SZCWT v Minister for Immigration
[2006] FMCA 713
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCWT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 713 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Ghana as a result of his refusal of chieftancy – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A |
| Minister for Immigration v Lay Lat [2006] FCAFC 61 WAJW v Minister for Immigration [2004] FCAFC 33 |
| Applicant: | SZCWT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG600 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 16 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr D Jordan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court directs that the second and third respondents be deleted and the Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG600 of 2004
| SZCWT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 10 February 2004. Although not specifically sought by the Minister, I consider that I should direct that the second and third respondents to the application be deleted and that the Refugee Review Tribunal should be joined to the application and the second respondent. I will so order. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Relevant background is set out in the Minister's written submissions filed on 8 May 2006. I adopt as background paragraphs 2 and 3 of those written submissions:
The applicant is a national of Ghana. He claimed to fear persecution in Ghana from his local community, and elders and tribal leaders in his village, because he had refused to accept the chieftaincy position in his tribe. He claimed that he is a Christian Reverend, and practising evangelist, and that the obligations of a tribal chieftain would be contrary to his Christian faith.[1]
The RRT did not accept that the applicant’s fear of persecution, arising from his refusal to accept the position of tribal chieftain, was well founded. This finding was based upon country information which indicated that there were no reports of violence to people who had refused to accept a chieftaincy position.[2]
[1] The applicant’s claims are set out at court book (CB) 25-26; his evidence at hearing is summarised by the RRT at CB 64-65
[2] CB 75-76; the country information is summarised at CB 66-75
These proceedings began with a judicial review application filed on 8 March 2004. An amended application was filed on 24 January 2005. That is the application upon which the applicant relies. The amended application asserts seven grounds of review:
1.That the Refugee Review Tribunal failed to comply with section 424A of the Act and, in doing so, made a jurisdictional error.
2.That a breach of the rules of natural justice and procedural fairness occurred in connection with the making of the decision.
3.That the decision involved an error of law, whether or not the error appears on the record of the decision.
4.That the Tribunal ignored relevant material, asked wrong questions and relied on irrelevant material in the making of the decision. This amounts to a jurisdictional error.
5.That procedures that were required by law to be observed in connection with the making of the decision were not observed.
6.That there was no evidence or other material to justify the making of the decision.
7.That the decision was otherwise contrary to law.
The amended application then sets out a series of particulars lettered (a) to (g), although the connection between the particulars and the seven grounds is not altogether clear. The particulars are dealt with in the Minister's submissions in paragraphs 7 to 11. I agree with and adopt for the purposes of this judgment those paragraphs of the Minister's written submissions:
Particular (a) contends that the tribunal failed to consider whether the Ghanaian authorities were willing and able to protect the applicant from harm. This contention should be rejected because the RRT found that the applicant’s fear of harm was not well founded. Therefore, the issue of state protection was not relevant.
Particulars (b) and (c) complain that the tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) because it did not provide written notice of the country information which was referred to and accepted by the RRT. These complaints cannot be sustained because the country information fell within the exception in s.424A(3)(a) of the Act.[3]
Particular (b) also asserts that there was a denial of procedural fairness in relation to the RRT’s use of the country information. This assertion cannot be sustained because the RRT made the country information available to the applicant during the hearing.[4] Further, s.422B of the Act operates with the effect that s.424A is an exhaustive statement of the requirements of procedural fairness relating to the RRT’s use of extrinsic materials.[5]
Particulars (d) and (f) assert that the tribunal erred in relying upon the country information because that information did not specifically refer to the applicant’s “Mpatase” tribe. To similar effect, particular (e) asserts that the RRT erred in failing to find that the applicant was not one of the “class of persons” to which the country information referred. These particulars challenge the merits of the RRT’s findings based upon the country information and, as such, fail to articulate any jurisdictional error affecting the RRT’s decision.[6]
Particular (g) states that the tribunal failed to investigate the extent of the applicant’s religious beliefs. There is no substance to this contention. The RRT found that the applicant’s refusal to accept the position as tribal chieftain did not give rise to a well founded fear of persecution. Given this finding, it was unnecessary for the RRT to inquire into the applicant’s reason for refusing the role of chieftain.
[3] Minister for Immigration v NAMW (2004) 140 FCR 572 at [66]-[74], [125]-[138]; see also WAJW v Minister for Immigration [2004] FCAFC 330 at [43]-[46]; QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [20]-[30]; VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559 at [12]-[14]; VHAJ v Minister for Immigration (2003) 131 FCR 80 at [50], [71]-[72]; contrast NARV v Minister for Immigration (2003) 133 FCR 89 at [30]-[31]
[4] GB 64.8
[5] For example, WAID v Minister for Immigration [2003] FCA 220 at [57]
[6] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
Noting, however, that the applicant is self represented, I have considered whether, apart from anything in the judicial review application, there is any jurisdictional error apparent on the face of the record. In that regard I have before me the court book filed on 23 June 2004 and two documents which I accepted as exhibits A1 and A2. The basis upon which I accepted the two exhibits from the applicant was limited as it is claimed that both documents were obtained by the applicant only quite recently and were not available to the RRT. I accepted them as evidence of additional material that would have been available a decision maker if the decision were being made now.
Two issues arose during oral argument. The first was whether the RRT overlooked an element or integer of the applicant's claims. The substance of the RRT decision was that, although the essential factual details of the applicant's background were accepted, the RRT did not accept that the applicant's fear of harm was well founded. This was not an adverse credibility finding. In effect, the presiding member was prepared to proceed on the basis that the applicant was who he said he was and had the family relationships in Ghana that he claimed. The presiding member was apparently prepared to accept that the applicant had refused to accept to the chiefly office which had been offered to him.
The country information, which was quite extensive, referred to by the presiding member indicated that there were indeed chieftaincy disputes in Ghana and that these were at times violent. However, it appeared that the violence was related to disputes over claims to chieftaincy rather than disputes over a refusal to accept chieftaincy. There is obviously a logical basis to this because where several individuals are competing for a position of chieftaincy, there may well be violence. Where there is some move to dispose of a chief, there may well be violence. The country information all supported those unremarkable propositions. However, the presiding member was able to find no independent evidence pointing to a serious risk of harm confronting a person who declined to accept an office of chief.
The question in my mind was whether the applicant's claim was limited to the assertion that his fear of harm derived from his refusal to accept office. If, for example, the applicant's claim had extended to a fear that he might be forced to abandon his Christian faith or that he might succumb to pressure to accept the office of chief and be attacked as a result of unacceptable performance of his duties, then a serious issue would have arisen concerning the adequacy of the RRT’s reasoning. The applicant's claims were set out in a statement accompanying his protection visa claim and reproduced on pages 25 and 26 of the court book. His claims were discussed with him at a hearing conducted by the RRT. On page 63 of the court book the presiding member recites in part the discussion that occurred with the applicant at the hearing and says:
He [the applicant] states that he is unwilling to go back to Ghana because there is a real chance that he would be killed if he went back to Ghana and refused to accept the Chieftaincy role offered to him by the people of Mpatase. He states that the government of Ghana does not involve itself with Chieftaincy affairs and disputes. He states that such matters have been left with the National House of Chiefs to deal with, and that unfortunately, the House also follows the same procedures as custom demands. He states that, in effect, there will be no protection from the government.
It appears to me from the applicant's statement of his claims and the recitation by the presiding member of what occurred at the hearing that the applicant's claims were limited to a fear of harm flowing from his refusal to accept chiefly office. The applicant appears to have regarded his decision as immutable. Put on that limited basis, there was no failure by the RRT to consider any element or integer of the applicant's claims.
The second issue that arose during the course of oral argument was whether there was any jurisdictional error resulting from the apparent failure by the RRT to give the applicant the opportunity to comment upon a credibility concern expressed by the presiding member in the third‑last paragraph on page 76 of the court book. The presiding member said:
In the light of the lack of independent evidence that harmful acts occur in the context of forcing people to become a chief, the Tribunal does not accept that his fear is well founded and also finds, in the light of this, that his brother's letter was written merely with a view to providing evidence in support of the applicant's application, and that the "wanted poster” produced to the Tribunal is a fabrication.
The documents referred to by the presiding member are reproduced on pages 48 and 49 of the court book. The first document is a handwritten letter, apparently from the applicant's brother, and the second document purports to be an appeal for information concerning the whereabouts of the applicant that was enclosed in the brother's letter. I assume from the presiding member's reasons that he did not regard these documents as independent evidence of problems that confronted the applicant on return to Ghana.
It would not, in my view, have been open to the presiding member to say nothing about these documents at all. The difficulty confronting the presiding member was that, although there was no independent evidence supporting the applicant's claims, there was evidence presented to the RRT by the applicant that lent some support to his assertion of a well‑founded fear of harm. Although the RRT did not otherwise deal with the matter on the basis of credibility, the documents were rejected on a credibility basis. Essentially, the brother's letter was treated as a self‑serving document intended to enhance the applicant's claims and the so‑called "wanted" poster was rejected as a fabrication. There is, in my view, a strong argument that under the general law the RRT would have been obliged to have given the applicant the opportunity to comment on the proposition that the poster was a fabrication. However, it is now clear that the general law in relation to the fair hearing rule is excluded by the operation of s.422B of the Migration Act. Further, it is now clear that provisions such as s.424A of the Migration Act cover the field in relation to the obligation of disclosure of adverse material to applicants: Minister for Immigration v Lay Lat [2006] FCAFC 61, in particular at paragraphs 60 to 70.
There was no obligation under s.424A to disclose the RRT’s credibility concerns about the letter from the applicant's brother and the enclosed "wanted" poster. That is because of the operation of s.424A(3)(b) of the Migration Act. Both documents were provided to the RRT by the applicant for the purposes of his review application.
No other jurisdictional error is apparent to me. I conclude that there was no jurisdictional error in the decision of the RRT.
It is open to the applicant to bring to the attention of the Minister the additional material which he has presented to me as exhibits A1 and A2. I do not rule out the possibility that a different decision maker may have reached a different decision on this application. I also do not rule out the possibility that the applicant may be able to re‑present his claims of a fear of harm in a more persuasive way that he did to the RRT. Those are matters beyond the scope of these proceedings.
I will order that the judicial review application be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,800 on a party and party basis. I am satisfied that that is a reasonable estimate. I will order that the applicant pay the Minister's costs of and incidental to the application, fixed in the sum of $4,800.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 May 2006
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