SZCLK v Minister for Immigration
[2005] FMCA 1456
•26 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLK v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1456 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – bad faith – natural justice – bias – Applicant a citizen of India – claim of well-founded fear of persecution because of membership of Indian Muslim League – allegation of bad faith is a serious matter and is not to be lightly made – bad faith must be clearly alleged and proved – no evidence of bad faith or bias – ‘pro-forma’ ground “That the RRT decision was effected (sic) to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa” held to be meaningless and not a ground for review. PRACTICE & PROCEDURE – Costs – shortage of funds is not a ground for declining to make an order for costs in favour of a successful party – if a party is short of funds this may be taken into account by the Court when allowing time to pay. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 Federal Magistrates Court Rules 2001, Sch. 1 |
| R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598 – referred to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 – followed |
| Applicant: | SZCLK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 70 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 September 2005 |
| Date of Last Submission: | 26 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2005 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Ms Mak Clayton Utz |
ORDERS
Leave is granted to join the Refugee Review Tribunal as second Respondent.
The application is dismissed.
The Applicant is to pay the first and second Respondents costs fixed in the sum of $4,400.00 and I will allow five (5) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 70 of 2004
| SZCLK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal's decision was made on 21st November 2003 and handed down on 16th December 2003.
The applicant attended a hearing of the Tribunal that took place on
3rd October 2003. The applicant gave evidence to the Tribunal and the Tribunal asked him a number of questions. The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of India. He arrived in Australia on
20th March 2003. On 30th April 2003 he applied for a protection visa.
In that application he claimed a well founded fear of persecution due to his membership of the Indian Muslim League, and he said that as a result of communal violence in Gujarat his business premises and his house were set on fire.
He went to live in a refugee camp but people made difficulties for him and he decided to move to Chennai. He was involved in a demonstration and the following day he was arrested along with other party members. He said that he was detained for two days during which time he was tortured. He said that he was taken to Court and sentenced to imprisonment for one month. After his release the party would not assist him whatever. He found other employment at a second hand car dealer.
There was further communal violence in Tamil Nadu. The applicant said the police arrested him and detained him for a week; as a result he lost his job. He said that he was arrested on 16th December of that year and held in custody for 15 days. He left India for Australia. He fears that if he were to return to India the police would make problems for him and believes that he could be killed.
The applicant filed an amended application on 13th July 2004. In that application he sought a writ of certiorari to quash the RRT decision and a writ of mandamus to require the RRT to reconsider his application. He gave grounds for his application as follows:
That the RRT decision was effected to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa.
I note that this is a pro-forma ground that often appears in applications. It appears in the identical form each time, complete with the spelling errors in the words "effected" and "weather".
I have previously held that it is not a ground for review and in fact it is meaningless.
The amended application sets out particulars of the claim. There are three, first:
the Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of Muslim minority in India, and a member of particular social group and the involvement with the politics in India.
The second set of particulars says:
The Tribunal satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this claim.
The third set of particulars is:
The Tribunal did not observe Migration Act properly to making decision in my case.
The applicant said that he would provide more details to support his application in his outline of submission. The applicant filed his outline of submission on 12th September 2005. The submission claims that on the evidence as a whole the findings of the Tribunal member as to a number of matters demonstrated actual bias. The applicant sets out a number of reasons taken from the decision which he says indicate actual bias. In his submission the applicant also points out that review lies under s. 39B of the Judiciary Act if the decision is not a “privative clause” and he refers to four factors which are known as the “Hickman Principals”. In referring to the “Hickman Principles” he is referring to the 1945 decision of the High Court of Australia in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598.
The applicant states that the decision of the Tribunal can be reviewed if the following four factors are observed: a) the decision maker acted in good faith; b) the decision is reasonably capable of reference to the power granted to the decision maker; c) the decision relates to the subject matter of the legislation; and d) constitutional limits are not exceeded.
The submission appears to misquote the effects of the four “Hickman Principles” in that as I understand the decision in Hickman (supra) if the decision is covered by the four matters referred to then it is a "privative clause decision" and is not subject to judicial review.
The substance of the application set out in the applicant's submission relates to his challenge to the good faith of the decision maker.
In effect he submits that: a) the decision was not made in good faith; b) the decision shows actual bias against the applicant; and c) that it appears to have been made in breach of the rules of natural justice.
The submission also says that the decision reflected the mistake or error in the decision and the Tribunal ignored or failed to consider the applicant's claims. In addition he says that the Tribunal mixed up irrelevant issues.
In the respondent's outline of submissions, Mr Mitchell of counsel submitted that there was no evidence of any bad faith in the decision. And referred the Court to the decision of the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA FC 361; (2002) 195 ALR 749 at [43]. He also referred the Court to his submission which gave three other reasons for finding that the Tribunal's decision has not been affected by jurisdictional error.
Those reasons were that there was no evidence that: a) the RRT member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant material before him; b) that the applicant or the public might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the applicant's application; or c) that the applicant was overborne or intimidated by the Tribunal.
The decision of the Tribunal sets out in some detail the applicant's claims. The Tribunal at pages 61 and 62 sets out the history given when applying for the protection visa. At pages 62 to 67 of the Court Book the Tribunal sets out particulars of the applicant's oral evidence.
I note that at page 65 this statement appears:
The Tribunal asked the applicant what in his opinion would happen to him if he went back to India.
The applicant responded that:
If he went to his village he would have no problems, but at his age, he is now 62, it is difficult to find work.
The Tribunal at pages 67 and 68 of the Court Book set out details of the independent evidence which it deemed considered.
In its "Findings and Reasons" at page 70 of the Court Book the Tribunal did not accept the applicant's claims in relation to his detention and imprisonment. The Tribunal then set out reasons for that finding.
At page 71 of the Court Book the Tribunal did not accept that the applicant was of particular interest to the BJP or the AIDMK in Chennai or that he was detained on the second occasion on
16 December 2002 at the Egmore district in Chennai.
The Tribunal noted that on his own evidence the applicant was able to return to his village and live there without difficulty arising from his religion or any other convention reason. The Tribunal was unable to accept that the applicant was arrested by police, detained and imprisoned as a result of the perceived involvement with the Indian Muslim League.
At page 72 of the Court Book the Tribunal found that although the applicant had lost his property in communal violence in Gujarat in 2002 he relocated to his home state of Tamil Nadu. The Tribunal said:
There is no evidence before the Tribunal that the applicant has suffered harm amounting to persecution for a convention reason in Tamil Nadu in the past nor does he face a real chance of convention persecution in the future in Tamil Nadu..
In short, those were the reasons why the Tribunal did not accept the application.
The basis of the applicant's claim for review is that the Tribunal was biased or acted in bad faith. The Full Court of the Federal Court has set out the matters that should be considered in respect of applications where bad faith are alleged. In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA FC 361; (2002) 195 ALR 749 the relevant propositions are set out in [43] to [48] inclusive...
I will summarise them as follows: 1) an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker; 2) the allegation is not to be lightly made and must be clearly alleged and proved; 3) there are many ways in which bad faith can occur; 4) the presence or absence of honesty will often be crucial;
5) the circumstances in which the Court will find a administrative decision maker had not acted in good faith are rare and extreme, this is especially so where all that the applicant relies upon is the written reasons for the decision under review; 6) error or irrationality does not of itself demonstrate lack of good faith; 7) errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; 8) the Court must make a decision as to whether or not bad faith is shown by inference by what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approach its task; and 9) it is not necessary to demonstrate that the decision maker new that the decision was wrong, it is sufficient to demonstrate recklessness in the exercise of the power.
Those are the propositions set out in the decision in SBBS v Minister (supra) which this Court is obliged to follow. It appears to me that there is a significant lack of evidence as to bias or bad faith. The applicant relies solely upon the written reasons for the Tribunal's decision, there is no evidence of dishonesty or other personal thought on the part of the decision maker.
There is no evidence of any egregious error or irrationality. I am not able to identify any error of fact or law or any illogicality. I am unable to discern any failure to follow the provisions of the Migration Act.
It does not appear to me that there is evidence of any recklessness on the part of the Tribunal.
As to any denial of natural justice I note that the applicant attended the Tribunal hearing and gave evidence. There are several incidences throughout the decision where the Tribunal member challenged the applicant about his version of the facts.
When considering the decision as a whole and the submissions of the parties I am not satisfied that there is any evidence of bad faith, actual bias or denial of natural justice. It must follow that the decision is a "privative clause" and it attracts the protection of s.474 of the Migration Act.
The application will be dismissed.
There is an application for costs. It is the normal course in this jurisdiction that an unsuccessful party will have to face an order for costs. The applicant has been wholly unsuccessful in his case and there is no reason why I should not make an order for costs in favour of the respondents.
The applicant says that he has no funds available to meet the order but that is not a reason not to exercise a discretion in favour of making a costs order. A successful applicant would normally be entitled to seek a costs order. A shortage of funds to pay the order is a matter that should be considered when determining time to pay the order for costs.
The amount of costs sought is $4,400.00 inclusive of counsel's fees. This is an amount which falls within the scale provided by the Federal Magistrates Court Rules 2001. It is a relatively modest amount considering the fact that it includes counsel's fees. I see no reason why I should not make an order in that amount. I will allow time to pay.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 5 October 2005
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