SZOSL v Minister for Immigration & Anor [2011] FMCA 92 (22 February 2011)

Federal Magistrates Court of Australia

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SZOSL v Minister for Immigration & Anor [2011] FMCA 92 (22 February 2011)

Last Updated: 4 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSL v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 92

MIGRATION – Review of a decision of Refugee Review Tribunal – Tribunal relied on the inconsistencies in her accounts to find adversely to the applicant – the Tribunal’s findings were reasonably open to it – Court cannot engage in impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424AA, 424A, 425, 425A, 441A, 441C Migration Regulations 1994 (Cth), reg.4.35D(b)

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 165 ALR 1 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 SZGIY v Minister for Immigration and Citizenship [2007] FCA 1543 SZLSM v Minister for Immigration and Citizenship [2009] FCA 537

Applicant:

SZOSL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2342 of 2010

Judgment of:

Nicholls FM

Hearing date:

22 February 2011

Date of Last Submission:

22 February 2011

Delivered at:

Sydney

Delivered on:

22 February 2011

REPRESENTATION

The Applicant:

In person

Appearing for the Respondents:

Ms M Stone

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application made on 29 October 2010 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $2,900.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2342 of 2010

SZOSL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made on 29 October 2010 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 September 2010, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

2. The applicant is a national of India who arrived in Australia on 15 March 2010 on a tourist visa which expired on 15 April 2010 (Court Book – “CB” – CB 44). She applied for a protection visa on 8 April 2010 (CB 1 to CB 28).

Claims to Protection

3. The applicant’s claims to protection were set out in her application for a protection visa (CB 25 to CB 26).
4. The applicant is a Hindu. She claimed that she began a relationship with a Muslim man named Sameer (CB 25.1). Her family wanted her to marry someone else, however she refused to marry and instead moved into Sameer’s apartment (CB 25.2).
5. After some time, the applicant claimed Sameer said that he could not marry the applicant due to “some constraints”. However, they continued to live together (CB 25.3).
6. The applicant claimed that on one occasion Sameer told her: “... to have a physical relationship with one of his friend as he was in need of some money and tried to make me emotional with his love so I did what he requested me.” (CB 25.4 (errors in original).)
7. During this relationship the applicant said that she became aware of Sameer’s activities, including activities with politicians, some of which she described as illegal (CB 25.5 and CB 44.5). The applicant claimed to have seen Sameer kill one of their servants (CB 25.5) and that he was involved in a prostitution ring (CB 25.5 and CB 44.6). The applicant claimed that Sameer had the intention of involving her in the ring (CB 44.6).
8. She claimed to have become scared of Sameer and contacted her brother to seek refugee with him (CB 25.8 to CB 26.1). Sameer became aware that she was staying with her brother and apparently visited the family residence, where he told the applicant that he would kill her and her brother (CB 26.3 and CB 44.8). During this period, the applicant claimed that her family became scared, and consequently the applicant’s mother suffered a heart attack (CB 26.5).
9. With the assistance of her father, the applicant left India with her brother as she claimed that Sameer was looking for her in India (CB 26.7).

The Delegate

10. The applicant was invited to, and ultimately attended an interview with the delegate (CB 36 to CB 37). The delegate found that the harm the applicant feared was from her ex-partner. This harm was found not to be for any Convention reason (CB 47.2). Therefore it was not necessary to consider if the applicant’s claims were well-founded (CB 47.5). The application for the protection visa was refused.

The Tribunal

11. The applicant applied to the Tribunal for review of the delegate’s decision on 15 July 2010 (CB 50 to CB 63). She was invited to, and ultimately did, attend a hearing on 2 September 2010 (CB 65 to CB 66).
12. The Tribunal determined that the applicant was not credible ([66] at CB 87) due to a number of inconsistencies in the applicant’s account to the Tribunal of events that occurred in India when compared to what she told the Minister’s delegate and what she had written in her protection visa application.
13. As the Tribunal found the applicant’s factual account and claims not to be credible, the Tribunal determined that the applicant did not have a
    well-founded fear of persecution for any Convention related reason, and affirmed the delegate’s decision ([60] at CB 87).

Application to the Court

14. The application to the Court of 22 February 2011 was made on the following grounds:
    • “In my opinion that their decision is not correct.
    • They think that my story is not true.
    • They all thinking that my case is not too strong.
    • They are saying that your case is not stong iny my opinion being life there is everything and you are not have the life to live nothing is important.”
    • [Errors in the original.]

Before the Court

15. At the hearing before the Court the applicant appeared in person. She did not need the assistance of an interpreter, and indeed the applicant was responsive to discussion with the Court and I am satisfied that the applicant was able to participate in this morning’s hearing without the assistance of any interpreter. Ms Stone appeared for the first respondent. Written submissions were filed only by the first respondent.
16. Even after explaining to the applicant the role of the Tribunal as compared to that of the Court, and the requirement before the Court to focus on any legal errors made by the Tribunal, at its highest all the applicant said to the Court was that she wanted a “fair decision”, in the sense that she disagreed with the Tribunal’s decision and wanted the Court to substitute a “fair decision”.
17. After granting the applicant a short adjournment to collect her thoughts after having explained the situation to her, the applicant made comments to request another (longer) adjournment so that she could further consider whether there were any “legal mistakes” on the part of the Tribunal’s decision. I refused this request on the basis that the applicant has had more than sufficient time to have taken steps necessary to assist her in any such consideration and even to engage legal advice.
18. I note that the applicant made her application to the Court at the end of October 2010. She attended a first Court date before this Court on 24 November 2010. Relevant orders were made at that time about the conduct of the proceedings.
19. The applicant has been on notice since that time that a final hearing was set down for today. I note also that the applicant applied to access the “RRT Legal Advice Scheme”. It is not clear whether the applicant consulted a lawyer. From the information on the Court’s file, some advice was sent to the applicant by a lawyer on that panel who had been assigned to advise the applicant. There is of course no legal entitlement to the receipt of such advice (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4] per Gyles J).
20. I am satisfied that the applicant has had sufficient time and a reasonable opportunity to have prepared for the hearing today and I refused the request for an adjournment on that basis.

Consideration

21. In relation to the applicant’s oral submissions, it is not a “fair outcome” from the Tribunal, but a fair process before it to which the Court must direct itself and to which an applicant is entitled (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1).
22. If all that the applicant seeks is for the Court to substitute its own decision, as to the merits of her claim before the Tribunal, this Court cannot do so. This is a request for the Courts to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1).
23. The grounds of the application do not assert any particular form of jurisdictional error on the part of the Tribunal. By way of the grounds pressed, the applicant merely seeks that the Court engage in impermissible merits review.
24. The Tribunal rejected the applicant’s factual account of claimed relevant events in India on the basis that it assessed her as being neither truthful nor credible. Such a finding, which was reasonably open to the Tribunal on what was before it and for which it gave cogent reasons, was for the Tribunal to make in the exercise of its function as the decision maker “par excellence” (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 165 ALR 1 at [67] per McHugh J).
25. The Tribunal was under no obligation to uncritically accept what the applicant said (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1). The applicant presented her evidence, and for the cogent reasons it gave it did not accept the truth of what she said. This Court cannot intervene to second guess the Tribunal in this regard or to substitute its own findings as to the applicant’s credibility.
26. What the Tribunal was obliged to do was to conduct the review in a procedurally fair manner. On what is before the Court the Tribunal did just that.
27. As the Minister submits, this is a case to which s.422B of the Act applies making the matters set out in Div.4 of Pt.7, and to the extent that the Tribunal confined itself to those matters (Saeed v Minister for Immigration and Citizenship [2010] HCA 23), the exhaustive statement of the natural justice hearing rule.
28. In this regard, the applicant was invited to a hearing pursuant to s.425 of the Act. The invitation complied with the requirements of ss.425A, 441A, 441C and reg.4.35D(b) of the Migration Regulations 1994 (Cth).
29. While the applicant may have felt, following the delegate’s decision, that her factual account of claimed events in India was not at issue, the Tribunal’s unchallenged account of what occurred at the hearing reveals that it “sufficiently indicated” to the applicant the concerns that it had that arose from inconsistencies and implausibilities in her accounts in her protection visa application, to the delegate, and to the Tribunal (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [47], and the Tribunal’s decision record at [46] to [51] at CB 85 to CB 86).
30. It is clear that the Tribunal relied on the inconsistencies in her accounts to find adversely to the applicant. In this regard, as the Minister submits, there was no enlivening of any obligation pursuant to s.424A. Inconsistencies are not “information” for the purposes of that section (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [17] to [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471).
31. However, no error is revealed where the Tribunal employed the facility available under s.424AA to discharge any obligation under s.424A in circumstances where that obligation is not enlivened in the first place. (See SZGIY v Minister for Immigration and Citizenship [2007] FCA 1543 at [30] and SZLSM v Minister for Immigration and Citizenship [2009] FCA 537 at [41].)
32. The Tribunal sufficiently indicated its concerns with what, in effect, is the determinative issue in this matter (the inconsistencies in the applicant’s various accounts which led the Tribunal to the finding that she was not truthful or credible in that account) a finding that was open to it on what was before it and for which it gave reasons.
33. There is no other breach of Div.4 that is evident. Nor, for that matter, even a breach of the principles at common law. The applicant was given an opportunity to present her case and knew the case before her. Ultimately the Tribunal was not satisfied, nor was not able to reach the requisite level of satisfaction, such that a protection visa must be granted (ss.65 and 36(2) of the Act).

Conclusion

34. For the applicant to succeed today the Court would need to discern, at least, jurisdictional error in the Tribunal’s decision. No such error is evident. The application to the Court should be dismissed. I will make an order dismissing the application

Costs

35. The Minister seeks a cost order to recover some of the costs expended in responding to the application. The applicant opposes the making of the order because she says she has insufficient funds and is unable to work to earn the money. This is not an adequate reason not to make the costs order. I will make that order.
36. As to the amount, the Minister could have sought an amount set out in the relevant Schedule to the Rules of this Court which is $5,865. But this is only a guide. I must consider what is reasonable in this case. I take into consideration the appearance by a solicitor today, preparation of multiple copies of the Court Book, filing of the formal response, filing of written submissions, and attendances at Court.
37. I am satisfied that the amount sought, while it may be perceived as a large amount by an applicant who has claimed financial difficulties, is nonetheless a reasonable amount in the circumstances. I will make the order in the amount sought.

I certify that the preceding 37Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-seventhirty-seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 3 March 2011