SZFLK v Minister for Immigration
[2006] FMCA 1312
•6 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1312 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Fiji – applicant denied a deferral of RRT hearing to obtain further documents from Fiji – RRT decision signed on the same day as the hearing – whether this gave rise to an apprehension of bias considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 425A Migration Regulations 1994 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Livesey v NSW Bar Association (1983) 151 CLR 288 Minister for Immigration v Jia (2001) 205 CLR 501 Minister for Immigration v Lay Lat [2006] FCAFC 61 NAOL v Minister for Immigration [2003] FCA 840 R v Simpson; Ex parte Morrison (1984) 154 CLR 101 Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 SBBS v Minister for Immigration (2002) 194 ALR 749 SCAA v Minister for Immigration [2002] FCA 668 |
| Applicant: | SZFLK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG75 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 6 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Miss K Rose Phillips Fox |
ORDERS
The Court directs that the first respondent’s name be amended to “The Minister for Immigration and Multicultural Affairs”.
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG75 of 2005
| SZFLK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 23 December 2004, having been signed on 29 November 2004. The applicant is from Fiji and had made claims of ethnically motivated persecution. Relevant background facts are conveniently set out in written submissions filed on behalf of the Minister on 29 August 2006. I note from those submissions that the Minister seeks two procedural orders correcting the name of the Minister and joining the Refugee Review Tribunal as the second respondent. I agree that those orders should be made and I make them. I adopt by way of background for the purposes of this judgment paragraphs 2 to 9.13 of the Minister’s written submissions, slightly amended by me:
The applicant is a male citizen of Fiji born on 14 August 1982.[1] He arrived in Australia on 10 February 2001.[2] He applied for a protection (class XA) visa on 6 October 2004.[3]
[1] court book, page 11
[2] court book, page 13
[3] court book, page 23
The application was refused on 7 October 2004.[4] The applicant applied to the RRT for review of the original decision on 13 October 2004.[5] The applicant gave oral evidence before the RRT on 29 November 2004. The RRT handed down its decision on 23 December 2004.
[4] court book, pages 34-45
[5] court book, pages 46-49
The applicant's claims
The applicant claims that Fijian Indians are treated as second class citizens in Fiji. He claims that his and other Fijian Indian families had faced demands for money from young indigenous Fijians, and that the Native Land Trust Board wants to remove Fijian Indian squatters (including the applicant and his family) from traditionally owned land. The applicant also claims that he has been harassed on two or three occasions by indigenous Fijian youth, that the reason for the harassment was his race, and that police did not assist him when he reported the harassment.
The decision of the RRT
The RRT affirmed the decision under review refusing to grant the applicant a protection visa. The RRT accepted that the applicant was a citizen of Fiji and assessed his claims against that country. The applicant claimed to fear persecution because of his Indian ethnicity.
Prior to his hearing, the applicant had requested a postponement while he waited to receive documents from Fiji. The RRT declined the request, deciding that it would discuss the documents with the applicant at the hearing and decide then whether to postpone its decision in order to wait for the documents. It noted that the applicant had been advised to provide any documents in October, when it acknowledged receipt of the application, and again in the invitation to hearing. The hearing was conducted without an interpreter, at the applicant's request.[6]
[6] court book, page 61
The RRT discussed the documents that the applicant was expecting with him at the hearing.[7]
[7] court book, pages 72-73
a)The applicant claimed to have been storing documents at his home since March 2003. He claimed that he kept them in a folder at home at his brother's place. When he was detained at home, DIMIA officers made him hand over his passport, which he kept in the same folder. His brother later told him that the folder was missing.
b)The documents included police reports of incidents of harassment.
c)The applicant had also had difficulty getting these documents sent again from Fiji. He claimed that his father had been collecting them, and still needed to collect some more. He claimed that he still needed a copy of a petition from Indian residents and a letter from the Fijian Labour Party about his father's work for it.
d)The applicant claimed that he had asked his father to collect all the documents together before sending them to him.
e)The RRT found that there was no satisfactory reason for failing to send the police reports until the petition and letter were available. The RRT stated that it was concerned that the applicant had not attempted to obtain the documents urgently.
f)While not allowing an extension of time in which to produce the documents, and finding that the documents might have been a stalling device of some kind, the RRT apparently accepted that the applicant had been harassed as claimed, and had filed police reports. It also accepted that his father had been involved in the Fijian Labour Party and was a leader in the negotiations regarding a new tenure agreement.
The RRT considered country information. It is unclear from the RRT decision whether it was put to the applicant at the hearing. Based on the country information, the RRT found that Fijian Indians, as a group, have faced discrimination and vilification in recent decades. Tribal land tenure in law had been to the disadvantage of ethnic groups, including Fijian Indians, without indigenous connections to the land. The RRT accepted that, as an ethnic Indian in Fiji, the applicant might be subject to institutionalised forms of discrimination.[8]
[8] court book, page 73
The RRT had difficulty accepting the credibility of some of the applicant's claims. The reasons for the lack of credibility were put to the applicant at the hearing. The RRT found that:[9]
[9] court book, pages 73-76
a)The applicant's claims were inconsistent.
b)The applicant could not explain why his siblings were able to remain at home without fear of persecution, when he himself feared it. The RRT found that the applicant's family did not fear persecution, and the applicant did not have a genuine fear either.
c)He claimed that he feared persecution because of his father's position, but did not make any claims about his father facing serious harassment. The RRT did not accept on the evidence before it that the applicant's father had been the target of Convention related persecution or would be in the reasonably foreseeable future.
d)His parents and siblings had remained where they had always lived, suggesting that their situation was stable, or at least unremarkable as far as the Convention was concerned.
e)He had claimed that he could not reside away from the squatter colony because of an eyesight problem. When questioned about this at the hearing, the applicant was inconsistent. The claim also did not make any sense. The RRT found that this undermined the applicant's credibility.
f)The applicant's father funded his trip to Australia from his superannuation, and was a man who lived off his superannuation. The RRT found that this suggested that the applicant's father was not a farm labourer with no alternative but to squat on clan land. The RRT accepted that the applicant's family had been living on the land and that they were involved in ongoing debate over rent levels.
g)The applicant was inconsistent regarding whether the landlords were connected to the people who took money. The RRT accepted that the landlords used people to extract so called goodwill payments. The RRT found, however, that this was purely criminal and greed-motivated, not for a Convention reason.
h)The RRT concluded that the applicant tended to exaggerate and embellish facts at the hearing.
i)The RRT did not accept that the applicant had been sent to Australia for protection. It found that the applicant did not come to Australia by the easiest route, choosing the expensive student visa option. It also noted that the applicant had actually studied and completed his course in Australia.
j)The applicant returned to Fiji for his sister's wedding in 2002. The RRT found that this suggested that the applicant did not have a genuine fear of persecution in Fiji. The RRT concluded that the applicant had worked out in his mind how to avoid being accosted, whilst out alone, by gangs of youths.
k)The applicant did not apply for a protection visa until after he was detained in October 2004. This was after he had been here as a student since 2001, after he had returned to Fiji for his sister's wedding, and after he had lived here illegally for over a year. The RRT found that the applicant's behaviour in Australia was not consistent with a genuine fear of persecution. It noted that the applicant had not claimed any incidents of harassment during his visit to Fiji for his sister's wedding.
l)The applicant had filed police reports about the incidents of harassment, suggesting that the police were willing to maintain law and order in the community and between ethnic groups. It noted that, while the police had not been able to prosecute anyone, this was a result of the relatively minor priority this type of offence would have and the inability of the applicant to identify the perpetrators.
m)The RRT also noted that the applicant would be able to relocate within Fiji. There was no acceptable reason why he had to live at the squatters' colony. He had a technical qualification as an electrician, and would be able to rent. In any case, the RRT found that it would not be necessary for the applicant to relocate, because none of his family had needed to relocate. The RRT noted that all of the applicant's claims would apply equally, if not more so, to his family members.
These proceedings began with a judicial review application filed on 11 January 2005. The applicant now relies on an amended application filed on 12 April 2005. That amended application contains three grounds and provides specific and clear particulars. Ground 1 asserts that the applicant was denied a reasonable opportunity of presenting his case to the RRT. The particulars concern a request made by the applicant for the RRT hearing to be delayed so that he could obtain additional documents from Fiji to support his claims. Ground 3 raises a similar claim, specifically in relation to his desire to obtain documentary material to support his claims of institutionalised discrimination and harassment. The second ground asserts an apprehension of bias on the part of the RRT in determining the application. The particulars are that the RRT conducted the hearing on 29 November 2004 and on the same day the presiding member prepared and signed the written reasons for the decision. The applicant asserts that those facts give rise to an apprehension in the mind of a fair-minded observer that the presiding member did not bring an unprejudiced mind to the hearing.
I have available to me as evidence the court book filed on 4 February 2005 and an affidavit by Kimberley Karen Rose made on 21 August 2006 which annexes the transcript of the hearing conducted by the RRT on 29 November 2004. I explored the applicant’s claims with him during oral argument. Although the Court had arranged a Hindi interpreter to be available to assist the applicant it turned out that she was not required. The applicant showed proficiency in the English language.
The applicant reiterated his concern that the RRT proceeding was unfair because the request for an adjournment of the hearing, which is evidenced by letter reproduced on page 54 of the court book, was not granted. The presiding member deals with this issue in his reasons reproduced on page 61 of the court book. Relevantly, the presiding member says:
The Tribunal wrote to the Applicant on 14 October and told him his application was receiving attention. The Tribunal expressly asked the Applicant to provide “immediately” any documents he wanted to consider. The Applicant did not reply to this letter.
The Tribunal wrote to the Applicant on 2 November 2004 to advise him that it was unable to arrive at a decision favourable to him on the basis of the material in his file alone and inviting him to attend a hearing before it on 29 October 2004. The Tribunal again expressly asked the Applicant to provide any documents he wanted it to consider. The Applicant accepted the hearing invitation but made no special requests about documents until 22 November 2004 when he asked for a two-or three-week postponement of the hearing pending the arrival of documents from “the authorities” in Fiji. The Tribunal considered but declined the request, preferring to discuss the documents and their relevance at the hearing before deciding on allowing further time in this matter.
The reasons for the decision of the RRT and the transcript confirm that discussion. It appears from the reasons that the presiding member ultimately decided that there was no need to await the receipt of further documents from Fiji because those documents were unlikely to assist the applicant. The presiding member accepted the factual claims made by the applicant to which those documents were said to relate and noted that, to the extent that the documents supported the applicant’s claims of having reported harassment by ethnic Fijians to the police, that would tend to indicate that effective State protection was available. The Minister deals with this issue in her written submissions in paragraphs 16 to 19. I agree with those submissions and adopt them for the purposes of this judgment:
The evidence from the court book is clear. The RRT complied with its obligations under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) when it invited the applicant to a hearing. That hearing invitation complied with the requirements in s.425A. The combined effect of s.441C(4)(a) and regulation 4.35D of the Migration Regulations 1994 (Cth) means that the earliest the RRT could have held a hearing was 21 November 2004. The hearing was in fact listed on 29 November 2004.
The applicant had sufficient opportunity in which to obtain further documentation in support of his case. The applicant indicated his intention to do so as early as October 2004, when he made his protection visa application.
The RRT gave cogent reasons for its decision not to allow further time for the applicant to provide documentation from Fiji. Its decision was based on the general view it took of the applicant's credibility and the view it formed of the applicant's 'unsatisfactory' explanations at the hearing for the delay in obtaining the documents[10]
a)Furthermore, it is for the applicant to put anything he wanted to the MRT, and for the MRT to decide whether his case had been made out: Abebe v Commonwealth (1999) 197 CLR 510, 576 at [187] per Gummow and Hayne JJ; Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437, 450 at [57] per Gummow and Heydon JJ.
Even if common law rules of procedural fairness might otherwise have required the RRT to have given the applicant an opportunity to obtain the documents, this is a matter to which s.422B of the Migration Act applies. Recent Full Court authority suggests that s.422B establishes a comprehensive "code" that excludes general law procedural fairness: see Minister for Immigration v Lay Lat [2006] FCAFC 61.
[10] court book, pages 70-72
In my view, procedural fairness has not been established to the extent that it might have been required pursuant to general law principles. The applicant’s claim in this regard is not assisted by the absence of the documents which he said he wished to introduce. The applicant told me from the bar table that although he ultimately received the documents in issue, he lost them while he was held in immigration detention. They are thus not available to support any claim of practical unfairness.
I also observe that on the basis that s.422B of the Migration Act excludes the operation of the common law fair hearing rule it could not seriously be argued that the RRT failed to meet its obligation to invite the applicant to a hearing and conduct a hearing pursuant to s.425 of the Migration Act. I reject grounds 1 and 3 in the amended application.
I also discussed with the applicant during oral argument ground 2, asserting an apprehension of bias. I noted that the presiding member did indeed sign his decision on the same day as the RRT hearing, which might indicate that he had at least partially prepared his reasons prior to that hearing. If that occurred, there is no legal consequence of it. Many administrative and judicial decision-makers, including some of my colleagues on this Court, for reasons of efficiency and convenience, prepare a rough draft of reasons for a decision before conducting a hearing. It increases the possibility of dealing with a matter ex tempore, in the case of court proceedings. There is nothing wrong with that approach provided that the decision-maker keeps an open mind.
In addition, I note that the hearing concluded at about 11.15 am, which would have provided the presiding member with a reasonable time in the balance of the day to prepare and sign his reasons. Further, I note that the decision was not handed down until 23 December 2004.
This suggests that the presiding member elected to wait for several weeks to see if anything else was presented to the RRT that might need to be taken into account. It appears that nothing was.
I otherwise agree with and adopt, for the purposes of this judgment, paragraphs 20 to 24 of the Minister’s written submissions in relation to ground 2:
The applicant seeks to infer an appearance of bias because the RRT made its decision on the same day as it held a hearing and took evidence from the applicant.
a)The applicant had already been put notice by the RRT, by its letter dated 2 November 2004[11], that it was unable to make a decision in favour of the applicant without further evidence. Natural justice does not require the RRT member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the RRT member to be open to persuasion: Minister for Immigration v Jia (2001) 205 CLR 501at [72] and [186].
[11] court book, pages 52-53
Apprehended bias will exist where a 'fair-minded observer', who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H (“Ex parte H”) at [27]; Livesey v New South Wales Bar Association at 293–294. The test is therefore an objective one: R v Simpson; Ex parte Morrison (1984) 154 CLR 101 at [104].
The applicant has not provided any evidence to support his allegation that the RRT was biased by reference to the transcript of the RRT hearing. The Full Court of the Federal Court in SBBS v Minister for Immigration(2002) 194 ALR 749 at [44] (Tamberlin, Mansfield and Jacobson JJ) has stated:
"… the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for decision under review…”[12]
In this matter, the RRT had serious concerns about the applicant's credibility. It was open to the RRT to vigorously test the applicant's evidence, and to base its assessment of his credit on his demeanor at the hearing: Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30] and [34]. The very fact that the RRT questioned the applicant about his claims lends weight to the conclusion that the RRT was not biased against the applicant.
There is no basis for the applicant's allegation that the RRT was biased against him by reason that it made its decision on the same day as the hearing, nor is there any basis to support an allegation of bias in any other respect. The proper question is whether the evidence and submissions of the applicant were appropriately considered, and not how long the evidence and submissions were under consideration.
a)As Jacobson J pointed out in NAOL v Minister for Immigration [2003] FCA 840 at [12]: "Courts regularly give ex tempore judgments. That does not indicate bias. It merely indicates that the trier of fact or law was in a position to decide all of the issues immediately after hearing the evidence and argument. The position is no different in an administrative tribunal."
[12] See also SCAA v Minister for Immigration [2002] FCA 668 per von Doussa J at [38].
No other issue of jurisdictional error was asserted by the applicant and neither is any apparent to me. I discussed with Ms Rose, who appeared for the Minister, whether any issue of a breach of s.424A of the Migration Act arose in this case. She submitted that it did not and that a fair reading of the RRT reasons and the transcript indicates that the RRT decision turned upon the applicant’s evidence presented at the hearing conducted by the RRT. I agree. On that basis the information upon which the RRT decided to affirm the decision of the delegate was information provided by the applicant for the purposes of the review and there was, consequently, no obligation of disclosure under s.424A.
I find that the RRT decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks a costs order fixed in the amount of $5,300 on a party and party basis.
I understand the Minister’s actual costs are in the order of $6,600.
The applicant sought confirmation of his right of appeal but did not otherwise wish to be heard on the issue of costs. I accept that costs of not less than $5,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 September 2006
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