SZEQJ v Minister for Immigration
[2005] FMCA 596
•26 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQJ v MINISTER FOR IMMIGRATION | [2005] FMCA 596 |
| MIGRATION – Visa – protection via – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – where applicant claims a denial of natural justice – whether apprehended bias shown by RRT decision – no apprehension of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), ss.424A, 475A, 477 Migration Act 1958 (Cth), s.39B |
| Abebe v Commonwealth (1999) 162 CLR 510-90, 187 and 190 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZEQJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3223 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 March 2005 |
| Date of Last Submission: | 11 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3223 of 2004
| SZEQJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision of the Refugee Review Tribunal made on 19 April 1999. In that decision, the Tribunal affirmed the decision of the Delegate of the Minister not to grant a Protection Visa to the Applicant.
The Applicant is a citizen of India. He arrived in Australia on 1 April 1997. On 1 May of that year, he applied for a Protection Visa claiming a well-founded fear of persecution on the basis that the police wrongly believed him to be involved with Sikh separatist terrorists.
A Delegate of the Minister refused his application for a visa on
1 August 1997, so the Applicant sought a review of that decision on
15 August 1997.
The Applicant attended a hearing of the Refugee Review Tribunal on 29 March 1999 where he gave oral evidence and made written submissions.
In a written statement that he submitted with his primary application, he said that he was born in India. He claimed that on 23 July 1986, whilst he was still a school boy, he arrived home to find that six terrorists were present in the home. The terrorists made threats to the family, demanded money and started beating his younger brother. The terrorists started beating his father, who said that he did not have 50,000 rupees to give to the terrorists.
Eventually the terrorists left, but said that they would return in two weeks time. A few days later the Applicant went to Delhi to visit his sister. He told his sister and brother-in-law about the incident and the brother-in-law said that they should report the matter to the police. The Applicant would not do so as he was frightened that the terrorists would kill his family. The brother-in-law gave the Applicant some money and the Applicant paid that money to the terrorists when next they visited the home. He was not able to raise the rest of the money, so he left home and stayed away for two years from 1987 to 1988.
On 6 October 1988, the police came to the house and arrested him and two other people. The police suspected them all of working for terrorists and interrogated them. He was held in gaol for about three months until his elder brother who was in the army, provided bail for him.
He left home, left for Jammu and stayed there from 1990 to 1991. He said that at that time the situation was very bad and young men were being kidnapped by militant terrorists. He returned home, but on 18 November 1991 the police raided the family home. He was beaten, he was tortured by the police and taken to the police station where he was held and again tortured and beaten. He was interrogated by the police and held for about four months.
After that, he left and went to Nepal where he stayed until 1993. He returned homed, but found out that the two people who had originally been taken into custody with him had both been shot by the police. He left for Delhi and eventually raised money and he escaped from India and arrived in Australia in April 1997. He has resided in Australia ever since. The Applicant said that he was only able to leave India because he had paid bribes and had obtained assistance to leave India unhindered.
The Tribunal considered independent evidence by way of country information including advice from the Australian High Commission.
The Tribunal, in its findings on page 84 of the Court Book noted that the Applicant claimed that he was persecuted for reason of imputed political opinion and that the police and the authorities believed he was associated with militant Sikh separatists.
The Tribunal said that it was prepared to believe that had had not twice in 1988 and 1991 been detained and mistreated by the authorities. The Tribunal accepted that the Applicant had been released because his brother, who was serving in the Indian Army, had intervened on his behalf.
The Tribunal noted that the Applicant was able to leave India for Nepal in 1992 and he was able to obtain a passport in 1995.
The Tribunal was prepared to accept that the two people detained with the Applicant in 1988 had in fact been shot by the police. The Tribunal went on to say that this had not happened to the Applicant, that he was released and passed through immigration controls.
The Tribunal referred to independent evidence which indicated that the political situation in the Punjab had changed in recent years, that the militants seemed to have disappeared and that it was the view of experts consulted by the Canadian Immigration and Refugee Bureau that only high profile militants or human rights activists remained at risk of detention by the Indian authorities.
The Tribunal noted independent evidence to the effect that terrorist groups have been virtually eliminated and drew that the conclusion that any further fears that the Applicant might have of persecution were no longer well-founded.
The Tribunal was not satisfied that there was a real chance that the Applicant would face persecution in the foreseeable future for his political opinion or for any other Convention reason. The Tribunal affirmed the decision of the Delegate of the Minister not to grant a Protection Visa.
The respondent submitted written submissions, noting that the Applicant had been involved in a class action called the Lie Class Action in the High Court of Australia and the Applicant, as a result of orders made in the High Court on 25 November 2002, the Applicant filed an individual application for review which was remitted to the Federal Court. On 20 February 2004, Emmett J refused to grant an order nisi in that matter and a number of other matters. On
1 November 2004, the Applicant filed his initial application for review in the Federal Magistrates Court.
In the respondent's submissions, counsel for the respondent referred to the Applicant's grounds of review which were that the Tribunal made a jurisdictional error when it failed to understand the risk of persecution because of the Applicant's detention and mistreatment by the authorities; second, that the Tribunal had breached s.424A of the Act and denied the Applicant procedural fairness and natural justice because the Tribunal did not believe any of the Applicant's documents; third, that the Tribunal failed to investigate the Applicant's claim fairly and properly; and fourth, the Tribunal failed to make any reference to the current situation in India.
The respondent submitted, correctly in my view, that the Applicant's complaint that the Tribunal failed to understand the risk of persecution was no more than a disagreement with the Tribunal's factual finding and there is no evidence that the Tribunal did anything other than exercise its power in a bona fide way.
It is not the function of a Court on a judicial review to conduct a further review on the merits that is of course entirely up to the Tribunal.
The reference to that is the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996 185) CLR 259.
The respondent's counsel correctly pointed out that s.424A of the Migration Act had not been enacted when the Tribunal made its determination and in any event the Applicant had not provided any details of what documents the Tribunal is said to have believed. She pointed out that the Tribunal appeared to accept that the Applicant obtained a passport in his own name.
So far as the ground of failure to make inquiries is concerned, the Respondent’s counsel pointed out that it is up to the Applicant to advance the evidence that he seeks to rely on in support of his case and it is not the task of the Tribunal to conduct its own inquiries. The reference there is to Abebe v Commonwealth (1999) 162 CLR 510-90, 187 and 190. This submission to my mind is correct.
The Applicant's claim that the Tribunal failed to take into account the present situation in India was, it is submitted, not accurate in that the Tribunal on the face of the decision at pages 79, 84 and 85 of the Court Book had done exactly that. Indeed, the Tribunal had put to the Applicant at page 79 of the Court Book that circumstances in the Punjab had changed.
It was also submitted that the Applicant had delayed for some eight months after the earlier proceedings had come to an end before filing an application for review and that there was no reviewable error of law.
The Applicant filed a reply to the respondent's submissions on
11 March and said in that reply that in determining his claim, the Tribunal had failed to consider the combined effect of at least all of the factual claims that had been accepted. He relied on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 25-9 reported to the Judgment of Kirby J saying that:
A proper application is a real chance test requiring the decision maker to consider the combined effect of at least all the factual claims that had been accepted in determining the likelihood of Convention related harm occurring upon an applicant's return to his country of nationality.
The Applicant pointed out that the Tribunal had accepted certain factual evidence, including being beaten and tortured and two other people being shot. He submitted that there was a real chance of persecution and that the Tribunal had failed to take certain circumstances into account. He said that this was more than a factual error by the Tribunal. He said the Tribunal had made a decision on speculation.
The Applicant said that making a decision on presumption of speculation was in fact a jurisdictional error of itself. He then went on to make some claims about the present situation in the Punjab.
At the time, I was not satisfied that the Applicant's claims as set out in his application or in his submission of 11 March 2005 showed that there had been a reviewable error. The respondent's submissions as to the non-reviewability of factual findings were appropriate. The Applicant claimed that the decision of the Tribunal was based on presumption and speculation and that that was therefore a jurisdictional error, is to my mind not accurate. The Tribunal's findings appear to have been based on the evidence and the Applicant's own account. The final paragraph of the Applicant's submission tended to rely on factual matters, rather than matters of law.
What did concern me at the time was a statement in paragraph 3 in the Findings and Reasons at page 84 of the Court Book:
The Applicant asserts that the police shot the two people detained with him in 1988. The Tribunal is prepared to accept this given the independent evidence from that period that indicates that serious human rights abuses occurred. However, the Tribunal notes that this was not the fate of the Applicant at the time that he was released and was subsequently he passed through immigration controls where, if he had been in such danger of further apprehension, he presumably would have been detained again.
The concern that I had about that statement was that it was at the very least unfortunately phrased in that it appeared to be somewhat flippant about the fact that the Applicant's two companions had been shot, that the Applicant had not been. It was of course a statement of the obvious that the Applicant had not been shot dead by the police, otherwise the Applicant would not be in Australia today.
I was concerned that this may well approach apprehension and bias. To that end I heard submissions on the day and decided to give both parties the opportunity to make further submissions restricted to the question of apprehension of bias.
The Applicant filed a written submission on 21 March 2005, again headed Applicant's Reply to the Respondent's Submission. The submission was similar to the Applicant's earlier submission.
It does not seem to have addressed the issue which caused me concern at the earlier hearing and indeed in the respondent's supplementary submissions filed by the solicitors for the respondent on 7 April 2005, this omission was raised. At paragraph 4 of the respondent's supplementary submissions, counsel said:
The issue of bias was not raised by the Applicant of the ground of review and, significantly, has not been raised or addressed by the Applicant in his further written submissions dated 21 March 2005, nor has the Applicant ever adduced any evidence by way of transcript or otherwise of what took place at the hearing before the Tribunal.
The counsel for the respondent then went on to consider whether there was actual bias, and then submitted that there was not. I am quite prepared to accept this as there was never any concern in my mind that there was actual bias, it was an apprehension of bias that caused the concern.
Counsel for the respondent submitted that a proper construction of the reasons of the Tribunal would not show that there was evidence that the objective test that a reasonable apprehension of bias was met. She submitted there was no basis for concluding that a reasonable observer would apprehend that the Tribunal Member did not bring a fair and unprejudiced mind to the consideration of the Applicant's case. I was referred to Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337-6.
Counsel for the respondent submitted that the statement made by the Tribunal which caused the Court some concern, was no more than an observation that in the opinion of the Tribunal, the Applicant was no longer a person of interest to the authorities. Counsel went on to say that the Tribunal neither rejected the Applicant's account that two persons with whom he had been arrested had been killed, not did it state that this was not a traumatic event for the Applicant to have endured. It simply used that fact as a basis for rejecting the Applicant's claim that he had a well-founded fear of persecution. She submitted that in the circumstances, no issue of apprehend bias arises.
I have given some consideration to that point. In my mind, the phrase used by the Tribunal Member was unfortunate. It was an infelicitous piece of language used in the written decision.
Having said that, there is no evidence before the Court today that the way the proceedings were conducted or anything said at the time by the Tribunal Member would have given rise to any apprehension of bias in the mind of a reasonable observer.
Whilst the Refugee Review Tribunal needs to make sure that its written decisions do not give offence or down-play the concerns of people who may well have, as this Applicant appears to have, undergone serious and unpleasant events, it is not to my mind, when considered in context, sufficient to form a view that the Tribunal Member approached the task with anything other than an unbiased mind.
I am mindful of the fact that applicants are invited to attend an oral hearing of the Tribunal when the Tribunal cannot, on the written material, formulate a decision favourable to the applicant. It is certainly not unusual for an applicant to be put to proof of his or her claim.
There was no complaint however by the Applicant that the manner in which the Tribunal proceedings were conducted was in any way unfair or slanted against the Applicant or was in any way impolite. To my mind, having considered the words in their context and having considered the submissions made by both parties as a result of my expressed concern at the earlier hearing on 11 March 2005, I am not of the view that the evidence does point to an apprehension of bias. There is no reviewable error.
The application of course was not made within the period of time allowed under s.477(1A) of the Migration Act and consequently the application is one that can be said to be not competent in that the Court does not have a jurisdiction to deal with the matter. That of course could not apply if there were a reviewable error because the decision would then not have the protection given in the privative clause section which is s.474. But there is no reviewable error, the application is not competent, the application will be dismissed.
I note the Applicant is not in employment at the moment. That may make it very difficult to enforce a costs order, but the fact is that the Applicant has been unsuccessful and costs usually follow the event. The amount sought is not unreasonable, on the high side perhaps, but not greatly so. The Applicant is to pay the respondent's costs fixed in the sum of $4500.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 5 May 2005
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