SZALV v Minister for Immigration
[2004] FMCA 250
•23 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZALV v MINISTER FOR IMMIGRATION | [2004] FMCA 250 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), s.474
Appellant WABZ v Minister for Immigration [2002] FCAFC 30
Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16
Marshood v Minister for Immigration (2000) FCA 1536
Minister for Immigration v Applicant S (2002) 124 FCR 256
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v NAOS [2002] FCAFC 142
Minister for Immigration v SBAN [2002] FCAFC 431
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966
NAAG of 2002 vMinister for Immigration [2002] FCA 713; (2002) 195 ALR 207
NADR v Minister for Immigration [2002] FCAFC 293
NADR of 2001 v Minister for Immigration (2000) 124 FCR 465
NADZ v Minister for Immigration [2003] FCA 118
NAIS v Minister for Immigration [2004] FCAFC 1
NALJ v Minister for Immigration [2003] FCAFC 275
NAKF v Minister for Immigration [2003] FCA 730
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Randhawa v Minister for Immigration (1994) 52 FCR 437
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
SBBS v Minister for Immigration (2002) 194 ALR 749
Selvadurai v Minister for Immigration (1994) 34 ALD 347
SZALF v Minister for Immigration [2004] FMCA 248
| Applicant: | SZALV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ695 of 2003 |
| Delivered on: | 23 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms M Allars |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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 $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ695 of 2003
| SZALV |
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 Refugee Review Tribunal (“the RRT”) made on 11 March 2003 and handed down on 3 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and made claims of religious persecution. The relevant background facts are set out in written submissions prepared on behalf of the Minister by Ms Allars. I adopt paragraph 2.1 of those reasons for the purposes of this judgment. Ms Allars also deals with the decision of the RRT in paragraphs 2.2 to 2.4 of her written submissions. Ms Allars deals adequately and clearly with the decision of the RRT. In fact, the representation of the RRT’s reasons is probably clearer in Ms Allars' submissions than it is in the decision itself. I adopt those paragraphs of Ms Allars' submissions for the purposes of this judgment:
The applicant, who is a citizen of India of Muslim religion, sought a protection visa on the ground that he had a well founded fear of persecution on the ground of religion. The applicant claimed that:
i)in 1995 during a Hindu festival, Hindu hooligans ransacked three branches of the applicant’s export business in order to damage the business, which was in competition with a Hindu company located across the road from the main office of the applicant’s company in Chennai (court book, page 26.6);
ii)in February 1996 the applicant was attacked by a group of gangsters and his car set alight (court book, page 26.7);
iii)the applicant’s business rival threatened that he would kill him (court book, page 26.8);
iv)the police filed a first information report against his business rival;
v)the business rival told other people that the applicant was a Muslim fanatic with links with a Muslim terrorist group, and this led to the applicant being attacked (court book, page 27.3);
vi)when the applicant returned from Japan in on 19 March 1999, he found his businesses were burned down; and
vii)on March 2000 his branches were ransacked and he was attacked by the Kerala Hindu front (court book, page 27.4).
RRT’s reasons for affirming refusal of visa
The RRT found that the applicant’s evidence was replete with contradictions (court book, page 69.6), and lacked credibility (court book, page 72.2), in particular:
i)he claimed that he had attracted twelve members of staff from his business rival, but did not know how this affected his rival’s business (court book, page 69.7);
ii)he claimed that after the 1995 incident the police were searching for him as his rival said the applicant’s own employees lit the fire, but his original claim was that he did not approach the police (court book page 69.8);
iii)at the hearing he claimed that in 1996 his vehicles were burnt and he was threatened by phone, which was inconsistent with his written statement about the 1996 incident (court book, pages 69.10-70.1); and
iv)his claim that one of his branches was attacked by the Hindu National Front was based on what his employee told him (court book, page 70.6).
The RRT found that the applicant’s evidence was not plausible, in particular his claim at the hearing that his two and a half year old child died of fright when an enemy pulled a knife on the family (court book pages 69.6, 72.6). He was not able to explain any religious motives behind his business rival’s alleged actions (court book, page 70.7).
The RRT concluded that the business difficulties lacked detail and were unclear, and in any event did not establish persecution on the ground of religion (court book, page 72.4). Moreover it would be reasonable for the applicant to relocate within India (court book, page 72.7). The RRT concluded that the applicant was not a person to whom Australia had protection obligations.
The applicant relies upon his application filed on 30 April 2003 and upon written submissions which were filed in my chambers on 19 April 2004. The written submissions do not deal particularly well with the grounds set out in the application. The applicant told me that the written submissions were prepared by him with the assistance of a friend. I noted that the written submissions in this case are very substantially the same as the written submissions submitted by the applicant in the matter of SZALF v Minister for Immigration [2004] FMCA 248 that I heard this morning. The main differences are that the name of the applicant and the country from which he came have been changed.
I asked the applicant if he had paid any money for the written submissions. He said that he had not. In the circumstances, nothing of any particular significance turns on the fact that the written submissions in the two cases are substantially the same. It would be a different matter if money had changed hands. Professional legal work for which a fee is charged must be done by a properly qualified person. If I had cause to believe that an unqualified person was charging for work done in a proceeding in this Court I would pursue the matter further.
I gave the applicant the opportunity to speak to his written submissions. He told me that he is a genuine refugee, he considers that he cannot return to India and that his life was in danger. He is dissatisfied with the outcome of his case before the RRT. As I explained to the applicant, however, I cannot decide whether or not he is a genuine refugee. I cannot do the job of the RRT for it. I cannot review the decision of the RRT on its merits.
Ms Allars deals with the grounds of review advanced by the applicant in paragraphs 3 through to 7.2 of her written submissions. I agree entirely with the comprehensive written submissions of Ms Allars and adopt them for the purposes of this judgment:
Ground 1: Bad faith
The applicant claims that the RRT acted in bad faith.
In NADR of 2001 v Minister for Immigration (2000) 124 FCR 465 Kiefel J (with whom Spender and Moore JJ agreed) held that:
Bad faith in this context implies lack of an honest or genuine attempt to undertake the task and involves personal criticism of the Tribunal or officer in question.[1]
[1] (2000) 124 FCR 465, 466, 472, approving the test of Allsop J in NAAG of 2002 vMinister for Immigration [2002] FCA 713 at [24].
In Minister for Immigration v SBAN [2002] FCAFC 431 Heerey and Kiefel JJ held that:
…There is no such thing as deemed or constructive bad faith. It is the ultimate decision – the case of the RRT, affirming the rejection of a protection visa application – which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker’s duty. [2]
[2] [2002] FCAFC 431 at [8].
In Minister for Immigration v NAOS [2002] FCAFC 142 Whitlam, Finn and Goldberg J cited this passage with approval.[3] Similarly, in NAKF v Minister for Immigration [2003] FCA 730 at [21][4] Gyles J held that bad faith is established only in a case of personal dishonesty or a RRT member’s being recreant in his or her duty, wilfully and deliberately making a decision without carrying out his or her statutory duty.[5]
[3] [2002] FCAFC 142 at [21], disapproving the scope of, and qualifying, some of the propositions set out in SBBS v Minister for Immigration (2002) 194 ALR 749, 756.
[4] [2003] FCA 730 at [21].
[5] [2003] FCA 730 at [24].
In NAAG of 2002 v Minister for Immigration (2002) 195 ALR 207[6] Allsop J held that bad faith is:
[6] (2002) 195 ALR 207.
not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way of meriting personal criticism of the Tribunal or office in question.[7]
[7] (2002) 195 ALR 207 at [24]. Applied by Marshall J in NAIS v Minister for Immigration [2004] FCAFC 1 at [36]. See also Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 at [90] – [93] per French J; Appellant WABZ vMinister for Immigration [2004] FCAFC 30 at [40] – [41].
There is no evidence in the present case that the RRT member failed to make an honest and genuine attempt to carry out the review function. Bad faith is not established.
Ground 2: Procedural fairness
The applicant claims in his written submissions that the facts of his case are identical to those in Muin.[8] However the applicant has not explained on what basis he says he was misled. To bring himself within the circumstances of Muin the applicant would need to establish, in addition to the RRT’s letter of 12 February 2003 advising him that it had considered the material before it in relation to his application (court book, page 59), that he believed the RRT received the Part B documents which were before the delegate; that some of the Part B documents were favourable to him; that the Part B documents were not considered by the RRT member; that he was misled into believing it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the RRT member; and that if he had not been misled he would have taken steps to correct the situation by tendering additional evidence to the RRT hearing.[9]
[8] Applicant’s submissions, 19 April 2004, para 4.
[9] NADZ vMinister for Immigration [2003] FCA 118 at [15] per Hely J.
In Muin it was agreed that the Part B documents were not sent to the RRT, that the plaintiff believed that the RRT had the Part B documents, and that if the plaintiff had known that the RRT did not have the Part B documents he or she would have acted to correct that. In the present case none of the equivalent factual issues is established.[10] There is no basis on which any claim to have been misled could be established. Muin does not establish that the effect of sending a letter advising an applicant that the RRT has looked at all the material in the departmental file will amount to a denial of procedural fairness in circumstances where the RRT has not referred to some of that material in its later decision.[11]
[10] NADR v Minister for Immigration [2002] FCAFC 293 at [24] per Kiefel J (with whom Spender and Moore JJ agreed), dismissing an appeal where the appellant sought to rely on the factual findings made in Muin. See also Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677.
[11] NADR v Minister for Immigration [2002] FCAFC 293 at [24] per Kiefel J (with whom Spender and Moore JJ agreed); NADZ vMinister for Immigration [2003] FCA 118 at [14] per Hely J.
In any event the circumstances of the present case differ in a significant respect from those in Muin. The letter from the RRT did not represent, as did the letter in Muin, that the RRT had “considered all the material relating to the application”.[12] In the present case the letter represented that the RRT had “considered the material before [the RRT] in relation to [the applicant’s] application” (court book, page 59.3). The applicant has not established any basis on which this statement can be described as misleading.
[12] Reproduced (2002) 76 ALJR 966, 983 at [87].
In the absence of any argument to bring the case within the special circumstances of Muin, no denial of procedural fairness is established.[13]
[13] See NALJ vMinister for Immigration [2003] FCAFC 275 at [16].
Ground 5: Procedural fairness: Bias rule
The applicant’s written submissions[14] indicate that the claim in Ground 5 that the RRT made a decision “which was preset in the back of its mind” is a claim that the RRT’s decision was affected by actual bias.
[14] Applicant’s submissions, 19 April 2004, para 10.
In considering the test of actual bias in Minister for Immigration v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J said:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.
… the state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.[15]
[15] (2001) 205 CLR 507, 531-2 at [71], [72].
There is no evidence in the present case of an actual state of mind of the RRT member which would constitute actual bias.
Grounds 3, 4, 6 and 7: Factual basis for the applicant’s claim
The applicant claims in Ground 3 that the RRT denied the “evidentiary proof” of his claim; in Ground 4 that the RRT made a decision which did not reflect the material facts of the claim; in Ground 6 that the RRT mixed up many facts in its decision; and in Ground 7 that the RRT concentrated on particular facts, while ignoring many other facts.
The weight to be given to the evidence is a matter for the RRT. The applicant has not claimed the RRT fell into error of law by reason of a claimed factual error. Indeed no particular factual error is identified. The RRT reached an adverse finding as to credit on the basis of the applicant’s having made claims at the hearing which were inconsistent with the claims he made in his written statement accompanying his application for a protection visa. The RRT also found that the applicant made claims at the hearing which were not plausible. It was open to the RRT to reach findings as to the applicant’s credibility, this being a function of the primary decision-maker, for which detailed reasons need not be given.[16] In fact reasons were given as to why the applicant was not believed on these matters.
In his written submissions the applicant suggests that the RRT should have investigated his claims through the Department of Foreign Affairs and Trade.[17] However the RRT is not required to initiate additional enquiries beyond the material presented by the applicant before it can find that a particular factual claim is not made out.[18]
Relief and privative clause in s.474 of the Act
The question for the Court is whether the RRT fell into jurisdictional error in the sense set out by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (“Plaintiff S157/2002”) such that there is no decision under the Act and s.474(1) of the Act cannot provide protection.
None of Grounds 1-7 is established and therefore there can be no jurisdictional error on the part of the RRT. The RRT’s decision is a “privative clause decision” within s.474 of the Act and the Court should refuse the relief sought.
[16] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, 423 per McHugh J.
[17] Applicant’s submissions, 19 April 2004, para 6.
[18] Minister for Immigration v Applicant S (2002) 124 FCR 256, 257 at [1] per Whitlam J, 275 at [74] per Stone J, North J dissenting. See also Randhawa v Minister for Immigration (1994) 52 FCR 437, 443, 451; Selvadurai v Minister for Immigration (1994) 34 ALD 347, 348; Marshood v Minister for Immigration (2000) FCA 1536 at [13].
I have considered in addition whether there might be some jurisdictional error in the decision of the RRT not advanced by the applicant, noting that he is self-represented. The findings and reasons of the presiding member in this case were certainly brief. They were brief to the point of being spartan. However, brevity is not in itself indicative of jurisdictional error. The findings and reasons are sufficient to adequately explain the reasoning process pursued by the presiding member.
Ms Allars submits, and I accept, that the presiding member dealt with all of the integers of the applicant's claims. The conclusions drawn by the presiding member were reasonably open to her on the material before her. There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision. I must dismiss the application.
On the question of costs, the applicant, being wholly unsuccessful, costs should follow the event. Ms Allars has sought an order for costs fixed in the sum of $5,000. The applicant submits that he is impecunious. However, impecuniosity is not a reason for the Court to refrain from making the costs order. This was a matter of no more than average complexity. However, issues were raised in the application which required a response and representation of the Minister by counsel was reasonably called for.
I have been assisted by the written submissions prepared by Ms Allars. On a party and party basis, a costs order in the range of $4,000 to $5,000 is properly called for. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 April 2004
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