SZBZW v Minister for Immigration

[2004] FMCA 635

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBZW & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 635

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.411(1)(c), 414(1), 425(1), 474

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Mazhar v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 183 ALR 188
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362
Tobasi v Minister for Immigration & Multicultural Affairs [2002] FCA 1050
Browne v Dunn (1893) 6 R 67
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781
Re Ramazan Ali Babaei Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100
Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60

Applicant M189/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32
Sullivan v Department of Transport (1978) 20 ALR 323

First Applicant: SZBZW

Second Applicant: SZBZX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ2572 of 2003

Delivered on: 1 October 2004

Delivered at: Sydney

Hearing date: 21 September 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

Solicitor for the Applicant: Mr M Jones

Counsel for the Respondent: Mr G T Johnson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2572 of 2003

SZBZW & SZBZX

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 30 September 2003 affirming a decision of a delegate of the respondent made on

   
   

   24 December 2002 to refuse to grant the applicants protection visas.

2. The applicant SZBZX (wife) (“the second applicant”) arrived in Australia on 17 September 2002 for medical treatment after suffering a brain haemorrhage and a stroke.  The applicant SZBZW (husband) and two teenage daughters arrived in Australia on 28 October 2002.

3. On 26 November 2002 SZBZW (husband) (“the first applicant”) lodged for himself and on behalf of his wife and daughters applications for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (“the Act”).

4. On 24 December 2002 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) refused to grant them protection (Class XA) visas and on 14 January 2003 the applicants applied for a review of that decision.

The history

1. The applicants and their children are citizens of Fiji of Indian ethnicity.  They are Muslims.

2. The first applicant has completed ten years of schooling and worked as a carpenter in Fiji.  The second applicant was a housewife in Fiji, while their two teenage daughters were continuing their schooling.  The first applicant had worked as a handy man for a business called Paddys Market for a number of years up until 2000 when he resigned and went to work on his own farm.  This farm is currently being cared for by his brother.

3. The first applicant, on behalf of the family, stated that they had experienced a number of problems in Fiji dating back to the 1987 coup.  He claimed these problems intensified after the attempted coup on 19 May 2000 and this took the form of verbal abuse, which the first applicant believed was because of his religious beliefs, and threats made to the family one or two occasions.

4. The first applicant claimed that their house was visited on five or six separate occasions, when indigenous Fijians demanded food and other things.  He claimed that these intruders also verbally abused his wife.  Despite these attacks the family did not yield to the attacks and gave nothing away.  The last incident of harassment occurred about six months before the family departed for Australia.  The first applicant claimed these incidents were not reported to the police because of the fear that there may have been ramifications from making these reports.

5. This was the extent of the first applicant’s claims of abuse but he feared to return home to Fiji and was particularly fearful for his young daughters.  His brother, who lived on and was caring for the farm, had advised the first applicant that they continued to face problems from the local population.  The farm is located near a village populated by indigenous Fijians and the first applicant claimed that the problems were worse in that rural area.

The Tribunal’s decision and reasoning

1. On 29 September 2003 the first applicant attended the Tribunal hearing.  It was confirmed that he was appearing on behalf of both himself and his wife and that he was speaking on her behalf.

2. A tape recording of that hearing was replayed to the Court and the parties immediately prior to the hearing.  The tape tendered and marked Exhibit R1 was the Refugee Review Tribunal File No: N03/45589 of 29 September 2003, consisting of one cassette tape.  Also tendered was an affidavit dated 21 September 2004 of Michael Terence Jones, the applicants’ solicitor, and attached to that affidavit was a transcript of the recording made by Auscript Pty Limited which was annexed and marked MTJ1.  Also attached to the affidavit was a digital recording of the transcript marked MTJ2.  The recording of the hearing commenced at 15.20 hours and ended at 15.47 hours.

3. In the Tribunal’s decision, the background and the definition of refugee are set out in their standard form for Tribunal decisions.  The claims and evidence provide an accurate summary of the interview and references to a number of country information reports which cover the situation for the Indo-Fijian communities during the periods of civil disturbance and subsequently.

4. The findings and reasons of the Tribunal were as follows:

   “I accept that [SZBZW] and his family faced some harassment and threats from local indigenous Fijians around the time of the May 2000 attempted coup, although given his hesitant and vague responses when asked how long this harassment had continued, I do not accept that he continued to face significant problems until shortly before his departure for Australia.  And while I accept that [SZBZW]’s brother may face occasional harassment, I do not accept that he has faced continuing serious problems since [SZBZW] came to Australia.

   I accept that the attempted coup of May 2000 and the elevated levels of crime and violence in Fiji have made [SZBZW] fearful for his own safety and, more significantly, for his wife and daughters.  However, in my view the harassment which [SZBZW] experienced prior to his departure from Fiji did not constitute persecution under the Convention and as discussed above, the evidence does not indicate that Indo-Fijians of Muslim religion are generally at risk of serious harassment or physical harm for reasons of race or religion.  In these circumstances, I am not satisfied that his fears of persecution for reasons of race or religion are well-founded.”

5. The conclusion drawn in the Tribunal’s decision was:

   “After considering all of the relevant evidence, I am not satisfied that [SZBZW] or any other member of his family has a well-founded fear of persecution for any of the reasons contained in the Convention. I am therefore not satisfied that they are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore they do not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa. In these circumstances they cannot satisfy the alternative criterion set out in s.36(2)(b) of the Act and cannot be granted protection visas.”

The application for review of the Tribunal’s decision

1. On 26 November 2003 the applicants filed an application for review setting out the following grounds:

   “The Tribunal’s decision involved jurisdictional error of law in that the Tribunal denied the applicants an opportunity to fully present their case for review.

   Particulars

   The Tribunal purported to conduct a hearing of the application which lasted approximately 27 minutes, including time spent informing the applicants of the nature of the Tribunal and waiting for administrative assistance, during which the applicants, who were assisted by an interpreter, did not have a real opportunity to present their case for review.”

The law

1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  S157/2002 at [76] and S134/2002 at [15].

2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

1. Mr Jones, appearing for the applicants, filed written submissions before the hearing. These raised the issue of the Tribunal’s jurisdiction to review an “RRT-reviewable decision” as set out in Part 7 of the Act and in particular the provisions of s.414(1) and s.411(1)(c). Further the written submissions raise the issue of s.425(1) which is mandatory and essential to the Tribunal’s exercise of its jurisdiction. These requirements of the Act have been complied with and do not require further consideration.

2. The issue that the submissions emphasise is that it is implicit in s.425(1) that the hearing must be “genuine and not a hollow shell or an empty gesture”: Mazhar v Minister for Immigration & Multicultural & Indigenous Affairs per Goldberg J at [31]. This was supported by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (“SCAR”) per Gray, Cooper and Selway JJ at [33].

3. The applicants’ solicitor acknowledges that the first applicant attended the hearing on 29 September 2003 and the hearing took a period of 27 minutes in its entirety.  By deducting the time taken with introduction and explanatory matters, followed by some general questions into the applicant’s background, a residual of twelve minutes was identified as being the actual body of the hearing.  It was submitted that the Tribunal did not seek to elicit any significant details from the applicant during that residual twelve minute period.  The applicants relied on the Federal Court decision in Liu v Minister for Immigration & Multicultural Affairs that the right to a hearing in s.425(1) is the important and central right in the merits review system. See also Tobasi v Minister for Immigration & Multicultural Affairs per Mansfield J at [40].

4. The applicants’ submissions acknowledged that it was not part of the Tribunal’s duty to actively assist the applicant in putting his or her case:  SCAR at [36].  It was argued on behalf of the applicants that the Tribunal in this case went to the other extreme by not at least asking the first applicant for more details of events he was referring to.  It was claimed the twelve minutes allowed to him to put his case were clearly inadequate given his obvious lack of education and sophistication.  It was submitted that the situation is analogous to SCAR where it was held that the mental state of a traumatised applicant meant that he was denied a real hearing whether or not the Tribunal was even aware of it.

5. In oral submissions, the applicants’ solicitor referred to the comments in relation to the rule in Browne v Dunn in the High Court decision of Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002.  It was argued that this rule was not relevant because the Tribunal was not adversarial in nature and was not following the rules of cross examination.  However, it was pressed by the applicants’ solicitor that the Tribunal’s inquisitorial role required it to be far more searching in its questioning of the applicant as opposed to a more passive role of purely putting a question to the applicant and allowing him to respond.

6. It was claimed that the first applicant was not conversant with our legal system and that the Tribunal must go further in an inquisitorial manner.  It was claimed the Tribunal’s method of questioning of the first applicant in the nature of “Do you have any more to tell me?” amounted to a poor procedure as he did not understand the significance of his failure to respond to that type of question:  NAQF v Minister for Immigration & Multicultural & Indigenous Affairs; Re Ramazan Ali Babaei Somaghi v Minister for Immigration, Local Government & Ethnic Affairs.

7. The applicants’ solicitor raised the matter of Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (“S154/2002”).  In regard to the facts of that decision, he indicated that it should be distinguished from those of the present case except for the matter raised in the decision of Gleeson CJ, which stated:

   “Further, there is no complaint that the prosecutrix received insufficient assistance or encouragement from the Tribunal member.  If any such complaint were made, there would be a serious question to be considered as to the relationship between a complaint of that nature and the requirements of procedural fairness.”

8. The respondent furnished written submissions, which responded to the applicants’ contention that their case centred entirely upon the recording and the transcript of the proceedings before the Tribunal.  The two issues to which the respondent was responding was that the Tribunal did not provide sufficient time for the first applicant to state his case, and secondly the Tribunal ought to have done more to elicit details from the first applicant.

9. Mr Jones for the applicant acknowledged that the first applicant was the only one to accept the Tribunal’s invitation to attend the hearing on 29 September 2003.  The respondent’s Counsel submitted that at no stage during the Tribunal hearing was the first applicant overruled or prevented from putting his case.  To the contrary, it was claimed  he had been encouraged by the Tribunal member in a tone of assistance and, at no stage during the hearing, did the Tribunal member say anything to mislead the first applicant or pursue any line of questioning that was irrelevant.  It was submitted that the Tribunal member clearly presented to the first applicant the purpose of the hearing and the issues it was to consider in determining whether the applicants are eligible for refugee status.

10. Counsel for the respondent identified within the transcript the areas where there had been considerable pauses in the dialogue allowing the first applicant to respond to the Tribunal member’s questions.

11. The respondent submits that throughout the duration of the hearing at no stage was the first applicant misled and that this case is unlike that of SCAR where the applicant was distressed at the news of the death of his father and had been taking medication.

12. In both written and oral submissions, Counsel for the respondent said that the applicants’ argument that the Tribunal was to accept certain roles and obligations was misconceived.  It was submitted the rule in Browne v Dunn had no application to the Tribunal and the Tribunal certainly was “not obliged to prompt and stimulate an elaboration, which the applicant chooses not to embark on”: S154/2002 per Gummow and Hayden JJ at [57].

    “The rule in Browne v Dunn has no application to proceedings in the Tribunal.  Those proceedings are not adversarial but inquisitorial; the Tribunal is not in the position of a contradictor of a case being advanced by an applicant.  The Tribunal member conducting the enquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair.  The Tribunal member has no ‘client’ and has no ‘case’ to put against the applicant.  Cross-examiners must not only comply with the Browne v Dunn by putting their client’s case to the witness; if they wanted to be as sure as possible of success, they have to damage the testimony of the witness by means which are sometimes confrontational and aggressive, mainly means of a kind which an inquisitorial Tribunal member could not employ without running the risk of bias being inferred.”

13. It is also stated at [58]:

    “The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.”

14. The principles are also set out in the decision of Applicant M189/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“M189/2002”) at [18]-[20] per Emmett J:

    “Where the exercise of a statutory power attracts the requirements for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify, by further information and comment on by way of submission adverse material from other sources put before the decision maker.  The decision maker is required to identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which is made.  Finally, the decision maker is also required to advise of any adverse conclusion that it has arrived at and that would not obviously be open on the known material:  re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [22].

    However, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.  That is to say, the Tribunal is not required to give an applicant particulars of its thought processes prior to the making of an adverse decision.  It is for the applicant to advance whatever evidence or argument he wishes to advance and it is for the Tribunal to decide whether his or her claim has been made out:  Abebe v Commonwealth (1999) 197 CLR 510 at 576[187].

    It would be erroneous for the Tribunal to represent that a particular piece of evidence or argument had been accepted and then to reject it in the decision.  It would also be erroneous for the Tribunal to rely upon a particular conclusion about the material before it that was not open on the material.  However, the Tribunal is not obliged to adopt a particularly forceful style of questioning.  It is not obliged to be as forceful as a cross examiner might be in a criminal proceeding.  The Tribunal, in conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration that the applicant chooses not to embark on.  The Tribunal is not obliged to set out every detail of the reasoning process that is eventually employed for the consideration of an applicant:  Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [54] and [58].”

1. Counsel for the respondent submitted that the applicants must show that there was a breach of natural justice and indicated that this was subject to the operation of s.425 of the Act and that the provisions of the Act placed no high obligation on that requirement for natural justice. It was submitted that provision was complied with in that the first applicant did appear to give evidence at the Tribunal hearing and was invited to present arguments relating to issues that arose in relation to the decision under review. However, the first applicant said little despite being given the opportunity to reply and being encouraged by the Tribunal member to do so.

2. In reply, Mr Jones for the applicants wished to draw the distinction in the argument that he had raised in paragraph 8 of his submissions, in that the facts of this case were not like the circumstances in S154/2002.  It was submitted that the situation in this case is analogous to SCAR where it was held that the mental state of the traumatised applicant meant that he was denied a real hearing, whether or not the Tribunal was even aware of it. The original submission on this issue is discussed at paragraph 22 above. It was submitted that the emphasis the applicants wished to place on this matter was that the first applicant had been denied a real hearing because of the limited time, his limited English and lack of knowledge of the significance of his lack of responses was analogous to the impediment suffered by the applicant in SCAR.

Conclusion

1. The applicants concede there was no jurisdictional error within the reasoning of the Tribunal. However, they allege that the Tribunal should have done more to elicit details from the first applicant during the Tribunal’s hearing on 29 September 2003. Without identifying any specific question that the Tribunal should have asked and pursued, the applicants’ claim that the failure of the Tribunal to ask more questions was a breach of s.425 of the Act. The applicants also claim that the inquisitorial role of the Tribunal should have been employed with greater scope and rigour in questioning. However, there was clear authority that the Tribunal certainly was “not obliged to prompt and stimulate an elaboration which an appellant chooses not to embark”: S154/2002 at [57] and [58] per Gummow and Haydon JJ and Gleeson CJ at [1] and M189/2002 at [18]-[20] per Emmett J, undisturbed on appeal [2004] FCAFC 131.

2. The applicants’ submissions would suggest that the first applicant was in some form of traumatised state and the issue as to whether or not the Tribunal was “even aware of it” was not supported by any evidence.  There was no duty placed on the Tribunal to make enquiries about the applicant’s mental health or to carry out a line of enquiry to satisfy itself that the applicant has the requisite competency to take part in the Tribunal’s hearing:  Minister for Immigration & Multicultural & Indigenous Affairs v SGLB per Gummow and Hayne JJ at [43] and [45] and Gleeson CJ at [1] and [19].

3. The substantial part of these submissions relates to the length of the hearing and the suggestion that insufficient time was provided for the first applicant to present or argue his case.  There had not been any evidence presented that identified that the applicant had any further material that could have been made available if there had been a longer duration of the hearing.  Although there is now a complaint that in retrospect more information should have been presented, there was no evidence of the nature of this material nor was the Tribunal obliged to embark upon a course to ensure that the applicants had most effectively utilised the opportunity to present their case in a way that every avenue has been totally explored and utilised:  Sullivan v Department of Transport.

4. Under s.425 of the Act, other than appearing, the Tribunal must invite the applicants “to give evidence and present argument relating to the issues raised in relation to decision under review”. The transcript of the Tribunal hearing when heard in its entirety reveals that the first applicant had been given a reasonable opportunity to do this.

5. No jurisdictional error has been disclosed. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. The decision clearly relates to the subject matter of the Act and relates to the powers conferred on the Tribunal. I find that the decision of the Tribunal is a privative clause decision having regard to the decision of the High Court in S157/2002.

6. In the circumstances I dismiss the application.

7. I am satisfied that an order for costs should be made.  In the circumstance of this matter, I order that the applicants pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:  Menna McMullan

Date:  1 October 2004