SZDXU v Minister for Immigration
[2005] FMCA 1016
•22 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXU v MINISTER FOR IMMIGRATION | [2005] FMCA 1016 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 474
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZDXU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1948 of 2004 |
| Delivered on: | 22 July 2005 |
| Delivered at: | Sydney |
| Hearing dates: | 16 June 2005 and 1 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be 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 |
SYG1948 of 2004
| SZDXU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 June 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 May 2004 and handed down on 8 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 13 January 2004 to refuse to grant the applicant a protection visa. The applicant seeks unstated relief against the decision of the Tribunal.
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 “SZDXU”.
The applicant, who claims to be a citizen of Fiji, arrived in Australia on 1 January 2004. On 13 January 2004 he 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.1-34) (“CB”). On 13 January 2004 the delegate refused to grant a protection visa (CB pp.35-41) and on 12 February 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.42-45).
The applicant claimed to fear persecution in Fiji for reason of his race and political opinion. In a statement attached to his original application, he claimed to be an Indo-Fijian and an active supporter of the Fiji Labour Party. The applicant claimed he had been spat on and threatened on numerous occasions by native Fijians, and that he had his ankle slashed and had been sexually assaulted by native Fijians in August 2003, though he only reported a physical assault to the police. The applicant claimed that the authorities would not protect him (CB pp.25-28). The Tribunal accepted the applicant’s account but found that state protection was available to him and so his fears were not well-founded (CB pp.59-62).
The Tribunal’s findings and reasons
On the material available the Tribunal was willing to accept that the applicant:
a)Is a citizen of Fiji and is an Indo-Fijian.
b)Had been involved in activities supporting the Fijian Labour Party (FLP).
c)Had worked in polling stations supporting the FLP in 1999 and a few years earlier.
d)Had attended FLP meetings on two occasions.
e)Had been spat at, elbowed and bullied by native Fijians in April/May 2002 in a school playground.
f)Had received demands of money from native Fijians on two occasions in 2002 while returning home by bus from University.
g)Had been physically and sexually assaulted by a group of three native Fijian men in August 2003. The Tribunal also accepted that it was plausible that the acts were racially and politically motivated.
The Tribunal however did not accept that the bullying or harassment constituted persecution because:
a)the acts did not involve serious harm as stipulated by the Act;
b)they were a threat to life or liberty;
c)there was no evidence before the Tribunal that the Fijian authorities had any involvement in any of the acts committed against the applicant;
d)the Fijian authorities failed to take any action or investigate the allegation when the physical assaults were reported to the police;
e)the applicant’s ill treatment had been tolerated by the authorities.
The Tribunal referred to the authorities which contain the test as to whether the applicant has a well-founded fear of persecution because of his country of nationality is unable to provide protection against such persecution. From the authorities it is clear that the Tribunal is not required to consider whether it should be guaranteed that the applicant should not suffer any ill treatment. The appropriate test for the Tribunal’s consideration was whether there is a real chance that persecution would occur in the reasonably foreseeable future.
The Tribunal made the following findings:
“The Tribunal therefore does not accept that the applicant has experienced any torture or interrogation, nor does the Tribunal accept that he suffered ‘repeated … ongoing’ ill-treatment.
In summary, there is no reason why this applicant could not return to Fiji and continue to live in Fiji. On the basis of the evidence as a whole, the Tribunal cannot be satisfied that there is a real chance of Convention-related harm occurring to the applicant in the reasonably foreseeable future. In arriving at this conclusion, the Tribunal has considered the independent country information cited in this Decision, in particular, the comments relating to racial tensions between native and Indo-Fijians. Indeed, these comments were taken into account in the Tribunal’s acceptance of the applicant’s claims.
On the basis of the available information, the Tribunal cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason.” (CB p.62)
Application for review of the Tribunal’s decision
On 24 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). Those pleadings contained no grounds but contained a lengthy statement regarding the applicant’s concerns upon returning to Fiji. The statement was supported by Section D of his application which consisted of four handwritten pages setting out the history and circumstances leading to his application for a protection visa. On 10 November 2004 the applicant filed an amended application which repeated his experiences in Fiji and under the heading of “Grounds” listed the following eight points:
·I am an Indo-Fijian who left Fiji because I was active supporter of the Fiji Labour Party. Involved in election polling week, polling station located in my primary/high school and the district heavily populated with native Fijians.
·Faced with continuous hatred, violence and racial discrimination and have been a specific target due to racial background and a active supporter of the Fiji Labour Party.
·On numerous occasions I have been a victim of violence and have been interrogated, tortured, punched, kicked and been spat on. I have been threatened with knifes, broken bottles and other dangerous items.
·The level of violence and hatred towards me was extreme and was not a one-off situation, it was repeated and was on going.
·
In my last incident in August 2003, a distressful and serious incident, I was a target of extreme violence and abuse by
3 men carrying knifes and wearing masks. I was overpowered and taken to waste land. During the struggle they were making racial remarks and punching and kicking me. Later they demanded money and sexual favours. They slashed my ankles with a knife and sexually harassed for to perform sexual activities which was very violent.
·The racial and sexual abuse I have faced has scared my lively hood and incited fear and hatred towards indigenous Fijians.
·Had extreme difficulty living my day to day life in Fiji due to this racial and political discrimination.
·Currently seeking emotional help and assistance from family here in Australia.
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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
The applicant appeared self represented and confirmed to the Court that he was fluent in English and did not require the assistance of an interpreter. The applicant had filed written submissions on 10 June 2005 and indicated to the Court that he would rely upon his amended application and his written submissions. The applicant indicated that he had no further oral submissions to make in support of his application.
Respondent’s submissions
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions which contained the following contentions:
a)The Tribunal’s conclusion concerning state protection was consistent with Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (“Respondents S152/2003”) and was open to it for the reasons given, including the country information to which it referred. It was unlikely that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration & Ethnic Affairs (“Chan”) at 428 per McHugh J.
b)The applicant’s amended application identified no error in the Tribunal’s decision and at most sought merits review. However, the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”) at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth at [137].
c)As there was no jurisdictional error in the Tribunal’s decision it is a “privative clause decision” within s.474 of the Act.
Reasons
The applicant in these proceedings was a self represented litigant and appeared without an interpreter. In these circumstances, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
The matter was originally listed on 16 June 2005 but this hearing date was vacated due to the applicant’s ill health which was supported by a medical certificate from a registered medical practitioner. The Court file indicated that the applicant requested an opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) and that he was allocated a legal adviser to assist in the preparation of his case. The records further show that the applicant participated in a consultation with that adviser and was provided with advice. This conference took place two days after the applicant filed his amended application but there is no indication of any request or application to further amend the application after the receipt of legal advice.
The manner in which the pleadings are drafted give no indication that the applicant had any comprehension of identifying any grounds of review of the Tribunal’s decision. There was a strong inference that the applicant sought a merits review as a substantive amount of the material contained in the application and amended application was a re-statement of the facts used by the applicant to support his claim for a protection visa. It is not within this Court’s powers to conduct a review of the merits of the Tribunal’s decision: Wu Shan Liang per Brennan CJ, Toohey, McHugh, Gummow JJ at 272:
“…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.”
Nor does the Court have the power to examine the Tribunal’s decision to determine whether the Tribunal made a wrong finding of fact: Abebe per Gummow and Hayne JJ at [137]:
“… there is no error of law simply in making a wrong finding of fact.”
In the applicant’s written submissions the first point inferred that the Tribunal made an error in respect of its finding on the applicant’s claim of physical and sexual assault. The Tribunal did not ignore this issue in its decision as it made direct reference to the claims and acknowledged that those acts did constitute serious harm. However, the Tribunal then proceeded to consider those claims in Convention terms and it was therefore difficult to suggest that the issue was ignored. The only conclusion that can be drawn from the applicant’s submission was that the Tribunal made a wrong finding of fact in respect of his assault and that is an issue outside of the scope of this Court.
Although not raised in the original or amended application, in the applicant’s written submission under the heading of “In failure to ask the real question”, the applicant stated that the Tribunal did not apply itself to the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee. The applicant complained that the Tribunal did not consider the real question which was the Tribunal’s duty to consider. The applicant stated that judgment was made on whether there was enough protection of the applicant rather than the claims made by the applicant. The Tribunal’s conclusion concerning state protection was consistent with the High Court decision in Respondents S152/2003 and was open to the Tribunal for the reasons it gave, including the country information to which it referred.
In the Tribunal’s findings the following observation was made:
“There is no evidence before the Tribunal that the Fijian authorities had any involvement in any of the acts committed against the applicant. When the physical assault was reported to the police, they took action, namely investigating the allegations. Therefore, the Tribunal does not accept the applicant’s claim that the police have never acted on previous occasions. They did not charge anyone and that could be due to many reasons, including the fact that the applicant could not identify the culprits. The Tribunal does not accept that [the] applicant’s ill-treatment has been tolerated by the authorities.” (CB p.60)
The Tribunal then went on to consider the concepts of guaranteed protection and the absolute obligation for the state to provide protection. The members of the High Court acknowledge that it is not possible to express protection in these terms and it is more appropriate when determining the issue of well-founded fear that the critical question be whether the evidence establishes a real chance that an applicant if returned to their country of nationality would be persecuted for reasons prescribed by the Convention. If the evidence shows that the persecutors have targeted that applicant, the ability of the country to protect that applicant will be relevant to the issue of the well-founded fear. If the applicant is able to show there is a real chance that he or she will be persecuted, refugee status cannot be denied merely because the state and its agencies have taken all reasonable steps to eliminate the risk. It is unlikely that a Convention signatory is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the signatory’s understanding of the conditions in the applicant’s country of nationality: Chan per McHugh J at 428.
The Tribunal’s decision indicated that it had considered the material before it and applied the appropriate test in reaching its conclusion. The Tribunal noted:
“It is possible that an incident similar to that of August 2003 might happen again but this would be speculative. Furthermore, it cannot be concluded that on the basis of a single incident of serious harm, there is a real chance of that happening again. On the contrary, the Tribunal finds that the chance is remote.
It is also important to note that the Fijian authorities are not required to guarantee that such an incident would not happen again. They are however required to act appropriately. There is no evidence that the authorities have failed to act appropriately when the physical assault incident was reported. On the basis of the evidence as a whole, the Tribunal is of the view that there is effective state protection in Fiji for a person like the applicant.” (CB p.61)
In the applicant’s written submissions, the applicant made the following statement:
“In failing to ask the real question, the tribunal fell into error. This error may be characterised in a number of ways as illustrated by the judgment of Wilcox and Madgwick in Sellamuthu v MIMIA (1999).”
However, there was no particularisation as to the question asked, its inappropriateness and the reason it led to error. The authority quoted by the applicant is usually referred to in the context that the Tribunal is not limited in its determination to the case articulated by the applicant if evidence and material it accepts raise a case not articulated. If that is the context in which the applicant has used the authority and there was no particularisation, I believed it was mere speculation as to the argument that the applicant was attempting to promote. In the absence of any grounds or particulars and the vague references contained in the written submissions and the complete absence of any supporting oral submissions, I believed this Court had only one course open to it to determine whether there was any jurisdictional error on the part of the Tribunal. The only avenue available was to determine whether any jurisdictional error became apparent on the face of the decision determined by a fair reading. I have undertaken that task, considering both the Tribunal’s decision and the supporting documentation contained in the Court Book.
The applicant was advised on 10 March 2004 by letter that the Tribunal had considered the material before it in relation to his application and it was unable to make a decision in his favour on that information alone (CB pp.46-47). In the Tribunal’s letter, the applicant was invited to attend a Tribunal hearing on 3 April 2004 where he could appear and give further oral evidence, supported by any witnesses the applicant wished to call. The applicant was also invited to submit any further written information in the form of arguments or documentation in support of his application. The applicant availed himself of the opportunity and attended the Tribunal’s hearing, but it was not apparent that he made any further submissions in the form of documentation or written arguments. There was no indication that the applicant called other witnesses to give evidence in support of his application. The Tribunal’s decision did not indicate that any material from whatever source was used by the Tribunal member that was personally adverse to the applicant. The country information was general in nature and would not have raised any issue that was personal to the applicant. No transcript of the Tribunal’s hearing was provided to the Court and the applicant did not raise any issue in respect of the conduct of the Tribunal’s hearing.
Conclusion
As there was no specific grounds pleaded in the application or amended application and both documents were without particularisation, I have not been able to identify any ground that the Tribunal committed a jurisdictional error. The wording of the applications and the written submissions are effectively limited to a request for merits review which is not permitted in this Court. 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-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 July 2005
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