SZEYO v Minister for Immigration
[2005] FMCA 1357
•19 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1357 |
| MIGRATION – Refugee – failure to attend the Tribunal hearing – denial of natural justice – bias – no reviewable error – application dismissed. |
| Migration Act 1958, ss.425(2)(b), 425(3), 65, 36(2), 474 Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 346 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287. Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 |
| Applicant: | SZEYO & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2272 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 September 2005 |
| Date of Last Submission: | 6 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. A. Carter |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the fixed amount of $4250 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2272 of 2004
| SZEYO & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Hearing)
This is an application filed in this Court on 20 July 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 June 2004 and handed down on 29 June 2004 to affirm the decision of the delegate of the respondent Minister made on 13 February 2004 to refuse protection visas to the applicants. The Tribunal is joined as the second respondent to these proceedings.
The applicants are husband and wife and are citizens of the Republic of Korea. They arrived in Australia on 10 June 1998, and on 2 June 2002 lodged an application for protection visas with the first respondent’s Department. On 13 February 2004 a delegate of the respondent Minister refused to grant them protection visas and on 10 March 2004 they applied for review of that decision to the Tribunal. Only the applicant husband made specific claims under the Refugee Convention, the applicant wife applying as part of his family unit. The applicant husband’s claims centred around his ownership of a restaurant in Korea and his need to borrow money to keep the restaurant afloat. He claimed that he was forced to borrow from the ‘Usurious Private Money Market’, that this organisation was connected with ‘gangsters’ and that these individuals pressured and harassed the applicant and his family and that they were forced to leave Korea. The claims are in the applicants’ application for a protection visa to the respondent's Department, reproduced at Court Book 1 to CB 38 and in a submission to the first respondent’s Department dated 2 June 2002 from Christopher Levingston & Associates on behalf of the applicants (CB 39 to CB 43). The Tribunal’s decision record under “Claims and Evidence” (CB 72 to CB75) summarised the applicants’ claims.
The applicants’ originating application to this Court, filed on 20 June 2004, is generic and lacks particularity. On 24 January 2005 the applicants’ filed an amended application which included the relevant history and a list of the grounds of review. The following grounds of complaint can be discerned (renumbered for ease of reference):
1) “In making the decision, the Tribunal’s finding of a number of jurisdictional facts was not reasonable.
Particulars:
a)The Tribunal’s finding that the applicants/ and or the applicant’s family were not victimized by the Korean criminals, was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the Tribunal that the fact of it being satisfied that the applicant had a well founded fear of persecution for a convention reason was made out.
b)The Tribunal’s finding that there was no persecution of the applicants/and the applicant’s family in Korea, was a finding which it could not have reasonably reached, and this finding was critical to the ultimate conclusion of the Tribunal that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a convention reason was made out.
c)The Tribunal’s finding that the applicants were not previously under investigation for dealings in the usurious money market controlled by criminals, and that as a consequence, were a target for reprisal attacks against them. Was a finding that it could not reasonably have reached, and the finding was critical to the ultimate conclusion of the Tribunal that the jurisdictional fact of it being satisfied that the applicants had a well-founded fear of persecution for a convention reason was not made out.”
2)“The Tribunal has ignored relevant considerations when making its decision.
Particulars:
a)The Tribunal has not taken or adequately taken into consideration the applicant’s claims that they had previously been involved in borrowing money outside a Korean government embargo, and therefore were being sought by the authorities for that.
b)The Tribunal had not taken or adequately taken into consideration the applicant’s claims that they had a warrant imposed for their arrest, and therefore could not approach the Korean consulate here in Australia to extend their travel documents.
c)The Tribunal has not taken or adequately taken into consideration the applicant’s claim that they were the target of criminals and loan sharks, intent on causing them and their immediate family, physical and emotional harm, in order to recoup their money.
d)The Tribunal has not taken or adequately taken into consideration the applicant’s claim that they are victims of a far different system and culture then that encountered here in Australia.
e)The Tribunal has not taken or adequately taken into consideration the fact that there may be possible memory failures with regard to recounting details experienced because of the persecution suffered by the applicants at the time and under stress.”
3)“There has been a constructive failure by the Tribunal to exercise jurisdiction.
Particulars:
a)The applicant repeats particulars; 6 (a) to (c) [renumbered as 1 (a) to (c)]
b)The applicant repeats particulars; 7 (a) to (e)) [renumbered as 2 (a) to (e)]”
4)“In making the decision, the Tribunal denied the applicant natural justice or procedural fairness.
a)The Tribunal made the decision without regard to relevant documents and/or without allowing the applicant an opportunity or reasonable opportunity to be heard in relation to the adverse allegations made against him by the Tribunal.
b)The Tribunal [sic]
c)The Tribunal was or appeared to be biased
(i)In the “Findings and Reasons” section of the Tribunal’s decision record for the applicants it states; “Mr. Livingstone, his adviser, stated in his submissions that the Applicant came into contact with persons “who apparently (emphasis added) threatened not only the borrower but his wife and children.” The decision maker by highlighting the works in brackets i.e. (emphasis added), may be seen as conjuring and slanting their own interpretation of the statement, when any other reader may see it merely as a straightforward statement.
(ii)The Tribunal has failed to acknowledge the danger the applicant’s will face if he returned to Korea due to outstanding warrants for their arrest, and retribution promised by criminal elements in that society.”
The applicants also filed affidavits sworn on 23 January 2005 which make the additional complaint that the Tribunal appeared to be biased towards their case. The applicant husband appeared at the hearing before me unrepresented. He confirmed with me that he had received advice from the Court’s Legal Advice Scheme. He was assisted by an interpreter in the Korean language. The applicant wife did not appear. The applicant husband confirmed that he was pursuing the matter on his and her behalf. The respondents were represented by Mr. A. Carter and I also have before me written submissions for the respondent filed on the 6 September 2004.
The application to the Tribunal was made on 10 March 2004 (CB 58 to CB 61). The applicants were represented by solicitors throughout the application to the first respondent’s Department. The application to the Tribunal (CB 58) contains no additional reasons for why the applicants believe themselves to be refugees and the covering letter from the applicants’ solicitor makes reference to the lodging of the application for review in respect of the Departmental decision to refuse the first applicant a protection visa. It is clear however that both applicants before me were applicants before the Tribunal. No further submissions or claims were put before the Tribunal. On 2 April 2004 (CB 62 to CB 63) the Tribunal wrote to the applicants by letter sent to their authorised recipient for the purposes of receiving correspondence, that is the solicitors acting on their behalf, with copies addressed to the applicant, advising that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone and invited the applicants to come to a hearing before the Tribunal to give evidence and present arguments in support of their claims. The hearing was set for 20 May 2004. The Tribunal specifically noted in its letter that if the applicants did not attend the hearing and the Tribunal did not postpone the hearing, then it could make a decision in their case without further notice. By facsimile transmission dated 11 May 2004 the applicants’ representative, who had been authorised to act for the applicants in relation to this case (CB 59.9) advised the Tribunal that while the “client” had indicated a desire to attend the hearing of the matter, that with subsequent advice, the family did not wish to attend a hearing and would prefer to have the matter dealt with “on the papers.” The transmission emphasised that the facsimile was intended to constitute formal notice from the client that they do not require a hearing in this matter and request that the matter be dealt with “on the papers." In these circumstances the Tribunal proceeded to make a decision on what was before it pursuant to s.425(2)(b) and s.425(3) of the Act.
The Tribunal's decision record is reproduced at CB 69 to CB 77. The Tribunal noted at CB 72.6 that only the first named applicant, that is the applicant husband, had made specific claims under the Refugees Convention and that his wife relied solely on her membership of his family, although it did note that the applicant husband's claims relate to concerns that he had for his wife also. The applicants did not succeed before the Tribunal because the Tribunal found on the material before it that the claims were extremely general and lacking in detail and that the applicant husband had provided no details as to any specific harassment or threats either to him or his family (CB 75.9). It further found that the applicant had provided no documentary evidence to substantiate the claims about the outstanding debt nor had the applicant husband provided documentary evidence in relation to his claims that he is being investigated by the authorities, was charged with an offence or that he is awaiting legal action and is unable to renew his travel document because of an outstanding warrant (CB 76.3). The Tribunal noted the relevant test that it was required to turn its mind to, and that was to determine whether the applicant had a well founded fear and that what he feared amounted to persecution for a Convention reason. It found that the applicant had not provided any further evidence to support his claims and that in circumstances where he had been informed by the Tribunal that on the evidence to date it was unable to make a decision in his favour, he was thereby offered the opportunity to give evidence and make submissions at the hearing and he did not avail himself of that opportunity. On that basis the Tribunal found that the applicant had not provided sufficient evidence to support his claims and in the absence of an opportunity to test the genuineness of the claims, it was not satisfied that his claims were genuine and sincere and was not satisfied that the applicant or his family would be harassed, threatened or harmed for a Convention reason or that he would have a well founded fear of persecution should they be returned to the Republic of Korea (CB 76.6).
The relevant statutory requirements, s.65 and s.36(2) of the Migration Act, provide that a protection visa must only be granted if the decision maker is satisfied that the person applying for the protection visa relevantly satisfies the requirements as set out in s.36(2) and meets the definition of refugees contained in Article 1A(2) of the Refugees Convention. On what was put before the Tribunal it could not be satisfied that the applicants met the requisite criterion for the grant of a protection visa. No jurisdictional error is revealed merely because the facts that were put forward by the applicants did not cause the Tribunal to be satisfied as to the applicable criteria (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). I note the respondent’s submissions that in similar circumstances where an applicant failed to appear before the Tribunal in the face of a letter as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicants were put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of their claims, they chose for whatever reason, as is their right, not to attend.
The applicant husband at the hearing before me stated:
1)That in relation to his non-attendance at the Tribunal hearing he had received advice from his then solicitor that he should not attend and that is why he did not attend.
2)That he could provide a character reference from the Korean police station if required.
3)That he wanted to obtain a valid visa so that he could stay with his two adult children who were in Australia.
4)There was nothing further that he could add to his amended application.
In relation to the applicants’ stated complaints in the amended application:
1)The applicants argue that in making its decision the Tribunal’s finding of a number of jurisdictional facts was not reasonable. The particulars provided by the applicants were that in relation to the Tribunal finding that the family were not victimised by Korean criminals, this was a finding which could not reasonably have been reached. That the Tribunal’s finding that it was not persecution of the applicants was also a finding that could not have been reasonably reached and that the Tribunal finding that the applicants were not previously under investigation for dealing in the money market controlled by criminals was also a finding that could not have been reasonably reached. In the circumstances of this case and on what is before me, it is clear that this complaint does not rise above an attempt to seek impermissible merits review by this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). Even if the Tribunal had made a wrong finding of fact, and there is nothing before me to show that this was the case, there is no jurisdictional error in the Tribunal acting in such a way in any event: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
2)The applicants’ second complaint is that the Tribunal has ignored relevant considerations when making its decision and enumerates five instances where they allege this has happened. On the material before me it is clear that the Tribunal did take into consideration all of the applicants’ claims. The issue however was that it was not satisfied on the material before it, and again noting that the applicants did not attend a hearing to which they had been invited, on the basis of presenting further argument in support of their claims, that the applicant husband's claims on which the family's application depended were genuine or sincere. The complaint really appears to be that the Tribunal was in error by not accepting the applicants’ claims. It is clear however that the finding by the Tribunal that it could not be satisfied on what was before it was clearly open to it on the material before it and as this finding was open to it I can see no error in this regard.
3)The third complaint is that there has been constructive failure by the Tribunal to exercise jurisdiction. The applicants rely on the particulars already given and for the reasons already given this ground also must fail.
4)The next complaint is that the Tribunal denied the applicants natural justice or procedural fairness in that it did not have regard to relevant documents and did not allow the applicants an opportunity or reasonable opportunity to be heard in relation to what is described as “adverse allegations made against him by the Tribunal”. It is clear that the Tribunal did consider all relevant aspects of the claim made by the applicant. The applicant was clearly given an opportunity to be heard. The applicants chose, for whatever reason as is their rights, not to appear before the Tribunal. But, as the respondent submits, in circumstances where an applicant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about the claims, the applicant cannot then complain if the application was rejected because, amongst other reasons, he fail to take up the opportunity. I note the authorities relied on by the respondent in this regard: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 and NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 346 at [10] – [12] per Allsop J, upheld on appeal in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
5)The applicants also complain that the Tribunal was biased and by way of some specificity point to the Tribunal’s note at CB 75.9 to CB 76.1, in quoting from what the applicants’ adviser had put to the Tribunal. Clearly in the context, the Tribunal's concern was that the applicants had provided no details as to any specific harassment or threats to either him or his family. The applicants also point to the alleged failure by the Tribunal to acknowledge the danger the applicants would face if they returned to Korea as being another particular as to the Tribunal being biased or appearing to be biased. In relation to this complaint of bias and bad faith, the applicants have put nothing before the Court to establish any of the relevant elements as set out in authorities. For the benefit of the applicants, I should set out that, allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, [27]-[32]). No particulars of bias or apprehended bias are alleged. I can see no basis for review of the decision on the basis of actual or apprehended bias. Also, the application fails the test of establishing bad faith as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20] because the allegations of bad faith are not clearly alleged, no attempt at proof is offered and no personal fault or absence of honesty on the part of the decision maker has been made out.
The applicants’ application before the Tribunal failed clearly because the Tribunal was unable to be satisfied on the material put before it that the applicants met the necessary criterion for the grant of a protection visa. The Tribunal invited the applicants to a hearing and the applicants, for whatever reason, chose not to attend the hearing. On what is before me the Tribunal was entitled to make the findings that it made. I can see no jurisdictional error in the Tribunal's decision. This is a privative clause decision within the meaning of s.474 of the Act. The application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 19 September 2005
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