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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa for reasons of political association - whether the applicant has a well-founded fear of persecution - credibility of applicant's evidence - whether the Tribunal had made a jurisdictional error - whether this court can review the merits of the Tribunal decision - whether the Tribunal had made its decision with a closed mind.

SZAAL v Minister for Immigration [2003] FMCA 45 (13 February 2003)

SZAAL v Minister for Immigration [2003] FMCA 45 (13 February 2003)
Last Updated: 5 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAL v MINISTER FOR IMMIGRATION
[2003] FMCA 45



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa for reasons of political association - whether the applicant has a well-founded fear of persecution - credibility of applicant's evidence - whether the Tribunal had made a jurisdictional error - whether this court can review the merits of the Tribunal decision - whether the Tribunal had made its decision with a closed mind.



Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth) s.425

Constitution of Australia s.75(5)

SBBS v Minister for Immigration [2002] FCAFC 361

SCAS v Minister for Immigration [2002] FCAFC 397

NAAV v Minister for Immigration [2002] FCAFC 228

W/375/01A v Minister for Immigration [2002] FCAFC 89

Minister for Immigration v SBAN [2002] FCAFC 431


Applicant:
SZAAL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 907 of 2002



Delivered on:


13 February 2003



Delivered at:


Sydney



Hearing date:


13 February 2003



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr P Gnana-karan



Solicitors for the Applicant:


Gnana-Karan Solicitors



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore Solicitors



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 907 of 2002

SZAAL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Indian national who arrived in Australia on

25 February 2000. On 6 April 2000, he lodged an application for a protection (Class XA) visa with the Department of Immigration, Multicultural and Indigenous Affairs. That application was considered by a delegate of Minister who refused to grant a protection visa on

29 May 2000. On 2 June 2000, the applicant applied for a review of that decision by the Refugee Review Tribunal. The review was carried out by the Tribunal who interviewed the applicant on 15 March 2002, and made a determination to uphold the decision of the delegate on

30 July 2002. That decision was handed down on 21 August 2002. The applicant seeks judicial review of that decision.

2. The applicant alleged that he was a resident of the state of Tamil Nadu where he had been born in about 1960. The applicant owns some land in this state and had lived in the same address for ten years prior to his departure from India. He claimed that in 1989 he joined an organisation known as Al-Ummah. This organisation which has since been banned by the state of Tamil Nadu, is a pro-Muslim organisation which has a history of some violence. However, the applicant claims that although he was an active activist he was not involved in violence. Indeed, he left the organisation in about 1992, when he travelled to Saudi Arabia.

3. The applicant claims that notwithstanding that he had left the organisation, he remained a man of interest to the police. He detailed an arrest that had occurred to him and a fortuitous release by a police officer who was his friend. He claimed that he had been told by a police officer that he was on a wanted list and remained on it even though he had left the organisation some 10 years ago. He believed that if he returned to India he could not re-locate away from Tamil Nardu because he would still be on the wanted list and would still be arrested.

4. The Tribunal's reasons for decision are short. They assess the claims made by the applicant and they go through a series of questions asked by the Tribunal of the applicant in an endeavour to assess the credibility of his story. The findings and reasons conclude that the Tribunal was not satisfied that the applicant was ever a member of Al-Ummah or that he had been arrested and detained or that he was on a police black list.

5. The Tribunal accepted that the applicant may well have participated in anti-Hindu demonstrations but noted that he did not claim that he had suffered any adverse consequences as a result of his taking part in such demonstrations. The Tribunal found that the participation would not, of itself, have resulted in his having a well-founded fear of Convention-based persecution.

6. The applicant was represented in this matter and his solicitor prepared for me a helpful outline of submissions, the gravamen of his argument was that it was transparent that the Tribunal approached the matter with a closed mind and therefore, failed to exercise its jurisdiction. He argued that the matter was approached by the Tribunal on the basis that it did not believe the applicant and required him to establish his case.

7. It should be pointed out, as it has been pointed out by the Federal Court, that these Tribunal hearings are only called under s.425 of the Migration Act 1958 (Cth) ("Migration Act) when the Tribunal is itself unable to decide the review in the applicant's favour on the basis of the material presently before it. It is therefore not unreasonable to expect from the Tribunal a degree of scepticism. The Tribunal is charged with a fact-finding mission and is entitled, within the bounds of politeness and reasonable quasi-judicial conduct, to ask such questions of an applicant as it believes are necessary to enable it to discover the truth. The questions asked by the Tribunal in this case seem to me to have been perfectly reasonable and the conclusions which the Tribunal derived from the answers were conclusions that were available on the evidence.

8. At his most eloquent, Mr Karan was essentially putting to me arguments on the merits, these being arguments to suggest that the Tribunal could have come, and should have come, to a different conclusion to that to which it did come. It is not for this court to substitute its views of the merits of the matter for those of the Tribunal.

9. Likewise, Mr Karan criticised the findings of credibility to which the Tribunal had come. He rightly pointed out that there were innocent explanations for findings which the Tribunal used against the applicant. But findings on credibility are, as McHugh J has said, "matters par excellence" for the Tribunal. The fact that there was more than one explanation for any particular statement, and that the Tribunal has chosen that less favourable to the applicant, does not establish a closed mind or a failure to exercise jurisdiction.

10. Mr Karan has not uttered the word "bias" but that is what a closed mind evidences. The Full Bench of the Federal Court have on numerous occasions made it clear that the hurdles to be jumped before the establishment of bias are high indeed (SBBS v Minister for Immigration [2002] FCAFC 361, SCAS v Minister for Immigration [2002] FCAFC 397, NAAV v Minister for Immigration [2002] FCAFC 228, W/375/01A v Minister for Immigration [2002] FCAFC 89 and Minister for Immigration v SBAN [2002] FCAFC 431). In this case the actions of the Tribunal do not reach that bar. I am satisfied that on the papers before me the Tribunal has not fallen into jurisdictional error such as is reviewable under s.39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") or s.75(5) of the Constitution of Australia.

11. I must therefore dismiss this application, which I do. The applicant must pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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