SZBZK v Minister For Immigration and Anor (No.2)

[2006] FMCA 33

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBZK v MINISTER FOR IMMIGRATION & ANOR (No.2) [2006] FMCA 33

MIGRATION – Review of decision of RRT – Whether the Tribunal came to its conclusions on the basis of independent country information that the Tribunal accepted but which the applicant claimed was propaganda – whether the Tribunal should have found that there is a real chance that the applicant would be persecuted based upon his membership of a particular social group.

Migration Act 1958 (Cth), s.424A(3)

SZDFO v Minister for Immigration [2004] FCA 1192
Minister for Immigration v Rajalingam (1999) 93 FCR 220

Applicant: SZBZK

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 2549 of 2003

Judgment of: Raphael FM

Hearing date: 13 January 2006

Date of Last Submission: 13 January 2006

Delivered at: Sydney

Delivered on: 13 January 2006

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent's costs assessed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2549 of 2003

SZBZK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of Chile, arrived in Australia on

   
   

   24 January 2002.  On March 8, 2002, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 19 August 2002 a delegate of the Minister refused to grant a protection visa and on 22 August 2002 the applicant applied for review of that decision.  The applicant who was represented at all times by a well regarded migration agency gave evidence before the Tribunal which, on 7 October 2003, determined to affirm the decision not to grant a protection visa.  The Tribunal handed that decision down on 30 October 2003.

2. The applicant's claims to the protection of Australia were based upon his membership of the particular social group of homosexuals in Chile and upon his political opinion arising out of his membership of the Communist Party of Chile.  The Tribunal accepted that the applicant was a homosexual and that homosexuals were a particular social group, it accepted that he was an active member of the Communist Party of Chile and that he had been beaten and detained in 1985, arrested in 1988, was raped and threatened with knives whilst in detention, arrested again in 2001 after being involved in a fight with police and might have difficulties in obtaining work upon return to Chile. However, the Tribunal did not accept that the 2001 arrest was associated with an alleged illegal gay meeting or a meeting of the Communist Party.  It found that the applicant was no longer of any adverse interest to the authorities and concluded that any difficulty the applicant might have in finding work in Chile would not be associated with his homosexuality or his political opinion.  The Tribunal came to the view that the applicant would not face serious harm upon re-entry into Chile and it was therefore not satisfied that he would face persecution for the convention reasons expressed or that he had a well founded fear of such persecution as required by the Convention and the Migration Act 1958 (Cth).

3. The controversy between the applicant and the Tribunal which the applicant brings to this court is really a complaint that the Tribunal came to its conclusions on the basis of independent country information that the Tribunal accepted but which the applicant claimed was inspired by the government of Chile.  The applicant had provided the Tribunal with a considerable amount of additional material that did not support the views expressed in the independent country information accepted by the Tribunal and which suggested that things might not be as sanguine as the Tribunal had determined. This information came from reliable sources such as Amnesty International and it had been well documented at the hearing before the delegate as well as being repeated before the Tribunal.  The evidence included examples of serious difficulties with the police occurring to prominent members of the Communist Party and reports about homophobic actions on the part of the police.

4. The applicant seeks to persuade me that the Tribunal erred by accepting the "propaganda" put out by the government of Chile and sources close to it concerning improvements in the situation within that country since the overthrow of General Pinochet rather than the evidence of the independent NGOs such as Amnesty, who took the view that the situation was still of concern.  Perhaps by reading onto the transcript part of the decision of Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 I can explain to the applicant why such an argument is untenable. His Honour said at [8-12]:

   “8 The structure of the legislation, being the Migration Act and in particular s 474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error.

   9 What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.

   10 These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.

   11 Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error. It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal.

   12 It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations. The only task I am permitted today is to seek to identify whether the learned Federal Magistrate committed any reviewable error in his approach to the dismissal of the application made in respect of the Tribunal's decision.”

5. The above sets out the scope of the duty before me. It makes it clear that unless errors of fact constitute jurisdictional error in themselves or evidence of it I am not permitted to choose between independent evidence from the government of Chile and independent evidence from Amnesty International and make up my own mind whether I believe that this applicant is entitled to the protection of the Commonwealth of Australia. I am satisfied that the material that was before the delegate and then placed before the Tribunal was material that came within the exception to s.424A(3)(a) Migration Act 1958 (Cth) and was therefore not required to be resent to him. I am satisfied that the Tribunal made its decision on the basis of evidence before it and it had sufficient evidence that allowed it to reject the claims made by the applicant. The applicant put before the Tribunal his best case but it was not persuasive.

6. Although I believe that the applicant's real claim was simply that adumbrated above his grounds of application contain other complaints and for the sake of completeness these should be dealt with.  The first complaint is that the Tribunal was not bona fide and did not act in good faith when exercising its power because it had already decided the matter in advance.  This is a very serious complaint of actual bias on the part of the Tribunal.  The authorities are clear that such a complaint must be made with full particulars and substantiated by evidence.  That has not been done and I am unable to see any basis upon which it can be put forward.

7. The applicant also alleges that the Tribunal applied a policy that political persecution and homosexual discrimination does not take place in Chile without consideration of the particular merits of the applicant's case.  That is simply not what happened at all.  The Tribunal acknowledged a certain amount of political persecution and homosexual discrimination but came to the view that the situation had considerably improved and that the applicant himself was not liable to be persecuted if he returned. The third complaint is that on the evidence it was not open to the Tribunal to conclude that these political persecutions did not take place in Chile and the Tribunal ought not to have concluded simply that all persons who suffered human rights abuse were terrorists.  The Tribunal did not come to such a conclusion, it did make reference to terrorists being in security prisons but that is a different matter.  The evidence does allow the Tribunal to come to the conclusion which it came to.

8. The fourth complaint is that on the evidence before it it was not open to the Tribunal to conclude that homosexual discrimination does not take place in present day Chile.  Consequently, the Tribunal did not properly determine whether the applicant faced a real chance of persecution by reason of his membership of that particular social group.  The Tribunal did not make the findings suggested in the application.  It came to a conclusion that whilst there were some homophobic elements in Chile, legislation had legalised homosexual activity and the applicant was unlikely to be persecuted by reason of him being a homosexual.

9. The fifth ground is that the Tribunal ought to have found that its conclusions may have been incorrect and then assessed whether there was a real chance that the applicant may suffer persecution on the basis of this assumption.  This ground raises the "what if I am wrong" argument.  I think a fair reading of the Tribunal's decision shows that it has no real doubt about its findings and therefore in accordance with the dicta of Sackville J in Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [241] there was no requirement of the Tribunal to impose upon itself this conditional test.

10. Finally, the application complains that the Tribunal's decision was unreasonable in that no reasonable person would conclude on the evidence, given the history of political persecution and homosexual discrimination in Chile, that such practices no longer took place in Chile.  This is the question that the Tribunal sought to answer and did answer in its reasons for decision between [CB 202] and [CB 203].  This ground is really an attempt to get the court to enter into a merits review by giving more weight to the evidence produced by the applicant than that relied upon by the Tribunal.

11. In all the circumstances I am unable to find any grounds upon which I believe the Tribunal fell into jurisdictional error when it came to its decision and I must dismiss this application.  I order that the applicant pay the respondent's costs which I would assess in the sum of $5.000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  17 January 2006