SZBUU v Minister for Immigration
[2006] FMCA 1714
•9 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1714 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India claiming fear of persecution – whether breach of Migration Act 1958 ss.424, 424A, 430 or 440 – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 430, 440 |
| SZBUU v Minister for Immigration & Anor [2006] FMCA 197 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 Abebe v Commonwealth (1999) 162 ALR 1 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Craig v South Australia (1995) 184 CLR 163 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| Applicant: | SZBUU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1799 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 November 2006 |
| Date of last submission: | 9 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr O’Meara |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the Second Respondent is Refugee Review Tribunal.
The Migration Review Tribunal is removed as a Respondent.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,150.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1799 of 2006
| SZBUU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant in these proceedings seeks review of a decision of the Refugee Review Tribunal dated 20th June 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa. By his amended application the Applicant seeks a declaration that:
a)The notification by the delegate and the Tribunal to refuse the protection visa were invalid and of no effect.
b)A writ of certiorari quashing the decision of the Department of Immigration & Multicultural Affairs or the Tribunal.
c)An order that no action is taken to remove the Applicant from Australia while the decision is pending.
That third order would be an order in the nature of prohibition directed against the First Respondent.
I should make it clear from the outset that orders against the delegate of the Minister or an order by way of certiorari quashing the delegate's decision are matters that are not within the jurisdiction of the Court. The matter for review before the Court today is the decision of the Refugee Review Tribunal. I also note that in the Applicant's original application, both the Refugee Review Tribunal and the Migration Review Tribunal were included as Second Respondent. That appears to have been corrected in the amended application so that only the Refugee Review Tribunal appears as a Respondent, but, in any event, I will make an order that the title of the Second Respondent is the Refugee Review Tribunal.
Background
The background to this matter is that the Applicant is a citizen of India. He arrived in Australia on 12th April 2002 and he applied for a Protection (Class XA) visa on 7th May 2002. That application was refused and the Applicant sought a review by the Refugee Review Tribunal.
On 28th February 2006 the Federal Magistrates Court set the Tribunal decision aside and remitted the application to the Tribunal for determination according to law.
The Tribunal invited the Applicant to attend a hearing to take place by video conference. The letter was written to the Applicant on 20th April and invited him to attend a hearing on 17th May 2006. The Applicant responded to the hearing invitation; indicating that he did wish to attend the hearing and that he required the assistance of an interpreter in the Tamil language. He provided to the Tribunal copies of a variety of newspaper reports and a copy of his Indian passport.
The decision of the Tribunal is set out in the Court Book on pages 252 to 274. In that decision the Tribunal considers the Applicant's claims and evidence and noted that he is a Tamil Muslim and that he worked as a printing press manager prior to his arrival in Australia.
The Tribunal noted that he had made a statement for the purpose of his visa application in which he pointed out that his family and he had suffered greatly since ethnic violence started in India in October 2001.
He referred to an atmosphere of animosity and hatred towards Muslims and said that from time to time he travelled to Malaysia and Singapore in the course of his employment. He fears that if he returned to India he would run the risk of being arrested and detained under the Prevention of Terrorism Act and has fear of serious human rights abuses, including torture and persecution. He detailed how he was a member of an organisation called SIMI and in his membership he was a trustee manager. He also set out a fear that as he was perceived as a possible sympathiser or a person with links with any Muslim radical movement; he would be at risk of further detention, interrogation and torture if there were to be any problem concerning any alleged incident or attack by any Muslim radical groups in Tamil Nadu.
He also set out that a further fear was based on Muslims with political involvement and his distinguished position as trustee manage of SIMI such as he was regarded as a supporter of Muslim radicals or sympathisers and continued to face real persecution and human rights abuses by the Indian police and the government authorities.
The Tribunal noted that the Applicant gave oral evidence to the first Tribunal hearing on 4th September 2003 and the Tribunal Member listened to a tape of that hearing. The summary by the first Tribunal of that hearing appears at pages 258 through to 260 of the Court Book. The Tribunal referred to the decision of the Federal Magistrates Court in SZBUU v Minister for Immigration & Anor [2006] FMCA 197 and quoted several paragraphs from the decision of Barnes FM who found that the Tribunal had fallen into jurisdictional error.
The Tribunal noted that the hearing was conducted by video-link and that a Tamil interpreter was present at the hearing and interpreted.
The Applicant initially spoke in English but then agreed to use the interpreter. The Tribunal noted the Applicant's family circumstances and his employment; he had always worked in the family printing business.
The Tribunal noted that the Applicant was a member of the Student Islamic Movement India and asked him to elaborate on his involvement with this association and how this created problems for him. The Tribunal asked the Applicant a significant number of questions about his involvement with SIMI and at page 265 the Tribunal noted this:
The Tribunal asked the Applicant whether he had any concerns about his return to India beyond that of SIMI. The applicant stated no.
The Applicant was asked if he had concerns or fears about the fact that he had spent time outside of India and that he is a Muslim. The applicant stated no.
The Applicant was asked whether he had any concerns about being a Muslim. The Applicant stated that he had no problems about the mere fact of being a Muslim. He stated his concern related to the fact that he had been a member of SIMI and he held the position of a trustee manager. He stated that this was his fear of harm on returning to India and that he feared that because he was a trustee/manager of SIMI he would be open to arrest as leaders of SIMI had been arrested by the authorities.
The Tribunal asked the Applicant a number of other questions about his involvement with SIMI and about the changes in that organisation. The Tribunal noted country information from a variety of sources and that country information was set out at pages 266 through to 270 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out at pages 271 to 273. The Tribunal found that the Applicant was a citizen of India and accepted that he was a Muslim from the state of Tamil Nadu.
The Tribunal was mindful that on application to Federal Magistrates Court it was argued that the Applicant's claim for refugee status was based not only on his claimed membership of SIMI but also on the basis of his religion. The Tribunal went on to say that because the Applicant was a Muslim of India who has spent a lot of time outside India, he may be perceived as a fund raiser for Muslim radical groups.
The Tribunal noted that at the present hearing the Applicant, when asked whether he feared harm by reasons of his Muslim religion; stated that he did not and when asked whether he feared harm by reason of the combination of his religion and his absence and travels out of India; he stated that he did not.
The Tribunal went on to say that based on the Applicant's oral evidence and the totality of his evidence to the Tribunal; the Tribunal was satisfied that the Applicant's claim for refugee status was based on his association with SIMI. The Tribunal then went on to consider the Applicant's involvement with that organisation over a period of years and noted that that group had been banned by Indian authorities. However, the Tribunal was not satisfied that but for the ban on SIMI, that the Applicant would, on his return to India, involve himself in SIMI because the Tribunal did not accept that the Applicant had an ongoing commitment to the organisation.
The Tribunal said at page 272:
On his own evidence he has not maintained any links with SIMI since his departure from India in 2002 and whilst he provided a newspaper clipping of the current circumstance of SIMI, he was otherwise unacquainted with the legal situation of SIMI in India.
The Tribunal expressed doubt about other aspects of the Applicant's evidence and went on to find at page 273:
The only basis upon which the Applicant claims that he fears arrest is that leaders of SIMI had been arrested so he fears he might be arrested. However, as outlined above, the Tribunal does not accept that the Applicant has had recent, prominent or leadership involvement in SIMI. Furthermore the Applicant has not had association with SIMI since his departure from India and on his own evidence has no intentions to associate with SIMI on his return to India.
The Tribunal did not accept that there existed any real chance that the Applicant would be arrested on his return to India by reason of an actual or imputed political opinion or any other Convention reason.
The Tribunal was not satisfied that the Applicant genuinely fears persecution on return to India or that there was a real chance that he would be persecuted upon return to India for any convention reason. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution under the Convention and affirmed the delegate's decision not to grant the Applicant a protection visa.
The application for judicial review
The Applicant commenced proceedings in this Court on 26th June 2006 seeking a review of the Tribunal's decision. In his application he sets out five grounds which I will summarise as follows:
i)The Tribunal failed to internalise the circumstantial ground of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents and such has breached s.424, s.430, s.439 and s.440 of the Migration Act.
ii)The Tribunal in its decision of 31st May 2006 failed in its written statement that a breach of the rules of natural justice, therefore it raises the ground under s.476 of the Migration Act.
iii)In Tribunal's own country information report the Applicant then referred to ban on SIMI but the opinion in the report was based on intelligence input with no concrete evidence to substantiate it. The claim goes on to say; this was proclaimed well after the Applicant organisation, SIMI, was already banned by the Indian authorities and thus the authorities' motivation behind the Applicant's fear of prosecution to inflict serious harm.
iv)The Applicant's fourth ground was that he was a trustee manager who was responsible for editing and printing accounts of the organisation and that the Tribunal failed to understand that he had been targeted by the Indian authorities.
v)The fifth ground was that despite severity of the privative clause; there are circumstances in which an opportunity for review can lie under s.39B of the Judiciary Act and the Applicant claims that the Tribunal did not act in good faith.
Those are the grounds that are specified. The Applicant filed an outline of written submissions on 23rd October. I note that in that outline of submissions the Applicant appears to have added an extra ground. And that ground is an allegation of a breach of s.424A of the Migration Act. The Applicant says that despite attending the hearing, it became imperative that before the Tribunal Member made up its mind to dismiss my application; such information was required to be said to the Applicant in writing to make comments.
The second ground in the submission is that the Tribunal failed to internalise the circumstance grounds of the review application and referred to breaches of ss.424, 430, 439 and 440 of the Migration Act. The Applicant further submitted that he had provided a detailed submission and necessary supporting documents in relation to his Convention based claim that the Tribunal did not consider them. Ground alleges that because of the Applicant's high profile involvement with banned organisation in India there is a strong possibility that he might be arrested if he returned to India in the near future.
The next ground also confusingly numbered three; is that the Tribunal did not follow the proper procedure as required by the Migration Act. There is a reference to the class action of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 as an allegation of the procedure that was required by the Act to regulations to be observed was not observed. That ground also claims that the Tribunal does not have the power to take this decision into effect and refers to a failure to comply with s.66 of the Act, sub-section (1) and (2). The ground also alleges a breach of the rules of natural justice.
The fourth ground refers to decision being affected by an error of law and jurisdictional error. There is no ground 5. Ground 6 again states a failure to observe procedure under the Migration Act. Seventh ground alleges that the Tribunal ignored relevance of evidence and finding in face of contradicting independent evidence indicates actual bias which constitutes jurisdictional error. He refers to the decision of Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at [33], [113].
The Applicant in ground 8 alleges that the Tribunal Member ignored the merits of his claims by not taking into consideration a verdict from an Indian country report. At ground 9 he states that he is a genuine refugee under the Refugees Convention but the authority has not considered his claims. At ground 10 he alleges a lack of procedural fairness and refers to the decision of Craig v South Australia (1995) 184 CLR 163 at 197. There is no eleventh ground. At ground 12, the Applicant claims that his application had not been taken into consideration properly and claimed a denial of procedural fairness. Ground 13 is an exhortation to the Court to make a favourable decision.
The Applicant also, in oral submissions, claimed a breach of s.424A of the Migration Act. He also claimed a denial of natural justice in that the Tribunal questioned him about legal matters which he does not know; but also he alleges bad faith or actual bias in that Tribunal he said questioned him with a view to rejecting his application. The Applicant also told the Court that he had provided a lot of evidence about SIMI which the Tribunal did not consider and did not ask him about and it did not take those documents into consideration.
In respect to any breach of natural justice; the Applicant repeated parts of his factual claim that he had left his country to avoid persecution. He reiterated that SIMI had been banned and that he could not live a normal life in India. He reiterated that he had been an editor and a manager of the organisation, SIMI. In respect of his claim of a lack of good faith; he indicates that it was the way in which questions were asked that showed a lack of good faith. He also criticised the fact that the questions that were asked of him were based on the law.
The Applicant's view of s.424A of the Migration Act contains a misconception that is not uncommon in applications before the Court. Namely; that before the Tribunal makes any decision it must put the substance of its decision to the Applicant in writing for comments. That is a misconception. That is not what s.424A requires; which is that subject to the exception in sub-s.(3) the Tribunal must give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review and ensure, as far as is reasonably practicable, that the Applicant understands why it is relevant to review and invite the Applicant to comment on it.
In this case the Applicant has not pointed to any information that would come within the matters referred to in sub-s.(1) of s.424A.
The Tribunal did indeed refer to country information but that is information which comes within the exception in s.424A(3)(a) of the Act and so no breach arises there. Otherwise; the Tribunal has based its decision on its assessment of the Applicant's evidence to the Tribunal. The Tribunal's decision is based on the Tribunal's lack of satisfaction that the evidence provided by the Applicant establishes that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. There is no breach of s.424A that I can see.
Counsel for the Respondent, Mr O'Meara, indicated some difficulty in understanding the terms of the first ground of the amended application and the second ground of the submission, which is:
The Tribunal failed to internalise the circumstance grounds of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents and such has breached s.424, s.430 and s.439, s.440 of the Act.
If the ground is directed towards a claim that the Tribunal did not understand the substance of the Applicant's claims or an integer of the claim; I do not consider that that has been made out. The Tribunal has quoted at length the matters referred to in the Applicant's submission in support of his application for a protection visa and his evidence to the earlier Tribunal as well as to this Tribunal. There is no evidence that I can see of the Tribunal failing to take a relevant consideration into account or misunderstanding the nature of the Applicant's claim.
Turning to the alleged breaches of the various sections of the Migration Act; it is fair to say that the Applicant told the Court that whilst he had some assistance in translating his claim from Tamil into English, he does not claim to have a knowledge of the law or at least the Migration Act and the allegations of the breaches of the various sections are not matters for which he himself had prepared the actual claims. Nevertheless, as they are included in his application, I will deal with them in turn.
Section 424 gives the Tribunal, in conducting a review, a power to get any information that it considers relevant but if it gets such information the Tribunal must have regard to that information in making a decision on review. There is no obligation on the Tribunal to seek information under s.424 of the Migration Act. There is nothing to show there is any breach of s.424 of the Act. The Applicant, in his application, claims a breach of s.430 of the Migration Act. Section 430 says:
Where the Tribunal makes its decision on review the Tribunal must prepare a written statement that:
(a) Sets out the decision of the Tribunal on the review.
(b) Sets out the reasons for the decision.
(c) Sets out the findings on any material questions of fact and
(d) Refers to the evidence or any other material on which the findings of fact were based.
In my view; the Tribunal did prepare a written decision statement which sets out the matters contained in paragraphs (a), (b), (c) and (d) of sub-s.(1) of s.430. Sub-section (2) of the section has been repealed and sub-s.(3) does no more than require the Tribunal to return to the secretary of the Minister's Department any documents that have been provided. There is no breach of s.430.
Section 439 of the Act relates to disclosure of confidential information by a member of the Tribunal or person acting as a member of the Tribunal or an officer of the Tribunal or a person providing interpreting services in connection with review by the Tribunal. There is no breach of s.439.
Section 440 of the Act gives the power to the Refugee Review Tribunal if the Tribunal is satisfied in relation to a view that it is in the public interest that certain material may be restricted or not be published or otherwise disclosed. There is no breach of s.440 and it is baffling, to say the least, where the references to either ss.439 or 440 came from.
The Applicant's claim of a breach of the rules of natural justice in ground two of the amended application has not been made out.
The Applicant was invited to attend the hearing and he attended that hearing. He was provided with the services of an interpreter. He gave evidence and the Tribunal considered that evidence. Even allowing for the fact that the natural justice hearing rule is curtailed by the operation of s.422B of the Migration Act, there is no breach of natural justice that has been made out.
Ground 3 refers to the Tribunal's country information and to my mind is no more than a challenge to a factual finding of the Tribunal. Merits review is not available on judicial review of the decision of an administrative decision maker.
Ground 4; which alleges a failure by the Tribunal to understand that the Applicant had been targeted by the Indian authorities, is again no more than a challenge to the factual findings of the Tribunal. Again, no jurisdictional error has been made out.
Ground 5 sets out the circumstances in which the High Court held in
R v Hickman; Ex parte Fox and Clinton(1945) 70 CLR 598 and in respect of privative clause, refers to a claim that the decision maker did not act in good faith. The Applicant says that the decision maker, i.e. the Tribunal, acted in bad faith. As Counsel for the First Respondent Minister pointed out; a claim that a decision maker did not act in good faith is a serious matter involving personal fault on the part of the decision maker. The Full Court of the Federal Court dealt with the question of bad faith and actual bias in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361.
Conclusion
The principles to be remembered are, with respect, succinctly summarised in paragraphs 43 to 48 of the decision. An allegation of bad faith is not to be likely made and must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme and this is especially so where all that the Applicant relies upon is the written reasons for the decision under review.
The allegation that the Tribunal was asking questions with a view to rejecting the application is not supported by any evidence. The fact that the Tribunal asked questions on legal matters and the Applicant is not a lawyer is, to my mind, explained by the fact that the Tribunal must consider legal matters, in particular whether or not the Applicant meets the criterion set out in s.36 of the Migration Act and, in a wider sense, whether an applicant comes into one of the categories for a refugee set out under the Refugees Convention. I am not of the view that any actual bias or bad faith has been shown.
Turning to the Applicant's other claims as set out in his submissions; the Applicant claimed that the Tribunal did not consider the detailed submissions and necessary supporting documents in relation to his claim. It appears to me however that the Tribunal did consider the Applicant's claim and has set out summaries of that in some detail in the Tribunal decision. In effect; the Applicant is challenging the Tribunal's factual finding.
The Applicant claims that the Tribunal did not follow the proper procedure as required by the Migration Act but does not specify in this ground which procedure was not followed. I have already found that there is no breach of s.424A of the Migration Act and indeed there is no breach of s.425 in the way that the Applicant was invited to attend the hearing. And the Applicant did attend the hearing and was able to give evidence.
The submission also contains a reference to a lack of power on the part of the Tribunal to make a decision but there is no evidence of that. In my view; if there is a claim that the Tribunal acted in excess of jurisdiction, it is not a ground that I am able to identify from the material or the submissions.
The Applicant claims breach of s.66 of the Migration Act which relates to notification of the decision. When the Minister grants or refuses to grant a visa he or she is to notify the Applicant of the decision in the prescribed way. There is no notification of a failure to notify the Applicant of the decision and similarly, despite the Applicant's claims, there is no breach of the rules of natural justice in connection with the making of a decision.
The Applicant, in his submission, claims that the Tribunal ignored relevant evidence, but in my view I have previously found that there is no evidence of that. The Applicant claims actual bias and I have found no evidence of that. The claim in paragraph 8 of the submission that the Tribunal Member ignored the merits of the claims is, to my mind, a challenge to the factual findings of the Tribunal, particularly as the Applicant claimed that the Tribunal did not take into consideration material in the independent country report.
There is no lack of procedural fairness that I can discern; notwithstanding the reference to the decision of Craig v South Australia. The Applicant's claim that he is a genuine refugee, that the authority has not considered his claims, is no more than a reiteration of the Applicant's claim. In my view; no jurisdictional error has been made out.
I am mindful of the fact that the Applicant is not legally represented in these proceedings. I have read through the decision myself independently of the submissions of either the Applicant or the First Respondent. I am not able to discern any other jurisdictional error and I have considered all of the claims of jurisdictional error made by the Applicant in his oral submissions, in his written submission and his amended application. I can find no jurisdictional error.
As there is no jurisdictional error; the decision is a privative clause as defined by sub-s.474(2) of the Migration Act and as such it is final and conclusive and is not subject to certiorari mandamus declaration, injunction or prohibition in any Court on any account. The application will be dismissed.
The Applicant indicates that he is not in a position to meet the order for costs. He is working but does not have the funds. That of itself is not a ground for not making an order for costs in favour of a successful party although I will consider time to pay.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 November 2006
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