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MIGRATION - Refugee - credibility.

SZDLP v Minister for Immigration [2004] FMCA 1018 (25 October 2004)

SZDLP v Minister for Immigration [2004] FMCA 1018 (25 October 2004)
Last Updated: 25 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLP v MINISTER FOR IMMIGRATION
[2004] FMCA 1018




MIGRATION - Refugee - credibility.




Migration Act 1958

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

Kopalapillai v Minister for Immigration and Multicultural Affairs

Applicant:
SZDLP




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1293 of 2004




Delivered on:


25 October 2004




Delivered at:


Sydney




Hearing date:


25 October 2004




Judgment of:


Nicholls FM




REPRESENTATION

Counsel for the Applicant:


NIL




Solicitors for the Applicant:


NIL




Counsel for the Respondent:


Mr. T. Reilly




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $5500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1293 of 2004

SZDLP



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from Transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 16 March 2004 and handed down on 6 April 2004 affirming the decision of a delegate of the respondent Minister made on 14 October 2003 refusing a protection visa to the applicant.

2. The applicant is an Indian national who came to Australia on

8 September 2003 on a business visa and applied to the respondent Minister's department for a Protection Visa on 3 October 2003. He claimed to fear persecution in India for reason of his political opinion and in particular to have been attacked by members of the Communist Party of India (Marxist). He claimed his political affiliation with the National Congress Party led him to leave India to save his life.

3. In his application to this Court filed on 4 May 2004, the applicant claims eight grounds. I have already read these claims to the applicant at the hearing today [to seek his comment]. The application contains no particulars nor have any been provided in spite of the applicant's assertion in his application that he would provide more details of grounds later.

4. On 12 August 2004 the applicant attended the first Court date in this matter and was assisted by an interpreter in the Bengali language. At this time he signed short minutes of order which subsequently became orders of the Court, including order 2 which states:

"The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court by 30 September 2004."

No such amended application has been filed nor has the applicant filed any written submissions pursuant to order 5.

5. I note the applicant had applied for assistance through the Court's Legal Advice Scheme and was given advice on 16 September 2004. An interpreter in the Bengali language was present. At the hearing before me today the applicant was unrepresented and appeared with the assistance of an interpreter in the Bengali language.

6. The applicant's original claims for a protection visa are contained in a written statement by the applicant dated 3 October 2003 which was before the Tribunal, [see CB 33 to 35] and which were reflected by the Tribunal in its Record of Decision, and in particular, see CB 103 to 105.1.

7. On 1 December 2003 the Tribunal wrote to the applicant pursuant to section 424 of the Migration Act seeking any additional information, and in particular the applicant was invited to provide evidence and details of five matters relating to his claims and circumstances [see CB 51 and 105.5]

8. A response was received from the applicant's migration agent dated

8 January 2004; [see CB 58 to 59] and further documents were submitted to the Tribunal on or before the hearing with the applicant, held on 9 March 2004 [see CB 106]. I note that references to 8 March 2003 and 9 March 2003 on that page should read 2004.

9. At the hearing, the Tribunal Record of Decision records that it had checked the applicant's claims and obtained an acknowledgment from the applicant that the Tribunal had before it a "fair summary of his situation and claims." [see CB 107]

10. The Tribunal Decision Record shows [see CB 107.5 to 113] that the Tribunal at the hearing with the applicant, dealt with the documents submitted by him and put to him a number of inconsistencies in his claims. The Tribunal dealt with these at some length. The Tribunal found that the applicant had fabricated his claims and that that the applicant was not credible. In particular, I refer to findings made at CB 118.6 and 119.8.

11. It is clear that the Tribunal found, that the applicant was not considered credible, that his claims were untrue and that documents he submitted in support of his claims were fabricated. This led to its finding that the applicant did not have a well-founded fear of persecution for a Convention reason in India.

12. Counsel for the respondent Minister has submitted, relying on authorities, that such findings are matters of fact for the decision maker "par excellance" [Re MIMA; Ex parte Durairajasingham] and that so long as the credibility finding was open to it, no error is demonstrated in such conclusions. [Kopalapillai v Minister for Immigration and Multicultural Affairs]. The Tribunal looked at each of the relevant matters submitted by the applicant and looked at relevant country information and made findings for the reasons that it gives in its decision record.

13. The applicant has been unable to show that the Tribunal was not entitled to make those findings. The Tribunal findings were open to it to make. The findings of credibility are the function of the primary decision maker and no error is demonstrated in its conclusions. As I explained to the applicant at the hearing before me today, this Court cannot reconsider the merits of the Tribunal's decision.

14. Mr Reilly, for the respondent, has also submitted strongly that the allegation of bad faith made by the applicant is not particularised as required by Federal Court Rules and as applicable to this Court by Rule 1.05(3)(b) and Part 2 of Schedule 3 of this Court's rules. In any event, the applicant was unable at the hearing today to provide any detail, nor is there anything before me, relating to this ground.

15. Mr Reilly has also submitted that an unparticularised claim of a breach of natural justice is made but except for actual bias such a claim is not available as section 422B of the Migration Act applies to this case. In any event, the applicant has not provided any detail nor any claim, other than the mere statement in the application to this Court, nor can I see any requirement for any examination of the elements of procedural fairness as they apply to this case. I note that the Tribunal did seek additional information and did have regard to it. It did give the applicant the opportunity to comment and the applicant did appear at the hearing and was given the opportunity to present his arguments and evidence.

16. At the hearing before me today the applicant also said that the Tribunal had preset in its mind, that it did not believe him and did not believe his words because of matters relating to two passports which he submitted to the Tribunal. I note that the Tribunal dealt with this issue in its Record of Decision [see CB 119] and on a plain reading of the Tribunal's decision, let alone a beneficial reading, it was not the reason that led the Tribunal to make its findings relating to the lack of credibility of the applicant.

17. The applicant has been unable to show any error in the Tribunal's decision and as there is no jurisdictional error in this decision, the application to this Court should be dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date:
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