SZMTQ v Minister for Immigration & Anor [2009] FMCA 29 (30 January 2009)

Last Updated: 4 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTQ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 29

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming fear of persecution on the ground of political opinion – where applicant made a further claim that police inquiries had used his internet connections to make arrests which led to criminals blaming the applicant – credibility – procedural fairness – whether the Tribunal failed to take a relevant consideration into account – “model litigant” – whether Tribunal failed to comply with Migration Act 1958 (Cth) ss.424 and 424B – merits review – no reviewable error.

Migration Act 1958 (Cth) ss.36, 422B, 424, 424A, 424B, 425, 474

Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256; [2008] FCAFC 83 SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 followed

Applicant:

SZMTQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2449 of 2008

Judgment of:

Scarlett FM

Hearing date:

26 November 2008

Date of Last Submission:

26 November 2008

Delivered at:

Sydney

Delivered on:

30 January 2009

REPRESENTATION

Applicant:

Appeared in person

Solicitors for the Applicant:

Not legally represented

Counsel for the Respondent:

Mr Knackstredt

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2449 of 2008

SZMTQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The applicant, a citizen of India, asks the Court to set aside a decision of the Refugee Review Tribunal made on 28th August 2008.
   The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
2. The applicant claims that the Tribunal denied him procedural fairness, failed to take relevant considerations into account, failed to carry out its review function and exercise its jurisdiction, and failed to determine the applicant’s chances of being persecuted should he return to India.
3. The Minister, who is the first respondent to the application, has filed a Response opposing the orders sought. The Minister does not admit that there is any jurisdictional error in the decision of the Refugee Review Tribunal, the second respondent.

Background

4. The applicant arrived in Australia on 15th February 2008. He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 14th March 2008, claiming a fear of persecution for the Convention reason of political opinion. In a four-page statement that he lodged with his application for a protection visa, the applicant claimed to have been threatened with death and to have been targeted more than a normal politician because he was also an astrologer.
5. A delegate of the Minister refused the application for a protection visa on 4th April 2008. The delegate found:
   • The applicant has provided no collaboration[1] for any of his claims. I am not satisfied that he suffered adverse consequences because of his claimed political affiliation and activities.
   • In particular, there is no evidence that the applicant is unable to avail himself of the protection of his country. He has not been singled out and persecuted by or with the tacit acceptance of the Indian government, and there is no evidence that the authorities were unable or unwilling to protect him from persecution.[2]
6. The delegate also considered that if the applicant was a victim of local harassment for his political affiliation or for some other reason he had the option of relocation within India.

Application for Review by the Refugee Review Tribunal

7. The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The Tribunal received his application on 30th April 2008[3]. The applicant did not provide any additional information with his application for review.
8. The Tribunal wrote to the applicant on 15th May 2008, inviting him to attend a hearing on 1st July. The Tribunal also wrote to the applicant on 19th May 2008. This letter was headed “Invitation to Comment on or Respond to Information and Invitation to Provide Information” and was clearly intended to comply with the requirements of ss. 424 and 424A of the Migration Act. The letter invited the applicant’s comments and further information by 11th June 2008.[4]
9. The applicant replied to the Tribunal’s letter on 10th June 2008.[5]
10. He attended the hearing on 1st July 2008 and gave evidence with the assistance of an interpreter in the Hindi language. He produced his Indian passport to the Tribunal and provided a number of documents to support his case, including court documents, testimonials and academic results.
11. After the hearing, the Tribunal wrote to the applicant on 8th July 2008. The letter was headed “Invitation to Comment on or Respond to Information in Writing” and was intended to comply with the requirements of s. 424A of the Migration Act. The letter gave the applicant until 31st July to provide his written comments.[6]
12. The applicant replied to the Tribunal’s letter on 29th July 2008.[7]

The Refugee Review Tribunal Decision

13. The Tribunal signed its decision on 6th August 2008 and handed the decision down on 28th August. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.[8]

The Tribunal’s Findings and Reasons

14. The Tribunal accepted that the applicant was a national of India, based on his Indian passport.
15. The Tribunal noted the applicant’s claim to fear persecution in India on the ground of his political opinion, including his claim to fear persecution from members and supporters of the BJP because of his refusal to join the BJP. In particular, he had claimed that BJP members and supporters believed that he had a karishma that could change the political scenario.
16. The Tribunal also noted that the applicant had made another claim:
    • In the hearing the applicant made a new claim. That is, in conducting his computer business, the police used his internet connection an email address to make enquiries to a communication company, requesting details of holders of certain mobile phone numbers. The applicant claims that these enquiries resulted in the arrest of several acquaintances of BJP-supporter and “professional killer,” Anand Paul Singh. The applicant claims that Singh continues to blame him for these arrests and has been pursuing him and continues to do so as a “number one enemy”.[9]
17. After consideration of the evidence, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention-related reason. The Tribunal set out these reasons for that finding:
    • The applicant had made a new and significant claim at the hearing that his children and family were beaten with sticks. The fact that he had not made this claim in his original application and the fact that he could not remember which of his children had been beaten were matters that the Tribunal found reflected adversely on the applicant’s credibility.
    • The Tribunal found that the applicant changed his evidence about his attendance at GHS Govt College, which reflected adversely on his credibility.
    • The Tribunal found that the applicant had delayed his departure from India for three weeks and did not accept his explanations for that fact. The Tribunal concluded that this showed the applicant was not in fear of attacks on his life and that his evidence reflected adversely on his credibility.
    • The Tribunal found that the applicant’s evidence about an attack on his office was “significantly inconsistent”[10] and reflected adversely on his credibility generally.
    • The applicant gave inconsistent information about how long he had been involved in astrology.
18. The Tribunal did not accept the applicant’s explanations in his written response after the hearing and found that it reflected adversely on his credibility.
19. Overall, the Tribunal found the applicant not to be a credible witness and found that he had fabricated claims in order to support his application for a protection visa. Based on the adverse credibility finding that it had made about the applicant, the Tribunal placed no weight on certain documents that the applicant submitted in support of his claim:
    • (a) a faxed membership form for the Youth Congress Party dated November 1992;
    • (b) a faxed letter dated April 2008 from the local Youth Congress Party;
    • (c) emails that the applicant submitted to the Tribunal; and
    • (d) pages from a court judgment.
20. The Tribunal did not accept the key assertions of the applicant’s claim and was not satisfied that he had suffered any Convention-related harm, or that there was a real chance of that harm occurring to him in the reasonably foreseeable future. It found that the applicant did not have a well-founded fear of persecution for a Convention-related reason and was therefore not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
21. As the applicant did not satisfy the criterion set out in s. 36(2) for a protection visa the Tribunal affirmed the decision not to grant a protection visa to the applicant.

Application for Judicial Review

22. The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 22nd September 2008.
    He filed an amended application on 12th November 2008, after he was provided with legal advice by a solicitor on the NSW RRT Legal Advice Scheme Panel, Mr Michael Kah.
23. In his amended application, the applicant seeks orders in the nature of certiorari, prohibition and mandamus. He relies on the following grounds:
    • (1) The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that applicant was not a credible witness and fabricated claims, 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.
    • (2) That the decision of the Refugee Review Tribunal was effected[11] by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or ‘integers’ central to the applicant’s claims; because the applicant was being questioned for (a) number of hours without a break and felt stressed and intimidated.
    • (3) The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

Particular(s)

(a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from BJP members.
(b) In relation to above the Tribunal did not consider the applicant(‘s) claim that BJP members, including Anand Paul Singh, threatened the applicant and his family because he refused to join BJP and allowed the police to use his business to make inquiries which led to the arrest of several of Singh’s acquaintances.
(4) The Tribunal failed to determine the chances of the applicant being persecuted should he return to India.

24. The Minister filed a response on 26th September 2008 seeking dismissal of the application on the basis of a denial of any jurisdictional error in the Tribunal decision.

25. The applicant did not file a written outline of submissions but he attended Court and made oral submissions.

Submissions

26. The applicant complained that that the Tribunal did not believe him, whatever he said. He said that he had submitted many proofs in support of his case but they were not taken into account. He also said that the Tribunal did not give any consideration to his claim of fearing harm from the “professional killer” Anand Paul Singh.
27. The Minister filed a written outline of submissions on 24th November 2008, prepared by Mr Knackstredt of counsel. The Minister submitted that the applicant’s four grounds in his amended application do not identify any error in the Tribunal’s decision and consequently the application should be dismissed.
28. Mr Knackstredt submitted that the applicant’s Ground 1, alleging a denial of procedural fairness, should be dismissed for these reasons:
    • (a) Following the introduction of s 422B of the Migration Act, the common law rules of procedural fairness no longer have any application ( Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat[12]).
    • (b) There is no substance to any complaint that the applicant might make that he was not afforded a valid hearing under section 425 of the Act because certain issues were not drawn to his attention during the hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[13]). The applicant did not file any evidence to contradict the Tribunal’s hearing record, which shows that the Tribunal raised various issues with the applicant and discussed them at length. In the absence of any other evidence, the Court must rely upon the Tribunal’s decision record as an accurate account of what took place at the hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs[14] at [21]).
    • (c) The adverse credibility finding was open to the Tribunal on the evidence and the basis for that finding was clearly set out by the Tribunal.[15] Findings of credibility are the function of the primary decision-maker “par excellence” and ought not to be disturbed upon judicial review (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[16] at [67] per McHugh J).
29. It was further submitted that Ground 2, alleging that the applicant was not afforded a valid hearing under s. 425 because the hearing took place over a number of hours without a break, should be dismissed because:
    • (a) There is no evidence as to the length of the hearing and whether the applicant ever requested a break; and
    • (b) The Tribunal considered and rejected the applicant’s claim that he was having difficulty answering some questions because his mind was not working properly.[17]
30. Counsel for the Minister submitted that the applicant’s Ground 3, claiming a failure to take certain relevant considerations into account, should be dismissed because:
    • (a) The Tribunal considered, and rejected on the basis of its adverse credibility finding, the applicant’s claims to have been intimidated and pressured by BJP members and supporters for
      • (i) failing to join the BJP; and
      • (ii) allowing the police to use his business to make certain inquiries
    • (b) To the extent that the applicant is complaining about the findings themselves, the Court is not permitted to review their fairness or correctness (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[18]at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[19] at [10]).
31. As to the applicant’s Ground 4, Mr Knackstredt submitted that there is no substance to this ground on a fair reading of the Tribunal’s reasons. The Tribunal expressly considered whether or not the applicant would be subjected to a real chance of harm if he were to return to India.[20]
32. Counsel for the Minister submitted that, as there was no jurisdictional error in the Tribunal decision, it was a privative clause decision for the purposes of s. 474 of the Migration Act (Plaintiff S157/2002 v Commonwealth of Australia[21] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

Section 424 Issue

33. On the basis that the Commonwealth should be a model litigant, Mr Knackstredt drew the Court’s attention to an apparent failure by the Tribunal to comply strictly with the requirements of s. 424 of the Migration Act in its letter to the Department of Immigration and Citizenship of 15th May 2008.[22]
34. The letter is headed “Request for Relevant Documents” and (relevantly) provides:
    • The Tribunal requests the Department to provide the following documents in connection with this review:
    • Please forward all details related to the above applicant’s documents for travel to Australia on his 459 visa. Client ID: 87335119840.
    • Please forward these documents to the Sydney Registry as soon as possible.[23]
35. The failure to comply referred to is a failure to specify a reasonable period within which to reply under s.424B (2) (see SZKTI v Minister for Immigration and Citizenship and Another[24] at [12]). In this case, as Mr Knackstredt pointed out, the information was referred to in the Tribunal’s s. 424A letter to the applicant of 8th July 2008[25] and was discussed with the applicant during the Tribunal hearing[26].
36. I am satisfied that the applicant was given ample opportunity to deal with the Tribunal’s concerns about this issue and there is no procedural unfairness to the applicant. In any event, counsel for the Minister has drawn the Court’s attention to the decision of Buchanan J in SZLWQ v Minister for Immigration and Citizenship[27] which appears to be directly on point. His Honour said at [52]:
    • Section 424B(2) on its face directs that ‘information or comments are to be given within a period specified in the invitation’. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf. s 424B(1) – ‘the invitation is to specify’...). The consequence of any failure to specify a period is that the facility in s 424C of proceeding to a decision in the absence of the information might not be available but I do not see s 424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error. A circumstance of this kind (failure to specify a period and consequent inability to rely on s 424C) does not fall within any of the reasoning in SZKTI[28], SZKCQ[29] or SZIZO[30]. As it happens the information was given. It was brought to the attention of the appellant. She had an opportunity to deal with it. It cannot be said that the information was not given before the time for it had passed (s 424C(1)(b)). In my view no ‘breach’ of s 424B(2) occurred and, in any event, any failure to comply with its strict terms did not, in the circumstances of this case at least, amount to jurisdictional error on the part of the RRT.
37. The decision in SZLWQ is a decision on appeal from the Federal Magistrates Court and, as I indicted, appears to be directly on point. Therefore, I consider that I am bound to follow it.
38. I am satisfied that no jurisdictional error is shown in the Tribunal’s failure to comply strictly with the requirements of s.424B(2) of the Act.

Conclusions

39. I have considered all four of the applicant’s grounds of review and I am satisfied that none of them makes out any jurisdictional error.
40. The applicant’s Ground 1 complains of a denial of procedural fairness
    • By reaching conclusions that applicant was not a credible witness and fabricated claims, 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.
41. Procedural fairness must be considered in the light of s. 422B of the Migration Act. To establish this ground, the applicant needs to show a breach of one of the sections in Division 4 of Part 7 of the Act, because Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.
42. In my view, the Tribunal’s credibility findings were open to it on the evidence. Credibility is a matter for the Tribunal because it involves findings of fact (see Durairajasingham[31]).
43. The applicant was given ample opportunity to be heard. The Tribunal wrote to him on two occasions, both before and after the hearing, putting information to him for his comments or response under the provisions of s. 424A of the Act. The applicant replied on 10th June 2008 to the Tribunal’s s. 424A letter of 19th May and the Tribunal sought further information about that subject matter at the hearing[32]. The Tribunal discussed with the applicant the material submitted in relation to his Subclass 456 visa[33] and copies of astrological articles he had submitted to the Tribunal[34].
44. The discussion at the hearing appears from the Decision Record to have been quite comprehensive and there is no evidence to contradict the Tribunal’s account of what took place at the hearing. In any event, the Tribunal wrote a s. 424A letter to the applicant after the hearing, on 8th July 2008, and the applicant replied by means of a letter dated
    29th July.
45. There is no breach of s. 424A of the Act and no failure to provide a valid hearing under s. 425. There is no denial of procedural fairness and the applicant’s Ground 1 fails.
46. The applicant’s Ground 2 complains of a failure by the Tribunal to take into account certain relevant considerations or integers central to his claim, because the applicant was questioned fro a number of hours without a break and felt stressed and intimidated.
47. The applicant has not set out what relevant considerations or integers central to his claim were not taken into account by the Tribunal. A fair reading of the Tribunal decision, however, shows that the Tribunal considered the applicant’s claims comprehensively and in detail.
48. As to the applicant’s claim of having felt stressed and intimidated because he was questioned for a number of hours without a break, there is no evidence as to the length of the hearing, nor is there any evidence that the applicant ever asked for a break during the hearing.
49. The Tribunal records that the applicant claimed to be “mentally disturbed” and that “his mind was not working properly”:
    • The Tribunal asked if the applicant wanted to say anything else before the hearing ended. The applicant said that he was mentally disturbed and his mind was not working properly. The Tribunal pointed out that the applicant had been able to answer the Tribunal’s questions and discuss his claims during the hearing. However, when the Tribunal pointed out an inconsistency in his evidence he had claimed to be mentally disturbed and not thinking properly. The Tribunal asked for his comments.
      The applicant said “for certain I am very worried”. He said that he did not want to say anything else.[35]
50. There is no evidence to suggest that the applicant did not receive a fair hearing because of his inability to give evidence and make submissions about his claims.
51. The applicant’s Ground 2 has not been made out.
52. In Ground 3 in his amended application, the applicant claims that the Tribunal failed to carry out its review function and failed to exercise its jurisdiction because:
    • (a) it did not consider that the applicant had been under “immense and intimidating pressure from BJP members”; and
    • (b) it did not consider his claims that BJP members, including Anand Paul Singh, had threatened him and his family because he had refused to join the BJP and because he allowed the police to use his business to make inquiries which led to the arrest of several of Anand Paul Singh’s acquaintances.
53. Essentially, this ground complains about the Tribunal’s factual findings and is no more than an attempt at merits review which, of course, is not available in proceedings for judicial review.
54. Again, a fair reading of the Tribunal Decision Record shows that the Tribunal did consider the applicant’s claims to have been under pressure from BJP members and supporters, including Anand Paul Singh, for failing to join the BJP and for cooperating with the police in their inquiries[36]. The Tribunal rejected these claims because it found that he was not a credible witness:
    • Based on the above-noted evidentiary concerns and in consideration of the evidence as a whole, the Tribunal finds that the applicant is not a credible witness and that he has fabricated claims in order to support his application for a protection visa.[37]
55. The Tribunal clearly set out the evidence which it considered in order to arrive at its decision on the applicant’s credibility and the applicant’s Ground 3 has not been made out.
56. Ground 4 of the applicant’s amended application complains that the Tribunal failed to determine the chances that the applicant would be persecuted upon his return to India.
57. However, the Tribunal clearly, in its decision, considered that claim made by the applicant. It did not accept:
    • The applicant’s claims in regard to his political profile;
    • The applicant’s involvement in astrology as regards the CP political party;
    • That the applicant was viewed by BJP members as having a karishma that could affect political outcomes;
    • That Anand Paul Singh threatened or continued to threaten the applicant;
    • That Anand Paul Singh had any adverse interest in the applicant;
    • That the applicant would be actively involved with the CP or practise “political” astrology or astrology for the CP if he were to return to India;
    • That the applicant would be targeted because he was viewed as having a karishma that could affect political outcomes.[38]
58. The Tribunal went on to say:
    • The Tribunal has considered the applicant’s claims independently and cumulatively. In consideration of the evidence as a whole.[39] On the basis of the available information, the Tribunal is not satisfied that the applicant has suffered any Convention-related harm, or that there is a real chance of such harm occurring to him in the reasonably foreseeable future.[40]
59. It appears clear that the Tribunal has considered the chances of the applicant being persecuted should he return to India and has found that there is no real chance of persecution in the reasonably foreseeable future. Accordingly, the applicant’s Ground 4 has not been made out.
60. The applicant is not legally represented, although he has had the benefit of legal advice from a lawyer on the RRT legal advice panel. There does not appear to be any other matter that would lead to a finding of jurisdictional error.
61. It follows that the Tribunal decision is a privative clause decision as defined by s. 474(2) of the Act and therefore would not be open to any orders in the nature of certiorari, prohibition or mandamus (s. 474(1)). The application will be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 21 January 2009

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[1] sic
[2] Court Book 47
[3] Court Book 52
[4] Court Book 63-65
[5] Court Book 67-68.
[6] Court Book 135-140
[7] Court Book 141-142
[8] Court Book 148
[9] Court Book 171-172
[10] Court Book 173
[11] sic
[12] (2006) 151 FCR 214; [2006] FCAFC 61
[13] (2006) 228 CLR 152; [2006] HCA 63
[14] [2004] FCAFC 241
[15] Court Book 172-175
[16] (2000) 168 ALR 407; [2000] HCA 1
[17] Court Book 164, 174-175
[18] (1996) 185 CLR 259
[19] [2004] FCAFC 10
[20] Court Book 176
[21] (2003) 211 CLR 476
[22] Court Book 62
[23] Court Book 62
[24] (2008) 168 FCR 256; [2008] FCAFC 83
[25] Court Book 135
[26] Court Book 162-163
[27] [2008] FCA 1406
[28] (supra)
[29] SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
[30] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122
[31] supra
[32] Court Book 162
[33] Court Book 163
[34] Court book 163-164
[35] Court Book 164
[36] Court Book 171-173
[37] Court Book 175
[38] Court Book 176
[39] sic
[40] Court Book 176