SZDTA v Minister for Immigration
[2005] FMCA 417
•23 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTA v MINISTER FOR IMMIGRATION | [2005] FMCA 417 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Thailand – threats from husband’s business partner – unreasonableness – relevant considerations – constructive failure to exercise jurisdiction – procedural fairness – bias – no legal error – privative clause decision – application dismissed. Migration Act 1958 (Cth) Abebe v Commonwealth (1999) 197 CLR 510 NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 PlaintiffS157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Waterford v Commonwealth (1987) 163 CLR 54 |
| Applicant: | SZDTA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1707 of 2004 |
| Delivered on: | 23 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 February 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1707 of 2004
| SZDTA |
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 16 April 2004 and handed down on
13 May 2004, affirming the decision of the Minister’s delegate.
Background
The applicant is a citizen of Thailand who arrived in Australia on
3 January 2004 on a visitor visa. She lodged a protection visa application on 22 January 2004. On 27 January 2004 a delegate of the Minister refused the application. Consequently the applicant lodged an appeal to the Tribunal on 26 February 2004. By a letter dated
18 March 2004 she was invited to attend a hearing at the Tribunal on 22 April 2004. She expressly declined to attend the hearing in a response dated 9 April 2004 and received by the Tribunal on 15 April 2004. On 16 April 2004 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant a protection visa. That decision was handed down on 13 May 2004.
Claims before the Department and the Tribunal
The applicant claims she met her husband while they were at university. They married in 1993, which would have been when she was about 14 years old. In 1997 they started a trading business which was lucrative and had a high turnover. She claims that they met a prominent businessman named Kai who became a partner in the business and business trebled. However, she was slowly being pushed out of the running of the business. Her husband became uncommunicative and drifted away as he spent more time with his business partner.
She claims that because she wanted her husband “back in her life” she decided to investigate the business, which included trying to ascertain the contents of some export containers. When she approached her husband he said she could “get into trouble” if she continued. Eventually he told his business partner that she had concerns.
She contends that consequently her car had been run off the road and shot at and she was poisoned and hospitalised. She further says that her family received death threats and were warned to tell her to “be sensible”. She said that if she was not allowed to stay in Australia she did not know what she could do as it was too dangerous for her to go back to Thailand.
At Court Book 25 she says:
There are people there looking out for me and my life is in great danger. The trouble is that the Thai system cannot look after me because they say I have no proof of anything, but regardless of that my life is still being threatened and I feel very vulnerable.
Her claims are set out at Court Book 24 and 25. She made no further relevant claims to the Tribunal and, as I have already indicated, declined the invitation to attend a hearing.
Tribunal decision
The essence of the Tribunal’s decision is captured at Court Book 72:
On the basis of the vagueness, lack of detail and anomalies in her evidence, I am unable to be satisfied that any of her claims about being married, setting up a business, taking on Kai as a partner, becoming suspicious of him, being run off the road, shot at, poisoned and sought after by people who want to kill her are true.
In any event, however, even if I accepted her claims at face value, I would be unable to identify a nexus between them and the Convention. Her alleged problems stemmed from a criminal motive on the part of Kai, a desire to silence her in response to her airing her suspicions about him to her husband.
Accordingly, I find that the applicant does not have a well-founded fear of persecution for any Convention reason in Thailand.
Consideration
In her amended application the applicant set out four grounds of review. Before dealing with them, which I will do in turn, I note the well known passage in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 on the proper role of the Court:
… any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example it was said by Brennan J in Attorney-General (NSW) v Quin (39):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
This reiterates the principle that this Court has no role and is not empowered to engage in merits review. Rather its job is to examine the Tribunal’s consideration of the matter and determine whether or not there has been any legal error. As has been made clear in Waterford v Commonwealth (1987) 163 CLR 54 and Abebe v Commonwealth (1999) 197 CLR 510 there is no error of law simply in making a wrong finding of fact.
It is also important to remember that the critical findings made by the Tribunal were based on its inability to be satisfied from the evidence provided by the applicant of the claims that she made. Her failure to attend a hearing and provide the Tribunal with an opportunity to gather further evidence from her only compounded the problem. The lack of evidence before the Tribunal can not be visited upon it. It can hardly be regarded as the Tribunal’s fault in circumstances where the applicant declined to attend a hearing.
The applicant also declined to present any further submissions to this Court in support of her amended application.
Unreasonableness
The first ground of review is at point six of her “statement of claims”:
In making the decision, the Tribunal's findings of a number of jurisdictional facts was not reasonable.
The particulars referred to are the Tribunal findings that the applicant was not the target of a revenge attack by a prominent citizen in Thailand and that there was no persecution of the applicant by a person or persons in Thailand.
But as I have already pointed out the Tribunal reached its decision because it was unable to be satisfied on the claims made by the applicant.
The Full Court of the Federal Court in NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 at [27] considered claims relating to reasonableness:
It must be recognised that it is much easier to judge the reasonableness of a decision-maker's conclusion as to a jurisdictional fact when that conclusion is a positive one than when it is negative … It is much more difficult to see how a failure to be satisfied can be judged according to a standard of reasonableness, because the converse of an unreasonable failure to achieve a level of satisfaction is that a reasonable decision-maker would have achieved that level. For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to the courts.
In my view what their Honours have said is pertinent to the claims made at the hearing before this Court. What the applicant is essentially asking the Court to do is engage in merits review, under the guise of unreasonableness. This ground of review must be rejected.
Relevant considerations
The second ground of review is that the Tribunal ignored relevant considerations in making its decision. Two particulars are provided. First, that the Tribunal has not or not adequately taken into consideration the applicant's claim that she had previously been and was still sought out by a person or persons wishing to do her harm because of her knowledge of instances involving organised crime and her business.
The second particular is that the Tribunal has not or not adequately taken into consideration difficulties in the translation of her original application which could be “misinterpreted material both oral and written”. She gives the example of her date of marriage and says that she was not asked to clarify the anomaly.
This ground misunderstands the basis of the Tribunal’s decision. The Tribunal lacked the necessary evidence and details in that evidence.
It was presented with anomalies in the material provided to it. Understandably the Tribunal was therefore unable to reach a conclusion favourable to the applicant.
In these circumstances it can hardly be said that the Tribunal ignored these considerations, whether they were relevant or not. Indeed as is evident from its decision, the Tribunal did give consideration to the first particular. There is a real question as to the relevance of the second particular. However by not attending the hearing the applicant failed to take up the opportunity to explain her concern.
Constructive failure to exercise jurisdiction
The third ground of review is that there has been a constructive failure by the Tribunal to exercise jurisdiction. In support of this the applicant repeated particulars provided for the first two grounds.
As made clear by Hill J in Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 a Tribunal will constructively fail to exercise its jurisdiction when it fails to address a matter which could affect the outcome of the Tribunal's review. His Honour also said it would normally only be the case that a jurisdictional error had occurred when a Tribunal failed to address an issue where the matter was raised by the evidence and the applicant requested the Tribunal to address the matter. It is not for the Tribunal to make out a case for an applicant.
It is abundantly clear that there has been no constructive failure by the Tribunal to exercise its jurisdiction.
Denial of natural justice and procedural fairness
The fourth ground is that the Tribunal denied the applicant natural justice or procedural fairness. The particulars are that the Tribunal failed to recognise that the applicant was not invited by the Department to explain anomalies in her statement. Furthermore, her application was refused only a few days after submission. This may be seen as procedural unfairness.
This ground is misconceived. The matter before this Court is the decision of the Tribunal, not that of the delegate. Moreover the applicant after being told by the Tribunal that it could not make a decision in her favour on the papers still declined to attend a hearing. There can therefore be no serious claim that she was denied procedural fairness by the Tribunal.
Section 422B of the Migration Act 1958 (Cth) (the Act) also applied to this case such that no procedural unfairness in relation to the matters dealt with in Division 4 of Part 7 of the Act could be asserted by the applicant.
Bias
The last ground of review is that the Tribunal was or appeared to be biased. The applicant repeats the particulars for all the previous grounds except those for constructive failure in support of this claim.
The test for actual bias as set out by Wilcox J in the Full Federal Court decision in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at [123] is:
... that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case.
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.
None of the particulars put forward by the applicant go anywhere near meeting either of these tests. This claim must also be rejected.
Conclusion
Counsel for the respondent Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed.
I agree. It is apparent that the Tribunal was unable to reach a state of satisfaction because of the vagueness of the applicant’s evidence provided only in documentary form, the lack of detail and the anomalies in that evidence. The findings made by the Tribunal were reasonably open to it on the material before it.
What the applicant has been seeking from the Court is essentially merits review. As I have indicated that is not something that is open to the Court.
I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth of Australia (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 must dismiss the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Zhan Chiam
Date: 13 April 2005
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