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MIGRATION - Appeal of RRT decision not to grant refugee status - objection to competency - no ground of jurisdictional error made out - application dismissed.

SZDZV v Minister for Immigration [2004] FMCA 652 (7 September 2004)

SZDZV v Minister for Immigration [2004] FMCA 652 (7 September 2004)
Last Updated: 1 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDZV v MINISTER FOR IMMIGRATION
[2004] FMCA 652



MIGRATION - Appeal of RRT decision not to grant refugee status - objection to competency - no ground of jurisdictional error made out - application dismissed.



Applicant:
SZDZV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ2225 of 2004



Delivered on:


7 September 2004



Delivered at:


Sydney



Hearing date:


7 September 2004



Judgment of:


Baumann FM



REPRESENTATION

Applicant appearing in person

Counsel for the Respondent:


Mr Jordan



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the objection to competency be upheld and the application be dismissed.

(2) That the applicant pay the respondent's costs fixed in the sum of four thousand dollars ($4,000.00).

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

BRISBANE


SZ2225 of 2004

SZDZV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(settled from ex tempore reasons)

Background

1. The application before me today is an application filed in this court on

15 July 2004 by the applicant seeking review of an earlier decision by the Refugee Review Tribunal. It appears that the applicant arrived in Australia in March 1997 although he claims to have arrived earlier in May 1995. In June 1997 he applied for a protection visa which was dealt with by a delegate of the Minister on 27 June 1997, when it was refused. A review was filed of that decision which was heard by Member Maitland in the RRT on 28 April 1998. The applicant gave oral evidence during that hearing. The reasons affirming the delegate's decision are before the court and comprise part of the relevant documents filed and served upon the applicant by the respondent.

2. Essentially the applicant claims to have been abducted, beaten and threatened by two army officers following a report made by him about activities in his homeland of Fiji. He claims to have, returned to Fiji for two days in September 1995 only to discover that threats had been made to his relatives in his absence. It is noted that this claim was inconsistent with notations on his passport which revealed no entry or exit to Fiji in that period.

3. It is clear from the Tribunal reasons that issues of credibility in the mind of the member were exacerbated by:-

a) Having difficulty establishing what the applicant believed to be the motivation for the assault; and

b) A number of discrepancies between accounts presented in his written statement and his oral evidence identified as and including:-

i) identity of persons responsible for the robberies;

ii) the number of persons who abducted him;

iii) confusion as to the assault that had taken place and whether it was in a private residence or in the bush;

iv) whether he was returned to a place near his home or merely "left in the bush"; and

v) whether he stayed at his home that night or not.

4. In its findings, the Tribunal said:

"The Tribunal has serious reservations about the credibility of the applicant. It is clear from the account of the evidence set out above, that there are numerous inconsistencies between the accounts provided by the applicant of the events leading to his departure from Fiji, initially in his written statement and subsequently in his oral evidence. The discrepancies are not only numerous but they relate to fundamental parts of his claims. In effect, the applicant provided two almost entirely different versions of the events which he says precipitated his departure from Fiji. In my view it is inconceivable that had these events actually occurred, the applicant could be so mistaken about them, given that they occurred relatively recently in 1995 and were of crucial significance to his decision to leave Fiji allegedly in fear of his life."

5. Further, relying on country information available to the RRT the member found that "racially motivated attacks were not commonly occurring by 1995" and did not accept "the applicant would have been subjected to such treatment at that time for reason of his race". Because of a finding by the Tribunal that the evidence of the applicant was "not truthful" it should not be accepted. The member said that there was "no basis upon which to conclude that the applicant faces a real chance of persecution in the future should he return to Fiji".

6. Even if the claims were accepted, it was further found that there was no nexus between the harm feared by the applicant and any applicable convention reason. This application was filed on 15 July 2004 over six years after the RRT decision. Not surprisingly, the respondent has filed an objection to competency because of the failure to comply with section 477(1)(a) of the Migration Act 1958. I shall return to that issue shortly. Certainly, to some degree, the delay is explained by the chronology which Mr Jordan provided me with today showing that the applicant joined the Muin class action which effectively took some years to resolve through the courts.

7. In the application filed in this court, the applicant asserted some general grounds in support including that he was:

a) Not satisfied with the RRT decision.

b) The RRT did not follow the Migration Act 1958 properly.

c) The decision was in bad faith.

8. Despite directions being made on 29 July 2004 for the applicant to file any amended application supported by affidavit "providing full particulars of the grounds relied upon" none was filed. Written submissions by the applicant were filed late and only yesterday. It is worth noting that part of those submissions includes a copy of some document titled "Methodist Church in Fiji - payment". The document does not assist me in this matter and was properly objected to in my view by the respondent.

9. The written submissions do attempt to "flesh out" some of the general grounds raised in the application by the applicant. Mr Jordan indicated that notwithstanding the lateness of the submissions he was prepared to respond to them orally today which he did. I will deal with those submissions briefly, although as an overall observation and not an unusual one in matters of this nature in my experience, there has been a difficulty in the applicant understanding that this Court's jurisdiction does not extend to a merit review of the matters which were before the Tribunal.

10. The submissions made by the applicant can be summarised as follows:

a) The applicant says that the Tribunal did not consider his claim as a refugee and relied upon country information which was inaccurate. The Tribunal is entitled to rely upon the country information and there was no probative evidence offered to the Tribunal by the applicant at that time which raised any concerns about its accuracy.

b) The applicant makes a general observation that the Tribunal did not comply with section 474 of the Act. No particulars are provided and nothing either in the reasons or in the submissions which I have received go any way to establishing any failure to comply with the legislative obligations in that regard.

c) The applicant alleges the Tribunal ignored the merits of his claim and says: "It did not take into consideration of my situation in and I have actually witnesses that I have beaten by military". No evidence was produced to the Tribunal from this witness. I asked the applicant whether or not the witness's whereabouts was known to the applicant. He gave me the impression that he was. No explanation for his failure to provide this witness with what was a critical issue of fact relied upon by the Tribunal was provided by the applicant.

d) The applicant alleges that as a result of the assault, "I am sick.

I did not recall events or explain or answer accurately because I was beaten in my head". Mr Jordan quite properly refers to the only evidence before the Tribunal about the assault to the effect of where the assault occurred. It is clear from a statement given by the applicant some years ago that he never alleged any attack to his head such as could explain any allegation now of diminution in capacity. Certainly no evidence was offered to the Tribunal of a medical nature. There is no merit in that ground.

e) The applicant says that the Tribunal did not act in good faith as regards his claim. When I asked the applicant what he meant by that, he said, understandably perhaps from his perspective, that the Tribunal could not have acted in good faith if they could not see that he was a truthful man telling the truth. Of course, the Tribunal finds, quite contrary to that assertion, and on my view of the evidence was entitled to so find.

11. The other grounds were really merit based, related to alleged, but yet unparticularised errors "to decide the fate of my claims". There is no basis in this submission to find any merit in those allegations.

12. The applicant thereafter in the written submissions, seeks to rely upon some decisions of the court which do not quite frankly assist his submission. I can detect nothing in the process which suggests to me that the decision of the RRT is affected by jurisdictional error. It follows therefore, that the decision is a privative clause decision. Because the decision is a privative clause decision, section 477(1)(a) of the Migration Act applies. This section prescribes a 28-day time limit to bring applications for judicial review of the decisions of the RRT. This application was filed, as I've already indicated, some years outside that time limit.

13. It follows that the objection to competency must be upheld and the application must be dismissed as incompetent. I will make those orders.

14. The orders of the court will be the application is dismissed as incompetent, the applicant is to pay the respondent's costs and disbursements of and incidental to the application fixed in the sum of $4000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date:
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