.
I caused the outline of submissions to be interpreted to them.
The opposition to the adjournment on the part of the first respondent was essentially to the effect that there was no purpose to be gained from it and that in any event, all documentation had been sent to the same address. The applicants had a copy of the Court Book, and counsel submitted it was not reasonable in the circumstances to adjourn.
In the ultimate, I took the view that it was inappropriate to adjourn because the applicants, on any view, had had since the orders of Registrar Caparole to file any further amended application or materials and have not done so. It did not seem to me likely that any further adjournment was of any utility. It did not seem to me then, and does not now, that this failure to adjourn constituted a breach of natural justice in respect of the applicants.
At the commencement of oral submissions, the applicants sought to file further material which, putting the matter generally, largely consisted of further country information. Counsel for the first respondent objected to the receipt of this material on the footing that it was not before the Tribunal, and I marked it for identification only. It is clear that the material sought to be relied upon was not before the Tribunal, and there is no proper basis for its admission. It should be further noted that in any event, it seems to me to be material largely consistent with country information already referred to by the Tribunal.
The applicants had also previously filed what are described as supporting documents on 21 May 2012 which included a character reference for the husband by an Australian citizen. Once again, this material was apparently not before the Tribunal, and faces the same difficulty.
In oral submissions, the applicants said that they would like the Court to indicate to them the reason for the findings of inconsistency made by the Tribunal. They pointed out that while there were some inconsistencies in the accounts they had given, these matters were difficult to remember as they occurred a long time ago and were not written down at the time. The wife, who made the oral submissions on behalf of the applicants, asserted that this is why there were inconsistencies.
The first respondent was essentially content to rely upon the written submissions filed. Counsel submitted that the question of inconsistencies was not a matter for judicial review. Counsel submitted that it was for the Tribunal to assess the evidence and give Reasons, and that the Court should not review the evidence. It was pointed out that the applicants’ agent had put in a comprehensive set of written submissions about inconsistencies which the Tribunal clearly took into account, and did not accept. The Tribunal had simply not believed the applicants, which was a finding open on the evidence. In reply, the wife emphasised that the applicants really did not wish to go to Fiji, and would go to any other island in Australia but did not wish to return to Fiji.
In circumstances where the grounds of application remain wholly unparticularised, the Court is clearly confronted with a dilemma. The oral submissions made did not advance the applicants’ case at all inasmuch as they did not articulate any matter that might be thought to give rise to jurisdictional error.
I have read carefully the Tribunal’s Reasons for Decision which are at
CB 202-239 inclusive. They demonstrate a careful and thorough consideration of all the matters that the applicants raised, either themselves or through their representatives.
The Tribunal made comprehensive credibility findings against the applicants, most particularly at paragraphs 188-194 of the Decision
(CB 232-233).
I fully accept the submission of counsel for the first respondent that those findings were clearly open to the Tribunal on the evidence, and while this puts the matter shortly, this conclusion is decisive and determinative against the applicants’ application.
While I formed a considerable personal sympathy for the applicants, who impressed me as thoroughly decent people, it is clear that the Tribunal did not fall into jurisdictional error, and it follows that the application must be dismissed with costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 17 August 2012
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