SZNNC & Anor v Minister for Immigration & Anor [2010] FMCA 24 (22 January 2010)

Federal Magistrates Court of Australia

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SZNNC & Anor v Minister for Immigration & Anor [2010] FMCA 24 (22 January 2010)

Last Updated: 25 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNC & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 24

MIGRATION – Claim for refugee status – adverse credibility findings – no jurisdictional error.

Migration Act 1958 (Cth), ss.5, 36, 91R, 91S, 424A

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v The State of South Australia (1995) 184CLR163 SZMCB v Minister for Immigration and Citizenship [2009] FCAFC 46 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SZLFS v Minister for Immigration and Citizenship [2009] FCA 75 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZLZS v Minister for Immigration and Citizenship [2008] FCA 1690 SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6

First Applicant:

SZNNC

Second Applicant:

SZNND

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 974 of 2009

Judgment of:

Wilson FM

Hearing date:

6 November 2009

Date of Last Submission:

6 November 2009

Delivered at:

Brisbane

Delivered on:

22 January 2010

REPRESENTATION

Counsel for the Applicant:

N/A

The Applicants in person:

Both in person

Counsel for the Respondents:

N/A

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applications are to pay the first and second respondents’ their costs of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

SYG 974 of 2009

SZNNC

First Applicant

SZNND

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek to review the decision of the Refugee Review Tribunal dated 31 March 2009 by which it affirmed the decision of the Minister’s delegate not to grant to the applicants a Protection (Class XA) visa.
2. The Tribunal’s decision was a “privative clause decision” and, as a result, it can only be set aside on judicial review if jurisdictional error is shown: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-8, 511.
3. A general description of what constitutes jurisdictional error is to be found in the judgment of Brennan, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184CLR163 at 179:
   • "If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
4. The applicants are husband and wife, and citizens of India. The applicant wife (SZNND) does not apply on any grounds separate from her husband and relies on s.36(2) Migration Act 1958.
5. In their application filed 24 April 2009 the applicants, who represented themselves, by the male applicant, throughout this proceeding with the assistance of an interpreter, relied on three grounds as justifying the overturning of the Tribunal’s decision:
   1. The Tribunal did not give to the applicants before the hearing the independent country information that it had about religious freedom in India, and used this information as part of its decision. It is contended that this was contrary to s.424A Migration Act 1958;
   2. The member of the Tribunal erred in that it ought to have held on the evidence before the Tribunal that it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances, the Tribunal erred in that it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims were plausible, which was the case here;
   100. The applicants satisfied the four key elements of the Convention definition as detailed in pages 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
6. In his affidavit filed in support of the application, the male applicant stated:
   • “The Tribunal member failed to investigate my genuine claims, specially the ground of persecution in India. Therefore, the tribunal decision was effected by actual bias constituting jurisdictional error.”
7. Unfortunately, the applicants did not file any written submissions expanding upon the grounds set out in the application, despite being directed to do so. The male applicant, who appeared before the Court with the assistance of an interpreter, simply left the matter in the hands of the Court. When pressed to explain his concerns the male applicant simply said that he could not return to India in any circumstances, as there would be “a lot of problems for me”. The male applicant says that his child returned, but was brought back a few days previously due to an emergency. Further, the applicant said that he could only understand about 50% of what was going on before the Tribunal.
8. The first ground relied upon by the applicants can be dealt with briefly. Section 424A(3)(a) of the Act provides:
   • (3) This section does not apply to information:
     • (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
9. As the Minister submits at paragraph 28 of his written submissions, the question of whether independent country information is information that has to be provided to an applicant pursuant to s.424A of the Act is one that has been raised many times in this Court and in the Federal Court of Australia. The leading cases are footnoted, including the recent Full Court decision of SZMCB v Minister for Immigration and Citizenship [2009] FCAFC 46 at [49] and [106]. There is no obligation to provide such information to an applicant pursuant to s.424A of the Act.
10. In any event, at paragraphs [102] and [103] of the Tribunal’s Reasons it is recorded that such country information was put to the male applicant from the US Department of State 2008 Report on Freedom of Religion in India for the male applicant’s comment. It was this information that was set out at paragraphs [110] – [117] of the reasons in greater detail.
11. The first ground relied upon by the applicants cannot succeed.
12. The second ground relied upon by the applicants conflates two separate points:
    1. That on the evidence before it the Tribunal ought to have found that the male applicant was a refugee as defined; and
    2. The Tribunal ought to have given the male applicant the benefit of the doubt when considering his claim to be a refugee.
13. On an application for judicial review, a merits review is not permissible: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [195]. As has been often stated findings on fact and credibility are the function of the decision maker par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423.
14. In this case, the Tribunal member has made cogent, clear and unequivocal findings of fact adverse to the applicants. It has determined that the male applicant was not a witness of truth (Reasons [126]) and rejected his claims. The Tribunal set out its findings, and concluded, on the basis of those findings that it was not satisfied that the applicants had the requisite well founded fear of persecution.
15. The applicants did not point to any jurisdictional error in the Tribunal’s process or findings. The applicants effectively sought that this Court ought be satisfied that they were refugees and substitute its findings for that of the Tribunal. That, of course, is not permissible.
16. The reasons for decision of the Tribunal are comprehensive. The Tribunal conducted a detailed review of the applicant’s claims, provided two hearings and an opportunity to submit further information in response to a request from the tribunal pursuant to s.424A of the Act.
17. The Tribunal recognised that a critical requirement to be satisfied on a successful application for a protection visa is that the applicant be a non-citizen of Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The applicants are non-citizens, as that term is defined in s.5(1) of the Migration Act 1958 (“the Act”). Reference to the Refugees Convention is to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. This was amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967, referred to as the Refugees Protocol. Article 1A(2) of the Refugees Convention defines a “refugee” as:
    • “any person who . . . owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”
18. After reviewing the applicants’ claims and the inconsistencies in the evidence presented by them, the Tribunal member made adverse credibility findings and rejected the principal factual matters advanced by the applicants. The applicants do not point to any incorrect understanding of the evidence, any failure to take other evidence into account, or any failure by taking into account irrelevant matters. The applicants simply complain about the conclusion arrived at. That is not jurisdictional error.
19. At paragraph [13] of the Reasons, the Tribunal member recognised that there are four key elements to the Convention definition, and set them out. There can be no suggestion that the Tribunal member misdirected himself as to what was required to be shown to satisfy the requirements.
20. In my view, the challenge to the decision of the Tribunal cannot be impeached on the first limb advanced.
21. As to the second limb of the second ground relied upon by the applicants, the Minister submits, correctly in my view, that there is no legal principle that requires the Tribunal to give an applicant for refugee status the benefit of the doubt: SZLFS v Minister for Immigration and Citizenship [2009] FCA 75 at [23]. The Minister in his submissions refers to the Handbook on Procedures and Criteria for Determining Refugee Status, which refers to the situation where the Tribunal member is unsure of the veracity of a claim, and to, in those circumstances, giving the applicant the benefit of the doubt. However, in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [115] – [119] the Full Federal Court accepted that where an adverse finding is made definitively, or with confidence, then the principle (that the claim must be assessed on the basis that it might be true) does not apply and the Tribunal need not go on to make that further assessment.
22. In this case, the Tribunal’s adverse findings were made strongly and unequivocally. There was, in those circumstances, no requirement to consider the applicants’ claims on the basis that they might be true.
23. Even if the Tribunal had accepted the applicants’ account of what had occurred to them in India, the result of the application would have been no different.
24. At paragraph [32] of the Reasons, the Tribunal member sets out the applicants’ claims. The male applicant contends that he became involved with three business associates, whom he discovered were involved in illegal activities and who in due course made threats against him, and who in the male applicant’s mind were responsible for burning down his shop in September 2007 (Reasons [84]). The male applicant claimed that he was in fear of one or more of these business associates, claiming that they had links to terrorist groups. The male applicant’s fear was not because of any of the matters identified in the Convention definition, as modified by ss.91R and 91S of the Act. The applicants’ previously asserted claim that their shop had been targeted by Hindus during a riot was extremely tenuous (Reasons [88]).
25. The Tribunal accepted that the applicants were Muslim, but rejected, substantially on the applicants’ own evidence, that their feared persecution was on religious grounds. In this context reference was made to the independent country information which was, as previously noted, put to the male applicant for comment.
26. The second limb of the second ground of the application fails.
27. The third ground simply recasts the argument that, on the evidence, the applicants ought to have been accepted as refugees. As already noted, a merits review simpliciter is not permitted. This ground also fails.
28. I have set out, at paragraph [6] above, what appears, on its face, to be an allegation of bias on the part of the Tribunal member. It is unsupported by any particulars and is unsubstantiated. The applicants have not identified any particular issue of central importance that the Tribunal is said not to have investigated: SZLZS v Minister for Immigration and Citizenship [2008] FCA 1690 at [10]. A finding of actual bias is not made lightly, and will not be made in this case on the basis of a bald assertion. The Tribunal is entitled, if the evidence permits, to form a strong adverse view of the applicant and no inference of bias can be drawn from the mere adverse findings in the Tribunal’s decision: SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 at [29], citing VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102. The onus of establishing bias is a heavy one, and in my view it is not discharged in this case.
29. Finally, although not raised by the applicants, the Court has considered the adequacy of interpretation services provided to the applicants. Two hearings were conducted, on 13 November 2008 and 16 January 2009, with the assistance of interpreters in the Gujarati and English languages. A transcript of both hearings was put before the Court. There is nothing in those transcripts to indicate that the applicants were prevented from effectively putting their case before the Tribunal.
30. As Kenny J explained in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [21] the failure to provide appropriate translation services may lead to the conclusion that the Tribunal has committed jurisdictional error. Much turns on whether the applicant was able to participate effectively in the hearing, understand what was occurring and effectively present his case to the Tribunal. In Perera at [41] Kenny J said:
    • “41. What are the factors that might lead a reviewing court to conclude that the transcript of a tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, among others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evidence confusion in exchanges between the tribunal and the interpreter: cf Gonzales v Zurbrick 45 F 2d 934 at 936-7; United States v Urena [1994] USCA10 757; 27 F 3d 1487 at 1492 (10th Cir 1994); Acewicz v US Immigration and Naturalization Service [1993] USCA9 297; 984 F 2d 1056 at 1062.”
31. Even though not expressly advanced by the applicants, there is nothing in the interpretation/translation point.
32. I should mention that the Court Book at the time of the hearing consisted only of the transcript of the first hearing before the Tribunal. A transcript of the second hearing was provided by the solicitors for the Minister on 13 November 2009, and was supplied to the applicants. The applicants have not made any submissions in respect of the transcript. I have read it, and in my view there is nothing to be gained by re-listing the matter to give the applicants the opportunity to make submissions in respect of the transcript. This is particularly so when the applicants do not seek to advance a case of inadequate interpretation, and where the applicants have chosen not to make any detailed submissions to the Court.
33. The Tribunal has dealt comprehensively with the applicants’ claims, and has rejected them, primarily because it did not believe the applicants. No error has been demonstrated in the tribunal’s processes or reasoning that warrants interference by this Court.
34. The application must be dismissed, with costs.

I certify that the preceding 34Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-fourthirty-four (34) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 22 January 2010