SZEGO v Minister for Immigration
[2005] FMCA 16
•18 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGO v MINISTER FOR IMMIGRATION | [2005] FMCA 16 |
| MIGRATION – RRT decision – sex–worker detained at Villawood – fear of harm resulting from publicity in home country – Tribunal vacating decision to allow further submission – waiver of any ostensible bias – short times allowed for submissions – no jurisdictional errors found. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Judiciary Act 1903 (Cth), s.39B |
| Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 Bohills v Friedman (2001) 110 FCR 338 Ebner v Official Trustee (2000) 205 CLR 337 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Epeabaka (2001) 206 CLR 128 Vakauta v Kelly (1989) 167 CLR 568 |
| Applicant: | SZEGO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2639 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 6 December 2004 |
| Last Submission: | 20 December 2004 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr P Braham |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2639 of 2004
| SZEGO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Act”) challenging a decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 August 2004. The Tribunal affirmed a decision taken on 24 June 2004 which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court is its judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76] and subsequent cases, an applicant must establish a jurisdictional error in the proceedings or reasons of the Tribunal before the Court can set aside its decision and order a rehearing.
The present applicant visited Australia in 1999 to attend a friend’s wedding and remained, working in journalism which had been her occupation in her country of nationality (which I shall refer to as Xcountry). She made no claims for protection as a refugee until after she was taken into immigration detention following a visit by immigration officials to a massage parlour. In a lengthy newspaper report concerning their visit, brief reference was made to an Xcountry woman found working in a brothel. As a result of this the applicant has developed a fear of returning to her homeland.
She claimed that the Xcountry community in Australia know about the circumstances of her detention and that word has travelled to her parents in Xcountry. She had been well known in the community and to Xcountry business people, and the Consul was an old friend. After the article in the newspaper she had become an outcast of the Xcountry community. She feared harm from the community in Xcountry and from her family. There are no massage parlours in Xcountry so she would get attacked by her family and on the streets. She had previously experienced problems in Xcountry as a female working in an office with men, and expressing her opinions on women’s rights, homosexual rights and other matters. Journalists get beaten up in Xcountry as do homosexuals and people of different colour skin. She had contacted her family, but since the article was published there had been no communication, and she feels that she is an outcast from her community who are Catholic and view her as a shameful person. She claimed she has been labelled as a prostitute and will not be able to obtain employment or accommodation if she returns to Xcountry.
In a discursive statement of reasons, the Tribunal summarised her claims and the course of its questioning at a hearing which she attended with her solicitor. It then referred to information sent to the applicant after the hearing on conditions in Xcountry concerning violence against women and human rights. It summarised two responses it received from the applicant and her solicitor, and set out some of the background information it had gathered. It then provided ten pages of reasoning setting out its findings and conclusions.
In the course of its findings the Tribunal addressed the applicant’s concerns concerning the problems she had encountered in Xcountry before coming to Australia. It concluded that “suffering harassment in a male dominated office or being subject to ridicule or being treated rudely for expressing her own opinion actively does not amount to persecution. Nor do I accept that being underpaid for 11 years or not being promoted amounts to persecution”. The Tribunal referred to s.91R(1) and (2) of the Act which requires that “persecution” must involve “serious harm”, and was satisfied that the applicant did not suffer any harm in Xcountry for a Convention related reason prior to her arrival in Australia.
The Tribunal then considered whether the applicant had a well-founded fear of persecution on her return to Xcountry arising from publicity of her detention. The Tribunal assumed that the Australian newspaper article imputed that the Xcountry woman was a sex worker, but pointed out that it did not identify the applicant nor impute that she was a journalist or of immoral character. The Tribunal did not accept that her former Xcountry employer would be aware that she was caught in a brothel in Sydney, but accepted that some friends and people in the local community may have found out.
The Tribunal addressed her fears on return to Xcountry on the basis that she will be imputed with membership of the social group “sex workers”, and also in relation to her being a journalist. It did not accept that she would suffer harm from people on the street as claimed for her membership of either group, nor that she would be unable to find accommodation or employment due to discrimination against the applicant for a Convention reason.
It considered evidence as to the ability and willingness of Xcountry authorities to protect the applicant against violence, abuse or other behaviour from her family and skinheads, and did not accept that she would not obtain the protection of the laws of Xcountry. It concluded that “on the information before me I am satisfied that the applicant would have the protection of Xcountry authorities in the event that any harm were caused to her by her family, skinheads or Xcountry citizens generally because of her membership or being imputed with membership of the social group sex workers and/or journalists”.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, and concluded that she therefore did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
I have been unable to find anything in the Tribunal’s reasoning which shows it making an error of law. It has, in my opinion, adequately identified how the applicant’s claims relate to the Refugees Convention, and has dealt with them rationally in a manner open to it on the material it had. In this situation, the merits of its assessments are not matters which I can reconsider.
The applicant had the assistance of a solicitor and migration agent at the Refugee Advice + Casework Service (Aust) Inc when presenting her claims to the delegate and Tribunal. Her agent’s submissions show effort and relevance superior to that shown in most refugee matters which reach the Court.
The applicant has not been represented in her Court proceedings, but she has attempted properly to identify grounds for judicial review. She complained that she was hampered in the presentation of her case due to her continued detention, and I allowed her a further opportunity to make a written submission in response to the respondent’s written submissions. I have carefully considered all the submissions she has made. However, not unusually when a lay person attempts to argue grounds for judicial review, many of her arguments are only attacks on the factual assessments of the Tribunal which I have no jurisdiction to address.
Her submissions addressed four grounds particularised in her Amended Application dated 23 November 2004.
GROUND 1. The decision maker was not acting in good faith in making the decision to refuse the applicant a protection visa.
In support of this ground, the applicant submitted:
The Tribunal misunderstood the scope and the ambit of section 91R(1) of the Migration Act. The provision incorporates the concept of the serious harm as relevant to determination of protection applications. Tribunal, having accepted that domestic violence and sexual abuse is common in Xcountry and having accepted that the applicant fears physical harm from her family and skinheads has contrary to the evidence refused to accept that the risk that applicant would face in Xcountry satisfy the requirements of section 91R of the Migration Act.
This submission is based on a misreading of the Tribunal’s reasoning. The only point at which it relied upon the requirement under s.91R of the Act for “serious harm” was in relation to the applicant’s account of her perceived problems working as a journalist prior to coming to Australia. I can find no error of law in the Tribunal’s reasoning in relation to that issue. The Tribunal decided that the applicant’s fears of more serious harms arising from publicity in Australia did not raise a Convention ground because of its opinion that there would be adequate state protection, not because the harms feared would not amount to “persecution”.
The applicant could give no substance to an allegation of “bad faith” and, indeed, I did not understand her to be using this term to do more than indicate her dissatisfaction with the Tribunal’s factual assessments of her case.
GROUND 2. The Tribunal often cited (and made decisions based on this citation) [an article by an Xcountry women’s human rights group, assessing the Xcountry legal framework in relation to domestic violence].
It was submitted that the Tribunal should not have placed any reliance on this article since it was “only a framework of future law that may be or may be not accepted as a law”.
The article was part of the materials which were sent to the applicant for comment after the hearing. Her attention was, in particular, drawn to a statement in it that the Xcountry Constitution made punishable by prison sentence “any family member, who by violence, abuse or insolent behaviour forces another family member into humiliating position …”. In the Tribunal’s reasons, this is the only part of the article which the Tribunal cites (see Court Book p.187).
I can find no legal error in the Tribunal’s use of material from this article. It is incorrect for the applicant to attempt to characterise it as wholly irrelevant to an assessment of the current legal protections of women in Xcountry. The passage cited by the Tribunal referred to current law, not to possible future reforms. Moreover, the applicant’s solicitor in her submission to the Tribunal cited other parts of the article as relevant to an assessment of “existing legislation” (see Court Book p.125).
GROUND 3. The Tribunal erroneously decided the application before the time allocated for additional submissions expired.
This ground is based on the following events:
·The applicant and her solicitor attended a hearing before the Tribunal on 16 July 2004. They presented some newspaper articles which had been referred to in her statement.
·Although the transcript is unavailable, it would seem that there was some discussion about the Tribunal allowing the applicant a further opportunity to respond to country information to which the Tribunal might have regard, since on the same day there was posted to the applicant and her solicitor an invitation for comments in relation to five identified articles and to particular statements in them.
·The invitation said, “Your comments are to be in writing and in English. They are to be received at the Tribunal by 30 July 2004”.
·By letter dated 23 July 2004 and received by the Tribunal on 26 July 2004, the applicant’s solicitor made a four page submission addressing the applicant’s fears and referring to country information in support. There was no suggestion that the applicant wanted to make any further response to the invitation, and in the circumstances a reasonable inference would be to the contrary.
·On 27 July 2004 the member constituting the Tribunal signed a decision adverse to the applicant, and sent this to the applicant and her solicitor with the usual covering letter informing her, inter alia, of her review rights in this Court.
·On 29 July 2004 the applicant’s solicitor sent an “urgent” facsimile addressed to the Tribunal member which said:
We refer to the Tribunal’s letter dated 16 July 2004, which invites the Applicant to comment on certain information “by 30 July 2004”.
We attach a submission the Applicant prepared in response to that invitation.
We request the Tribunal to vacate its decision of 27 July 2004 and consider the attached submission.
·The attachment was written by the applicant herself, and repeated her claims for refugee protection. No significant new claim was made, but the applicant elaborated a family background in support of her fear that a family member would harm or kill her.
·In her submissions to me, the applicant explained that she had felt a need to make her own further submission because she thought that her solicitor’s submission had been rushed before the solicitor went on holiday. Assuming this to be true, I note that the applicant does not suggest that her dissatisfaction with the solicitor’s submission or its background were ever communicated to the Tribunal. She conceded that she had not attempted herself to contact the Tribunal.
·In circumstances not fully detailed in the evidence before me, the Tribunal member decided to “recall” her decision signed on 27 July 2004.
·On 4 August 2004, the Tribunal sent to the applicant and her solicitor a decision signed by the same Tribunal member on 3 August 2004. The covering letter states:
The submissions received by the Tribunal on 29 August 2004 from your Authorised Recipient had been considered by the Member responsible for the review of your case. As a result, the decision of 27 July 2004 sent to both you and your Authorised Recipient by fax on 27 July 2004 has been recalled. Kindly return that decision and the notification letter to the Tribunal.
·At the start of its reasons, the Tribunal refers to the above events leading to the request to vacate its decision of 27 July 2004 and says, “After considering the request the Tribunal has decided to vacate its decision to allow consideration of the additional response to the 424a letter”.
·The Tribunal’s second decision repeats the reasons which the member had previously written, but has some additional passages which support, rather than the converse, the member’s claim that she did reconsider her decision previously arrived at. In particular, some further discussion was added in relation to the applicant’s fears of harm from her father, and a response was given to a report concerning the situation of journalists in Xcountry which the applicant put forward in her further submission.
Neither party before me has submitted that the Tribunal lacked power to vacate its first decision, nor that the second decision should not be treated as the final decision of the Tribunal. In the circumstances, I do not consider it necessary to explore this issue further (c.f. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, and Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62). I also do not consider it necessary to explore whether the Tribunal was correct in considering that its invitation was one made under s.424A of the Act (which is open to doubt in view of s.424A(3)(a)), nor whether the Tribunal was bound not to make a decision until the time specified under s.424B(2) had expired in circumstances where an applicant appeared to have fully responded.
The applicant’s submission in relation to the above circumstances was:
The Tribunal failed to accord procedural fairness to the proceedings by deciding the application before the time allocated for submissions. The purported recalling of the decision didn’t cure the defect because the new decision was merely the repetition of the reasons for refusal contained in the first decision. The Tribunal is supposed to provide a proper hearing rather than a mere charade. Proceeding in the way in which it did, Tribunal failed fundamental duties of procedural fairness and therefore incurred in jurisdictional error.
In effect, I take this ground to allege that the Tribunal’s second decision of 3 August 2004 was made in breach of the bias rule of procedural fairness, because of a suspicion that the Tribunal member did not bring a “fair and unprejudiced mind” to the making of her second decision (c.f. Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Epeabaka (2001) 206 CLR 128 at [20-1], [54], [78-80]).
I do not consider that this ground is made out. I do not consider that the “fair-minded lay observer might reasonably apprehend that the [Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question [she] is required to decide” (c.f. Ebner v Official Trustee (2000) 205 CLR 337 at [6] and [83]). I do not consider that such an apprehension arises because the Tribunal member did not disqualify herself from deciding the case after she accepted that she should vacate her earlier decision so as to allow further consideration of the matter. I also do not consider that it arises retrospectively due to the fact that, after conducting that reconsideration, she adopted most of what she had written in her previous reasons.
When assessing the situation, I consider that the “fair-minded lay observer” would appreciate that the further submission received from the applicant did not substantially alter the claims previously made by the applicant, nor provide any substantial attack on the reasoning previously indicated by the Tribunal. Where the applicant’s own solicitor had requested that the Tribunal member should, herself, reconsider her announced decision in the light of the additional submission, I do not consider that the lay observer would conclude that the Tribunal member should be disbelieved in her statement that she did in fact genuinely “allow consideration of the additional response to the 424a letter”, particularly where the subsequently published reasons showed that the response had been considered.
Moreover, I consider that the applicant lost or “waived” her opportunity to object to the Tribunal member who made the first decision continuing to constitute the Tribunal when reconsidering the matter. The applicant was represented by a solicitor. Upon receipt of the first set of reasons, she became fully informed as to the member’s current thinking about the case. The Tribunal’s covering letter drew attention to her right to challenge the announced decision through a judicial review proceeding in which she could obtain an order for reconsideration by a reconstituted Tribunal. Instead of taking this course, the previous member was invited by the applicant’s solicitor to vacate and reconsider her own decision. I do not consider that the applicant retained “the right subsequently to object” after discovering that the Tribunal had decided to adhere to the opinions previously indicated (c.f. Vakauta v Kelly (1989) 167 CLR 568 at 572, 577, 588, and later cases discussed in Bohills v Friedman (2001) 110 FCR 338).
GROUND 4. The Tribunal did not give to the applicant decent time to prepare the case and to collect all the evidence.
The applicant submitted:
The Tribunal despite of the fact that applicant is detained in Villawood I.D.C. with limited access to the information, gave to the applicant only 4 working days to enclose new documents and written arguments and 5 working days to prepare hearing. When applicant mentioned that on the hearing the member of RRT responded that she “don’t like to keep people long in the detention”. As consequences of that the applicant is still in detention and facing to be detained even longer than if she was able to prepare her case decently.
The applicant complained that the timetable followed by the Tribunal did not allow her as much time as she would have liked to procure relevant country information, have it translated and to prepare her submissions.
I do not consider that these complaints give rise to any jurisdictional error by the Tribunal. The legislative scheme relating to the review of decisions concerning persons held in detention anticipates and authorises expedited processes. The period prescribed for giving notice of a hearing date is seven (7) days after receipt (see s.425A(3) of the Act and reg.4.35D(a) of the Migration Regulations 1994 (Cth) (“the Regulations”)). This appears to have been met in the present case, since although there is no evidence as to the date that notice was given to the applicant, she and her agent responded to the invitation seven days before the appointed date. When subsequent to the hearing she was given time to make additional submissions on the country information, the time allowed complied with s.424B(2) of the Act and reg.4.35(2) of the Regulations. I also note that there is no evidence before me that the applicant or her solicitor at any time requested additional time to make submissions beyond the 30 July 2004 deadline proposed by the Tribunal.
In these circumstances, I would not conclude that there was either any breach of a procedure which is a jurisdictional precondition to the Tribunal’s decision-making, nor any additional failure to accord procedural fairness (which, in any event, would be excluded in this respect by s.422B of the Act).
For the above reasons all of the grounds for review raised by the applicant fail, and I dismiss the application with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 18 January 2005
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