SZEHK v Minister for Immigration - [2004] FMCA 1009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEHK v MINISTER FOR IMMIGRATION

[2004] FMCA 1009

MIGRATION – Migration Act – refugee – application for review of decision of Refugee Review Tribunal – applicant claiming error of law by Tribunal – application dismissed.

Migration Act 1958

Ngu v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21

Minister for Immigration and Multicultural and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481

Re Minister for Immigration and Multicultural and Ethnic Affairs v Ex parte Durairajasingham 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Kawar [2002] HCA 14
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18

Applicant:

SZEHK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ2679 of 2004

Delivered on:

17 November 2004

Delivered at:

Sydney

Hearing date:

17 November 2004

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

NIL

Solicitors for the Applicant:

NIL

Counsel for the Respondent:

L. Leerdam

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the application be dismissed on the basis that the respondent’s objection to competency is upheld.
The applicant to pay the respondent's costs set in the amount of $4000 pursuant to Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2679 of 2004

SZEHK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application filed in this court on 27 August 2004 seeking review of the decision of the Refugee Review Tribunal (The Tribunal) made on 29 July 2003 and handed down on 8 August 2003 to affirm the decision of the respondent Minister's delegate made on 21 March 2002 to refuse a protection visa to the applicant. The applicant is a citizen of Ghana who arrived in Australia on 11 April 1992 and applied for a protection visa on 23 October 2001.
In the application to this Court, the applicant claims:
·error of law;
·failure on the part of the Tribunal to make a bona fide attempt to exercise its power;
·lack of reasonableness;
·denial of natural justice in respect of legislative procedure.
None of this was particularised.
In an amended application filed in this court on 19 October 2004, the applicant also claims that the Tribunal did not act in good faith in making the decision and purports to give some particulars. On 9 September 2004, the respondent filed a notice of objection to competency objecting to the jurisdiction of this court to try the application on the basis that section 477(1A) of the Migration Act (the Act), provides that an application for review must be made within 28 days of the notification of the decision. In the case before me, the application to this court was made over a year later.
The respondent relies on the case of Ngu v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21, a Full Federal Court decision, 4 November 2004 which upheld the judgment of Nicholson J, that an appeal against a privative clause decision, lodged outside the time limits in section 477 of the Act is incompetent. If the Tribunal's decision in the case before me is a privative clause decision pursuant to section 474 of the Act, then the time limit under section 477(1A) would apply. Following section 477(2) of the Act, the court cannot make orders, which have the effect of allowing the lodging of an application outside the time limit.
On the issue, therefore, of whether the respondent's notice of objection to competency should be upheld or not, I am required to determine whether the decision complained of is a privative clause decision or not and this requires an examination of the substance of the application and any substantive issues raised in the proceedings to determine whether the Tribunal decision is affected by jurisdictional error. If so affected, it would not be a privative clause decision and section 474 of the Act could not be relied upon by the respondent.
The applicant was unrepresented at the hearing before me today. She was competent in English and did not request an interpreter. I note that while the applicant was not legally represented, she had access to the Court’s Legal Advice Scheme and had been given advice pursuant to that scheme on 1 October 2004. The applicant also told me during the hearing, without providing details, that she had the benefit of legal advice at least at some time in the carriage of her case. The applicant also filed an outline of written submissions on 16 November 2004.
From the material before me, the applicant’s claims before the Tribunal were:
1.That she would encounter difficulty from the new Ghanaian government because her father was in the former regime. [see CB 26.3]
2.That she was a Christian amongst Moslems in Ghana and she opposed the terrorist activities within the Islamic religion, and that members of her family are targets because they are Christian. [see CB 26.8 to 27.2]
3.That she was in danger because of her political opinion. [see CB 27.2 and CB 63.9]
4.That she is a member of a social group, namely returnees from overseas whom people in Ghana think are rich as a result of having been overseas. [This appears to have been first raised by the applicant at the hearing before the Tribunal, and in this regard, see CB 87.5] and, further, that the Ghanaian government would not be able to protect her as an individual. [see CB 27.4]
5.That as a woman she would experience serious discrimination and harm because she was not wealthy. [see CB 93.5]
The grounds in her application to this court are:
“1. Error of law made to the whole of the judgment made by the Refugee Review Tribunal on 29 July 2003.”
Then, purported particulars are:
“The decision maker failed to make a bona fide attempt to exercise its power.”
“Due to an administrative decision made by a Commonwealth Officer where the ground for review is:
a.Lack of reasonableness as to its decision (reasonableness review).
b.Denial of natural justice in respect of legislative procedure.”
There are no further particulars provided. I note these grounds are very general in nature. Nor does the applicant provide any support for these grounds in the outline of submissions made to this court. These submissions, at best, appear to be an attempt to re-agitate the facts before the Tribunal, and go to the merits of her claim before the Tribunal. [Given the applicant was unrepresented before me I looked at the original application] but I cannot find any support for these grounds claimed before the Court. The merits of a case including the weight to be given to items of evidence are, of course, for the decision maker to determine and in this regard see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 [and Re MIMIA; Exparte Durairajasingham 168 ALR 407]. The applicant, at the hearing before me, was unable to add to these grounds as claimed.
The applicant also filed, on 19 October 2004, an amended application to this court. The grounds are:
1.The decision-maker was not acting in good faith in making the decision.
The statements, provided in support again appear to be issues that go to the merits of her claims before the Tribunal but do raise one matter that I shall pursue in this judgment below, namely, the issue of discrimination. While the applicant has been able to access the Legal Advice Scheme, I am mindful of the fact that she appears unrepresented before me and that showing that she has a well founded fear of persecution in the context of an application for a protection visa, and appearance before this Court, is a matter of some complexity and seriousness for her.
However, on a plain reading of the Tribunal's record of decision, it dealt with each of her claims as put by the applicant.
1)The difficulty arising from the new regime in Ghana because of her father's activities is dealt with by the Tribunal [at CB 91.8]. It found that her approach to Ghanaian diplomatic representatives in Sydney, while not constituting full evidence, was indicative that she has no fear of Ghanaian government authorities, and further, while noting that she did not pursue this claim at the hearing, it did not accept that she would encounter difficulties from the new government because her father, or her stepfather, was involved in politics. The Tribunal finding in this regard is also related to the applicant's earlier claim of her fear of persecution on the grounds of political opinion.
2)A Christian amongst Moslems and a target of anti-Christian violence. The Tribunal found that the applicant would only be at risk of harm and I quote from CB 92:
“If disturbances or riots take on an anti-Christian character and in the course of the violence the applicant is unfortunate enough to be in the wrong place at the wrong time, these cumulative pre-requisites underlined the remote and speculative nature of the applicant's fear of persecution under this part of her claim. The absence of evidence from the applicant or other sources to establish any higher risk of harm to the applicant precludes a finding of well foundedness.”
On the material before me, there is nothing to show that the Tribunal was not entitled to make the finding that it did.
3)The applicant is at risk because of a more general concern about political opinion.
I note that there is no evidence to contradict the Tribunal's statement at CB 92.5 that the applicant said at the hearing that she did not consider politics as a problem in Ghana should she return. The Tribunal considered and dealt with this claim and indeed gave reasons for its findings.
4)A member of a social group, namely, overseas returnees.
The Tribunal, [see CB 92.8] accepted the applicant's claims that economic and social conditions in Ghana are not ideal and that there are some underlying problems that may affect her on return. But the Tribunal found that on the basis of general country information available to it, it was satisfied that the Ghanaian authorities would provide the applicant with a level of protection sufficient to remove a real chance of her being persecuted for a Convention reason. Beyond her claim that she did not think the government could protect her (see CB 87.1) the applicant did not provide any evidence to the Tribunal to support her claim. The Tribunal correctly stated that the test is not whether the State concerned is required to guarantee the safety of its citizens from harm by non-state persons, the test is, as Kirby J said in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 that:
“The Convention does not require or imply the elimination by the state of all risks of harm.” [rather,] “it posits a reasonable level of protection, not a perfect one.”
Nor did the applicant present these claims in any Minister for Immigration and Multicultural and Indigenous Affairs v Kawar and Ors [2002] HCA 14 type situation. Her fears of violence were general, except for her claim that locals may kill her because she has lived overseas and would be thought to be rich. [see CB 87.5]
The “Kawar” context requires criminal conduct by private citizens and the condonation or toleration of such conduct by the State or its agents. Beyond mere assertion, the applicant produced no evidence to show there was any such toleration or condonation by the Ghanaian State and the Tribunal was entitled on the material before it to make the finding that it did.
5)As a woman who is not wealthy she would experience serious discrimination and harm. [see CB 87] The Tribunal accepted the applicant's statements that women in Ghana are discriminated against, particularly in rural areas. But the Tribunal then found that the discrimination did not rise to the level of persecution, and, as Counsel for the respondent Minister has referred me, at CB 94.2 the Tribunal has made a finding of fact within its jurisdiction.
Further, to the extent that any issue of location or relocation may be said to arise as a result of the Tribunal's statements in its Record of Decision, I note that at CB 63 the applicant herself, as part of a handwritten application to the Tribunal, says:
“When the government cannot protect you it makes no sense to relocate in any part of the country.”
I accept the respondent's counsel's submission that the Tribunal noted and focused on the issue raised by the applicant and subsequently made the finding that it did. The Tribunal found that the applicant does not have a well-founded fear of persecution for a Convention reason and there is not a real chance she would suffer serious harm were she to return to Ghana. In these circumstances the necessity for consideration of relocation of the applicant does not arise.
The applicant's claims in her application to this court, as I have already stated, are not particularised nor was the applicant able at the hearing today to add to these claims. Error of law, failure to make a bona fide attempt to exercise power, lack of reasonableness and a denial of natural justice in respect of legislative procedure cannot be made out.
In addition, the claim in the applicant's amended application is that the Tribunal did not act in good faith and the “particulars” that the Tribunal found that she would experience a substantial degree of discrimination and then the Tribunal ignored what the applicant describes as “this simple fact”. The applicant then proceeds to make what in some aspects is a new claim, that is “her right to earn a living” and in other respects a general assertion regarding discrimination, for example, that discrimination can become so rampant then it becomes tantamount to persecution. I should note that the Tribunal did not find that she would experience a "substantial" degree of discrimination. This is a claim added by the applicant now. The Tribunal found that women in Ghana are discriminated against. That was the extent of the degree to which the Tribunal made that finding.
There is no evidence before me of the Tribunal not acting in good faith or acting in bad faith. In making the finding that women were discriminated against it was open to the Tribunal on the material before it to come to the conclusion that this would fall short of persecution. The fact that the Tribunal came to this conclusion, having initially found some aspect apparently in favour of the applicant's assertions, does not amount to bad faith. The applicant clearly did not agree with the Tribunal's ultimate finding, but this is not evidence of a failure to act in good faith.
The applicant was given an opportunity to put her claims at the Tribunal hearing. These claims were discussed with her by the Tribunal and the applicant has brought no evidence to the contrary. The applicant has been unable to show that the Tribunal did not act reasonably, and properly deal with the case that she presented to it. No essential elements of bad faith are made out or evident.
The applicant has been unable to show, nor can I see, any error on the part of the Tribunal, let alone jurisdictional error. On this basis, this is a privative clause decision and as the application to the court was lodged well outside the time limit contained in section 477 of the Act, this court has no jurisdiction to try the application. Accordingly, the respondent's objection to competency must be upheld and the application made by the applicant to the court is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: