SZADH v Minister for Immigration

[2003] FMCA 259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADH v MINISTER FOR IMMIGRATION [2003] FMCA 259

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Fiji – no reviewable error found.

Migration Act 1958 (Cth), ss.415, 474

Applicant: SZADH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ22 of 2003

Delivered on: 25 June 2003

Delivered at: Sydney

Hearing date: 25 June 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ22 of 2003

SZADH

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 Refuge Review Tribunal (“the RRT”) made on 18 December 2002.  The RRT affirmed a decision of a Delegate of the respondent Minister not to grant to the applicant a protection visa.  The application filed in this court on 10 January 2003 seeks prerogative relief on four grounds:  first, that the decision maker failed to make a bona fide attempt to exercise its power;  secondly, that the decision maker was not acting in good faith in making the decision;  thirdly, that the decision of the RRT was unreasonable;  fourthly, that there was a constructive failure on the part of the RRT to comply with the Migration Act 1958 (Cth) (“the Migration Act”); and fifthly, that there was a denial of natural justice or procedural fairness in respect of legislative procedure.

2. The general background to this matter is set out in paragraphs 1 to 5 of the respondent's written submissions prepared by Mr Bromwich and filed on 20 June 2003.  I accept that statement of background facts, including the description of the RRT decision, and I adopt it as follows for the purposes of this judgment:

   The applicant arrived in Australia on 19 December 1998.  Almost four years later, on 24 September 2002, he applied for a protection visa.  He claimed to be a citizen of and former resident of Fiji.  His application was based on a claim of imputed anti-government political opinion.  This was said to arise from his role in giving a submission to a public inquiry in relation to corruption in the banking industry and from a bashing he had received following the 1987 military coup.

   On 12 November 2002, a delegate of the respondent refused the grant of a protection visa.  This was largely because his claims were not accepted.

   On 14 November 2002, the applicant applied to the RRT for a review of the delegate’s decision.  This was supported by a covering letter from a solicitor in which supposed errors in the delegate’s decision were referred to.  On 16 December 2002 the applicant gave oral evidence. On 18 December 2002 the RRT affirmed the delegate’s decision. 

   The RRT:-

   a)did not accept that the applicant had made a submission to the public inquiry;

   b)did not believe that the applicant had highly placed political friends and associates who passed on sensitive and confidential information not available to the public which implicated government ministers in political and financial scandals;

   c)was not satisfied that there was anything at all in the applicant’s life which would attract the adverse attention of powerful politicians and political leaders such as would have placed him on a “hit list”) either in 1996/7 as claimed or at any other time;

   d)even if any of the above findings were wrong, the applicant had no behaved in the manner of someone who genuinely believed he had a well-founded fear of persecution because, after he claimed he had fled to the USA, he had returned to Fiji after only a month and then waited four years in Australia before applying for a protection visa (even allowing for depression and marital breakdown);

   e)accepted that the applicant had been bashed in 1987, but found there was no evidence to suggest that there was a political motive for this assault and in any event as it occurred 11 years before he left Fiji did not accept that this had caused him to seek refuge and exile.

   All of the grounds upon which the applicant failed were factual and credit based. 

3. In paragraphs 6 to 10 of his written submissions Mr Bromwich goes through the five grounds in the application.  I also agree with Mr Bromwich's submissions in relation to those grounds and adopt those paragraphs for the purposes of this judgment as follows:

   Ground 1 asserts that the RRT failed to make a bona fide attempt to exercise its power and ground 2 asserts that the RRT was not acting in good faith.  A claim of lack of bona fides amounts to an allegation that the RRT had not engaged in a “real performance of the duty imposed by law” upon it. The related concept of bad faith, implies a “lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker”.

   There is nothing whatever to support these allegations. To the contrary, it is not apparent that there was anything at all incorrect or even unreasonable in the approach taken, or conclusions reached, by the RRT. The applicant’s account was inherently implausible. There was not even an error of fact, let alone an error of law or, as required in light of s.474 of the Migration Act, jurisdictional error. Both these grounds of review should fail.

   Ground 3 asserts an unspecified “lack of reasonableness” in the RRT’s decision.  There is no substance in this allegation and in any event this does not amount to a reviewable error, let alone a jurisdictional error.  This ground of review should also fail.

   Ground 4 asserts failure or constructive failure to comply with the Migration Act. No particulars are provided and no such failure or constructive failure is apparent. This ground of review should also fail.

   Ground 5 asserts “denial of natural justice in respect of legislative procedure”.  Again, no particulars are provided and no denial is apparent.  The applicant was given ample opportunity to present his case and be heard.  Nothing more was required of the RRT in the circumstances.  This ground of review should also fail.

4. When the matter proceeded before me today I permitted the applicant to file in court a document that is in reality written submissions, but that is described as an affidavit.  I did not accept the document as evidence.  I gave the applicant the opportunity to take me through the document in order to draw out the important issues as he saw them.  Although not specifically addressed by the applicant in his oral submissions, it is important to note that in paragraph 2 of the document the applicant asserts that the Minister did not act with fairness and detachment.  It is asserted that having not applied the legislation, the Minister did not make a bone fide attempt, as a result of preconception, and that he has made a decision unfairly and in contravention of the requirements of natural justice.

5. The decision under review is, of course, a decision of the RRT, not a decision of the Minister or his Department.  However, the RRT is part of the executive government and I address this assertion on the basis that it is directed at the RRT.  There is nothing before me that could substantiate an allegation of bad faith, or bias, be it actual or imputed.  There is no lack of bone fides apparent from the record.  Paragraph 2 of the applicant’s written submissions cannot be sustained.

6. The next substantive issue raised by the applicant in his written submissions appears in paragraph 8.  In his oral submissions the applicant explained that the delegate of the Minister failed to apply the correct tests in determining whether the applicant had a valid claim to refugee status.  As I explained to the applicant, the difficulty with that assertion - even if it could be made out - is that I am not reviewing the decision of the delegate.  I am reviewing the decision of the RRT.

7. The applicant had an opportunity to draw to the RRT's attention any defects which he may have considered existed in the decision of the delegate. The RRT conducted a hearing and assessed the claims made by the applicant. It is apparent that the RRT fulfilled its responsibilities under s.415 of the Migration Act. It is clear from the decision and reasons of the RRT (court book, page 90) that the presiding member understood and applied the relevant tests for the determination of a claim of refugee status. I therefore reject this aspect of the applicant's submissions.

8. The other element of substance in the applicant's submissions appears at paragraph 17.  The applicant explained to me in his oral submissions that the RRT decision was in error in that the presiding member failed to conduct any proper independent investigation of his claims.  He referred in particular to his claim that two or three associates had been killed and that he faced a risk arising from that association.  It is clear from the decision and reasons of the RRT that the applicant's claims of political persecution were rejected on the basis of a lack of credibility.  The presiding member did not accept that the applicant had undertaken the political activity which he asserted.

9. At page 98 of the court book the presiding member dealt with the applicant's claim that he had provided a submission to a public inquiry into the banks in Fiji and rejected that claim on credibility grounds.  The presiding member said:

   Neither do I believe that the applicant had high placed political friends and associates who passed on to him sensitive and confidential information not available to the public which implicated government ministers in political and financial scandals.  As on his own evidence the applicant has never been a member of a political party or been involved in any political activities I am not satisfied that there is anything at all in the applicant's life in Fiji which would attract the adverse attention of powerful politician's and political leaders such as would have placed him on a hit-list either in 1996 or 1997 as claimed, or at any other time.  I find that the applicant's story is inherently implausible and that his claims are a complete fabrication.  

10. I take this to be a complete answer by the presiding member to the claims made by the applicant which are identified by the presiding member (court book, page 92).  There are a number of other elements of this case which caused the presiding member to draw adverse conclusions on credibility against the applicant.  I do not need to traverse those in detail.  They are explained in the decision of the RRT.  However, I find that those adverse conclusions on credibility were reasonably open to the presiding member based on the material before her.  There was no failure on the part of the presiding member to deal with any element of the applicant's claims of persecution.  Having formed an adverse view on credibility in relation to key elements of those claims, there was no obligation on the presiding member to conduct any further investigation of them.  There is, in my view, nothing else in the applicant's written submissions that could sustain an attack on the decision of the RRT.  Neither has the applicant been able to advance anything further orally to indicate any jurisdictional error having been committed by the RRT.

11. The applicant has failed to demonstrate any jurisdictional error in the decision of the RRT.  I find that the Hickman provisos to the privative clause in s.474 of the Migration Act are satisfied. In the circumstances, I will dismiss the application.

12. This matter is what I would describe as a matter of average complexity.  The applicant had not raised much in advance of the hearing so the preparation required by the respondent’s legal advisers was both speculative and limited.  In my view, an order for costs in this matter in the sum of $3000 would be appropriate. 

13. I will order that the applicant pay the Minister's costs of disbursement of and incidental to the application which I fix in the sum of $3000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  4 July 2003