SZAJJ v Minister for Immigration
[2004] FMCA 41
•2 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJJ v MINISTER FOR IMMIGRATION | [2004] FMCA 41 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – whether the RRT erred in finding no Convention nexus with the harm suffered by the applicant – whether the RRT proceedings were fair – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), s.474
Migration Legislation Amendment Act (Judicial Review) 2001 (Cth)
Kopalopillai v Minister for Immigration (1998-1999) 86 FCR 547
Plaintiff S157 of 2003 v Commonwealth (2003) 195 ALR 24
SDAV v Minister for Immigraton [2003] FCAFC 129
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
VBAC v Minister for Immigration [2003] FCA 205
| Applicant: | SZAJJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ574 of 2003 |
| Delivered on: | 2 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 2 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms V Hartstein |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ574 of 2003
| SZAJJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refuge Review Tribunal (“the RRT”) made on 12 February 2003 and handed down on 6 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The general background facts relating to this application are set out in written reasons prepared by Ms Hartstein, for the Minister, in paragraphs 2 through to 12. I adopt paragraphs 2 to 12 for the purposes of this judgment:
The applicant is an Indian national who arrived in Australia on 19 November 2001. On 17 December 2001 he lodged an application for a protection visa.
In support of his application the applicant submitted a statement (court book, page 23-27) in which he set out in detail the events which caused him to leave India and come to Australia. He claimed that he and his family ran a successful business in Chennai manufacturing and selling thread. His business was the only Muslim business in the area. All the businesses paid protection money to the local gangsters, called “rowdies”, but because his was successful, more money was demanded from him. Although he and his family paid the larger amount demanded, a complaint was also made to the police.
The applicant claimed that the police visited the business and after the neighbouring business owners refused to support the applicant’s story, arrested the applicant and jailed him for seven days during which he was beaten.
Upon his release the applicant found that his family had moved to his uncle’s house at Manali to escape the daily visits of the police.
At the hearing before the RRT the applicant “was a most unsatisfactory witness”(court book, page 67, para 31 and 68 para 35).. Not only was he unable to remember key dates but he denied that some of his original claims were true[1].
The RRT found that perhaps the most glaring inconsistency was the Applicant’s evidence about his travel to Thailand before coming to Australia (court book, page 67, paras 32-33). Further inconsistencies between his original claims and his interview with the DIMIA officer were unable to be explained by the applicant (court book, page 68, para 34).
The RRT did not accept the applicant’s evidence concerning the loss of the family business although it did accept some of his claims (court book, page 68, para 35). The RRT was prepared to accept that the applicant may have genuine fears that he may suffer harm from rowdies (court book, page 68, para 37) but that this claim had no Convention nexus because the extortionists were motivated by personal greed and not by a desire to persecute the applicant and his family because of their race, religion, nationality, membership of a particular social group or political opinion (court book, pages 68-69, para 37).
Although the applicant did make a claim that his family was targeted because they were Muslim, the RRT did not accept this claim. The evidence was that all the shopkeepers paid protection and the applicant’s business was asked to pay more because it was successful, which the applicant said it was (court book, page 69, para 39).
The RRT found that that the applicant’s problems with the rowdies were criminal ones. The applicant‘s problems with the police were matters for the local authorities.
As a result of both the findings on credibility and the reason for the applicant’s problems, the applicant was found not to have a well founded fear of persecution for a convention reason either in the past or the future (court book, page 69, para 42).
On 16 April 2003 the applicant lodged an application for judicial review of the RRT's decision in the Federal Magistrates Court.
[1] At court book, page 67 para 31 the RRT notes that the applicant gave evidence that the claims that after his release from jail he went to Manali where he found his mother at the home of his uncle were lies.
The applicant proceeded today on the basis of an amended application filed on 27 January 2004. In that application he takes issue with the decision by the RRT that there was no Convention nexus between the Refugees Convention and the harm allegedly suffered by the applicant. The applicant asserts that there was a Convention nexus because of his Muslim religion.
The first point that should be made in relation to the ground of review advanced by the applicant is that fundamentally his application failed because he was not accepted as a credible witness. The presiding member did not believe the applicant's claims of harm at all. However, the presiding member was cautious and considered the applicant's claim on the basis that it might be true. The presiding member found that even if the claim of harm made by the applicant was true it stemmed from ordinary criminal activity and did not establish any Convention nexus. At paragraph 39 of his reasons on page 69 of the court book the presiding member states:
The applicant contended that his family was being targeted because they are Muslims. However, his own evidence in his initial claims and at the hearing was to the effect that all businesses at the time of the alleged trouble, both Muslim and Hindu, were paying protection money and that the dispute with the rowdies arose not because of the fact that the family of the Applicant are of the Muslim faith but because other business owners had informed the rowdies that the Applicant's family business was more profitable than others and thus it was appropriate that they pay more.
Ms Hartstein deals with the amended application in her written submissions under the heading of “Grounds of Review”, paragraphs 1 to 4 and the legislative framework in paragraphs 1 to 9. I agree with and adopt, with respect, Ms Hartstein’s submissions, save that I do not necessarily agree with her summation of the effect of the decision of the High Court in Plaintiff S157 of 2003 v Commonwealth (2003) 195 ALR 24 in paragraph 9(c) of her written submissions:
Grounds of Review
On 27 January 2004 the applicant filed an amended application setting out grounds of review which were absent from his original application. The amended application should have been filed on or before 29 August 2003 pursuant to directions made by consent on 21 May 2003.
The ground of review appears to be that the RRT made a jurisdictional error because it erred in finding that the harm alleged to have been suffered by the applicant was the result of the actions of a criminal gang and not persecution for a Convention reason.
The applicant submits that “on a constructive basis there is a nexus between the fact that he was a minority Muslim and the fact that persecution in the form of extortion from hoodlums was heaped on him”.
The amended application contains new claims that:
a)at the political level he had no protection;
b)he was compelled to flee to Australia for asylum to save his life;
c)he would be murdered if he were compelled to return to India;
d)the 120 million Muslims of India have been subjected to systematic persecution and organised discrimination at local, state and federal level since independence.
The Legislative Framework
The application to the Court was made after the commencement of the Migration Legislation Amendment Act (Judicial Review) 2001 (Cth) on 2 October 2001 and is therefore subject to the Migration Act 1958 (Cth) (“the Migration Act”) as amended by that Act.
The decision of the RRT in the present case is a privative clause decision as defined by s.474(2) of the Act. With respect to privative clause decisions, s.474(1) provides:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
In S157, the High Court upheld the validity of s.474. It then went on to consider how s.474 should be reconciled with the remainder of the Act. The leading judgment is the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ (the joint judgment). In the central passage concerning the operation of s.474, their Honours held that:
[76] …the expression ‘decision[s] ... made under this Act’ must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’. Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’, the decision in question cannot properly be described in the terms used in s 474(2) as ‘a decision ... made under this Act’ and is, thus, not a ‘privative clause decision’ as defined in ss 474(2) and (3) of the Act.
Section 474 of the Act therefore validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.
Section 474 necessarily extends the class of legal errors that do not constitute jurisdictional errors. It does so because the presence of a privative clause shows that the legislature intended that strict compliance with some legal requirements was not a prerequisite for the validity of a decision.
It is therefore not correct to assume that any legal error that can be identified in a Tribunal’s decision is a jurisdictional error that is reviewable. That would not be the correct approach even absent s.474, and it is certainly not correct once the effect of that section is taken into account. Instead, the proper approach was well summarised by Ryan J in VBAC v Minister for Immigration [2003] FCA 205 para 26, where his Honour held that, following S157:
the correct place to start is with an assessment of whether there is a limitation imposed by the Act that has been transgressed, or a statutory requirement which has not been observed. If there has been such a legal error, and it is one which would have deprived the Tribunal of jurisdiction, then the Tribunal has not, legally, made a decision at all and the purported decision cannot be protected by s 474. However, whether or not an error deprives the Tribunal of jurisdiction will depend on a reading of the relevant provisions of the Act (including s 474), which may have the effect that certain provisions are not to be treated as essential to the exercise of jurisdiction. In each case it will be necessary to consider whether the procedural or other requirements which an applicant alleges has been disregarded is, as a consequence of s 474, to be construed as ‘not essential to the validity of the decision’.
In SDAV v Minister for Immigration [2003] FCAFC 129 per Hill, Branson & Stone JJ the Full Court of the Federal Court held:
27 The statement that a particular error is a ‘jurisdictional error’ is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made ‘within jurisdiction’. If it does not fall within the decision maker's lawful authority then the error is a ‘jurisdictional error’ and as such it cannot be a valid action or decision. …
30 …the legislature may grant wide or narrow jurisdiction and the scope of jurisdictional error will vary correspondingly. In construing the statute to determine the scope of the jurisdiction granted due regard must be had to the intention of the legislature in enacting the privative clause. In Plaintiff S157, the High Court … noted that an effect of the section might be that ‘some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision' ….
33 It must be emphasised that the aim of the process of reconciliation is to determine whether the impugned act is within the jurisdiction granted by the Migration Act. As such the process does not distinguish between jurisdictional errors that are and are not protected by the privative clause. It distinguishes between errors that are jurisdictional errors and those that are not jurisdictional errors. (emphasis added).
In summary, following the decision of the High Court in S157, s.474 of the Act remains important in three ways:
(a)It prevents review of non-jurisdictional error of law: S157 at [81];
(b)It is a critical ingredient in the ‘reconciliation process’ that must be undertaken in order to determine whether any particular error by a decision-maker is a ‘jurisdictional error’ rather than simply a breach of a procedural or other requirement that, although laid down by the Act, is ‘to be construed as not essential to the validity of a decision’;
(c)It may prevent judicial review of decisions even if they are infected by jurisdictional errors unless those errors are ‘manifest’.
I also adopt what Ms Hartstein submits under the heading, “Grounds of Decision” in paragraphs 1 to 5 of her written submissions:
In this case the RRT found against the applicant on two bases. The RRT found that the applicant’s claims to have a fear of persecution for a Convention reason were not supported by his evidence which was found to be unreliable and also found that even at its highest the evidence did not establish “a Convention nexus”.
It is submitted that the RRT’s adverse findings on credit were open to it on the evidence and a “legally proper rejection of credibility of an applicant”.[2]
Similarly it was open to the RRT on the evidence to reject the claim that the applicant’s business was targeted because it was a Muslim business. The applicant’s own evidence was that all businesses in the area were subjected to extortion and his business was asked to pay more because it was more successful. The RRT found that if the applicant had a subjective fear of persecution, it was not a fear for a Convention reason.
As these findings were open to it, there has been no reviewable error demonstrated[3]. There is no error of law or other jurisdictional error apparent on the face of the record.
No evidence was called by the applicant before the RRT which would support any of the new grounds in his application.
[2] Sellamuthu v Minister for Immigration (1999) 90 FCR 287
[3] Kopalopillai v Minister for Immigration (1998-1999) 86 FCR 547 at 558-559
The applicant's claim of a Convention nexus with his religion is inconsistent with his claims to the RRT. The application does not disclose any jurisdictional error.
In his oral submissions today, the applicant told me that he was unable to participate effectively in the RRT hearing because he suffered from a paranoid state of mind. I asked him for medical evidence of that mental condition and he told me he had left it at home. He also told me of a physical injury suffered at his workplace in 2002 that he also said stemmed from his paranoid state of mind. Again, he had no medical evidence to substantiate any disability.
The applicant told me that he did not tell the RRT of any mental or physical disability because he did not understand tribunal procedure.
I pointed out to the applicant that he was assisted by a migration agent and his migration agent could have raised with the RRT any problem the applicant had in participating effectively in the review process. The applicant told me that he could not communicate effectively with his migration agent who was Chinese. The applicant is Tamil. Nevertheless, he was able to communicate effectively in the court proceedings today through a Tamil interpreter. He also had no difficulty in telling me from the bar table about his medical problems. He told me that his mind is now clear.
The impression I gained from the applicant's submissions is that his review application in this Court is a work in progress. I gained a similar adverse impression of the applicant as the presiding member in the RRT. I think it extremely doubtful that he did suffer from a disability that prevented him participating in the review process. However, if he did suffer from any disability, he did not tell the RRT about it and, having been left in ignorance, the RRT could not deal with it. It follows that no issue of procedural fairness arises.
There is no jurisdictional error in the decision of the RRT. Accordingly, the decision of the RRT is a privative clause decision and I must dismiss the application.
On the question of costs, the application having been dismissed, Ms Hartstein seeks an order for costs fixed in the sum of $4,650. The applicant claims impecuniosity and illness. Those, however, are not reasons for the Court to refrain from making a costs order. The applicant also claims that the sum sought is exorbitant. It does not appear to me that the sum of $4,650 would be inappropriate as between a solicitor and client. However, on a party/party basis in a matter of this nature, which was relatively simple, a lesser costs order should be made. Very little was raised in the original application, although some additional work was required following the amendment of the application at the end of January. Relatively little physical preparation of the court book was necessary.
I will order that the applicant pay the costs and disbursements of and incidental to the application incurred by the Minister, fixed in the sum of $3,500.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 February 2004
0
3
0