SZDPO v Minister for Immigration
[2005] FMCA 159
•11 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPO & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 159 |
| MIGRATION – Review of Refugee Review Tribunal decision – persecution in basis of religion – applicant lived in New Zealand before Australia – sati – Hindu extremism – Tribunal asked applicant to consider withdrawing application – humanitarian grounds – “tone” of Tribunal – actual or apprehended bias – disclosure of country information – no jurisdictional error – privative clause decision – application dismissed. Migration Act 1958 (Cth) Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 |
| Applicant: | SZDPO & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1511 of 2004 |
| Delivered on: | 11 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 February 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Rachel Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the Minister’s costs and disbursements of an incidental to the application fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1511 of 2004
| SZDPO & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 5 May 2004 and sent to the applicants in written form on 12 May 2004.
The applicants are husband, wife and daughter. They arrived in Australia on 18 November 2003, having spent some considerable time in New Zealand. They are originally from India.
On 2 December 2003 they applied for protection visas which were refused on the same day by a delegate of the Minister. They applied for review on 2 January 2004. A hearing was held on 5 May 2004. Only the applicant husband, who I will refer to in these reasons as “the applicant”, attended the hearing before the Tribunal. Immediately after the hearing the Tribunal member gave an oral decision affirming the decision of the delegate of the Minister not to grant a protection visa.
Claims before the delegate and the Tribunal
The applicant’s claims centred upon a fear of persecution on the basis of religion. The applicant claimed that that Hindu society did not accept the marriage between the applicant husband and his wife because the wife was a widow. He claimed that the marriage was contrary to traditional Hindu mores and expectations. In particular there was a concern that the applicant wife had failed to commit sati, she had failed to burn herself on the funeral pyre of her first husband. The applicant’s claims are accurately summarised in the respondent’s submissions at paragraph 1.3:
(a)The applicant husband and wife had been in love but the applicant wife’s parents selected a different groom, whom she married in 1990 or 1991;
(b)the wife’s first husband died 3 months into that marriage and against the wishes of his family, friends and local council, the applicant husband married her in 1992;
(c)the applicants were taunted, spat at and stoned by local Hindus in Birati and the police would not help as the applicant husband had “committed a ‘sin’ by marrying a Hindu widow”;
(d)In 1994 the applicants were living in Calcutta and the applicant wife was taunted and stoned and she fell while running away, causing her child to be born prematurely and die;
(e)in 1995 the applicants relocated to Mumbai but people again began to know of their marriage and taunt them and the applicant husband was worried about what might happen when the applicant wife fell pregnant again in 1998;
(f)in February 1999, on the advice of a friend, the applicants relocated to Barasat where the applicant daughter was born;
(g)the applicants again began to experience taunts and harassment and in December 2000 the applicant husband was attacked by Hindu fanatics and the police would not provide a “satisfactory response”;
(h)in August 2001 the applicant husband and wife traveled [sic] to New Zealand on the applicant wife’s student visa. The applicant daughter was left with friends in India;
(i)in New Zealand the applicant husband and wife again experienced mistreatment from the Hindus in New Zealand;
(j)accordingly the applicants came to Australia to gain a peaceful life and prevent their daughter “end[ing] up in a mental home” because of the treatment in India.
The Tribunal decision
The respondent’s submissions accurately summarise the decision and reasons of the Tribunal:
3.1 The RRT did not accept that the instances of harassment claimed by the applicants were frequent, sustained or systematic. In particular, the RRT
(a)accepted the applicants faced pressure from family and neighbours over their marriage;
(b)found the Indian state recognised and continued to recognise their marriage and the claim that the marriage was in some way informal was misleading;
(c)did not accept that the premature birth and subsequent death of the applicants’ first child was caused by actual harm inflicted on the applicant wife by reason of her being a remarried widow;
(d)did not accept the attack on the applicant husband in December 2000 had anything to do with the applicant wife being a remarried widow;
(e) did not accept that the inadequacy of any police response was due to the applicant wife being a remarried widow;
(f)considered that the applicants’ history after 1994 was not one of a life lived in fear given the husband’s continuous employment history and their accumulation of wealth which enabled them to travel and study abroad;
(g)considered the applicants’ claim of hostility from Hindus in New Zealand to be a fabrication and the real reason why the applicants did not apply for protection in New Zealand was that they had long since ceased to have a subjective fear of persecution in India.
3.2 Accordingly, the Refugee Review Tribunal found the applicants did not have a well-founded fear of persecution in India. In the alternative the Refugee Review Tribunal found that the persecution claimed by the applicants was not for a Convention reason.
I note that the critical finding in the Tribunal’s decision, which I might add is somewhat difficult to read, appears to be that the applicants have long since ceased to have a subjective fear of persecution in India.
Consideration
In his amended application, the applicant appears to be claiming a number of grounds of review which I shall deal with in turn.
Actual or apprehended bias
The first ground is that the Tribunal was biased or that there was a reasonable apprehension of bias in the making of the decision. The application states that the Tribunal:
denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision … The Tribunal has failed to disclose the particular construction it gave to the information from the different independent sources. …
…
The tribunal was so much biased and ‘preoccupied’ that the decision was made instantly and the Hon. Member insisted on the applicant to withdraw his claim and to apply to the Hon. Minister for humanitarian ground. … The applicant denied to do so, therefore the tribunal became very angry and retaliated by its instant decision on the same hearing. …
…
The tribunal has violated it’s reputed and claimed ‘independence’ by its ‘evil look’ and ‘intimidated tone’ towards the applicant during the hearing.
The test for actual bias is set out by Wilcox J in the Full Court decision in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71:
Lindgren J referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Fed C of A, North J, 24 June 1996, unreported) that s 476(1)(f) requires an applicant to show ``that the tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case'’. That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (Fed C of A, Lockhart J, 18 October 1996, unreported). He made three points. First, the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Secondly, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Thirdly, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm.
Apprehended bias occurs, in the words of the High Court in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at 434, where:
a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
In support of his claims of bias and apprehended bias, the applicant had the Court receive into evidence at the hearing the tape recording of the hearing of the Tribunal. The tape was played in Court and the applicant was given an opportunity to indicate the parts where he had concerns about the conduct of the Tribunal member. He expressed his concerns in only the vaguest of terms.
It is clear from the material before the Court, from the reasons for decision and from the tape that the Tribunal member had real concerns about the applicant’s case as evidenced from the material before him. He made this evident to the applicant on a number of occasions during the course of the hearing in a straightforward and clear manner. He also made clear that he was willing to hear any submissions and receive any evidence which would counter his concern.
Furthermore, he indicated that it may be appropriate for the applicant to consider whether his case was more one for humanitarian consideration rather than protection. He adjourned the hearing to allow the applicant to consider this with his adviser. There is nothing improper in what the Tribunal member did in these circumstances. Indeed, it is clearly appropriate that the applicant should be given the opportunity to discuss these issues and receive advice from his adviser.
I listened carefully to the tape and although I could discern some small impatience at times, I could not detect anything that might involve intimidation or improper pressure. Although the Tribunal member was direct in presenting his comments to the applicant, the tone seemed quite normal and appropriate. In my view, there was nothing on the tape or on the face of the decision that suggests a lack of independence or an evil look.
The evidence does not support the applicant’s claim that the Tribunal had a closed mind to the issues raised or that it was not open to persuasion by the applicant. Indeed, the Tribunal made it clear on a number of occasions during the hearing that it was open to further evidence and submissions which were persuasive. The member may have exhibited some irritation or impatience on occasion, but this does not suggest actual bias.
Similarly, on the material before me, I do not accept that a fair minded lay-observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions which were before it. This ground must be rejected.
Failure to disclose country information
In a number of places in the application the applicant suggests that the Tribunal based its decision on information on which he had not had an opportunity of commenting. For instance he says that:
No such adverse information were [sic] put to the applicant until the hearing while, on the same day, the tribunal also decided the matter without giving the applicant further opportunity.
The only country information to which the Tribunal referred is set out in the Court Book at page 103. This refers to the banning of the practice of sati. It was also referred to by the delegate in her decision at Court Book at page 80.
Notwithstanding that the delegate had referred to this information, the applicant did not address it in any way at the Tribunal hearing. Clearly, the information was known to the applicant and could not have taken him by surprise. There was no unfairness in the use of this material by the Tribunal.
Furthermore, the Tribunal’s rejection of the applicant’s claims did not rely on the use of this information on the banning of sati. There was also no obligation on the Tribunal to disclose information of this type given the provisions of ss 422B and 424A (3) of the Migration Act 1958 (Cth) (the Act).
Misconstruction of the law
The third ground relates to a misconstruction of the law. The applicant put it in this way:
The Tribunal’s conclusion it was based on a misconstruction of the relevant law. This failure to be satisfied in accordance with the prescribed criteria for protection visa is a constructive failure to exercise jurisdiction.
The applicant provided the Court with no further submissions on this alleged misconstruction of the law, nor of any detail supporting a claim that there was a constructive failure to exercise jurisdiction. It appears that this ground is really an attempt to seek merits review, as is much of the remaining material in the amended application. This ground also must be rejected.
Conclusion
The Minister has submitted the application must be dismissed as no reviewable legal error has been disclosed. I agree. Once the Tribunal found that the applicants no longer had a subjective fear of persecution in India that that was the end of the matter.
The findings of the Tribunal were reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
I find the decision is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances, I dismiss the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 4 April 2005
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