SZBPR v Minister for Immigration - [2003] FMCA 593

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPR v MINISTER FOR IMMIGRATION

[2003] FMCA 593

MIGRATION – Application for summary dismissal on basis that no reasonable cause of action disclosed – where applicant’s written claims disclosed fear of ordinary criminal activity – where applicant subsequently alleged inability to access state protection - where such claim was not evidenced in writing but was apparently articulated to Tribunal at hearing – where applicant had possession of tape of RRT hearing for 3 years but did not provide it as evidence to the Court.

Muin v Refugee Review Tribunal; Lie v The Refugee Review Tribunal (2002) 190 ALR 601
NADR v The Minister [2002] FCAFC 293

Applicant:

SZBPR

Respondent:

MINISTER FOR IMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 2117 of 2003

Delivered on:

11 December 2003

Delivered at:

Sydney

Hearing date:

11 December 2003

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Adrian Joel & Co

Counsel for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Substantive application dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.
The applicant to pay the respondent's costs assessed in the sum of $2000 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2117 of 2003

SZBPR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I deal today with an application made by the Minister that these proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.
The applicant in the substantive matter is a South African woman who sought asylum in Australia on 6 July 1999. The claim was considered by a delegate of the Minister who concluded on 5 August 1999 that she was not a person to whom Australia had protection obligations under the Refugees Convention as there was no real chance of convention-based persecution if she returned to South Africa and her fear of persecution on return was consequently not well founded.
The applicant sought a review of that decision from the Refugee Review Tribunal. My reading of the papers seems to indicate that the review which she first received was impugned by the Federal Court and a second review was carried out in or around September 2000. The decision was made on 22 September 2000 and was handed down on 10 October 2000.
The way the Tribunal dealt with the applicant's claims was first to consider a document which is found annexed to her affidavit of 10 December 2003 and headed ‘Application for Protection’. The Tribunal, rightly in my view, pointed out to the applicant that that document lacked clarity and set about requesting from her what is described on the first paragraph of page 5 of the Tribunal's reasons for decision as "the following story."
The Tribunal then sought to consider her protection application on the basis of the story which the applicant had given it. Essentially this story is that the applicant, concerned about violent crime within the community in which she lived, had joined an organisation known as PAGAD which was a group dedicated to ridding the country of violent criminals. At some stage she had reported to the Iman of the group three local persons who had applied for membership who she believed were themselves criminals and who were consequently banned from membership. She believed that she was likely to suffer violence from them.
The Tribunal in its findings on page 10 came to the view that the applicant could relocate within South Africa, but more importantly it stated:
“In short, she has not suffered any harm for a convention reason in the past. She has made no claims that are convention-related. The Tribunal is satisfied that the chance of any harm, let alone harm amounting to persecution, befalling her for a convention reason in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a convention reason. She is not a refugee.”
In her application to this Court, commenced on 10 October 2003 some three years after the original decision was handed down, the applicant says that her grounds of application are:
“The second respondent (Refugee Review Tribunal) sent a letter to the first applicant (there is no other applicant) in which it invited him (her) to come to a hearing before the second respondent. The second respondent stated in the letter that "it has looked at all the material relating to your application." In fact, the second respondent had not looked at all the material relating to the application. Further, the first applicant relied on the letter to his (her) detriment. These matters give rise to a denial of natural justice and jurisdictional error.”
Familiarity with matters within this jurisdiction leads one immediately to the conclusion that the claim is being made following the cases of Muin v Refugee Review Tribunal; Lie v The Refugee Review Tribunal (2002) 190 ALR 601. Indeed, this has been confirmed by an affidavit, unfortunately not served upon the respondent, dated 29 September 2003 advising that the applicant in this case was a person who had joined what was then a potential class action which culminated in the two decisions to which I have referred.
The Minister argues that the essence of the decision in Muin relate to the fact that the Tribunal did not consider country information that was favourable to the applicants, the applicants were unaware of this, the applicants relied on the fact that the Tribunal had read that information and the applicants consequently suffered a detriment which constituted a jurisdictional error. In this case the Minister argues that the decision had nothing whatsoever to do with country information. The decision was based fairly and squarely upon the fact that the claims, which were made by the applicant, did not relate to convention persecution but to ordinary criminal activity within her homeland. If this was the case then even had the Tribunal not read the country information and even if the country information had been favourable to the applicant it was irrelevant.
Mr Markus points out that the applicant has not sought to prove any of the matters which cases following Muin such as NADR v The Minister [2002] FCAFC 293 made clear had to be proved.
Mr Joel, who appears on behalf of the applicant made a number of comments concerning the Tribunal's decision. He pointed out that the country information which has now been collated and attached to an affidavit which he filed on 10 December 2003 appears to contradict some of the findings that the Tribunal made, but from my consideration of the documentation those contradictions do not bring the claims within the convention. At a very late stage Mr Joel sought to argue that his client had not limited her claims to those contained in her statement or in her story to the Tribunal, but had made it clear that her claims also included a claim that she was a person who was unable to access State protection and that the failure to be given State protection came about by reason of her being a member of a particular social group.
A claim of the type cited above would of course bring the matter within the convention, but the evidence that I have would indicate that it has never been made before in writing and if it was made before the Tribunal, was not articulated by the Tribunal in its reasons for decision. As Mr Markus says if such a claim had been made to the Tribunal and the Tribunal had failed to deal with it then there would have been a failure on the part of the Tribunal to enter upon the reference which it was given, and that would constitute a jurisdictional error in itself. It is a serious claim to make. It can easily be proved. All that is required is for the tape to be played or the tape to be transcribed and a copy of the transcript provided to the Court. None of this was done. The applicant has had the tape in her possession for three years. This is not the fault of Mr Joel or anyone in his office, but it is the fault of the applicant and it is she who brings the application.
I am satisfied that the claims which the applicant has asserted of which I have notice do not constitute claims of convention-based persecution. I am therefore satisfied that nothing in the country information which it is alleged the Tribunal did not look at could assist her. I am satisfied that it is not appropriate to further delay this matter to deal with a claim made at the eleventh hour of a very serious nature upon which no proof has been given to me. I therefore dismiss the substantive application pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules on the grounds that it does not disclose a reasonable cause of action.

I order that the applicant pay the respondent's costs which I assess in the sum of $2000 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date: