BZABI v Minister for Immigration
[2012] FMCA 286
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZABI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 286 |
| MIGRATION – Application for protection visa – whether the Tribunal acted without jurisdiction – whether the applicant had been involved in political activity – whether the applicant was at risk of harm in Sri Lanka – whether the Tribunal failed to comply with procedural fairness – whether the Tribunal misinterpreted facts. |
| Migration Act 1958, ss.65, 63(2), 422B, 424A(1), 424AA, 474 |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641 |
| First Applicant: | BZABI |
| Second Applicant: | BZABJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 694 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 16 March 2012 |
| Date of Last Submission: | 16 March 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| The Applicant appeared on her own behalf |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: |
| Solicitors for the Second Respondent: |
ORDERS
That the application filed 8 August 2011 be dismissed.
That the applicants pay the respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 694 of 2011
| BZABI |
First Applicant
| BZABJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicants today are a wife and husband who are citizens of Sri Lanka. Only the first applicant wife makes claims for protection. The second applicant husband applies as a member of the applicant wife’s family unit. Hereinafter I will refer to the first applicant as “the applicant”.
On 17 February 2011 the first respondent refused to grant a Protection Class XA Visa to the applicant, and to the second applicant. They each sought a review of the delegate’s decision by the Tribunal. That application was refused by a decision of the Tribunal dated 4 July 2011. By application filed 8 August 2011, the applicants now seek judicial review of the Tribunal’s decision.
By way of background, the applicant claims she was a Sri Lankan Tamil of the Muslim religion. She was married in December 2007 to the second applicant, who was also of Tamil ethnicity. The applicant claims that her father had a political profile amongst the Muslim Tamils in the Kandy district; that he was good friends with a Government Minister, a Mr Ashraf; and, that he was arrested and interrogated when Mr Ashraf was killed in a helicopter crash.
She claims that she was a member of the Sri Lankan Muslim Congress, and that she canvassed support for them during the 2008 Eastern Provincial Council elections. She also claims she worked for a Mr Raf Hakim, who had defected from the LTTE, and who was also with the Karuna group. Mr Hakim apparently lost the election, and the applicant claims that she had told Muslims to vote for the SLMC, and the Tamils to vote for the Tamil National Alliance.
She claims that, as a result, she was imputed with a pro-LTTE political opinion and became the subject of adverse attention from the government and paramilitaries, including the Karuna group. She says that, as a result of these threats, she went into hiding at her uncle’s house, and remained there until arrangements were made for her to obtain a student visa to travel to Australia.
She claims that in June 2010 cadres from the Karuna group visited her family home in Sri Lanka and took her father for interrogation. She says they saw details of her involvement with the LTTE, and threatened her father that if she returned to Sri Lanka they would both be killed. She maintains that she feared serious harm from the police and paramilitary groups on the basis of her Tamil ethnicity, and her imputed support of the LTTE given by her and her family involvement in politics in the past.
She also submitted to the delegate in support of her claim various documents, including identification documents, internet articles and police checks. The applicant was invited by the delegate to attend an interview, which she did on 31 January 2011. At that time she gave evidence in relation to her claims. She was subsequently invited to attend a further hearing, held on 31 May 2011, which she attended with the second applicant. Following that hearing she then provided to the Tribunal a letter from Mr Hakim in relation to her claims.
On 17 February 2010 the delegate made a decision refusing to grant her a protection visa. Subsequently, on 10 March 2011, she then lodged an application with the Tribunal to review the delegate’s decision. In a decision dated 4 July 2011 the Tribunal affirmed the delegate’s decision to refuse the application for a protection visa. The Tribunal essentially rejected the applicant’s substantive claims to fear harm on the basis of adverse credibility findings, which can be found at paragraphs 75 to 81 of the Tribunal’s decision.
In broad terms, the Tribunal did not accept that the applicant canvassed support for the SLMC or any other political party during the 2008 elections. The Tribunal noted that, although the applicant claimed to have told Tamils to vote for the TNA, the independent country information indicated that the TNA boycotted those elections.
The Tribunal also gave no weight to the letter from Mr Hakim because it referred to the applicant’s campaigning for an election in 2007, and not 2008, as the applicant had claimed. It followed that the Tribunal did not accept that the applicant had been imputed with private LTTE political opinion as a result of canvassing.
Further, the Tribunal did not accept that the applicant’s father was abducted in June 2010 and interrogated about the applicant. The Tribunal also found that the applicant’s account of this abduction was unreliable, as she had given inconsistent versions as to who had abducted her father.
The Tribunal did not accept that the applicant was a member of the SLMC or was otherwise active in politics, based upon her knowledge of those matters indicated at the Tribunal hearing. While the Tribunal did accept the applicant’s father had some knowledge of the SLMC events, and that he may have been involved in the party in the past, it noted that the applicant’s father was not currently involved in politics.
Accordingly, the Tribunal did not accept that the applicant faced a real chance of harm on the basis of her father’s political opinion, nor did it accept that she faced a real chance of harm on the basis of her membership of a particular social group, that being her father’s family. On the basis of the accepted independent country information, the Tribunal did not accept the applicant faced a real chance of harm simply by her being a Tamil-speaking Muslim.
Ultimately, the Tribunal was not satisfied that the applicant faced a real chance of persecution if she remained in Sri Lanka for any convention related reason.
In her application, filed 8 August 2011, the applicant outlined four grounds of application.
Ground 1 – The Tribunal completely relied on wrong reasons in assessing the applicant’s claims, and made a jurisdictional error. The Tribunal disregarded the real fear the applicant had when she fled from Sri Lanka, and based her refusal on the grounds of the applicant’s age and experience in politics.
In her submissions, the applicant contended that the Tribunal relied on the wrong issues in assessing her claim, and thereby was subject to jurisdictional error. She contended that the Tribunal disregarded the real fear that she had when she fled from Sri Lanka, and based its refusal on the grounds of the applicant’s age and experience in politics. She further sought to re-agitate the basis upon which the Tribunal drew and concluded certain findings of fact.
As the respondents note in their submissions, what the applicant seeks is for the court to undertake a review of the merits of the Tribunal’s decision and its assessment of the credibility of the applicant’s factual claims. The respondent correctly submits that this is not an appropriate line of attack in an application for judicial review in which an applicant must identify a jurisdictional error.[1]
[1] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
The court is not concerned with whether the decision was subjectively considered unjust, only whether it was lawfully made.[2] The applicant’s complaints concerning the Tribunal’s conclusions, in particular whether her limited knowledge caused it to reject her claim to be a member of the SLMC, or otherwise be active in politics, was a finding of fact open for the Tribunal to make.
[2] Attorney-General (NSW) v Quin (1990) 170 CLR 1
The court cannot review the merits of the Tribunal’s decision[3] and, in my finding, there was no error of law, let alone jurisdictional error, even if, as the applicant says, the Tribunal made a wrong finding of fact. In making that observation, I note that the finding of fact made by the Tribunal was one which was properly open to it, on the material before it.
Ground 2 – The Tribunal knowingly acted as an arbitrator in rejecting and disbelieving the claims and facts during the hearing, and made a wrongful decision as to the applicant’s ability to involve in politics due to her young age.
The Tribunal failed to accept that the applicant had been involved in canvassing during election campaign, and knowingly rejected her claims on credibility grounds. The Tribunal used excessive power and authority in rejecting the applicant’s claims, and thus made a jurisdictional error.
[3] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
In her submissions, the applicant contended that the Tribunal knowingly acted as an arbitrator in rejecting and disbelieving the claims and facts during the hearing, and made a wrong decision as to the applicant’s ability to involve in politics due to her young age. She submitted that the Tribunal failed to accept that the applicant had been involved in canvassing during election campaign, and knowingly rejected her claims on credibility grounds. She submitted that the Tribunal used excessive power and authority in rejecting her claims, and thus the decision was infected with jurisdictional error.
She then sought to agitate, again, the facts that she contends were adversely determined against her. The respondent again, in my view, correctly contends that the relevant statutory scheme (s.65 and s.63(2) of the Migration Act (the Act)) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s.36(2), that is that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention such that, in the circumstances, a protection visa must be granted.[4]
[4] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Satisfaction of the criteria for the grant of a visa depends not on a particular matter being established, but on the Minister, or the Tribunal standing in the shoes of the Minister, attaining a state of satisfaction as to a number of matters which have to exist for Australia to have a protection obligation to an applicant under the Refugees Convention.[5] There is no legal principle which requires the Tribunal to give an applicant the benefit of the doubt[6]. Again, the Tribunal’s findings were open to it, for the reasons given, and the Tribunal was not required to accept the applicant’s claims at face value. The weight to be given to her claims and the evidence was a matter for the Tribunal alone to determine.[7]
Ground 3 – The Tribunal made a jurisdictional error by not giving the applicant an opportunity to explain in writing any doubts that the Tribunal had. The Tribunal failed to comply with procedural fairness and thus made a procedural and jurisdictional error.
[5] Ibid.
[6] SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641
[7] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
In her submissions, the applicant contends that the Tribunal’s decision was affected by jurisdictional error by not giving her an opportunity to explain in writing any doubts it had. She says it follows that the Tribunal failed to comply with procedural fairness, and thereby made procedural and/or jurisdictional error. Respectfully, this is a case to which s.422B of the Act applies. The Tribunal was not required to afford her common law natural justice, but only afford her those entitlements provided under Part 7 of the Act.[8]
[8] Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
The respondent also correctly contends that the Tribunal’s doubts about the applicant’s claims were not ‘information’ for the purposes of s.424A(1) and, therefore, did not enliven the obligations under that section. The information forming the reason, or part of a reason, for the Tribunal’s findings, essentially constituted the Tribunal’s subjective appraisals, thought processes or determinations, as well as the conclusions arrived at by the Tribunal in weighing up the evidence, by reference to identified gaps and inconsistencies in the evidence.
This does not constitute information for the purposes of s.424A(1) or s.424AA.[9] In any event, it is plain from the decision of the Tribunal that it put to the applicant doubts that it had concerning her claims, and that, thereby, the applicant was on notice that her credibility, and the credibility of her claims, were determinative issues on the review. In my finding, there was no error in the Tribunal’s approach on this point.
Ground 4 – The Tribunal made an error by not accepting that the applicant’s father was arrested, and that this formed the basis for a genuine fear of persecution in Sri Lanka that led to the application for a protection visa. The Tribunal unfairly rejected the applicant’s claims, stating that the applicant did not establish enough knowledge in the political field to canvass in the general election. The applicant failed to realise that those who canvass in Sri Lankan elections are mostly uneducated supporters and sympathisers. The Tribunal has misinterpreted, misusing its authority, and knowingly ignored the relevant facts in reaching its adverse decision, and thus made a jurisdictional error.
[9] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
In her submissions, the applicant contends that the Tribunal erred by not accepting that her father was arrested, and that that was the reason for her to lodge a protection visa application, as she had a genuine fear of persecution in Sri Lanka if she went back. She contends that the Tribunal unfairly rejected her claims by stating that the applicant did not establish enough knowledge in the political field to canvass in the general election.
She complains that the Tribunal failed to realise that those who canvass in Sri Lankan elections are mostly uneducated supporters and sympathisers, and that the Tribunal misinterpreted this, thereby misusing its authority, and knowingly ignored the relevant facts in reaching its final decision, which constituted a jurisdictional error. She then sought to re‑agitate the factual issues.
Again, the respondent correctly submits that this ground goes no further than inviting the court to undertake impermissible merits review.[10] The Tribunal’s finding was that it did not accept that the applicant’s father was abducted in June 2010, and that he was interrogated about the applicant. That finding was open to it for the reasons it gave. What the applicant now seeks is impermissible merits review on the issue.
[10] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Conclusion
No jurisdictional error has been demonstrated in the Tribunal’s decision. The decision is a privative clause decision within the meaning of s.474 of the Act. It follows that the application is dismissed.
Costs
The respondent seeks costs. The applicant provides no basis for refusing the respondent the usual order as to costs, except to maintain that she cannot pay any costs. The matter of enforcement of a costs order is not a matter for the court. No reason has been advanced as to why the ordinary order ought not apply. It follows that the ordinary order, which is that costs follow the event, will be made. The respondent seeks costs assessed in the sum of $5,000.00, which, I note, is less than the sum provided for under the scale in the court schedule. The respondent’s assessment is reasonable, and I will award costs in the sum of $5,000.00.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 5 April 2012
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