SZRAG v Minister for Immigration
[2012] FMCA 958
•28 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRAG v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 958 |
| MIGRATION – Application to review decision of Refugee Review Tribunal whether failure to comply with s.424A – no jurisdictional error – application dismissed. |
| Migration Act1958 ss.424A(1) & (3)(a) |
| Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZRAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3010 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | 28 August 2012 |
| Date of Last Submission: | 28 August 2012 |
| Delivered at: | Canberra |
| Delivered on: | 28 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First and Second Respondents: | Ms R Francois |
| Solicitors for the First and Second Respondents: | Clayton Utz, Canberra |
ORDERS
The Application filed on 29 December 2011 be dismissed.
The Applicant is to pay the costs of the Respondents in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
SYG 3010 of 2011
| SZRAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Following a short hearing, judgment was delivered on 28 August 2012. What follows are the reasons as revised from the transcript.
The Court has before it an application that was filed on 29 December 2011. In it the Applicant seeks the following orders:
1. An order in the nature of certiorari setting the purported decision of the Tribunal aside.
2. An order of prohibition to restrain the Respondent from giving any further effect to the purported decision.
3. An order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law.
4. An order that the Respondent pay the applicants costs and such other orders as the Court sees fit.
The grounds of the application are:
1. The Tribunal did not give to the applicant before the hearing the independent information that it had about Dera Sacha Sauda. The Tribunal used this information (RRT decision record page 11). 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 claims were implausible, 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 had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
Using my words and by way of summary, it seems to me that those grounds might be condensed to say that the Applicant alleges that there were various procedural problems that he encountered with the process which vitiated the decision of the Refugee Review Tribunal (“the Tribunal”).
I should also mention by way of preliminary observation, as I did in the course of the proceeding, that the ability of this Court to intervene in relation to matters that have been determined by the Tribunal is very limited. Thus, for example, where the Tribunal has made a finding relating to the Applicant’s credibility, in the absence of a clear breach of procedural fairness, for example, or a clear failure by the Tribunal to consider properly the evidence put before it, it would be extremely difficult for this Court to intervene and make any different decision to that made by the Tribunal.
Further, according to long-standing authority (noted later in these reasons), there are significant limits to the capacity of the Court to consider what would be described as the merits of the review and must confine its attention to errors of law, otherwise known as ‘jurisdictional error.’
In a Response filed 12 January 2012 the First Respondent opposed the making of all the orders sought in the application and sought costs if the application was dismissed.
Background
The Applicant is a citizen of India, aged 49 years, who arrived in Australia on 25 November 2008 on a temporary business visa.[1] On 15 March 2011 the Applicant lodged an application for a protection visa[2] claiming fear of persecution in India on the basis of his religion and membership and adherence to Dera Sacha Sauda (“DSS”).[3]
[1] Court Book filed 6 February 2012 (“CB”) pp. 13 & 34.
[2] CB pp. 1-45.
[3] CB pp. 25-26.
The historical background and summary of the Applicant’s claims are set out at [21] and [22] of the Tribunal’s reasons and need not be re-told here, save that the Tribunal records that the Applicant’s Wife, two daughters and his parents remain living in India. It is also sufficient to note that the Applicant claims that he was part of a particular religious group that provided for the poor (including Sikhs), but that later, in 2007, this same group was accused of insulting Sikhism. Further, the Applicant claims that he was accused of inciting sectarian violence, and that he became listed as an enemy by the Sikh Youth Federation. He fled to Australia to escape the accusations and violence and was aided in doing so by the Guru, the leader of DSS.
On 16 May 2011, the Department conducted an interview with the Applicant. The details of that interview are set out at [23] of the Tribunals’ reasons.[4]
[4] CB pp.85-87.
At the hearing before the Tribunal, it is said that the Applicant claimed that the DSS was not supported by the Punjab government, or by inference the central government of India, both of which supported the Youth Sikh Federation. DSS, he said, experienced “problems” from the Youth Sikh Federation.
Notwithstanding these unparticularised “problems”, the Applicant confirmed to the Tribunal that he had never suffered harm in India.
In his affidavit filed with his application to this Court on 29 December 2011, the Applicant states that he relies on “the persecution I suffered because of my membership with DSS in India and I fear that the persecution would continue if I have to go back to India.”[5]
[5] Applicant’s affidavit filed 29 December 2011, par 2.
The application for protection visa was refused by a delegate of the First Respondent Minister on 10 June 2011. As stated in the outline of submissions filed by the First Respondent, the application for protection visa was refused “…on the basis that he [the delegate] did not find his claims credible given multiple inconsistencies and contradictions in his claims and the country information.”[6]
[6] First Respondent’s outline of submissions filed 24 August 2012 par 4.
The Applicant then applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision on 7 July 2011.[7] A hearing was held on 17 November 2011 and the Tribunal affirmed the decision of the delegate not to grant a protection visa on 9 December 2011.[8] Importantly, the Tribunal’s decision, at [20], confirmed that the hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
[7] CB pp. 67-70.
[8] CB p. 80.
In affirming the decision of the delegate, the Tribunal determined that it was “…not satisfied as to the credibility of the Applicant’s account of his experiences in India”[9] noting in particular and among other things his inconsistent evidence and lack of knowledge of the principles of Dera Sacha Sauda.[10]
[9] CB p. 91[51].
[10] CB p. 92 [53].
For current purposes it is sufficient to note the following matters from the Tribunal’s decision.
First, when asked if he feared harm in India for any reasons other than his membership and support of DSS the Applicant said, as recorded at [30] of the Tribunal’s reasons, that if he left the organisation [of DSS] and the Guru “he would certainly be harmed by the organisation.” No other detail was given.
There follows in the reasons, beginning at [34], an exploration of the Applicant’s knowledge of DSS, including details of its founder and its relevant principles. The Tribunal’s questions were predicated upon information gleaned from the DSS website.
Among other things, (a) the Applicant gave a different name as the founder of DSS to that listed on its official website, (b) the Applicant was not able to detail the three basic or cardinal rules of DSS, and (c) the Applicant gave information regarding the location of the headquarters of DSS that was different to that recorded on the website of DSS.[11]
[11] See the Tribunal’s reasons at [36] – [40].
The tribunal found, at [51], that it was “not satisfied as to the credibility of the Applicant’s experiences in India. Among other things, the Tribunal said, at [54]:
The Applicant’s claims about his alleged membership of Dera Sacha Saud and close relationship with Ram Rahim Singh are notably vague and lacking in circumstantial detail. They are unsubstantiated from any external source and consist of no more than a set of assertions. Taken together with the major inconsistencies which are evident between his claims and the information about Dera Sacha Sauda available to the Tribunal I am not satisfied that he was ever a member or employee of the organisation or that he was ever a confidant of Ram Rahim Singh. I am not satisfied that these claims are more than an invention, informed by some vague knowledge of Dera Sacha Sauda which has possibly been gained from media reporting of controversies surrounding Ram Rahim Singh. I find that this also casts strong doubt over the credibility of the Applicant’s claims in general.”
Grounds of the Application and consideration
Before dealing directly with the formal grounds of the application, I note the following matters of principle.
First, the Court may not undertake a review of the merits of the decision the subject of the application. For example, the High Court said in Minister for Immigration and Citizenship v SZJSS, at [23] (internal citations omitted):[12]
[23] General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
[12] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
Secondly, the High Court has also pointed out the province, indeed the exclusive province, in matters that go to the credibility of an applicant. Thus, in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham, McHugh J said, at [67], that “a finding on credibility … is the function of the primary decision-maker par excellence.”[13]
[13] Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407.
Here, the Tribunal made specific findings adverse to the credibility of the Applicant.
In my view, the application essentially seeks to have this Court engage in impermissible ‘merits review’. Further, the findings in relation to credibility also are an impermissible course promoted by the Applicant. On the basis of either or both of these points of principle, the application cannot succeed.
I turn, nonetheless, to the formal grounds of the application. In doing so, I note that the Applicant filed no submissions so that the ability of the Court to consider at any relevant depth the grounds of the application from the Applicant’s perspective is significantly limited.
The Applicant relies on three grounds, outlined earlier in these reasons, for judicial review.
I accept the submissions of the Minister in relation to ground 1, which are set out in the written submissions filed with the Court, which refer specifically to the exceptions in ss. 424A(1) and 424A(3)(a) of the Act. Those sections deal with, among other things, the use of independent information, in this case, independent information in relation to DSS. The exception provided for in s.424A(3)(a), in my view, applies here, thereby rendering untenable the Applicant’s contention set out in Ground 1.
In relation to the second ground that deals with procedural fairness, I make two comments. Firstly, as a factual matter, the record of the decision of the Tribunal records, at [20], that the Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.[14]
[14] CB page 84[20].
My reading of the reasons of the Tribunal confirms to my satisfaction that each matter upon which the Tribunal ultimately based its decision, was formally put to the Applicant. While I accept the very significant difficulty that the Applicant has in dealing with legal process in this country as well as the difficulty of him being separated from his family, and thirdly, the concerns that he has for his own welfare, for my part, each relevant matter, according to the record of the Tribunal, was put to the Applicant in the course of the hearing.
In those circumstances, accepting all of the difficulties to which I have referred, I cannot see, in any respect, how the Applicant has been denied the opportunity to comment on any of the matters relied upon by the Tribunal. Accordingly, I accept the submissions by Ms Francois on behalf of the Minister, both orally and also as set out in the written submissions, in relation to the discussion by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs of procedural fairness.[15]
[15] See SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 especially at [25] – [49].
The final ground of appeal is set out in the application in the following terms:
The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the requirements of the Migration Act.
One of a number of unfortunate aspects of the application is that this particular ground is expressed at such a level of generality that it is not possible for either the Minister to address the specific grounds or for the Court to determine what is intended to be understood by this particular contention.
To the degree that the Court could perhaps only speculate what is intended by this ground of appeal, and to the degree that it is claimed that the Tribunal had no jurisdiction to make the said decision, that is a proposition I reject because the Tribunal clearly does have jurisdiction to deal with appeals from a delegate of the Minister.
And also, to the degree that the Court can glean what is understood by:
...reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act –
in my view, having regard to the evidence before it, the decision of the Tribunal is not attended by sufficient doubt to warrant this Court to intervene, or more accurately stated, the decision reached was open to it on the limited evidence available. That being so, for this Court to intervene would be to encroach upon the fact-finding exercise undertaken by the Tribunal. Such a course is not open.
In the light of these reasons, and noting (again) the failure of the Applicant to provide the Court with any written submissions, it necessarily follows that none of the grounds of appeal from the Tribunal’s decision have been made out. The application must be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 19 October 2012
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