WZAMS v Minister for Immigration & Anor
[2008] FMCA 438
•28 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAMS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 438 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of Refugee Review Tribunal affirming delegate’s decision not to grant a Protection (Class XA) visa – citizen of India claiming fear of persecution on the ground of political opinion – allegation of bias – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – procedural fairness – credibility – no reviewable error. PRACTICE & PROCEDURE – Adjournment – application for adjournment refused – application made during final hearing – no right to legal representation. |
| Migration Act 1958 (Cth), ss.422B, 424A, 430, 474 |
| Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 followed. SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 237 ALR 634; 81 ALJR 1659; 97 ALD 1 relied on. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 relied on. NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 relied on. Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 relied on. SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCVAFC 62 relied on. SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 359 relied on. SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 362 relied on. Prasad v Minister for Immigration and Ethnic Affairs (1986) 6 FCR 155 followed. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 237 ALR 609 followed. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 followed. |
| Applicant: | WZAMS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 252 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 March 2008 |
| Date of Last Submission: | 28 March 2008 |
| Delivered at: | Perth |
| Delivered on: | 28 March 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application for adjournment is refused.
The Application is dismissed.
The Applicant pay the First Respondents costs fixed in the sum of $5000.00 and I allow 6 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 252 of 2007
| WZAMS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of India. He asks the court to make an order sending his application for a protection visa back to the Refugee Review Tribunal for determination according to law. In order to make such an order the court must be satisfied that the Tribunal decision is affected by jurisdictional error.
The Tribunal signed its decision on 24 October 2007 and handed that decision down on 13 November 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
Background
The applicant arrived in Australia on 11 May 2007. He applied for a Protection (Class XA) visa claiming a fear of persecution if he were to return to India.
A delegate of the Minister considered the application but on 5 June 2007 refused the application for a visa. A copy of the delegate’s decision can be found at pages 41 through to 46 of the court book. Unfortunately, an error appears in the decision on page 43. The delegate appears to have typed in the word “China” rather than the word “India” in the decision. As it is quite clear from the delegate’s decision that the delegate was aware that the applicant was seeking to be assessed against India as his country of nationality, I am satisfied that this is a typing error and nothing turns on it. The delegate noted in the applicant’s claims that he was a political worker who would be killed if he were to return to India for reason of his political opinion. However, the delegate said:
The applicant’s claim of persecution is extremely vague, lacking in detail, and unsubstantiated by any evidence.
The delegate went on to say:
The applicant has not substantiated his claims by any evidence, nor has he indicated in his protection visa application, part B, question 13, that he will provide new evidence in the future.
The delegate also noted the fact that the applicant had previously been granted a visa to enter Australia but did not avail himself of it. The delegate said:
I consider that had he feared he would be killed he would have taken steps to depart India as quickly as possible after being granted a visa. I am satisfied that the applicant’s delay in travelling to Australia is an indication that his fear of persecution is neither genuine nor significant. On the basis of the limited information provided by the applicant I cannot be satisfied that the applicant’s situation is as claimed[1].
[1] See Court Book at page 45
The delegate refused to grant the applicant a Protection (Class XA) visa.
Application to Refugee Review Tribunal
On 2 July 2007 the applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal. The applicant did not provide any further documentary evidence with his application at that stage.
What the Tribunal then did was to send two letters to the applicant, each dated 26 July 2007. The first letter was headed Invitation to Comment on Information in Writing. The letter told the applicant that he was invited to comment on information that the Tribunal considered would, subject to any comments he might make, be the reason or part of the reason for affirming the decision that was under review. The letter then set out what the information was.
The information referred to was the applicant’s claim for protection given with his application for a protection visa. The Tribunal provided a summary of that information. The Tribunal told the applicant:
Given the lack of detail, the Tribunal may not be satisfied that you are owed refugee protection in Australia. Please comment. You have requested an opportunity to provide further evidence and submissions in support of your claim. Accordingly, the Tribunal now provides this opportunity[2].
[2] See Court Book at page 57
The other letter that the Tribunal wrote to the applicant on 26 July was an invitation to appear at a hearing before the Tribunal. The hearing was scheduled for 9 October 2007, and the letter told the applicant that an interpreter in the Malayalam language would be provided. The applicant completed a response to hearing invitation, indicating that he wished to attend and give evidence and would require a Malayalam interpreter. The applicant then signed a statutory declaration which had been translated into English by a friend of his.
The statutory declaration set out, in some detail, a number of claims that the applicant made about his political involvement in India and about incidents of violence and threats that had occurred. A copy of that statutory declaration can be found at pages 62 through to 67 of the Court Book. The applicant later advised the Tribunal that he had changed his address from an address in New South Wales to an address in Western Australia. Notwithstanding his move to Western Australia, the applicant indicated that he wished to attend the hearing in Sydney in person and did so on 9 October 2007. An interpreter in the Malayalam language was provided. The applicant gave evidence at the hearing and asked the Tribunal for a copy of the recording of the hearing.
The Tribunal wrote to the applicant on 10 October 2007, sending him a copy of the CD recording of the hearing.
Refugee Review Tribunal Decision
The Tribunal handed its decision down on 13 November 2007. A copy of the Tribunal decision record can be found at pages 83 to 93 of the Court Book. In the Tribunal decision record, there appears to be a proof reading error in the second paragraph of the decision, under the heading “Application for Review.” The second paragraph begins advising that the applicant arrived in Australia on 11 May 2007 and applied for a Protection (Class XA) visa. There is then a reference to a visa having been granted on 26 July 2007. There is no reference to such a visa being granted in the court book on that date or any other date. It is perhaps a coincidence that 26 July 2007 was the date that the Tribunal wrote the applicant its two letters.
The decision then goes on to say that the applicant applied for a further Protection (Class XA) visa on 14 May 2007. Again, this would appear to be an error, because whilst I am satisfied the applicant did in fact apply for a protection visa on 14 May, he could not have applied for a further protection visa because he had not applied for one previously. In any event, if he had been granted another visa, as the decision in my view erroneously sets out, why would he need to apply for a further visa at that stage? This appears to be an error which can be attributed to deficient proof reading and whilst it is regrettable, it seems to be an aberration, and in my view, nothing turns on it.
I would comment, however, that the time constraints placed on Tribunal members mean that there is a requirement for them to produce decisions quickly. However, there is a need to check to make sure that unfortunate errors have not been made.
The Tribunal decision sets out the relevant law and sets out over some two and a quarter pages the applicant’s claims and evidence. The decision refers to the letter of 26 July 2007, which was clearly written to comply with the provisions of section 424A of the Migration Act. Unfortunately, the Tribunal refers to the letter as having been dated
26 July 2006, which is quite clearly an error, as the applicant had not arrived in Australia at that time. I repeat my comments about the necessity for proofreading and I propose to request that the Registrar of the Federal Magistrates Court forward a copy of this decision to the Principal Member of the Tribunal.
The description of the claims that evidence has been taken largely from the applicant’s statutory declaration submitted on 2 August 2007 and the applicant’s oral evidence at the hearing. The Tribunal’s findings and reasons can be found at pages 88 through to 93 of the Court Book.
The Tribunal accepted that the applicant was a national of India based on the evidence of his passport. The Tribunal then set out its findings and reasons under three headings: (a) Political activities in Trevandrum District, Kerala Estate; (b) The prisoner capture; (c) Relocation; and (d) Credibility. The Tribunal noted that it had proved extremely difficult to elicit the applicant’s claims at the hearing. The Tribunal said:
He did not provide apparently meaningful responses to questions put (some questions were repeatedly put and the interpreter appeared to have stressed such questions on occasion, prior to a meaningful response being provided). He provided inconsistent evidence and his evidence (at times) appeared to have been embellished (if not entirely fabricated)[3].
[3] See Court Book at page 88
The Tribunal examined the applicant’s written and oral claims about his fear of persecution for his political activities. The Tribunal said, however:
Accordingly, and notwithstanding his claims to the contrary, the Tribunal is satisfied if the applicant feared persecution for a reason of his alleged political activities in Kerala Estate (which he only left in 2005), he would have left well before this time. The Tribunal is aware the refugee’s convention may equally protect the brave as well as the fearful, but there was nothing the applicant claimed that satisfied me he remained in Kerala Estate in the face of any subjective fear of being persecuted for any reason up until his 2005 departure[4].
[4] See Court Book at page 89
The Tribunal was satisfied that the applicant’s claims relating to outstanding and false charges against him in India were false. The Tribunal went on to find:
Accordingly, the Tribunal is satisfied the applicant’s claim to be the subject of outstanding, false charges in India is a fabrication and provided solely to enhance his claim to invoke refugee protection obligations in Australia[5].
[5] See Court Book at page 90
The Tribunal then considered the applicant’s claim to fear persecution relating to his involvement in the apprehension of escaped prisoners. The Tribunal found that it was not satisfied that an essential and significant reason for the applicant’s fear of persecution from the prisoners on their release was related to one of the convention grounds. The Tribunal did not accept that the applicant had a real chance of persecution for a refugee’s convention reason in India. Notwithstanding, the Tribunal’s stated lack of satisfaction that the applicant had well-founded fear of persecution in India for a convention reason, the Tribunal also made findings about relocation in the context as to whether the applicant could safely relocate in India and whether it was reasonable in all the circumstances to expect him to do so. The Tribunal found that the applicant may safely relocate and safely travel to a safe relocation within India and by doing so, avoid a real chance of any harm.
The Tribunal then turned to the issue of the applicant’s credibility. The Tribunal acknowledged the difficulties of proof that may be faced by applicants of the refugee protection in Australia but noted that issues of credibility could still be relevant when determining an application for refugee protection. The Tribunal then went on to make a very strong finding about the applicant’s credibility:
However, for the reasons set out herein, I do not accept the present applicant as a witness of truth. I am satisfied the applicant was prepared to embellish and/or entirely fabricate material parts of his claims. I am sufficiently satisfied the present applicant is not a witness of truth such that I am satisfied that there are reasonable grounds to reject all his material claims. Thus to the extent I have not expressly rejected his material claims elsewhere, given I am sufficiently satisfied he is not a witness of truth, I find that none of the applicant’s material claims to invoke protection obligations in Australia are true[6].
[6] See Court Book at page 93
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a convention reason in India, and affirmed the decision not to grant him a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings for judicial review by filing an application in this court on 13 December 2007. He filed an amended application and an affidavit in support on 6 March 2008. The affidavit in support has a sheet attached to it, to which the applicant’s amended grounds can be found. The original application came before Lucev FM on 30 January 2008, and was listed for final hearing today. The applicant sets out particulars of his grounds for review which I shall read onto the record:
· The Refugee Review Tribunal did not accept all my claims, which was made by me in my protection and at the hearing.
· The Tribunal made a number of mistakes. The Tribunal should have invited me to make comments on the information which was adverse to me and appeared in the Tribunal decision.
· The finding and reasons have a number of adverse information against me which should have given to me in writing before the Tribunal was unfair and biased to me.
· The Refugee Review Tribunal did not understand my claims for a protection visa. The Tribunal did not explain to me why my application has lacked information, and why the Tribunal does not accept my claims except I am a citizen of India.
The applicant did not file a written outline of submissions, but attended the court and made oral submissions. In answer to questions from the bench, he expressed difficulty in obtaining legal advice, and claimed that he had been seriously hampered in putting his case to the RRT, because of his inability to obtain a lawyer and his inability to speak to someone who spoke the Malayalam language. He conceded, when asked, that the Tribunal had provided an interpreter in the Malayalam language. However, he complained that he was not able, at the hearing, to tell his full story because the Tribunal kept asking him to give yes or no answers. He told the court that a friend of his had translated his five page statutory declaration into English, when asked to explain why he considered that the Tribunal was unfair and biased, he said that what information that he had put to the Tribunal, they did not take into consideration.
During the hearing the applicant asked for an adjournment for a further three months and asked to be provided with a lawyer who could assist him in the case. I have refused the application for an adjournment on the basis that I believe that the applicant has had sufficient time to obtain legal advice and the application for an adjournment was made during the final hearing.
For the Minister, Mr Hannan of counsel, drafted a comprehensive outline of submissions. Mr Hannan went to the trouble of attempting to restate the grounds in the amended application into six grounds, which appeared to encompass all of the applicant’s claims.
Whilst I have found that exercise to be extremely helpful, I have prepared my own list of grounds which also number six, which I have taken from the applicant’s affidavit, and which, with respect, differ occasionally but only slightly from the version produced by counsel for the Minister. The counsel for the Minister considered the six basic grounds and submitted that the second and subsequent grounds appeared to particularise the first ground but in the alternative, invited the court to overturn findings of fact made by the Tribunal. He submitted that the second ground alleged a denial of procedural fairness and referred the court to the provisions of section 422B of the Migration Act and submitted that no breach of procedural fairness had been made out.
Mr Hannan referred to the applicant’s third ground which, I agree, seems to raise an allegation of a breach of section 424A of the Migration Act. He submitted, correctly in my view, that it was not clear what information the applicant alleges was caught by section 424A and referred the court to the provisions of subsection 424A(3)(d) which only applies to information provided after the application to the Tribunal for review and does not embrace material provided by the applicant to the department beforehand.
He submitted that merely because a matter is mentioned in the Tribunal’s reasons and because information is mentioned in those reasons, that does not lead to a conclusion that there is an obligation to comply with section 424A. He noted that the applicant’s statement or statutory declaration dated 31 July and received by the Tribunal on
2 August 2007is a statement that had been submitted after the applicant had applied to the Tribunal for review of the delegate’s decision. Accordingly, section 424A(1)(a) of the Migration Act does not apply to that statement. He also submitted that section 424A(1)(a) of the Act does not apply to independent country information and certainly, is not engaged merely because the Tribunal takes into account inconsistencies in the material presented to it.
As to the question of bias, Mr Hannan submitted that there was no substance to any claim of bias. In respect of the applicant’s fourth ground, as he saw it Mr Hannan submitted that the applicant was given every opportunity to present his claims to the Tribunal, including the provision of a Malayalam interpreter. He submitted that if the applicant had expressed his claims in a less than coherent manner then the applicant was the author of his own misfortune. The onus was on the applicant to make out the factual basis of his application[7].As to the applicant’s fifth ground Mr Hannan submitted that the operation of section 422B of the Act left no room for it and that it was misconceived.
[7] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
He submitted the Tribunal was not obliged to make the applicant’s case out for him, nor was it obliged to provide the applicant with a draft of its proposed reasons for decision. Mr Hannan also submitted that ground 6 has not been made out and that section 422B of the Migration Act left no room for it and the ground was misconceived. If it was a claim that the Tribunal had not given adequate reasons for its decision he submitted that the Tribunal’s reasons for decision more than adequately complied with the requirements of subsection 430(1) of the Migration Act and in any event, that section does not go to jurisdiction. Mr Hannan submitted to the court that the applicant had not raised any challenge to the way in which the Tribunal dealt with the issue of relocation.
He submitted that the Tribunal’s approach to relocation was in accordance with the test for relocation laid down in SZATV v Minister for Immigration and Citizenship [2007] HCA 40[8]. In short, Mr Hannan submitted that none of the applicant’s grounds had been made out and the application should be dismissed. In dealing with this application I propose to deal with the grounds of review as I have distilled them from the applicant’s affidavit which supported his amended application. As I said, they differ slightly from the grounds as set out by counsel for the Minister in his helpful submission. The thrust of them, however, I think is the same.
[8] also (2007) 237 ALR 634; (2007) 81 ALJR 1659; and (2007) 97 ALD 1
Ground 1, the applicant claims that the Refugee Review Tribunal did not accept all his claims made in the application for a protection visa and in the course of the hearing. This ground is essentially a complaint that the Tribunal did not accept all of the applicant’s factual claims. The court has no jurisdiction to undertake merits review[9].The applicant’s first ground fails.
[9] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; also NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at paragraph 9.
In ground 2 the applicant claims that the Tribunal made a number of mistakes. He claims the Tribunal should have invited him to make comments on the information which was adverse to him and appeared in the Tribunal decision. This appears to be a claim that the Tribunal breached the requirements of procedural fairness. Section 422B of the Migration Act applies to these proceedings. Common law procedural fairness has been effectively excluded by section 422B of the Migration Act[10]. The delegate’s decision made it clear to the applicant that his application had been rejected because:
a)his claim of persecution was extremely vague, lacking in detail and unsubstantiated by evidence;
b)he had not substantiated his claim by any evidence and he had indicated that he would provide new evidence which did not occur;
c)
he was previously granted a visa to enter Australia on
28 November 2006, which was valid until 23 December 2006, but he did not travel to Australia which is inconsistent with his claimed fear that he would be killed;
d)the delegate was not satisfied, on the basis of the limited information provided.
[10] See Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61; also SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
Similarly the Tribunal was not satisfied on the basis of the information provided, even after it had asked him to provide further information. The applicant provided a five page statutory declaration at the Tribunal’s request. The Tribunal then considered this. In my view, the Tribunal’s letter to the applicant indicating the inadequacy of the information before it and inviting him to provide further information was an indication of the Tribunal’s wish to provide the applicant with procedural fairness.
The Tribunal also noted that the Tribunal member had difficulty during the hearing in eliciting meaningful responses to the Tribunal’s questions about the applicant’s case. This, as Mr Hannan submitted, was an indication that the Tribunal member was endeavouring to work out exactly what the applicant’s case was, so that that case could be considered. To a large extent, the Tribunal’s decision was based on the fact that it was not satisfied that the applicant was a witness of truth. The Tribunal did not accept the applicant’s claims. There was no breach of procedural fairness, and the second ground fails.
The applicant’s third ground is that the findings and reasons contained information adverse to him. He submits that the Tribunal should have given this information to the applicant in writing before the hearing, presumably for him to comment. This appears to be a claim that the Tribunal failed to comply with requirements of section 424A(1) of the Migration Act. The Tribunal based its decision entirely on the evidence of the applicant given to the Tribunal for the purpose of the review. The Tribunal had written to the applicant on 26 July 2007 a letter in accordance with the terms of section 424A(1) of the Migration Act, pointing out to him the inadequacy of the information that had formed the delegate’s reasons for refusing the application for a visa.
The applicant provided the statutory declaration in reply to that letter, setting out his case in greater details. All of this information is covered by the exception in section 424A(3)(b) of the Migration Act. The Tribunal did not rely on any independent country information in its decision, and indeed, even if it did, independent country information would be excluded by the operation of section 424A(3)(a) of the Migration Act. In any event, the applicant has not particularised any particular piece of information which he submits should have been put to him in writing for his comment under section 424A(1), and in my view, there is none. There is no breach of section 424A of the Migration Act in the applicant’s third ground fails.
The applicant’s fourth ground is a claim that the Tribunal, by not asking for his comments on information, was unfair and biased. In explanation to the court today, the applicant said that his complaints of unfairness and bias arise from the fact that the Tribunal did not accept his claims. In my view, that is not sufficient. It is well accepted that an allegation of bias is a serious allegation, alleging personal fault on the part of the decision maker. It must be strictly alleged and strictly proved. Bias will rarely be established merely from a reading of the Tribunal’s reasons for decision[11].An adverse finding by a Tribunal is not, of itself, evidence of bias. There is no evidence of bias. That ground must fail.
[11] see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 359 and SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 362.
The applicant claims that the Tribunal did not understand his claims for a protection visa. In my view, there is no substance to this claim. The Tribunal section 424A letter to the applicant of 26 July 2007 drew his attention to matters that the Tribunal considered may be the reason or part of the reason for affirming the decision. The applicant provided the statutory declaration in response to that letter, setting out a number of factual claims. The Tribunal referred in detail to this document in the decision record in pages 86 to 88 of the court book, and quoted extensively from it. The Tribunal’s findings and reasons refer in detail to the applicant’s claims under the following headings:
(a)political activities in the Trevandrum district, Kerala Estate,
(b)the prisoner capture,
(c)relocation and,
(d)credibility.
There is no evidence that the Tribunal did not have a thorough understanding of the applicant’s claims for a protection visa. That ground must fail. Further, the applicant claims the Tribunal did not explain to him why the information he provided was insufficient. This ground is misconceived. The Tribunal did, by its letter of 26 July 2007, advise the applicant of the information he had provided was not detailed enough and gave him an opportunity to apply in writing, which he did. The delegate had previously commented on the lack of detail provided by the applicant. The Tribunal is not under any obligation to make out an applicant’s case[12].
[12] see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170
It is up to the applicant to make out a case to satisfy the Tribunal that he is entitled to a visa, see section 65 of the Migration Act. As counsel for the first respondent submitted, the Refugee Review Tribunal was not obliged to disclose its concerns as to gaps in the evidence[13], let alone provide the applicant with a draft of its proposed reasons[14].
[13] see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 237 ALR 609 at 616, [18]
[14] see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, at 349.
The applicant’s final ground is that the Tribunal did not explain to him why it did not accept his claims. This ground is misconceived. The Tribunal is not obliged to disclose its reasoning or thought processes during the hearing, let alone provide a running commentary on whether the applicant’s evidence will establish his case for a protection visa. If, as counsel for the first respondent suggests, the applicant is claiming that the Tribunal has not provided adequate reasons for its decision, the Tribunal decision record, in my view, provides clear reasons and complies with the requirements of section 430(1) of the Migration Act.
The Tribunal commented adversely on the difficulties of obtaining meaningful responses to its questions. It also referred to inconsistent evidence, at page 88 of the Court Book and did not accept that the applicant was a truthful witness[15]. The Tribunal also considered whether, even if it were satisfied that the applicant had a well-founded fear of persecution, it would be reasonable for him to relocate within India. It found that it was reasonable to expect the applicant to relocate safely within India[16]. All of the applicant’s grounds fail. Counsel for the respondent distilled them into six grounds; I appear to have distilled them into seven, although they are basically similar.
[15] See Court Book at page 93
[16] See Court Book at page 91-92
I am mindful of the fact that the applicant is not legally represented, as indeed he complained during the hearing. I have considered the Tribunal and supporting material in the court book in order to make an independent assessment of whether there is any arguable case of jurisdictional error. In my view the Tribunal complied with its obligations under section 424A of the Act, by writing to the applicant on 26 July 2007, advising him of certain information and giving him the opportunity to comment on it. The Tribunal complied with its obligations under section 425 of the Migration Act. It invited the applicant to attend the hearing and provided him with an interpreter in the Malayalam language.
There was no change in the issues between what they were to the delegate and what they were before the Tribunal, although the Tribunal at its own prompting of the applicant had obtained a statutory declaration in which the applicant set out his claims in greater detail. There were certainly no additional issues and in my view it is clear that the Tribunal has complied with its obligation to provide a fair hearing under section 425 of the Migration Act[17]. The applicant also had complained that the Tribunal had only told him to answer yes or no, although I am of the view that the Tribunal decision record shows that the Tribunal member was endeavouring to ask questions which would bring out what claims the applicant had for protection.
[17] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152, at [33] – [36].
The applicant was provided with a CD recording of the Tribunal proceedings. He has not produced the transcript or anything else to contradict what is set out in the Tribunal decision record. In my view the court therefore must accept what was set out in the Tribunal decision record as an accurate account of the proceedings. There is nothing, in my view, which would indicate that the applicant was not given, at the hearing, the opportunity to present his claims with the assistance of an interpreter. It would appear that the Tribunal member went to some trouble to endeavour to ascertain exactly what the applicant’s claims are.
I am satisfied that no jurisdictional error has been made out. In the absence of jurisdictional error the Tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act. It is therefore final and conclusive and it is not subject to orders in the nature of certiorari or mandamus or prohibition. Therefore the application will be dismissed. I now turn to the question of costs.
I am satisfied that it is appropriate to make an order for costs in favour of the first respondent Minister. I am satisfied that the figure of $5000, which is the figure that accords with the court’s scale, is an appropriate figure in the circumstances. The proceedings have been conducted in the way that the court would normally expect, with a total of two court events, namely first court date and the final hearing. I propose to make an order that the applicant is to pay the first respondent’s costs, fixed in the sum of $5000. I am, however, satisfied that the applicant does not have the resources to meet those costs at short notice and in the circumstances I am prepared to allow six months to pay.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 15 April 2008