SZBWB v Minister for Immigration

[2005] FMCA 1762

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBWB v MINISTER FOR IMMIGRATION [2005] FMCA 1762

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Migration Act 1958 (C’th)

SZBAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 263
Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Re, Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicant: SZBWB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2409 of 2003

Judgment of: Barnes FM

Hearing date: 22 November 2005

Delivered at: Sydney

Delivered on: 22 November 2005

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Ms S Kaur-Bains

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the Refugee Review Tribunal be joined as Second Respondent to the proceedings. 

2. That the application is dismissed. 

3. That the Applicant pay the First Respondent's costs in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2409 of 2003

SZBWB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 21 October 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of Thailand, arrived in Australia on 5 May 2003.  On 18 June 2003 she lodged an application for a protection visa and on 18 June 2003 a delegate of the respondent refused to grant a protection visa. 

2. The applicant sought review of that decision by the Tribunal.  She attended a Tribunal hearing.  The Tribunal decision was handed down, as indicated, on 21 October 2003. 

3. The applicant claimed to have a well-founded fear of persecution by reason of her religion (being a practising animist) and arising out of her practise of animistic rights.  She claimed that her family had converted from animism to Buddhism when she was young, that she had been obliged also to convert but that she subsequently converted back to animism. 

4. She claimed she started a relationship with a Buddhist man and that a year into the relationship her boyfriend decided to convert to Christianity as he felt he would become richer that way and that his friends at church told him that the applicant's animism would bring him bad luck and asked her to remove the spirit house in their yard. 

5. Later he fell ill.  She claimed that his Christian friends said that she had to convert to Christianity or leave the boyfriend.  Eventually she was forced to leave.  She claimed that her boyfriend subsequently died.  His parents blamed her, accused her of killing him and reported to the authorities that she had “mystically abused” their son.  She claimed that the boyfriend's parents were furious when the authorities did not arrest her and that they attempted to spread bad rumours about her. 

6. The applicant contended that she could not take their treatment any more and so joined a friend of hers to leave the country for Australia.  She claimed that she could not return to Thailand because of her bad memories there because of the accusations by her late boyfriend's family and that if she returned to Thailand his family would try to hurt her, that she would be victimised by them and was afraid that the boyfriend's family could make the authorities believe that she was the reason behind their son's bad luck. 

7. In its reasons for decision the Tribunal referred to country information about the practise of religion in Thailand.  It accepted the applicant's evidence that she practised animistic rites.  It found that many households in Thailand had such practises, that independent evidence suggested that Thailand had an approach to religion which allowed concurrent worship of animism and other religions and that the applicant’s animistic practises as described were not at all unusual or prohibited in any way. 

8. The Tribunal observed that when her boyfriend's mother had complained about the applicant practising animism in order to kill the applicant's boyfriend she had been asked for evidence which was not forthcoming.  The Tribunal was not satisfied that the applicant would be persecuted because she practised animistic rites. 

9. The Tribunal accepted that the boyfriend's mother did attempt to spread malicious stories about the applicant, but found that her motivation in doing this was personal animosity and that it was not Convention-related.  It also found that if the applicant were to suffer any harm because of the malicious stories spread by her boyfriend's mother then the applicant would be able to relocate out of the sphere of her boyfriend's mother's influence.  It found that the applicant had lived in two major cities in Thailand and on her own evidence had worked in a range of positions in the hospitality industry and would be able to do so in the future.  The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations. 

10. The applicant sought review of the Tribunal decision by application filed in this court on 10 November 2003.  She relies on an amended application and affidavit filed on 10 September 2004.  No written submissions were filed by the applicant and she made no oral submissions in support of her application when given the opportunity to do so today. 

11. The first ground raised in the amended application is that the Tribunal's finding of a number of jurisdictional facts was not reasonable and that particular findings were so unreasonable that no reasonable decision-maker could properly have made those findings. 

12. The first finding complained of is the finding of the Tribunal that the applicant was not in danger and being made a target for the practise of her religion.  The second is that the Tribunal made a finding that persecution by those persons close to the applicant in Thailand was not religiously motivated but rather through personal animosity. 

13. The Tribunal did make such findings.  However, the findings were open to the Tribunal on the material before it.  It has not been established that the findings were so unreasonable that no reasonable decision-maker could properly have arrived at them such that there was a jurisdictional error.  (See SZBAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 263 at [69] – [72] and Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).

14. The next ground raised in the amended application is that the Tribunal ignored relevant considerations in making its decision.  The particulars of this ground are that the Tribunal did not adequately take into consideration the applicant's claim that her dead boyfriend's mother was harassing her because of her religious beliefs and practises and that his mother was seeking retribution for the boyfriend's death and directly blamed the applicant. 

15. It is also contended under this ground that the Tribunal, having found some merit in the application in that it accepted aspects of the applicant's claims, erred in failing to recognise that the respondent's delegate had refused the application on the same day it was lodged and that the Tribunal failed to acknowledge that the delegate failed in his or her job to exercise due diligence by hastily refusing the case. 

16. It has not been established that the Tribunal has ignored, misunderstood or failed to take into account relevant considerations in a sense constituting jurisdictional error.  This is not a case in which it has been established that the Tribunal failed to consider integers of the applicant's claims or failed to ask the correct question.  (See Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396). The Tribunal addressed the applicant's claims that the dead boyfriend's mother was harassing her, in particular because of the practise of animistic right and the alleged connection between her practises and the death of the boyfriend.

17. The Tribunal asked itself whether the reason for such conduct was a Convention-related reason.  It is apparent from its discussion of the applicable law that it understood that the inquiry was as to the essential and significant reason for the persecution feared.  However the Tribunal concluded that the conduct of the boyfriend's mother was because of personal animosity rather than for a Convention-related reason.  The Tribunal was entitled to reach that conclusion.    

18. It was not relevant or necessary for the Tribunal to address the fact that the delegate refused the application for a protection visa on the same day that it was lodged.  The Tribunal review was a de novo review.  It was properly conducted and carried out. 

19. It may be seen as associated with this ground that in paragraph 6 of the affidavit filed on 10 September 2004 the applicant contended that the Tribunal and the Department did not take into account “existing and past evidence presented to them when making their decision”.  As indicated, the applicant made no oral submissions and no particular evidence to which this complaint refers has been identified.  On the material before the Court there is nothing to establish that the Tribunal failed to take into account relevant considerations or aspects of the applicant's claim when making its decision in a manner constituting jurisdictional error. 

20. The next ground in the amended application is that for the reasons given in the previous two grounds there was a constructive failure by the Tribunal to exercise jurisdiction.  For the reasons given in relation to the above grounds it has not been established that there was a constructive failure by the Tribunal to exercise jurisdiction. 

21. The next ground relied on is that the Tribunal denied the applicant natural justice or procedural fairness.  The particulars of this ground repeat the earlier particular that the Tribunal having found some merit in the applicant's application in accepting some of her claims erred in failing to recognise and acknowledge that the delegate of the respondent had refused the application on the same day it was lodged.  It was contended that the Tribunal made a decision that was lacking in detail and hastily put together by reference to the fact that it quoted from a travel brochure type publication, the Thailand ‘Lonely Planet Guide’, for its reference material on the subject.  It was also said to be shown by the fact that the Tribunal member dated the decision ‘24 September 2002’ but then stamped it officially as ‘25 September 2003’ and contended that this indicated the Tribunal had been in a hurry to refuse the case by not observing such obvious discrepancies. 

22. No jurisdictional error arising by way of a denial of procedural fairness or otherwise is established in the manner contended for in the first particular, that is the contention that the Tribunal accepted some of the applicant's complaints but failed to refer to the speedy decision of the delegate.  More generally, it is the case that the applicant accepted that the applicant practised animistic rites and also that the boyfriend's mother did attempt to spread malicious stories about her.  However the Tribunal went on to find, as was open to it, that the applicant would not be persecuted by reason of her practise of animistic rites and that the boyfriend's mother's behaviour was not Convention-related. 

23. The fact that the Tribunal accepted aspects of the applicant's claims but found, for reasons which it gave, that she was not a person to whom Australia had protection obligations under the Refugees Convention does not establish that there was a lack of procedural fairness.  The timing of the delegate's decision and the complaints that the applicant makes about the procedures of the delegate were not relevant matters for the Tribunal to take into account and a failure to address them does not, either alone or in combination with other circumstances, establish any denial of procedural fairness. 

24. As to the contention that the Tribunal's decision was lacking in detail and hastily put together, while the decision is brief the brevity of the decision does not establish that there has been a lack of procedural fairness.  Nor does the fact that the Tribunal referred to the Lonely Planet Guide indicate a lack of procedural fairness.  I note in this respect that the Tribunal referred generally to what might be seen as more conventional country information (the International Religious Freedom Report of 2002 on Thailand) as part of the background to its decision and in any event the weight to be given to particular items of country information is a matter for the Tribunal.  It does not establish a lack of procedural fairness. 

25. The date at the conclusion of the decision is 24 September 2002.  This date preceded the application for review.  However the date is corrected on the cover sheet of the decision and there is no suggestion that there was any error in relation to the date of handing down (being 21 October 2003).  Such date error is not a matter of consequence in this case, it being apparent that the applicant sought review by the Court within the appropriate time from the date of handing down.  An incorrect date does not establish, either alone or in conjunction with other matters, that there has been a lack of procedural fairness. 

26. The final ground relied on in the amended application is that the Tribunal appeared to give rise to a reasonable apprehension of bias.  In support of this claim it is contended that the particular in relation to the Tribunal finding some merit in the application but failing to have regard to the hasty refusal by the delegate is a relevant matter as well as the particulars that the Tribunal decision was lacking in detail and hastily put together as outlined above. 

27. It is also contended in support of this claim that the overall conduct of the Tribunal's hearing (including the Tribunal's inferences drawn from most if not all evidential issues in a way not favourable to the applicant when it might be open for a contrary view to be taken) also went to establish reasonable apprehension of bias. 

28. There is no transcript of the Tribunal hearing before the Court.  The evidentiary basis for this contention, insofar as it is based on the conduct of the Tribunal hearing, is not established.  Moreover, the Tribunal reasons for decision, insofar as they address the conduct of the hearing, convey that the Tribunal asked the applicant questions and the applicant provided answers.  Furthermore the Tribunal in fact accepted the applicant's evidence as to her practise of animistic rites and as to the boyfriend's mother attempting to spread malicious stories about her. 

29. The Tribunal findings that the mother's motivation was not Convention-related and that the applicant did not have a well-founded fear of persecution for reasons of her religion were open to it on the material before it for the reasons that it gave.  These findings and the other matters complained of in the particulars to the earlier grounds do not establish that a reasonable bystander or fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issue before it.  See Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. The Tribunal was required to make findings of fact. It did so. This ground discloses no error.

30. Again it may be seen as associated with this ground that in paragraph 7 of the affidavit filed on 10 September 2004 the applicant contended:

    That the Tribunal did not take into consideration the procedural and administrative mistakes that were made surrounding my application and that the Tribunal appeared to be bias [sic] toward my case.

31. The applicant has not identified any procedural and administrative mistakes of which she complains, except to identify the mistake in the date at the conclusion of the Tribunal reasons for decision.  Such a matter cannot be seen as a matter for the Tribunal to take into account and in any event, as indicated, either alone or in conjunction with the other matters complained of it does not establish either actual or apparent bias or any other jurisdictional error. 

32. Insofar as the applicant is by this contention seeking to raise her concern about the speed with which the decision of the delegate was made, again that is not a matter that the Tribunal was required to take into account.  No error has been identified in the procedures and administrative conduct of the review by the Tribunal and none is apparent on the material before the Court.  In particular, the Tribunal invited the applicant to a hearing which she attended.  No jurisdictional error is established in the manner contended in paragraph 7 of the affidavit filed on 10 September 2004.  As no jurisdictional error has been established the application must be dismissed.  I will hear submissions in relation to costs.  I note that it is sought to join the Tribunal as a second respondent which I consider appropriate. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that she meet the costs of these proceedings in the sum of $3500.  The applicant told the court that she did not know how to pay.  Insofar as she relies on impecuniosity that is not a reason for departing from the usual principle that the unsuccessful applicant should meet the costs of the respondent, although her financial situation may be a matter taken into account by the respondent in determining when and how to seek to recover the costs.  I consider that the amount sought is appropriate in the light of the nature of this and other similar matters. 

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  14 December 2005.