SZEGN v Minister for Immigration
[2005] FMCA 1410
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGN v MINISTER FOR IMMIGRATION | [2005] FMCA 1410 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – leave sought for a “McKenzie Friend” – discussion of whether appropriate in the circumstances – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 474
McKenzie v McKenzie (1970) 3ALL ER 1034
R v Leicester City Justices; Ex parte Barrow & Anor (1991) 3 ALL ER 935
Smith v R (1987) 71 ALR 631
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 & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487
Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4
Varatharajah Thiyagarajah v Minister for Immigration & Multicultural Affairs (1997) 143 ALR 118
Nagaratnam Prathapan v Minister for Immigration & Multicultural Affairs (1997) 47 ALD 41
Abebe v Commonwealth of Australia (1999) 197 CLR 510
| Applicant: | SZEGN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2637 of 2004 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 29 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person, assisted by Mr Toufic Laba-Sarkis, with leave.
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
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 2637 of 2004
| SZEGN |
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 25 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 December 2003 and handed down on 23 December 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 April 2003 to refuse to grant the applicant a protection (Class XA) 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 “SZEGN”.
The applicant, who claims to be a citizen of Fiji, arrived in Australia on 6 October 2002. On 17 October 2002 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.1-45) (“CB”). On 30 April 2003 the delegate refused to grant a protection visa (CB pp.48-55) and on 20 May 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.56-59).
In her primary application, the applicant described herself as an Indo-Fijian citizen, born in September 1970 and divorced in September 2000. She claimed she had ten years of schooling and had worked from 1990 as a cashier and from May 2000 until October 2002 as a sales and marketing officer. The applicant stated in a lengthy document attached to her original application that she feared harm from her former husband who had subjected her to physical and emotional abuse during their marriage and continued to stalk, harass and intimidate her after their divorce. The applicant alleged that she had a well-founded fear of persecution if she were returned to Fiji as a person who has been subjected to domestic violence by her former husband and as a member of a social group, “woman at risk” in Fiji (CB pp.25-45).
Tendered to the Tribunal were statutory declarations from the applicant’s two brothers and sister which documented in detail their personal knowledge of the abuse suffered by the applicant from her former husband and her lack of ability to access effective protection from her former husband. It was also stated that the applicant only gained a divorce by relinquishing custody of her two children to her husband. The declarations also reported on the abuse the applicant had continued to receive from her husband after their divorce. The applicant claimed that on a few occasions when her husband was charged with assault she was pressured by her husband to withdraw the charges. Also tendered to the Tribunal was a written statement dated 20 May 2003 from the applicant’s solicitor in Fiji which stated that the applicant had gained a divorce from the former husband in 2000 on the grounds of cruelty and the only way for her to obtain a divorce was by giving custody of their two children to the husband. The solicitor stated that the husband had been abusive towards the applicant, had assaulted her on numerous occasions and the matter was reported to the police on five separate occasions from 1990 to 1999 and the husband was charged with assault in September 1999 (CB pp.109-110).
The applicant attended a Tribunal hearing on 20 October 2003. The applicant brought forward as witnesses her two brothers, her sister and her new husband, all of whom were Australian citizens (CB p.110).
McKenzie friend
Mr Toufic Laba-Sarkis sought leave of the Court to act as a “McKenzie friend” for the applicant. Mr Laba-Sarkis informed the Court that he migrated from Lebanon and is now an Australia citizen. He is the Managing Director of a salvage timber and recycling value added business. Mr Laba-Sarkis stated that he is an NAATI accredited interpreter in the Arabic-English medium and that he had previously practised as a migration agent until 1996. Since 2004 Mr Laba-Sarkis has assisted people on a voluntary basis through the various community organisations of which he is a member. He has made representations to the Minister and attended Courts and Tribunals in respect of migration issues. He is a member of the Ethnic Community Council, Maronite Christian Society, Secretary of the General Council of Community of Hasroun (Charitable Association) and other committees. Mr Laba-Sarkis stated he completed academic studies in theology, philosophy and migrant education.
In McKenzie v McKenzie and R v Leicester City Justices; Ex parte Barrow & Anor the concept of “McKenzie friend” envisages permitting a lay person to attend a trial and take notes, quietly make suggestions to the litigant in person and give advice to the litigant. It is a matter of discretion of the Court as to whether it is appropriate for a “McKenzie friend” to be involved at all: Smith v R.
I appreciate the practical difficulties in which a person in the position of the applicant is confronted because she is in a strange country whose language is not familiar and whose legal system she does not understand. Nor is the applicant likely to be in a financial position to enable her to obtain legal representation or retain Counsel.
The applicant has filed an amended application in response to an order of the Registrar of this Court which is generic and vague in nature and contains no particularisation. Attached to that amended application was a bundle of documents (not supported by an affidavit) which contained psychological reports, statutory declarations and various references which address the issue of what the applicant has been doing since arriving in Australia.
As there was no objection from the respondent’s Counsel, Mr Laba-Sarkis was granted leave to act as a “McKenzie friend” which was extended to allow him to read a statement prepared in conjunction with the applicant.
The Tribunal’s findings and reasons
Mr A McInerney of Counsel, appearing for the respondent, prepared submissions prior to the hearing which contained the following summary of the Tribunal’s findings:
a)any harm the applicant may fear from her former husband was not Convention related but arose from her personal relationship with him (CB p.122.3);
b)the independent evidence did not support the applicant’s submission that the Fiji government and justice system acted in a discriminatory fashion such that assistance would be denied to the applicant by the government on a selected and discriminatory basis for a Convention reason by reason of her membership of a particular social group of women in Fiji (CB p.122.5);
c)it accepted the independent evidence that the Fiji government had made a commitment to addressing gender discrimination in the law, particularly as it related to women and domestic-related violence, that a new police commissioner had been appointed to increase the professionalism of the police force (which had an independent complaint mechanism) and that reports in the press indicated that the courts do make judgments against male perpetrators of violence against women, including those in family situations (CB p.122.7); and
d)it found that there was not a real chance that the applicant would face persecution for any Convention reason should she return to Fiji.
Application for review of the Tribunal’s decision
On 25 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) which contained the following grounds:
1)The Tribunal found myself and my witnesses to be credible and accepted that I had suffered and that I would be further at risk should I return to my country of origin.
2)The independent evidence, which the Tribunal accepts, indicates that family related violence is a significant problem in Fiji. The Tribunal agrees with the submissions of the adviser that the Fiji government and justice systems act in a discriminatory fashion such that assistance would be denied her by the government.
3)The Tribunal appreciates that the case merits consideration on humanitarian grounds.
4)The Tribunal advised me that their role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. Any consideration of her circumstances on humanitarian grounds is a matter solely within the Minister’s discretion.
On 13 December 2004 the applicant filed an amended application which contained the following three grounds:
1.The RRT erred in law by not applying the correct meaning and not taking into consideration the evidence (see attached) as meeting definition of Refugee as I am a refugee and have a well founded fear of persecution as a woman at risk.
2.The Tribunal made a jurisdictional error by asking the question and not accepting my reply for protection purposes.
3.I was not given the opportunity to reply to a particular problem or question which would satisfy the decision maker to accept me as a Refugee. This is a jurisdictional error of law.
Attached to the amended application was a bundle of documents that were not attached to an affidavit but were served in the form of a letter with the following attachments:
1)Copy of transcript of hearing
2)Psychologist Report, prepared by Gabriela Salabert, Psychologist, 18 October 2003
3)Statutory Declaration, [Applicant] 19 January 2004
4)
Letter from Father Nevio Capra, Scalabrini Village,
19th January 2004
5)Letter from Gerlinde Otte, Director of Nursing, Scalabrini Village, 15th January 2004
6)Letter from Judith Bennett, Assistant Director of Nursing, Scalabrini Village, 13th January 2004
7)Letter from Beth Mitchie, Nurse Educator, Mission Australia, 12th January 2004
8)Certified Copy, Statement of Attainment, Certificate 3 in Community Services, Mission Australia, 9 September 2003
9)Certified Copy, Transcript of Results, Certificate 3 in Community Services, Mission Australia, 9 September 2003
10)Certified Copy, Certificate of Competency, Nursing Assistant – Health Care Assistant, Australian Nursing and Training Services, 14th January 2003
11)Certified Copy, Graduate Reference, Australian Nursing and Training Services, 14 January 2003
12)Certified Copy, Statement of Attainment, Senior First Aid and Management of Emergency Situations, 1 April 2003
13)Letter from Vicki Aguilar, Area Nurse Educator, South Western Sydney Area Health Services, 4 July 2003
14)Letter from Narendra Prasad Sukul, 18th January 2004
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.
Submissions
Mr Laba-Sarkis, the applicant’s McKenzie friend, read to the Court a pre-prepared statement which Mr Laba-Sarkis indicated had been prepared at the instruction of the applicant with his assistance. A copy of the prepared statement was provided to the respondent Counsel and the Court at the beginning of the hearing. Attached to the prepared statement was an extract of the Tribunal decision Ref: N93/00656
(3 August 1994) (pages 10-15 inclusive). This part of the Tribunal’s decision contained a consideration of a number of academic works in respect of social group.
Mr A McInerney of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The weighing of evidence is a matter quintessentially for the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 281-282, 291-292.
b)Independent country information to which the Tribunal referred did not justify a conclusion that there was a failure on the part of the Fijian government to meet international standards of protection which, in any event, do not mandate an absolute guarantee of freedom from violence: Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 at [26]-[27], per Gleeson CJ, Hayne and Heydon JJ.
c)The application filed with the court makes a plea for merits review. It does not appear to raise any ground of jurisdictional error for consideration by the court.
d)In any event, no jurisdictional error is disclosed in the reasons of the Tribunal, or the procedures it followed.
Reasons
At the commencement of the hearing, Mr Laba-Sarkis sought leave of the Court to appear as the applicant’s “McKenzie friend” and to assist the applicant in the presentation of her application to the Court. Neither the Court, Counsel for the respondent nor the respondent solicitors have prior notice of the intended appearance of Mr Laba-Sarkis. The Court Book indicated that the applicant had retained the services of Simon Jeans & Associates, Solicitors and migration agents to represent and assist her in her hearing before the Tribunal (CB p.65). Mr Simon Jeans attended the Tribunal hearing on 20 October 2003 and subsequently submitted additional evidence on 22 January 2004 in support of the applicant’s application (CB pp.73-100). During the hearing of the matter before this Court, oral submissions indicated that Mr Simon Jeans made an application to the Minister pursuant to s.417 on behalf of the applicant.
At the first court date directions in respect of the application for judicial review before this Court, the applicant appeared as a self represented litigant. She indicated she wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and she was subsequently allocated an adviser under that Scheme who provided her with consultation and advice. Mr Laba-Sarkis in his application indicated that he had become aware of the applicant’s situation through a community based group and that members of that organisation had sought his assistance during this hearing. As I have indicated at paragraph 9 above,
I appreciate the practical difficulties confronted by the applicant. Further, the applicant has come to Court with the expectation that she will be assisted in the presentation of her application by the person seeking leave to be appointed as a “McKenzie friend”. In the absence of any objection from Counsel for the respondent, I granted leave for Mr Laba-Sarkis to appear as the applicant’s “McKenzie friend”. That leave was extended to permit Mr Laba-Sarkis to read from a pre-prepared typed statement.
Although not clearly articulated in any of the pleadings previously filed, the substantive argument submitted at the hearing on behalf of the applicant was that the Tribunal erred in law as it failed to consider the real question that it had to decide, namely whether the applicant had a well-founded fear of persecution due to her membership of a particular social group. It was also argued that the Tribunal erred in law by not taking reasonable steps to precisely define “social group”.
The Tribunal recorded under the heading “Claims and Evidence” that the applicant’s adviser, Mr Simon Jeans, Solicitor, in his written submissions dated 10 November 2003 identified the particular social group of which the applicant was a member as being either Indo-Fijian women, divorced Indo-Fijian women or female victims of domestic violence in Fiji. The Tribunal member recorded that the adviser provided a number of reports and articles from various sources indicating that Fijian women or Indo-Fijian women form a particular social group for the purposes of the Convention in the view of the reasoning of Minister for Immigration & Multicultural Affairs v Khawar. The adviser emphasised the importance of an extract from the reports of the Research Directorate, Immigration and Refugee Board (RDIRD) Ottawa, Canada (4 October 2000) which focussed on women as a particular social group being the target of violent crimes in Fiji (CB pp.110-111). In the adviser’s submissions to the Tribunal he claimed that:
“… the persecution [the applicant] fears falls within the Convention definition as it is not only persecution from her former husband but also from the State of Fiji which has proven to be unwilling and unable to protect her, and in all the circumstances of this case could be considered as an agent of the persecution.” (CB pp.75, 111)
The adviser also addressed the applicant’s change in circumstances subsequent to her divorce from her first husband and drew the Tribunal member’s attention to that issue. The Tribunal noted the adviser’s comments as follows:
“The adviser states that although the applicant was no longer married to the former husband and therefore if he did attack her, her situation would parallel the situation of the women in Khawar and in SBBK v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 117 FCR 412, as both these women were divorced from their former husbands.” (CB p.113)
The Tribunal member set out in the decision under the heading “Independent Evidence” a range of material from various sources which addressed the steps being taken by the Fijian administration in their attempts to protect citizens from domestic violence and in particular the members of this nominated social group (CB p.114)/
In the Tribunal’s “Findings and Reasons” it was acknowledged that the applicant and her witnesses were credible and it accepted that she had suffered at the hands of her former husband and feared that should she return to Fiji her former husband may attempt to further harm her. It also acknowledged that the applicant’s remarriage further exacerbated the situation with the former husband should she return to Fiji and the custody of the couple’s children would continue to be a source of animosity between them (CB p.122). The Tribunal found:
a)any harm the applicant may fear from her former husband was not Convention related but arose from her personal relationship with him;
b)the independent evidence did not support the applicant’s submission that the Fiji government and justice system acted in a discriminatory fashion such that assistance would be denied to the applicant by the government on a selected and discriminatory basis for a Convention reason by reason of her membership of a particular social group of women in Fiji;
c)it accepted the independent evidence that the Fiji government had made a commitment to addressing gender discrimination in the law, particularly as it related to women and domestic-related violence, that a new police commissioner had been appointed to increase the professionalism of the police force (which had an independent compliant mechanism) and that reports in the press indicated that the courts do make judgments against male perpetrators of violence against women, including those in family situations; and
d)it found that there was not a real chance that the applicant would face persecution for any Convention reason should she return to Fiji.
The harm that the applicant feared she would be individually subjected to arose from an interpersonal relationship breakdown and would not be imposed upon her for reasons of her race, religion, nationality, membership of a particular social group or her political opinion. Persecution by private individuals and groups does not fall within the Refugee Convention unless it is officially tolerated or unable to be controlled by the authorities. The Tribunal was satisfied that there was no evidence to suggest that any harm the applicant feared upon her return to Fiji would be imposed upon her due to Convention specified reasons. In the High Court decision of Applicant A & Anor v Minister for Immigration & Ethnic Affairs& Anor per McHugh J at 258:
“Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.”
The relevant issue is whether the State is prepared to protect its citizens and has the means available to do so even if it cannot guarantee absolute protection at all times. Adequate State protection does not involve a guarantee that the applicant will not suffer harm: Varatharajah Thiyagarajah v Minister for Immigration & Multicultural Affairs per Emmett J at 121:
“… ‘protection’ by no means implies that the authorities must, or can, provide absolute guarantees against harm.”
The Convention definition of refugee is concerned with the fear of persecution that is official, or officially tolerated or uncontrolled by the authorities: Nagaratnam Prathapan v Minister for Immigration & Multicultural Affairs per Magdwick J at 48:
“ … a person claiming refugee status is not, in my opinion, ordinarily entitled to rely on the supposed inadequacy of reasonable State protection available to him or her if it is not inferior to that available to a fellow citizen at risk of serious, criminal harm for non-Convention reasons.”
On the face of the document before me, the Tribunal considered the applicant’s claims and addressed each of them which resulted in the Tribunal making adverse findings of fact in respect of the application which were open to it on the material before it (CB p.122). The applicant’s pleaded grounds object to the Tribunal’s findings and in effect was seeking a merits review of the decision. Clearly a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
“… a Court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
A merits review is an assessment of the appropriateness of the decision as distinct from judicial review which focuses on the lawfulness of the earlier decision.
The nature of the applicant’s contentions was that she required this Court to conduct a merits review of the decision of the Tribunal. Set out in the decision were various sources that the Tribunal had available to it and considered in reaching its decision as to the applicant’s situation should she return to Fiji in the foreseeable future. If the Tribunal in the assessment of the various country information makes a wrong finding of fact there is no error of law let alone a jurisdictional error: Abebe v Commonwealth of Australia per Gummow and Hayne JJ at [137].
The Tribunal undertook its task and proceeded to make findings on the evidence placed before it. There is no error apparent in the Tribunal’s reasons. The Tribunal accepted country information which it had available to it which is a matter for the Tribunal. Essentially all the claims of the applicant are attacks upon the Tribunal’s findings of fact which are not judicially reviewable.
A number of the grounds in both the original application and the amended application are purely statements by the applicant in respect of the findings of the Tribunal which cannot be disputed or contested in any way and do not give ground for judicial review. Grounds 3 and 4 of the original application referred to the Tribunal’s comments in respect of humanitarian grounds and form no basis for the Tribunal’s ultimate decision. The statements accurately reflect what the Tribunal conveyed and the pleadings do not raise any contentious issue whatsoever. The first two grounds in the original pleadings also reflect observations made by the Tribunal, are not contentious and make no reference to any form of error.
In the amended application the first ground refers to the Tribunal not considering evidence submitted by the applicant. With the exception of the transcript of the Tribunal hearing, the bundle of documents attached to the amended application in effect referred to activities which the applicant has been involved with since her arrival in Australia and particularly in respect of the training she is undertaking in the nursing profession. Their relevance to her alleged plight in Fiji is not apparent. The remaining two grounds of the amended application were not particularised. Ground 2 indicated that the applicant was seeking to challenge the Tribunal member for rejecting an answer to her question put to him in the Tribunal hearing. During the hearing before this Court, Mr Laba-Sarkis referred to the transcript of the Tribunal hearing and had nominated a passage which he stated was relevant to this ground. However, the acceptance of the applicant’s answer by the Tribunal member was a question of fact, both in the aspect of whether the Tribunal member accepted various facts and whether the decision was correct. The third ground contended the applicant was denied the opportunity to reply to particular questions raised by the Tribunal member. Again this ground was not particularised and the Court was not taken to any passage in the transcript provided which would indicate this claim. There was no attempt to seek leave to play the Tribunal tapes to the Court or identify relevant passages in the transcript of the Tribunal hearing.
Conclusion
I have not been able to identify any ground that the Tribunal has committed 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 thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005
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