SZDUZ v Minister for Immigration
[2005] FMCA 518
•21 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUZ v MINISTER FOR IMMIGRATION | [2005] FMCA 518 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
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
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Minister for Immigration & Multicultural & Indigenous Affairs v NABE (No 2) [2004] FCAFC 263
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration v Jia [2001] HCA 17
| Applicant: | SZDUZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1794 of 2004 |
| Delivered on: | 21 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 14 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1794 of 2004
| SZDUZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 May 2004 and handed down on 25 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 19 December 2003 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDUZ”.
The applicant, who claims to be a citizen of Indonesia, arrived in Australia on 23 November 2003. On 18 December 2003 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-25) (“CB”). On 19 December 2003 the delegate refused to grant a protection visa (CB pp.37-44) and on
22 January 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.45-48).
The applicant who was born in October 1978 claimed she left Indonesia because she was of Chinese background and witnessed turmoil in Indonesia in 1998 when she was at University. She claimed she had fears for her safety at that time and afterwards. The applicant stated that if she returned to Indonesia she may suffer “at any time”. She also claimed she feared harm from the Indonesian Government or mobs. The applicant stated that she did not think the Indonesian authorities would protect her.
The applicant claimed that her parents remain in Jakarta where they run a small business and that she has siblings who also work in a particular industry. The applicant claimed she was a Christian and attended a nearby church. She stated she moved from Medan to Jakarta when she was young. The applicant claimed she graduated from University with a degree and that the University had students from various backgrounds and she had friends from other ethnic groups. The applicant stated she had been working since her graduation from University and remained employed by the one company until her departure for Australia. The applicant claimed that she had wanted to resign from her job as she intended to come to Australia and live, but her supervisor had told her it would be wiser if she saw how things worked out in Australia (CB pp.61-62).
The Tribunal’s findings and reasons
In its decision, the Tribunal accepted that:
a)the applicant had a frightening and distressing time during the 1998 riots but found that she and her immediate family were not physically harmed and did not sustain property loss. The Tribunal was not satisfied that the applicant suffered harm at that time that was serious enough to amount to persecution (CB p.65); and
b)the applicant had been robbed on occasions and had once been threatened with a knife by a person who wished to rob her. However, the Tribunal was not satisfied that this incident occurred because of her ethnicity but rather, it found, based on the applicant’s own evidence, that she was attacked randomly by criminals (CB p.65).
The Tribunal found that the applicant had not claimed to have suffered any other harm for a Convention reason or otherwise (CB p.65) and, as a result of these findings, was not satisfied that the applicant had suffered Convention based persecution in the past (CB p.65).
Based on country information, the Tribunal found that while discrimination against ethnic Chinese continued in Indonesia, there had been no serious harm in recent years. The Tribunal was therefore not satisfied that the applicant faced a real chance of persecution by reason of her Chinese ethnicity or for any other Convention reason if she returned to Indonesia in the foreseeable future and concluded that the applicant had no well-founded fear of persecution (CB p.65).
Application for review of the Tribunal’s decision
On 10 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The applicant attended a directions hearing on 17 September 2004 and consented to Short Minutes of Order requiring her to file and serve an amended application giving full particulars of each ground of review to be relied upon by 5 November 2004. On 2 November 2004 the applicant filed an amended application which contained the following statement:
“The Tribunal officer refused to accept any of my explanation at my hearing because of his bias against me. He accepted that that racial discrimination and turmoil targeted Chinese were severe in 1998. However, he believed that the present government has been paying much attention on controlling the race discriminations and religious minorities and made the conclusion based on some wrong information, he did not have any factual evidence to justify his decision. It was a jurisdiction error. As a matter of fact, bombing is still threatening us, political and economic system is not stable. There may be turmoil at any time which Chinese Indonesians are targeted. It was not safe for us to return to Indonesia now. The officer has chosen to refer to the good information from media over the world about the situation. They are not reasonable and over optimistic about the situations in Indonesia.
I believe that the officer made jurisdiction mistakes when considering my application. He did not consider all the information provided by me at my hearing, and he simply just refused my application base on the good information about Indonesia. The resources for his judgment are not true which caused the unfair conclusion about my application.” (Errors in original)
The law
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].
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.
Applicant’s submissions
Although the applicant was required to file written submissions seven days prior to the scheduled hearing, she failed to comply with that order. When she was invited to make any oral submissions in support of her application, the applicant proceeded to provide the Court with a detailed summary of her claim for protection based on her circumstances as an ethnic Chinese in Indonesia and the extent of her fears which resulted from the riots in 1998 and several experiences that she had had since those riots. The applicant unfortunately did not appear to have any understanding of the nature of the issue to be decided by the Court and approached the hearing as if it were another oral hearing before the delegate or the Tribunal.
Respondent’s submissions
Mr G Johnson of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The applicant’s amended application alleged the Tribunal was biased towards her but did not particularise the allegation in any sustainable fashion. There was no evidence that the Tribunal had a “closed mind” or was unable or unwilling to change regardless of what was presented. That and nothing less would need to be clearly proved to establish bias: SBBA v Minister for Immigration & Multicultural & Indigenous Affairs per Weinberg, Stone and Jacobson JJ at [15]. This was a case where the Tribunal did not accept the applicant had a well-founded fear of persecution for a Convention reason. The fact that the Tribunal did not reach the decision being sought by the applicant was not sufficient to show bias. Nor was any reasonable apprehension of bias shown.
b)The amended application claimed the Tribunal “did not consider all the information provided by me at the hearing”. Again the allegation was not made out and was not particularised beyond an argument regarding the merits of the Tribunal’s decision. The essence of the applicant’s complaint was that the Tribunal should have weighed the evidence differently and accepted the applicant’s claim over the more positive view of conditions in Indonesia upon which it acted. The Tribunal does not fail to consider a claim merely because it does not accept it. Also there is of course a distinction between failing to deal with a “claim” (i.e. something which needs to be dealt with for the Tribunal to complete its exercise of jurisdiction), on the one hand, and, on the other, a mere failure to attend to a piece of evidence – the latter not being a jurisdictional error: Htun v Minister for Immigration & Multicultural & Indigenous Affairs per Allsop J at [42] with Merkel J agreeing at [8] and Spender J also agreeing at [1]. The Tribunal is simply not obliged to expressly grapple with each item of evidence: Paul v Minister for Immigration & Multicultural & Indigenous Affairs per Allsop J at [78]-[79] and Heerey J agreeing at [1]. In WAJW v Minister for Immigration & Multicultural & Indigenous Affairs, for example, Nicholson, Jacobson and Bennett JJ at [27] reminded that the Tribunal is “not obliged to cite each piece of evidence before it” and a “general” finding of the Tribunal may be “capable of encompassing consideration of all the evidence which was before the Tribunal”.
c)The amended application also claimed the Tribunal “did not have any factual evidence to justify his decision”. That was plainly incorrect as the Tribunal was acting upon the applicant’s own evidence and upon country information which did not satisfy the Tribunal of any real chance of Convention persecution being suffered by the applicant now or in the foreseeable future.
The applicant’s claim that a lack of evidence amounted to “jurisdictional error” was incorrect. In Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs per Finn, Marshall and Mansfield JJ at [31], the Full Court recently rejected an argument that Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (“Applicant S20/2002”) authorised a conclusion that jurisdictional error would occur if there was demonstrated “the absence of evidence or the insufficiency of evidence to support the decision”. Their Honours found that the said proposition was supported by only one of the judgments in Applicant S20/2002 and proceeded at [31] to explain that a Wednesbury unreasonableness argument may establish jurisdictional error if it can be inferred:
“… from the nature of the decision that the administrative decision-maker applied the wrong legal test in making the decision or was not, in reality, satisfied in respect of the correct legal test in making the decision: see e.g. Applicant S20/2002 per Gleeson CJ at 1168, [9], and per McHugh and Gummow JJ at 1171-1172, [35]-[36].”
The Full Court then continued to explain:
“Indeed, it is plainly established by the High Court that there is no jurisdictional error simply in making a wrong finding of fact: see e.g. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. See also Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 187.”
d)Further, in Minister for Immigration & Multicultural & Indigenous Affairs v NABE (No 2), Black CJ, French and Selway JJ at [53] affirmed that:
“… mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.”
Their Honours proceeded to explain that jurisdictional error may be identified if the Tribunal makes an error of the kind discussed in Minister for Immigration & Multicultural Affairs v Yusuf, for example, by asking the wrong question and not applying the correct criteria but concluded that:
“An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact.”
The jurisdictional fact is of course the Tribunal’s satisfaction that the criteria are fulfilled and not some particular finding of fact along the way. Even if the Tribunal’s findings were illogical, on the authorities as they stand, illogicality would not amount to jurisdictional error: VWST v Minister for Immigration & Multicultural & Indigenous Affairs per Kiefel, Marshall and Downes JJ at [15]-[18] applying NACB v Minister for Immigration & Multicultural & Indigenous Affairs at [24]-[30].
Reasons
When the applicant was invited to address the Court it was apparent that she had little understanding of what were the issues to be decided and the manner in which this was to be done. The applicant took the invitation to address the Court as an invitation to make a substantial plea for a re-evaluation of the merits of her case. It was explained to the applicant the role of the Court and the limitation placed upon it in respect of a merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at 272:
"… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed … [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.”
When the applicant attended the directions hearing, she indicated she wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and a panel adviser was allocated to her. She was also provided with an information sheet at the directions hearing which was explained to her by the respondent’s solicitor with the aid of an interpreter. Despite this the applicant made no reference to the issues raised in her amended application or other aspects to identify any jurisdictional error in the Tribunal’s decision.
Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The manner in which the applicant had drafted the grounds pleaded made it difficult to identify the individual issues that addressed the subject of jurisdictional error in the Tribunal’s decision. Counsel for the respondent identified two areas which raised the question of jurisdictional error, being that of bias and the factual finding of the Tribunal’s decision. I accepted those submissions which addressed the identified issues and accepted that neither of those grounds can be sustained.
In performing the Court’s obligations to independently assess whether an arguable case could be made out, a fair reading of the Tribunal’s decision on its face does not lead to the identification of any jurisdictional error in the Tribunal’s decision making process. The material provided by the applicant was minimal and this was confirmed by the applicant from the bar table during the hearing when she indicated that she had left Indonesia without significant documentation concerning her situation and the circumstances in Indonesia. She claimed she left with her parents’ blessing with a view to seeking protection in Australia and this seems to have been done in a rushed manner when the opportunity arose. The applicant indicated she had photographs and newspaper articles to support her claims. However, she did not have any of this information available to her.
Although the amended application suggested the Tribunal was biased, this was nothing more than a bald statement without further evidence or a copy of the transcript to support that claim. A party asserting actual bias on the part of the decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. There was nothing in the amended application nor the oral submissions made by the applicant to sustain that ground.
In respect of the other jurisdictional errors that may be inferred by the amended application, these issues are addressed in the written submissions filed by Mr G Johnson, Counsel for the respondent. I am satisfied that the issues addressed in that review cover the possible jurisdictional errors that could be inferred in a broad interpretation of the amended application. I accepted those submissions and did not believe it necessary to elaborate on them further.
Conclusion
As there is no specific pleaded grounds and particularisation that could suggest the existence of any jurisdictional error, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 21 April 2005
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