SBZD v Minister for Immigration & Anor
[2007] FMCA 1624
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBZD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1624 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – protection visa – applicant claims to be at risk of persecution in the United Kingdom because of his membership of a particular social group namely convicted sex offenders – whether real chance of persecution – assessment of level of state protection available to applicant in UK – matters of evidence for Tribunal – Tribunal reconstituted after oral hearing – whether denial of natural justice – application of s.422 – defacto officer rule – no discernible error found. |
| Migration Act 1958, ss.56(2); 420; 421; 422; 425; 428. |
| MIMA v Respondent S152/2003 [2004] 222 CLR 1 Liu v MIMA (2001) 113FCR 541 Craig v South Australia (1995) 184 CLR 163 GJ Coles& Co Ltd v Retail Trade Industrial Tribunal (1987) 7NSWLR 503 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SBZD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG138 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 14 September 2007 |
| Date of Last Submission: | 14 September 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | The applicant in person |
| Counsel for the first Respondent: | Dr Bleby |
| Solicitors for the first Respondent: | Australian Government Solicitor |
| Counsel for the second Respondent: | Dr Bleby |
| Solicitors for the second Respondent: | Australian Government Solicitor |
ORDERS
The applicant pay the respondent’s costs fixed in the sum of $4,500.00.
All applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG138 of 2007
| SBZD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the United Kingdom. He is sixty-four years of age. He has been a resident of Australia since October 1982.
On 28 February 1996, he was sentenced to eight and a half years imprisonment, in the Supreme Court of Western Australia, in respect of a number of serious charges of sexual assault on a minor. He served approximately four years of this sentence. He has been held in immigration detention since the completion of his term of imprisonment.
As a result of these convictions, the Minister for Immigration “the Minister” determined that the applicant should be deported from Australia pursuant to the provisions of Division 9 of the Migration Act “the Act”.
The applicant challenged this decision in the Administrative Appeals Tribunal; the Federal Court; and ultimately the High Court of Australia. His challenge was unsuccessful. The relevant legal proceedings concluding on 1 February 2005.
On 16 September 2005, the applicant applied for a protection visa (class XA). In support of his application, he claimed to be a refugee on the basis that he was at risk of suffering either death or serious harm in the United Kingdom, at the hands of vigilante groups, who targeted known sexual offenders against children. He also claimed to be at risk of harm from the relatives of the child, whom he had assaulted in Australia. These relatives being resident in the United Kingdom.
Accordingly, it is the applicant’s position that he is a person to whom Australia owes protection obligations pursuant to the Refugee’s Convention, to which Australia is a signatory. Pursuant to the Convention, a refugee is any person who:
“… owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The provisions of the Refugee Convention have been incorporated into Australian domestic law.[1]
[1] See Migration Act 1958 at section 56(2)
The applicant also submitted that he would suffer severe hardship, if returned to the United Kingdom. He asserted that due to his age and convictions he would not be able to gain employment in Britain and his freedom of movement in that country would be seriously restricted due to his fear of attack. He asserted that his photograph and personal details had been previously published in newspapers circulating in the United Kingdom.
The applicant provided further details of his fears arising from the possibility of him being returned to the United Kingdom in a statutory declaration submitted to the Department of Immigration & Multicultural and Indigenous Affairs.
In this statutory declaration, he indicated that he would have no place to live in the United Kingdom, other than his sister’s residence. He stated that a newspaper circulating in the United Kingdom had published his sister’s address at some time in 1999, together with a picture of him and his wife.
Accordingly, he submitted that his identity and likely place of residence were well known to groups in England, who took it upon themselves to harm known sex offenders. The applicant further stated that “the authorities cannot protect me all the time and I know that vigilantes and my children’s brothers will attack me every chance that they get.”[2]
[2] See Case Book at page 64
In support of his application, the applicant provided newspaper and media articles, which indicated that known sex offenders had been attacked in the United Kingdom by “mobs” of people. Some of the articles indicated that innocent people, wrongly identified, had also been attacked.
Further, the applicant provided newspaper articles appearing in the Daily Express newspaper, published in the United Kingdom in 2001, naming him personally and describing him as a convicted paedophile, who was considered a risk to young girls. The articles indicated that the applicant was to be deported from Australia to the United Kingdom.
On 30 January 2006, the Minister’s Delegate refused the application. The Delegate concerned was not satisfied that the Government of the United Kingdom would not provide all reasonable steps to provide for the safety of the applicant, if he was returned there. Whilst the delegate accepted it was “probably true” that the applicant could not be protected “all the time”, he was not satisfied this failure of state protection was so ineffectual that it should invoke Australia’s protective obligations.
On 31 January 2006, the applicant applied for a review of the decision to the Refugee Review Tribunal “the RRT”. In support of his application, the applicant provided further written material, including a number of media articles from the United Kingdom and Australia. He gave oral evidence to the RRT on 8 March 2006, as did his wife. On 2 June 2006, the Tribunal affirmed the decision not to grant the applicant a protection visa.
On 22 September 2006 the Federal Magistrates Court at Adelaide quashed this decision, with the consent of all parties concerned, and ordered that a writ of mandamus issue requiring the RRT to re-determine the matter according to law.
This decision led to a second hearing of the RRT, which was held on 27 November 2006. The applicant and his wife again provided oral evidence to the RRT. In addition, the representative of the applicant provided further written material, including a number of articles from the British media concerning attacks on sex offenders in the United Kingdom, including one incident in which a person was purportedly murdered, in the mistaken belief that he was a paedophile.
The oral hearing was conducted before one member of the RRT. Before this member provided a decision, on 8 January 2007, the applicant’s advisor was informed in writing that this first member was unavailable to complete the application for review and accordingly the matter had been placed before another tribunal member for finalisation.
On 22 January 2007, the applicant’s advisor informed the RRT that the applicant would rely on his previous submissions. However, at that stage, additional articles from the British media were provided to the second tribunal member by the advisor.
On 9 May 2007, the RRT affirmed the decision not to grant the applicant a protection visa. The RRT was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugee’s Convention on the basis that there was no real chance that he would be persecuted, for any Convention reason, if returned to the United Kingdom.
On 4 June 2007, the applicant filed an application in this court, pursuant to section 476 of the Act. He alleged that the decision of 9 May 2007 was made in error. He claimed that the RRT had failed to recognise the seriousness of his claims that his life was in serious danger in the United Kingdom. Accordingly, he sought that the matter be returned to the RRT for reconsideration.
In an affidavit filed in support of his application, the applicant deposed as follows:
·The RRT failed to take into account the evidence provided by him that the British authorities had failed to protect people, who fell into his particular “social group”, namely convicted sex offenders, who had been subject to serious physical attack in the United Kingdom;
·Accordingly, the applicant deposed that the RRT had not given proper consideration to the fact that his life was at risk, from such vigilante groups, if he was returned to the United Kingdom;
·The applicant deposed that he had not been given a fair hearing by reason of the fact that his application to the RRT had been determined by another member other than the one who heard his and his wife’s oral evidence;
·The applicant deposed that the RRT failed to consider the level of hardship which would be occasioned to his wife if he was deported to the United Kingdom on the failure of his application for protection status;
·The applicant also complained that the RRT had erroneously found that he had been in immigration detention since October of 2001 when the actual position was that he had been in such detention since October of 1999, when he had been released from prison.
As a result, the applicant seeks that the constitutional writ of certiorari, prohibition and mandamus be issued by the court quashing the decision of 9 May 2007 and requiring the decision to be redetermined by the RRT according to proper principles of law.
The decision which the applicant seeks to review is a “privative clause decision” as defined by section 474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia has held that the provisions of section 474 does not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error or have been made in bad faith.
An Administrative Tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[3]
[3] See Craig v South Australia (1995) 184 CLR 163
The hearing before me is not a merits review, rather it is a judicial review. I must be careful not to confuse the two. It is the function of this court to determine whether the decision of the RRT was within its legal powers. It is not the function to examine the merits of the decision.[4] Accordingly this hearing is not a rehearing of all the available evidence. Rather the hearing is directed towards the legality of the RRT’s decision.
[4] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
Because the applicant is seeking a protection visa, he is not to be identified in these proceedings pursuant to the provisions of section 91X of the Migration Act 1958. As a result he has been given the pseudonym of “SBZD”.
The RRT’s Decision
In my view, the RRT correctly set out the matters about which it had to be satisfied, if the applicant was to be regarded as a refugee to whom Australia owed protective obligations. For the purposes of this case, the relevant matters are as follows:
·An applicant must fear “persecution”. Persecution involves “serious harm”.
·Persecution must have an official quality about it, in the sense that it is either tolerated by the state or state based authorities cannot prevent it.
·Persecution has an element of motivation about it. It is not indiscriminate but arises because of some attribute, which its victim has.
·Persecution must be for one of the reasons enumerated in the Convention, namely race, religion, nationality, membership of a particular social group or political opinion.
·An applicant’s fear of persecution must be “well-founded”. Accordingly fear of persecution has an objective element. It must be founded on a “real chance” of persecution occurring.
In this case, it is the applicant’s position that the RRT has fallen into an error of law by failing to assess properly that he is a refugee in the sense that it did not accept evidence that the authorities in the United Kingdom had failed in the past to protect people, who occupied the same social group as him, namely convicted sex offenders.
The essence of the applicant’s case is that he is dubious about the protection the police and other authorities are likely to offer him in the United Kingdom from vigilante groups, stirred up by the popular press in that country and the fact that his name would be placed on a public register of sex offenders, to which vigilantes have access.[5]
[5] This is the Multi-Agency Public Protection Arrangements (MAPPA) which operates in each county of the United Kingdom and is designed to protect both the public and sex offenders. See Case Book at page 345.
In particular, the applicant submitted that his position was different to other sex offenders in the United Kingdom because he was more readily identifiable, as his photograph and identity had been previously revealed in the British press.
The applicant submitted to the RRT that the MAPPA system would not protect a person in his position but rather is designed to protect the public. It is also his case that he fears that the British authorities will not be in a position to monitor his safety continually.
He pointed to the fact that vigilante groups have used the MAPPA register to locate sex offenders. He also relied on some media articles, which raised the possibility that an Australian national had been murdered in London because his assailants wrongly believed he was a sex offender.
The RRT found as follows:
·It accepted that the applicant had a genuinely held subjective fear of harm if he returned to the United Kingdom otherwise he would not have remained in immigration detention in Australia for so many years.
·It accepted that the applicant had a “public profile as a child sex offender” in the United Kingdom as a result of the publication of his name and photograph in the British media.
·It accepted that there was a “real chance” that the applicant’s identity would again be published in the British media and he would be publicly portrayed as a child sex offender.
·As a result of these matters, the RRT accepted that, if he returned to the United Kingdom, there was a real chance that the applicant would face the risk of suffering serious harm, from vigilante groups, because he was identified as a child sex offender.
·It accepted that “paedophiles targeted by vigilante groups” constitutes a particular social group for the purposes of the Refugee’s Convention and that the applicant would be considered a member of this group, if returned to the United Kingdom.
·It found that the applicant’s safety could not be absolutely guaranteed within the United Kingdom.
·However, on the basis of the evidence before it, the RRT found that the British Police did respond to claims of attack on child sex offenders by vigilante groups and individuals associated with such groups had been prosecuted within the British Justice System.
·The RRT found that the applicant would be subjected to significant restrictions on his freedom of movement if returned to the United Kingdom because of the requirement that he be monitored by the MAPPA system. Such monitoring was discriminatory in nature. However, the discrimination was legitimate as it was directed to achieving an appropriate outcome, namely the protection of both the public and convicted child sex offenders.
·As a result, the RRT was not satisfied that the fact that child sex offenders had previously been attacked and even killed in the United Kingdom indicated that an adequate level of state protection would not be available to the applicant, if he returned to the United Kingdom now or in the reasonably foreseeable future.
·Accordingly, it found that the applicant’s fears of persecution within the United Kingdom were not well founded.
The Grounds for Judicial Review
(a)Failure of the RRT to take account of evidence that the British Authorities failed to protect members of the applicant’s particular social group, namely convicted sex offenders
The RRT accepted that the applicant had a real chance of suffering serious harm because of his membership of a particular social group – a convicted child sex offender living in the community – if he was returned to the United Kingdom.
However, the RRT failed to accept that this could amount to persecution within the meaning of the Refugee Convention. The applicant attacks this finding. I am not persuaded that a discernable error of law flows from the finding. In particular, in my view, there was no evidence from which the RRT could reasonably conclude that the persecution feared by the applicant had an “official quality” within the United Kingdom. The Tribunal, as a result, found that this fear was not well founded.
In reaching this conclusion, the RRT had to consider the level of protection available to child sex offenders in the United Kingdom. Clearly, vigilante groups, who target such persons are not officially sanctioned by the British Government. The question is rather whether those vigilantes are beyond the control of the British authorities or police, such that the British Government would be unable to protect the applicant from the possibility of persecution, too such a degree that it is unacceptable.
The United Kingdom is a developed European country, which has a sophisticated police force and judiciary. Nonetheless it is apparent that persons with the same attributes as the applicant have been subjected to serious harm in the United Kingdom solely because of those attributes, either directly or indirectly assigned to them. Ipso facto, the British State has failed to protect such persons. Does the possibility of this harm alone render the applicant a refugee?
McHugh J summarised the difficulty in MIMA v Respondents S152/2003[6]. His Honour said as follows:
“The case that presents most difficulty is one where harm to individuals for a convention reason may come from any one or more of a widely dispersed group of individuals and the State is willing but is unable to prevent much of that harm from occurring.”
[6] MIMA v Respondent S152/2003 [2004] 222 CLR 1 at 28
This difficulty requires the Tribunal to make some assessment of the situation prevailing in the country at the time to determine whether there is a well founded fear of persecution based on a real chance of it occurring. The use of the adjective “real” means that the possibility of persecution happening must be more than remote. It would not be reasonable for the test to be posited on the basis that the state concerned was required to provide an absolute guarantee of safety.
This must follow from the use of the adjective “much” by McHugh J in the passage quoted above. The State concerned, although willing in theory to protect its citizens from harm, must in fact be ineffectual in providing protection to “much of that harm”. Accordingly the decision maker concerned must make some sort of quantification of the degree of risk involved. This quantification must involve some assessment, from the evidence available, of the degree of risk by the applicable decision maker. It is not the role of this court to make that assessment. It is a question of evidence for the decision maker.
In Respondent S152/2003, it was observed that:
“No country can guarantee that its citizens will be at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on persons or property.”[7]
[7] See MIMA v Respondent S152/2003 (supra) at page 11
The High Court went on to say:
“A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the State.”[8]
[8] See MIMA v Respondent S152/2003 (supra) pages 12-13
In this case, I am satisfied that the RRT did consider whether the British authorities were capable of providing the applicant with the required level of protection, which was not an absolute guarantee of safety. This guarantee not being realistically achievable, short of detaining the applicant in the United Kingdom.
In performing this assessment the RRT looked at the number of attacks concerned and the response the British authorities had made to them. The RRT found that the British police did respond to complaints of attack by sex offenders living in the community. It also found that the British criminal justice system had prosecuted and convicted the perpetrators of such violence.
The RRT further found that, through the MAPPA system, the British Authorities would make a proper assessment of the level of threat to the applicant and provide him with a level of protection commensurate to that threat, which though not absolute was likely to be adequate in the circumstances.
On the basis of this assessment, the RRT did not believe that the current situation in the United Kingdom was such that an adequate level of state protection would not be available to the applicant, if he was returned to the United Kingdom. I can find no discernable error in how the RRT conducted this assessment and the matters it took into account in reaching it. They are matters for evidence, which are in the sole domain of the RRT.
(b)Reconstitution of the Tribunal prevented the applicant from having a fair hearing
The starting point for a consideration of this issue is section 422 of the Act, which reads as follows:
422 Reconstitution of Refugee Review Tribunal–unavailability of member
(1)If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b)for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3)In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).
Pursuant to section 420, the RRT is directed to be fair, just, economical, informal and quick. In performing its reviewing functions, it is not to be bound by technicalities. Accordingly, it seems clear that section 422 is a provision, which deals with practicality. The reconstitution of a Tribunal does not require the reconstituted Tribunal to embark on a fresh hearing or require the Tribunal to re-hear evidence already provided.
In Liu v MIMA[9] the Full Court of the Federal Court held that the phrase “continue to finish”, contained in section 422(2), simply required the reconstituted Tribunal to undertake what remains to be done in the review without interrupting the process, while picking up and carrying on the steps that had already been taken.
[9] Liu v MIMA (2001) 113FCR 541
In the Full Court’s opinion this inherently meant that the reconstituted Tribunal was not required to invite the applicant concerned to appear before it again. This was not withstanding the provisions of section 425 of the Act.
Section 425 is the section of the Act which requires the Tribunal to invite the applicant to appear before it, if he or she wishes to do so. In this case, the applicant did appear before the first Tribunal and a record of what he said was taken.
In considering the operation and application of section 422, the Full Court of the Federal Court in Liu looked to section 428, which empowers the Tribunal to authorise other persons to take evidence from the applicant concerned.
In Liu, the Full Court said as follows:
“… section 428(5) goes so far as to provide that “the Tribunal, for the purpose of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence”. This is an express recognition by Parliament that the Tribunal’s decision-making function may be exercised on the papers in the absence of a hearing before it.
The power under section 428 is discretionary and it may be exercised in a range of circumstances, not all of which will necessarily the Tribunal to provide, as a matter of fairness, an applicant with a right to appear before it.”[10]
[10] See Liu v MIMA (supra) at page 553
Accordingly, I am not persuaded that the fact that the Tribunal was reconstituted in the applicant’s case amounted to a breach of natural justice which led to a jurisdictional error. The applicant was informed of the fact that the Tribunal was to be reconstituted and was also invited to make any further submissions if he wished. Further information was provided by him at this stage.
In particular, I am satisfied that the fact that the applicant was not invited to give further evidence before the reconstituted Tribunal cannot, of itself, amount to a denial of natural justice and mean that the applicant did not have a fair hearing. The reconstituted Tribunal “continued to finish the review” and, to this end, had reference to the transcript of the applicant’s earlier evidence, as it was entitled to do.
Dr Bleby, who appeared for the Minister, appropriately drew my attention to the formal document which reconstituted the Tribunal in this case.[11] This document incorrectly referred to section 421 of the Act, as being the basis of the reconstitution of the Tribunal. I accept Dr Bleby’s submission that this was a technical legal failure and not one which vitiates the reconstitution of the Tribunal itself.
[11] See Case Book at page 327
The error is covered by the de facto officer rule, which McHugh J A (as he then was) described in GJ Coles & Co Ltd v Retail Trade Industrial Tribunal as follows:
“The acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office. It matters not that his appointment to the office was defective or has expired or in some cases even that he is a usurper.”[12]
[12] GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7NSWLR 503 at 525
(c)Failure of the RRT to consider hardship to and persecution of the applicant’s wife
It is true that the RRT did not give any consideration as to whether the applicant’s wife would face persecution, if she elected to return to the United Kingdom with the applicant. In fact, in a letter sent to the RRT on 22 November 2006, the applicant’s wife indicated that she was not able to leave her relatives in Australia.[13] At that stage, she did not raise any personal claim for refugee status.
[13] See Case Book at page 305
In fact, the applicant did not include her in his original application for a protection visa. Accordingly, the RRT did not have before it any claim from the applicant’s wife and so could not consider it. Accordingly, there is no substance to this complaint made on the applicant’s behalf.
(d) Error in the date on which the applicant went into immigration detention
In his affidavit, the applicant points out that the decision under review gives as the date from which he has been in immigration detention as 29 October 2001. The applicant points out that he has in fact been in immigration detention since 29 October 1999.
Given that the applicant served over four years of his sentence, which was imposed in February 1996, I accept that this is so. However, this error in the record does not constitute an error of law such as to vitiate the grounds on which the RRT determined that the applicant was not entitled to a protection visa.
Conclusions
For all these reasons, it must follow that the application should be dismissed. The first respondent has sought an order for costs and in my view such an order is appropriate. I assess costs in the sum of $4,500.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 11 October 2007
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