AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2009 >> [2009] FMCA 819

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

SZNSA v Minister for Immigration & Anor [2009] FMCA 819 (20 August 2009)

Last Updated: 7 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSA v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India claiming fear of persecution for reason of political opinion – no reviewable error.


WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319
Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
“W148/OOA” v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 679

Applicant:
SZNSA

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 1518 of 2009

Judgment of:
Scarlett FM

Hearing date:
20 August 2009

Date of Last Submission:
20 August 2009

Delivered at:
Sydney

Delivered on:
20 August 2009

REPRESENTATION

Applicant:
Appeared in person

Solicitor for the Respondent:
Mr Pinder

Solicitors for the Respondent:
DLA Phillips Fox

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,300.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1518 of 2009

SZNSA

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal that was made on 29th May 2009. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
  2. In this application to the Court the Applicant asks for orders setting aside the Tribunal decision and remitting his application to the Tribunal, and he asks for an order in the nature of prohibition, that no action should be taken to remove him from Australia while the decision is pending.
  3. It has been explained to the Applicant that in order for the Court to make those orders the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.

Background

  1. The background to this matter is that the Applicant arrived in Australia on 26th September 2008. On 4th November 2008 he applied for a Protection (Class XA) visa. He claimed, in a statement which he provided in support of his protection visa application, that he was seeking protection as a refugee on the Convention ground of political opinion.
  2. In particular, he claimed that in around December 1999 he joined a party known as the ADMK as a youth lifetime member in order to bring progressive challenges to the village. He had become associated with a leader of the district youth committee, on Mr S.V.T. Raja. He had developed a close relationship with Mr Raja and as a result of their political activities they attracted criticism from members of an opposition party known as the DMK. The claim is that the Applicant and Mr Raja were warned that they would be killed if they continued their activities.
  3. Unfortunately, Mr Raja was in fact attacked and murdered. The Applicant claimed that people who he described as “rowdies” came to his house and tortured his family and asked where he was. The Applicant claimed to have fled and stayed at his grandmother’s house, but was advised to elsewhere because the people who were responsible for Mr Raja’s death were also after him. Eventually the Applicant moved to Chennai, but his enemies followed him there.[1]
  4. A delegate of the Minister for Immigration & Citizenship wrote to the Applicant on 10th December 2008 inviting him to attend an interview on Friday, 19th December 2008. That interview was in fact rescheduled to Thursday, 8th January 2009. The Applicant attended that interview and discussed his refugee claims with a delegate for the Minister for Immigration & Citizenship. However, on 9th January 2009, the day after the interview, the delegate refused the application for a protection visa.
  5. The delegate stated that she had considered the Applicant’s written evidence, the information he had provided at the interview, his personal circumstances, evidence detailed in his application and relevant country information.
  6. Unfortunately for the Applicant the delegate was not satisfied that he had been involved in the violent incident that he had claimed, and was not satisfied with key aspects of his claims. In particular, he was not satisfied that the Applicant had been chased, not only across India but also when he went to Thailand, by his political enemies.
  7. The delegate was not satisfied that the Applicant was unable to safely relocate elsewhere in India, and did not accept that the Applicant faced a real chance of Convention-related persecution upon his return to India.[2]

Application to the Refugee Review Tribunal

  1. After the application for a protection visa was refused, the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. His application was received by the Tribunal at its Sydney registry on 3rd February 2009. Apart from a copy of the delegate’s decision refusing his application, the Applicant did not at that stage provide any other documentary evidence to the Tribunal. The following day, 4th February 2009, the Tribunal wrote to the Applicant acknowledging his application for a visa.
  2. In the acknowledgement letter, under the heading, “What does the Tribunal expect me to do?”, the Tribunal set out three steps that the Applicant should take, including:
  3. The Tribunal wrote again to the Applicant on 20th February 2009. That letter was an invitation to appear before the Tribunal. The Tribunal invited the Applicant to appear at a hearing scheduled to take place at 10:00am on 3rd April 2009. The letter set out the location of the Tribunal hearing and noted that an interpreter in the Tamil language would be provided. The Applicant responded to that hearing information and in his response indicated that he wished to take part in the Tribunal hearing and he would require an interpreter in the Tamil language.
  4. The Applicant attended the hearing on 3rd April 2009. He gave evidence with the aid of a Tamil interpreter. He provided his passport to the Tribunal and the relevant officer of the Tribunal took a photocopy of every page of the passport.
  5. After the hearing the Applicant forwarded a submission to the Tribunal. That submission was dated 24th April 2009. In that submission the Applicant reiterated that the killing of Mr SVT Raja was a political matter and that he, the Applicant, had been present at the time. The Applicant also referred to a newspaper article saying:
  6. The Tribunal reiterated his fears for his safety and asked the Tribunal for an extension of time to submit further evidence. He advised the Tribunal that he would need to contact people in India to collect the information.
  7. The Tribunal attempted to call the Applicant to advise him that the Tribunal would not grant him the extension of time. A case note shows that an officer explained that:
  8. The Applicant provided a further submission to the Tribunal, in writing, which was received by the Tribunal on 29th April 2009. The letter contained a request for a further extension of time. It also annexed a document which was a membership card of the Applicant’s political party. The document itself was in Indian script but the Applicant had written down a translation of that document into English.[6]
  9. On 6th May 2009 the Tribunal wrote to the Applicant. The letter was headed ‘Invitation to comment on or respond to information’. The letter was clearly intended to comply with requirements of s.424A of the Migration Act. The letter said:
  10. The letter then set out particulars of the information to which the Tribunal referred. The information related to the Applicant’s claims about the events on 6th September 2001 when he and the late Mr Raja were set upon, and Mr Raja lost his life.
  11. The letter referred to the Applicant’s evidence at the Tribunal hearing and also referred to a report of the incident which appeared in the newspaper called ‘The Hindu’. The Tribunal’s letter told the Applicant the information was relevant to the review because it may lead the Tribunal to conclude that he was not present at the attack on, and the murder of, S.V.T Raja on 6th September 2001. That in turn would lead the Tribunal to conclude that he was not a credible or truthful witness.
  12. The Tribunal invited the Applicant to give comments on, or respond to the information, in writing, in English, by 29th May 2009. Interestingly the letter also told the Applicant that if the Tribunal did not receive his comments or response within the period allowed, or as extended, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information. It went on to say:
  13. It is unclear why the Tribunal chose to include that information in the letter. The Applicant had already appeared before the Tribunal and had given evidence, and had presented arguments. It is unlikely that the Tribunal was planning a further hearing.
  14. The Applicant replied to that letter, in English, on 27th May 2009. He responded in the following way:
5) Mr. Prem Kumar, SP’s statement is doubtful.
What I want to say that my threat for life is genuine and my story is a real story. If I go back to India DMK and its alliance will kill me for my political involvement.
Please consider my fear for life and my fear for harm and allow my protection application and grant me protection visa.[9]
  1. The Tribunal made its decision on 29th May 2009 and posted a copy of the decision to the Applicant that same day. The Tribunal affirm the decision not to grant the Applicant Protection (Class XA) visa.

The Refugee Review Tribunal Decision

  1. In its decision the Tribunal set out under the heading, Claims and Evidence, details of the Applicant’s claim as set out in his application for a protection visa, country information about India including the article in the newspaper The Hindu, a summary of the Applicant’s evidence to the Tribunal hearing, the Applicant’s post-hearing letter of 24th April 2009, the document provided to the Applicant 29th April 2009, the Tribunal section 424A letter of 6th May 2009, and the Tribunal’s response of 27th May 2009.
  2. In its findings and reasons the Tribunal found that the Applicant was a citizen of India, noting his Indian passport. However, the Tribunal found that the Applicant was not a truthful or credible witness. It set out that:
  3. The Tribunal then set out reasons why it had formed an adverse view of the Applicant’s credibility. One of the Applicant’s key claims, of course, as he is seeking protection on the basis of his political affiliation with the ADMK, was rejected by the Tribunal. The Tribunal said:
  4. The Tribunal, on the basis that it found that the Applicant was not a truthful witness, indicated that it was not prepared to accept his evidence without any supporting evidence. It went on to reject the entirety of the Applicant’s claims based on its adverse findings as to his credibility.
  5. As a result, the tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention, and therefore did not satisfy the criteria set out in sub-section 36(2)(a) of the Migration Act, for a protection visa.
  6. The Tribunal therefore affirmed the decision not to grant him a Protection (Class XA) visa.

Application for Judicial Review

  1. The Applicant then commenced proceedings in this Court by filing an application and an affidavit in support on 25th June 2009. On 6th August 2009 the Applicant filed his amended application and a written outline of submissions.
  2. In the amended application he seeks orders:
    1. Setting aside the Tribunal decision and ordering the Tribunal to complete the review and take the interview of the Applicant.
    2. An order that no action is taken to remove the Applicant from Australia while the decision is pending.
    3. Writ of certiorari quashing the decision of the RRT.
  3. In effect the Applicant is seeking orders in the nature of certiorari, mandamus and prohibition.

Grounds of Review

  1. In his amended application he sets out five grounds of review whereby he claims that the Tribunal fell into jurisdictional error. They are as follows:
    1. The Applicant submits that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error when the Tribunal made the observation that:
      • The Tribunal explained that it would, as part of the review, be assessing the genuineness of his claims for protection. To this end any inconsistencies and omissions in his evidence could lead to an adverse finding about his credibility and this may lead to an adverse finding about his claims for protection.

But the Tribunal did not understand that omissions in evidence could occur due to that there is no guideline or direction specific to the requirement. But the Tribunal did not inform by its letter dated 6th May 2009 (CB.97) that there could be an adverse finding about his credibility. (CB.113 [81]).

  1. The Tribunal made a jurisdictional error that the Tribunal wrongly expecting from the Applicant to demonstrate particular political motivation. The Tribunal also made an error of law when it wanted to seek political motivation because there is no necessity to show particular political motivation. The Refugee Law needs political opinion. The Tribunal also made a mistake regarding when the Tribunal did not accept the Applicant’s photo membership card because the Applicant took the original membership card to the Tribunal’s office in Sydney but the office took only a copy of the membership card.
  1. The Tribunal made a mistake when it depended on the wrong and unauthentic information to reject my claim, when it assessed me on the basis of the report in the paper. The police report could explain the right situation and that report will show my presence at the time of incident but the paper report in the ‘Hindu newspaper’ should not use without supporting evidences from other sources, to reject my genuine claim for protection.
  1. The Tribunal made a mistake that the information regarding association with Mr S.V.T Raja was given by the Applicant, who was not believed on the basis of a paper report that is not clear but the Applicant have with him the original photo identification with him, but the Tribunal did not want to see it.
  2. The Tribunal made a jurisdictional error that the Tribunal mentioned many times that it is not satisfied but it did not explain properly, with sufficient reference and did not give sufficient reasons and did not identify properly the issues which would lead the Tribunal why it is not satisfied on his evidence.

Submissions

  1. The Applicant attended the hearing and complained about the Tribunal’s rejection of the evidence of his ID card. He said that he had attempted to submit the card at the office of the Tribunal but they accepted only the photocopy. He claimed that the Tribunal did not write to him to tell him about the correct way of submitting a document like an identity card.
  2. The Applicant also took issue with the fact that the Tribunal relied on the article in the Hindu newspaper, because he claimed that that article was in error. He told the Court that the newspaper was a political paper and the newspaper took a particular line. What is reported in the paper, he said, is not always correct. He reiterated that he cannot go back to India, because his life was in danger. The Applicant said further about his identity card that he was not aware that he had to provide a certified translation. He, himself, had translated the contents of the document into English.
  3. Mr Pinder, solicitor, who appeared for the Minister for Immigration and Citizenship had submitted an extensive written outline of submissions. As to the Applicant’s grounds, it was submitted that the Tribunal’s decision was based upon a thorough rejection of the Applicant’s credibility as a witness, which led the Tribunal to reject the entirety of his claims.
  4. It was further submitted that the allegation in the second ground about membership card was inconsistent with the documents on the Tribunal’s file, which suggested that the Applicant provided a photocopy of his membership card under cover of the letter of 29th April 2009. It was submitted that that was contrary to his claim that he had taken an original document to the Tribunal’s office, but only a photocopy was given. It was noted that the Tribunal set out two other concerns about the document, being that it was not translated by an accredited interpreter and there was no indication as to where it had originated.
  5. It was also submitted that the allegation that the Tribunal applied the wrong test in relation to political motivation or opinion and a fair reading of the Tribunal’s decision would make it clear that the Tribunal properly considered the issue of whether the Applicant had a well-founded fear of persecution arising from his actual or imputed political opinion, and found that he did not have such a well-founded fear, based on the Tribunal’s adverse credibility findings.
  6. As to the third ground, where the Applicant takes issue with the Tribunal’s preference for information from the newspaper, The Hindu, over the Applicant’s evidence, this is, in fact, an invitation to the Court to engage in merits review of the Applicant’s substantive claims.
  7. The fourth ground, it is submitted, appears to be an attempt to replicate the allegation in the second ground about the Tribunal not accepting the photo membership card.
  8. As to the final ground, alleging that the Tribunal did not give reasons or did not properly give reasons as to why it was not satisfied by the Applicant’s evidence, it was submitted that this ground was misconceived, because the Tribunal had provided clear and cogent reasons for rejecting the Applicant’s evidence.
  9. It is only failure to have regard to evidence that may amount to jurisdictional error and not a failure to discuss each piece of evidence with the Applicant. The Court was referred to the decision of the Full Court of the Federal Court in WAFP v Minister for Immigration and Multicultural and Indigenous Affairs[12], also the decision of Jacobson J in Singh v Minister for Immigration and Multicultural and Indigenous Affairs[13].
  10. It was further submitted that even if there was a failure by the Tribunal to refer to evidence, which was not conceded, then the Applicant had provided no particulars of any failure to consider evidence that would amount to a jurisdictional error and no such finding was readily apparent. Thus, it was submitted that the Applicant’s grounds must fail.
  11. The contentions in the Applicant’s written submissions were addressed, particularly about the Applicant’s criticisms of the Tribunal section 424A letter. The Applicant had complained, amongst other things, that the Tribunal did not forward a copy of the relevant article from ‘The Hindu’, nor was it reproduced in the Court Book. It was submitted that the Tribunal was not obliged to do so, but, in any event, an affidavit was prepared, annexing a copy of the newspaper report, filed in Court, and a copy was provided to the Applicant.

Considerations

  1. Dealing with the Applicant’s grounds of review, it is necessary to consider that the basis of the Tribunal’s decision was its outright rejection of the key aspects of Applicant’s claim to fear harm for reason of his membership of a political party, based on its adverse findings as to his credibility as a witness.
  2. The assessment of credibility has been held by the High Court of Australia to be a factual matter par excellence (See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[14]).
  3. As a credibility decision is a factual matter, provided that there is evidence upon which it is open to the Tribunal to make the finding that it did, there is no scope for a Court conducting judicial review to interfere in the decision. It is important, therefore, to consider all of the Applicant’s grounds in the light of the primary reason for the Tribunal’s rejection of his claims.

Ground 1

  1. In his first ground, the Applicant takes issue with the observation in the Tribunal’s findings and reasons about the Tribunal’s role in assessing the genuineness of the Applicant’s claims for protection, which would involve findings of credibility.[15]
  2. The Applicant’s complaint is that the Tribunal did not understand that omissions in evidence could occur because there was no guideline or direction specific to that requirement. It is a little difficult to ascertain exactly what is meant by that complaint, but I would reiterate that findings as to credibility are factual matters for the administrative decision-maker; in this case, the Refugee Review Tribunal.
  3. The Applicant’s complaint goes on to state that the Tribunal did not inform him in its letter of 6th May 2009 that there could be an adverse finding about his credibility. The first comment to be made is that there is no obligation on the Tribunal to set out that information in writing. Second, a fair reading of the Tribunal’s letter of 6th May 2009 indicates that the Tribunal made it perfectly clear that the Applicant’s credibility was in issue. The letter invited the Applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response that he made, be the reason or part of the reason for affirming the decision that is under review. The letter set out what this information was and then explained why that information was relevant.
  4. In my view, it is clear that the Tribunal did set out in its letter a very clear indication of the fact that the Applicant’s credibility was in issue.

Ground 2

  1. The second ground alleges a jurisdictional error, with the Tribunal wrongly expecting from the Applicant to demonstrate a particular political motivation, saying that this was an error of law because it is not necessary to show particular political motivation, but political opinion. The reference in that ground is to the Tribunal’s reasons at [82] of the decision:
  2. The Tribunal’s reasons there, when read fairly, indicate a scepticism by the Tribunal about the Applicant’s claim to have been the committed and active member of the ADMK which is at the core of his claim to have a well-founded fear of persecution by reason of political opinion. In effect, the Applicant is challenging the Tribunal’s factual finding, which is really an attempt to persuade the Court to engage in merits review of his refugee claims. In that way, jurisdictional error has not been made out.
  3. The ground also refers to the Applicant’s complaints with the Tribunal’s rejecting of the photocopy of his party membership card. That is also referred to in ground 4. What the Applicant says is that on 29th May he went to the office of the Tribunal, taking with him the written document that appears on pages 95 and 96 of the Court Book and his original membership card. He says that a photocopy was made of the membership card, although I note that if that is the case, the photocopy does not bear the stamps that the Tribunal officers usually place on documents that have been received. An example of those stamps can be found at page 79 of the Court Book. What the applicant says is that the handwriting on the letter is his, and that even though the membership card was not written in English, that he provided an English translation. He is clearly aggrieved by the Tribunal’s rejection of that document. The Tribunal describes it at [73] of the decision in this way:
  4. The Tribunal in its findings and reasons dismissed that evidence in this way, at [83] of the decision:
  5. The Applicant said that he had taken the original membership card with him to the Tribunal office when he submitted the document. He said that he was the one who translated the card. Now, it is the case that the Tribunal advised the Applicant in its acknowledgement letter of 4th February 2009 that “any documents not in English should be translated by a qualified translator.”[20] Clearly, this membership card, which the Applicant says it is, was not translated by a qualified translator but by the Applicant himself.
  6. The Court has no way of knowing whether the Applicant did indeed produce the original membership card as he said, but, in my view, it is a likely explanation. It is, however, the fact that the Tribunal’s finding about the membership card - referred to, somewhat unkindly in my view, by the Tribunal as “a purported membership card” - is a factual matter. It is the Tribunal which is the judge of fact. It is not the case that a Court conducting judicial review can substitute its own view of the evidence for that of the Tribunal, even if it does appear to the Court that a different conclusion could be drawn from a particular piece of evidence. Tamberlin and Nicholson JJ referred to that very situation in “W148/OOA” v Minister for Immigration and Multicultural and Indigenous Affairs[21].
  7. The fact is that it was the Tribunal that had the role of assessing and giving weight to the documents submitted by the Applicant. The Tribunal chose to reject it and give it no weight. That is a matter for the Tribunal. Jurisdictional error has not been shown.

Ground 3

  1. The Applicant’s third ground complains that the Tribunal made a mistake when it depended on what he calls, “wrong and unauthentic information,” to reject his claims based on the report in the newspaper known as ‘The Hindu’. The Applicant claims that the newspaper has a particular motivation, or a particular political motivation, and that not everything that appears in that particular newspaper should be regarded as the truth. One might comment in passing that that statement might apply to some newspapers in Australia.
  2. However, it is well established that it is for the Refugee Review Tribunal to assess Independent Country Information and to give that country information what weight it, as the finder of fact, considers to be appropriate. It is not the task of the Court conducting judicial review to substitute its own views on the authenticity or otherwise of the newspaper article. Certainly, the Applicant had put to the Tribunal that it should not accept that article as authentic, but the Tribunal chose to give weight to that newspaper article, and the incidents to which it referred, rather than the evidence of the Applicant. That was a matter for the Tribunal. It is not a matter for the Court.

Ground 4

  1. The Applicant’s fourth ground, again, refers to the newspaper report and, again, refers to the Applicant’s complaint about his identification card. But in each case, those matters have been covered.

Ground 5

  1. The Applicant’s fifth ground claims that the Tribunal made jurisdictional error when it mentioned many times that it was not satisfied, but did not explain properly with sufficient reference, and did not give sufficient reasons, and did not identify properly, the issues which would lead the Tribunal why it is not satisfied on his evidence.
  2. In my view, the Tribunal made it clear in its reasons for decision why it was not satisfied about the Applicant’s evidence. The Tribunal set out that it was not satisfied that the Applicant was a truthful witness. The Tribunal set out at [82] to [85] why it drew the conclusion that he was not a truthful or a credible witness. And it was based on that finding of credibility that the Tribunal went on to reject the core aspects of the Applicant’s claims, namely, his political involvement, his presence at the violent death of the late Mr S.V.T. Raja, his claims that his family were threatened and tortured by his political opponents and had to leave their home, and his claims that the DMK sought him not only in other parts of India, but, also, in Thailand.
  3. The Tribunal found that claim to be, “inherently implausible.” Again, this was found that on the basis that:

Thus, the Tribunal’s rejection of the Applicant’s claims stems directly from its credibility findings which were matters for the Tribunal.

Conclusion

  1. I am mindful of the fact that the Applicant was not legally represented in these proceedings. He has had advice from Mr David Burwood of counsel who is a member of the Refugee Review Tribunal Legal Advice Panel. He has not, however, been legally represented to the proceedings today.
  2. It is appropriate that the Court should conduct its own examination of the Tribunal decision and supporting documents in order to ascertain whether any arguable case of jurisdictional error might arise in respect of any possible breach of the requirements of Division 4 of Part 7 of the Migration Act.
  3. In my view, the Tribunal did not commit any breach of s.424 of the Act, and this matter does not arise. The Tribunal did write to the Applicant under the provisions of s.424A of the Migration Act, putting information to him for his comments or response and giving him an appropriate time limit for him to provide those comments or a response.
  4. The Applicant did provide his response to the s.424A letter of 6th May 2009 by means of a written document received by the Tribunal on 27th May 2009. That was two days before the time limit of 29th May 2009, and it is clear that the Tribunal considered that response in its decision. There is no breach of s.424A of the Act.
  5. The Tribunal invited the Applicant to attend a hearing under the provisions of s.425 of the Act. The letter set out the time, date and place at which the Applicant was invited to attend. The letter was dated 20th February 2009, but not despatched, according to the file note, until 23rd February 2009.
  6. However, it is clear that the notice of the hearing which was to take place on 3rd April 2009 gave the Applicant plenty of time because it was in excess of the prescribed time for such notice.
  7. The Tribunal letter also gave the Applicant information about the effect of s.426A of the Migration Act when it said:
  8. In my view, the Tribunal’s invitation to the hearing complied with the requirements of s.425A of the Migration Act
  9. The Applicant submitted response to the hearing invitation indicating that he required the services of an interpreter in the Tamil language.[24] It is clear from the Tribunal hearing record that an interpreter in that language was, indeed, provided and assisted the Applicant during the hearing.[25]
  10. The Tribunal hearing dealt very much with the question of the credibility of the Applicant’s claims and his truthfulness as a witness. It was that issue that formed the basis of the delegate’s rejection of the Applicant’s claims for a protection visa, as a result of the Applicant’s attendance at the interview with the delegate on 8th January 2009. Thus, the Applicant should have been aware that the credibility of his claim was in issue at the Tribunal hearing and, in my view, no failure to provide a fair hearing under s.425, in the sense identified by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[26], has been made out. There is no breach of s.425 of the Act. I am satisfied that no jurisdictional error appears.
  11. In the absence of jurisdictional error, the Tribunal decision is privative clause decision, as defined by sub-section 474(2) of the Migration Act. Privative clause decisions are final and conclusive. They are not subject to orders in the nature of certiorari or mandamus or prohibition in any court. It follows that the application must be dismissed.
  12. There is an application for costs on behalf of the First Respondent Minister in the sum of $5,300.00. The Applicant has not been successful in his claim and, as Mr Pinder pointed out, costs follow the event. The amount sought is within the scale. I consider it appropriate to make an order for costs in that amount.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Scarlett FM


Associate: V. Lee


Date: 1 September 2009

[1] See Court Book at pages 27 and 28.
[2] See Court Book at page 62.
[3] See Court Book at page 71.
[4] See Court Book at page 91.
[5] See Court Book at page 94.
[6] See Court Book at pages 95 and 96.
[7] See Court Book at page 97.
[8] See Court Book at page 98.
[9] See Court Book at page 100.
[10] See Court Book at page 113.
[11] See Court Book at pages 113 and 114.
[12] [2003] FCAFC 319 at [19]
[13] [2006] FCA 1113
[14] [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
[15] See Court Book at page 113 at [81].
[16] See Court Book at page 98.
[17] See Court Book at page 113.
[18] See Court Book at page 112.
[19] See Court Book a t page 113.
[20] See Court Book at page 71.
[21] [2001] FCA 679 at [48].
[22] See Court Book at page 114 at [95].
[23] See Court Book at page 73.
[24] See Court Book at page 75.
[25] See Court Book at page 77.
[26] [2006] HCA 63

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2009/819.html