NADI v Minister for Immigration
[2007] FMCA 258
•27 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NADI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 258 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether decision of RRT affected by jurisdictional error. |
| Judicial Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.412(3), 424A(1), 424A(3)(a); pt.8 div.2 Federal Magistrates Court Rules 2001, sch.1 |
| First Applicant: | NADI |
| Second Applicant: | NADJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2644 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 February 2007 |
| Date of last submission: | 27 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2007 |
REPRESENTATION
| Applicants appeared on their own behalf |
| Counsel for the Respondent: | Mr A. McInerney |
| Solicitors for the Respondent: | Ms A. Radich, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2644 of 2005
| NADI |
First Applicant
| NADJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 August 2005 and handed down on 25 August 2005.
The first named applicant (“the Applicant”) is the mother of the second named applicant. The applicants are citizens of the Philippines who arrived in Australia on 30 April 2000. On 26 May 2000, an application was made by the husband of the Applicant for a protection visa application in which the applicants in this proceeding were named as persons included in that application. At the heart of the husband’s application for a protection visa was a claim that because he was a Muslim married to a Christian Filipino with an illegitimate child that he would suffer persecution were he to return to Bangladesh.
On 15 June 2000, a delegate of the first respondent (“the Delegate”) refused the husband a protection visa on the basis that the husband was not a person to whom Australia had protection obligations.
On 10 July 2000, the applicants and the Applicant’s husband lodged an application for review of that decision of the Tribunal.
On 16 September 2002, the Tribunal affirmed the decision of the Delegate not to grant a protection visa to the applicants or the Applicant’s husband.
On 26 June 2003, this Court dismissed an application for judicial review of that decision.
On 29 June 2004, the Federal Court of Australia dismissed an appeal in respect of this Court's decision.
On 27 May 2005, special leave was granted to the applicants by the High Court and the matter was remitted to the Refugee Review Tribunal for determination according to law.
The Tribunal proceeding
On 3 August 2005, the Applicant's solicitor sent to the Tribunal a statutory declaration signed by the Applicant (“the Statutory Declaration”).
On 4 August, the Applicant gave oral evidence to a differently constituted Tribunal.
On 25 August 2005, the Tribunal affirmed the Delegate’s decision.
In particular, the Tribunal noted that the Applicant’s husband, also being an applicant before the Tribunal, was not present in Australia at the time of the Tribunal decision and concluded that, based on the “insufficient detail he provided”, the Tribunal was not satisfied that the Applicant’s husband was a person to whom Australia has protection obligations. The Tribunal concluded that the Applicant’s husband had therefore not satisfied the statutory elements for the grant of a protection visa. The Tribunal then proceeded to consider the claims of the Applicant.
Following its decision in respect of the Applicant’s husband’s application, as referred to above, the Tribunal proceeded to consider the Applicant’s claims.
The Tribunal considered each of the Applicant’s claims and explored each with her at the hearing. In respect of each claim, the Tribunal put to the Applicant that it may not be satisfied of each claim and the reasons why. The Tribunal noted the Applicant’s answers.
In particular, the Tribunal informed the Applicant that it would consider whether she, a Filipino national, could safely relocate within the Philippines and by so doing avoid a well founded fear of persecution for a Convention reason. The Tribunal told the Applicant that if it was satisfied she could relocate it would consider whether it was reasonable in all the circumstances to expect her to do so.
Based on the independent country information before it, the Tribunal found that the Applicant could safely relocate within the Philippines and by so doing avoid a well founded fear of persecution for a Convention reason. The Tribunal then considered the particular circumstances of the Applicant having children with her. Independent country information showed that the Applicant’s husband could live legally and illegitimate children would not be persecuted for that reason, nor would persons in mixed marriages. The Tribunal found that the Applicant could legally reside with the husband in the Philippines and that her husband could find employment in the Philippines commensurate with his skills. The Tribunal found that, if the Applicant’s husband had to learn a new language, that was not “serious harm” for the purposes of the Convention.
The Tribunal noted that the Applicant had been able to relocate to Australia in 2000 and live and work for almost 5 years in a language and culture entirely different from her own.
The Tribunal found that children could have an appropriate education in the Philippines and did not accept that better educational opportunities in Australia rendered it unreasonable for the Applicant and her children to relocate within the Philippines.
The proceeding before this Court
On 20 September 2005, the Applicant filed the application before this Court relying on the following grounds:
“1. The Tribunal made findings on the basis without country providing country information of Bangladesh and Philippine to the applicant for comment giving rise to a jurisdictional error in deciding this factor.
2. The Tribunal failed to determine the matter in accordance with established law applied to proven facts.
3. The Tribunal erred in determining the matter on the basis of assertions and not on the facts.
4. The Tribunal failed to accord procedural fairness in its determination.”
The Applicant was unrepresented before this Court, although had the assistance of an interpreter. The Applicant confirmed that she relied upon the application filed on 20 September 2005. I note that the application was filed by a solicitor who filed a Notice of Ceasing to Act on 6 February 2007. The Applicant confirmed this morning that there has been no other document filed by her or on her behalf.
The grounds of the application were interpreted for the benefit of the Applicant and she was invited to make submissions in support of each of the grounds. The Applicant had nothing to say in respect of any of the grounds identified. The Court pointed out to the Applicant that each of the grounds was only a bare assertion and unsupported by particulars. The Applicant still had nothing to say in support of the grounds.
Ground 1 complains that the Tribunal did not give to the Applicant for comment the country information to which it had regard. However, such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
In any event, the Tribunal’s decision makes it clear that the substance of the independent country information to which the Tribunal had regard was put to the Applicant at the hearing. The Tribunal noted the nature of the information and the Applicant’s responses.
Accordingly, ground 1 is not made out.
Grounds 2, 3 and 4 of the application make general assertions that are unsupported by particulars.
Below, I have considered whether or not the Tribunal’s decision is affected by jurisdictional error.
The Tribunal decision recounted the history of the applications before it giving rise to the application for review with which it was presently dealing.
In relation to the Applicant's claims, as reflected above in these Reasons, the Tribunal in particular noted the Applicant’s claim that her husband was a Bangladeshi national married to a Filipino, and, as such, may have an increased chance of being harmed in the Philippines and therefore she was at greater risk in the Philippines by reason of being with him.
The Tribunal accepted that the Applicant may have a subjective fear of harm. However, based on the country information, the Tribunal was not satisfied that, merely because the applicant husband was a Muslim Bangladeshi man married to a Christian Filipino woman, either would have a real chance of persecution in the Philippines. Those findings were open to the Tribunal on the material and evidence before it and for which it provided reasons.
The Tribunal went on to consider whether it was possible for the applicants to relocate within the Philippines, were they to reside with the husband. The Tribunal concluded that it was satisfied that the Applicant could safely relocate within the Philippines and by doing so avoid a well founded fear of persecution for a Convention reason. The Tribunal’s conclusion was based on findings made by it that were open on the material and evidence before it and for which it gave reasons.
The Tribunal went on to consider whether it was reasonable, in all the circumstances, for the applicants to relocate within the Philippines. The Tribunal ultimately concluded that, having regard to the individual circumstances of the husband in relation to his ability to secure employment commensurate with his skills in the Philippines; and having regard to the ability of the Applicant to be able to relocate in Australia in 2000 and live and work here for almost five years in a language and culture entirely different from her own, that it was reasonable for the applicants in those circumstances to relocate within the Philippines.
The Tribunal concluded that it was satisfied that the Applicant would not be subject to persecution for reasons of not being able to reside with her husband in the Philippines and that it was reasonable for the Applicant to relocate within the Philippines.
The Tribunal particularly noted that there were no claims with respect to health services or infirmity that would render it unreasonable to expect the Applicant and the applicant son to relocate to the Philippines and had regard to country information that confirmed the Tribunal in that view.
Again, those findings and conclusions were open to the Tribunal on the material and evidence before it and for which it provided reasons.
The Tribunal concluded that the applicants were not persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. For that reason the Tribunal affirmed the decision of the delegate not to grant protection visas.
Conclusion
The Tribunal's review, including the making of its decision, was conducted in accordance with the statutory regime and the decision is not affected by jurisdictional error.
Accordingly, the proceeding before this Court is dismissed.
The first respondent seeks costs fixed in the amount of $5,250. I note that the relevant schedule of costs is the old schedule 1 of the Federal Magistrates Court Rules 2001. I note that such sum is less than the maximum to which the first respondent would be entitled. I also note that counsel was instructed in the matter and in my view it was entirely appropriate that counsel be instructed and that the reasonable costs of counsel be incurred. In those circumstances, I am satisfied that the amount sought is reasonable.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 13 March 2007
0
0
3