SZEND v Minister for Immigration
[2005] FMCA 1527
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEND v MINISTER FOR IMMIGRATION | [2005] FMCA 1527 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474, 483A
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEND |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2992 of 2004 |
| Delivered on: | 28 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 12 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr T Mitchell |
| 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 2992 of 2004
| SZEND |
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) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
12 August 2004 and handed down on 7 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
26 March 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs 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 Act and has been given the pseudonym “SZEND”.
The applicant, who claims to be a national of Mongolia, arrived in Australia on 19 November 2003. On 11 December 2003 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.1-30) (“CB”). On 26 March 2004 the delegate refused to grant a protection visa (CB pp.31-41) and on
27 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.43-46).
The applicant claimed fear persecution in Mongolia for Convention-related reasons of “membership of a particular social group”. The applicant claims he is homosexual. He stated he was raised and educated in Ulaan Bator and has been a practising homosexual since he was a teenager. The applicant claimed it was “hard to leave peacefully” when his parents and friends discovered he was homosexual. He claimed people used to pour scorn on him when they saw him with other men and this was because homosexuality is illegal and culturally unacceptable in Mongolia. The applicant claimed he admitted his homosexuality to his parents and that his parents told him he had to marry a woman lest he bring shame on his family. He claimed his father threatened to shame him publicly in order to distance the family from him. The applicant stated he could not return to Mongolia because his family would disgrace him. He stated he would be exposed and persecuted by the public and authorities for his homosexuality and the authorities would throw him into jail (CB p.96).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons was contained in the respondent’s written submissions prepared by Mr J Mitchell and I adopt paragraph 7 of those submissions for the purpose of this judgment:
The RRT member concluded that (CB 100):
(a)The applicant is a citizen of Mongolia.
(b)The applicant’s claimed fear of what his parents would do to him is unfounded.
(c)The treatment of the applicant by his parents reflects care and pride, quite the opposite of the shame he has alleged.
(d)It did not accept the applicant’s claims about suffering public scorn because he embellished the claim at the RRT hearing.
(e)The applicant failed to provide evidence of serious harm and the reaction from suffering public scorn.
(f)The applicant unsatisfactorily explained the lack of more serious action against him.
(g)The overall impression from the applicant’s evidence is that all of Mongolia does not really care about his homosexuality.
(h)It did not accept that the applicant is a homosexual because he:
(i)was not truthful in so many aspects of his evidence;
(ii)demonstrated a lack of subjective fear;
(iii)showed no consistent awareness of or interest in the actual legal status of homosexuality in Mongolia; and
(iv)was not interested in arguing his claims.
(i)There is no evidence of the applicant suffering discomfort or disaffection even remotely amounting to persecution.
(j)The applicant has concocted the claim that he is homosexual in order to remain in Australia for reasons other than the need for Convention-related protection.
(k)The RRT is not satisfied that the applicant faces a real chance of Convention-related persecution in Mongolia.
Application for review of the Tribunal’s decision
On 5 October 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 made his decision in bad faith.
2.The tribunal deprived me of the natural justice.
3.The tribunal denied the evidentiary proof of my claim.
4.The tribunal’s decision did not reflect the material facts of my claim.
5.The tribunal has given a decision, which was preset in the back of it’s mind.
6.The tribunal mixed up many facts with this decision which affected the decision.
7.The tribunal concentrated in particular fact, while ignored many other facts in this condition.
8.The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
9.My judicial review application before the Federal Magistrates court is late.
I will provide more details later. (Errors included)
On 9 February 2005 the applicant filed an amended application which contained the following grounds:
“That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars
The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Mongolia based on the member of a particular social group openly gay in Mongolia. I was persecuted because of my life style. I was persecuted by the authority & extremist. If I persecuted by the authority & extremist it is not possible for me relocate any other place in Mongolia. I tried, but I failed because police searching me. I will be persecute if I return back to Mongolia because of my Homosexuality. It is a convention base persecution.
I was threatened by a Mongolian authority because of my Homosexuality. It is true I did not collect relevant documentary evidences to prove my persecution. Because I have no one to help me to collect the document.
The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail consider my documentary my claims.
I will provide more details to support my judicial review application in my outline of submission.”
Particulars
The Tribunal did not provide me adequate particulars of the independent information,
The Tribunal did not provide me an adequate opportunity to respond the substance of the information. The Tribunal did not ask me relevant questions.
The Tribunal finding that the totality of the country information does not show that the gay’s are persecuted in Mongolia.
I will full particular of my amended application after discuss with the pilot scheme barrister.” (Errors included)
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
In the amended application, the applicant indicated he would fully particularise his claims after discussing the issues with the Pilot RRT Legal Advice Scheme (NSW) adviser. The Court file indicated a conference with a panel adviser occurred on 20 January 2005 and the applicant was provided with written advice by the adviser the following day. However, there were no submissions filed by the applicant addressing the issues.
The applicant appeared self represented with the assistance of a Mongolian interpreter. The applicant attended a directions hearing on 29 October 2004 and consented to Short Minutes of Order at that time which included the filing and serving of written submissions fourteen (14) days prior to the hearing. Further, in the amended application the following statement appears:
“I will provide more details to support my judicial review application in my outline of submission.”
This direction was not complied in that there were no written submissions filed and served prior to the hearing.
Reasons
When the applicant was invited to make oral submissions in support of his application, he declined to do so. When it was brought to his attention that the only material in respect of his judicial review application before the Court was his original and amended applications, the applicant indicated he would rely on those documents. When it was pointed out to the applicant that it was his application, brought to challenge the decision of the Tribunal on the grounds it had made jurisdictional error in its decision making process, and it was on this basis he was seeking to have the decision of the Tribunal set aside and be provided with the opportunity to have the matter reheard by the Tribunal, the applicant indicated he had nothing further to say to the Court.
Mr J Mitchell of Counsel, appearing for the respondent, prepared detailed written submissions which were extremely helpful in the preparation of this judgment. In his submissions, Counsel addressed the grounds raised in both the original application and the amended application. I believe this is the most appropriate course as the two sets of pleadings address completely different aspects of the Tribunal’s decision. The second set of pleadings does not appear to be a substitution or replacement of the initial pleadings. The applicant was unable to indicate to the Court whether the second set of pleadings were intended to replace the original application or was an attempt to particularise the initial pleadings
In respect of the original application filed on 5 October 2004, I accept the submissions prepared by Mr Mitchell in respect of each of the grounds pleaded and I adopt paragraph 10 of his written submissions for the purpose of this judgment:
(a)In respect to [Ground 1], there is no evidence of any bad faith in the decision of the RRT. In order to succeed on this ground the applicant must provide proper and clear evidence in support of such an allegation and the Courts are extremely slow to make a finding of bad faith or bias on the face of the written document alone: SBBS v MIMIA (2002) 194 ALR 749 at [43]ff. There is here no clear evidence which gives rise to an inference that the RRT member acted dishonestly, arbitrarily or capriciously. This ground is unsupportable and should be dismissed.
(b)In respect to [Ground 2] (note the application of Division 4 of Part 7 of the Migration Act is an exhaustive statement of the RRT’s obligations in relation to procedural fairness: see NAYL v MIMIA [2004] FCA 952 at [10]), this ground should be dismissed for the following reasons:
(i)No particulars have been provided.
(ii)There is no evidence that the RRT failed to accord the applicant procedural fairness. There is no evidence that the applicant was not given a reasonable opportunity to present his case to the RRT and a reasonable opportunity to answer any material in the RRT’s possession adverse to his claim to refugee status: Applicant M87 of 2003 v MIMIA (2005) 214 ALR 310 at [25]ff; MIMA; Ex parte Miah (2001) 206 CLR 57.
(iii)In any event, any failure to provide to the applicant the information the RRT member used in this decision pursuant to sections 424A(1) and 424(2) of the Act, namely independent country information, falls within the exceptions in s.424A(3)(a) and will not be grounds for jurisdictional error: NAYL v MIMIA [2004] FCA 952 at [10]; WAID v MIMIA [2003] FCA 220 at [57]; SZEKY v MIMIA [2005] FCA 1138; WAGP v MIMIA (2002) 124 FCR 276; SZFKL v MIMIA [2005] FCA 931 at [7]; SZDXC v MIMIA [2005] FCA 1306 at [15].
(c)In respect of [Ground 3], the RRT did not accept a number of the applicant’s claims. Findings as to credibility are the function of the primary decision-maker par excellence and, while not invulnerable to review, are difficult to overcome: Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; applied in MZWDB v MIMIA [2005] FCA 96. The approach taken by the RRT in the present case as to the credibility of the applicant provided a rational basis for not accepting the applicant’s claims and relied upon matters that were logically probative of the issues it was determining: Kopalapillai v MIMA (1998) 86 FCR 547 at 552 and 559. This ground is without basis and should be dismissed.
(d)In respect to [Ground 4], all that s.430(1)(c) of the Migration Act 1958 requires is that the Tribunal set out its findings on those questions of fact which it considers to be material to the decision which it made and to the reasons it had for reaching that decision: Yusuf at [68]. Further, the RRT is entitled to weigh evidence before it: Minister for Aboriginal Affairs v Peko Wallsend Pty Ltd (1986) 162 CLR 24. This ground is misconceived and ought to be rejected.
(e)In respect of [Ground 5], there is no evidence that:
(i)the RRT member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him (MIMIA v Jia (2001) 205 CLR 507 at [37] and [72]);
(ii)the applicant or the public might entertain a reasonable apprehension that the RRT might not bring an impartial and unprejudiced mind to the resolution of the applicant’s application (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294); or
(iii)the applicant was overborne or intimidated by the RRT: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [31].
This ground is unsupportable and ought to be dismissed.
(f)In respect of [Ground 6] there is no evidence that the RRT member did not understand the claim made by the applicant or that the decision made by the RRT was illogical or unreasonable: Re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59; MIMA v Eshetu (1999) 197 CLR 611. This ground is without basis and should be dismissed.
(g)In respect of [Ground 7], the discretion conferred on the RRT in determining whether it is satisfied under s.65 of the Migration Act 1958 of the mattes in s.36 is, subject to Part 7 Division 4 of the Migration Act, unconfined in its terms. The factors that may be taken into account in the exercise of the RRT member’s discretion are, similarly, unconfined except insofar as there may be found in the subject matter, scope and purpose of the Migration Act 1958 some implied limitation on the factors to which the RRT member may legitimately have regard: MIMA v Yusuf (2001) 206 CLR 323 at [70]ff; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; Minister for Aboriginal Affairs v Peko Wallsend Pty Ltd (1986) 162 CLR 24 at 39-40. Further, the onus of showing that an irrelevant consideration has been taken into account by the RRT is a very heavy burden: R v Australian Broadcasting Tribunal at 49-50. The applicant must satisfy the Court that:
(i)the alleged “irrelevant information” was an irrelevant consideration in the context of the relevant provisions of the Migration Act 1958: R v Australian Broadcasting Tribunal; Minister for Aboriginal Affairs v Peko Wallsend Ltd.
(ii)the decision of the RRT was not a real performance of the duty imposed by law upon it because its decision was “actuated by extraneous considerations” and those considerations were more than matters of marginal or peripheral relevance: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243; McPhee v Minister for Immigration (1988) 16 ALD 77 at 80. This ground is misconceived and ought to be dismissed.
Further, the RRT member was entitled to weigh the evidence of the matters before him and it is not for the Court to determine the appropriate weight to be given to the matters which have been taken into account: Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24.
In respect to [Ground 8], the RRT is under no statutory duty to inquire or to make inquiries to make out the applicant’s case: MIMIA v SGLB (2004) 207 ALR 12 at [1], [42] and [43]. It is for the applicant to advance whatever evidence or argument he wishes to advance to make out his case and it is for the RRT to determine whether or not it believed him: Abebe v The Commonwealth [1999] 197 CLR 510 at [187]. This ground is misconceived and should be dismissed.
In respect of the applicant’s amended application filed on 9 February 2005, the applicant raised further grounds which are difficult to understand. There was no explanation whether this application was pleading an additional ground with particularisation or it was meant in substitution for the original pleadings. Since the applicant was not in a position to explain the structure or intention of his pleadings, it would appear that he has been receiving assistance from a number of individuals who do not seem to be aware of the existence of material prepared by others.
These grounds are vague and unparticularised. In some circumstances, the grounds contradict others and to a considerable extent the grounds raised in the amended application have already been addressed in the submissions filed by the respondent in respect of the original grounds. This was understandable as the drafting of pleadings has adopted in a commonly seen formulaic approach which is generic in nature and not specific to the Tribunal decision (decision of L Hardy, N04/48982) or the facts of the applicant’s case.
The amended application, although it does not specifically indicate a pleading, appeared to be raising new grounds as follows:
a)the Tribunal took into account irrelevant considerations (this has been addressed in paragraph 15(g) above [Ground 7]);
b)the Tribunal did not take into account relevant considerations (this has been addressed in paragraph 15(c) above [Ground 3])
c)the applicant had no one to assist in providing documentary evidence (this is not a ground of judicial review);
d)the Tribunal decision was illogical (this has been addressed in paragraph 15(f) above [Ground 6]);
e)the Tribunal did not observe the Act (this has been addressed in paragraphs 15(b), (c), (d) and (g) above [Grounds 2, 3, 4 and 7]); and
f)the Tribunal failed to consider the applicant’s documentary claims (this has been addressed in paragraph 15(c) above [Ground 3]).
Where an applicant is self represented 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. In the absence of any written or oral submissions together with two sets of pleadings that do not specifically address the Tribunal decision, the only avenue remaining for the Court is to consider the Tribunal’s decision and determine whether it discloses any jurisdictional error on its face. Having considered the Tribunal’s decision, in conjunction with the supporting documentation in the Court Book, no jurisdictional error is apparent. In the absence of any submissions to the contrary, there is no evidence that the Tribunal did not conduct its decision making process in accordance with the provisions of the Act.
Conclusion
As the grounds in the applications are general and without particularisation, I have not been able to identify any ground that the Tribunal committed 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: 28 October 2005
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