SZFRX v Minister for Immigration
[2006] FMCA 846
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFRX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 846 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 91R, 91X, 424A, 477, 483A |
| Applicant S v Minister for Immigration (2004) 206 ALR 242 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Khawar (2002) 210 CLR 1 |
| First Applicant: | SZFRX |
| Second Applicant: | SZFRY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG349 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Advocate for the Applicants: | The applicants appeared in person with the assistance of a Polish interpreter |
| Advocate for the Respondents: | Mr A Cox |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG349 of 2005
| SZFRX |
First Applicant
| SZFRY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second 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 9 February 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 5 November 2003 and handed down on 2 December 2003, affirming a decision of the delegate of the first respondent made on 30 August 2002, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZFRX” (applicant husband) and “SZFRY” (applicant wife).
The applicants have not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
On 10 March 2005, the respondents’ solicitors filed a notice of objection to competency which stated:
a)The respondent objects to the jurisdiction of this Court to try this application for an order under the Judiciary Act in relation to a decision under the Act on the grounds that:
i)Subsection 477(1A) of the Act provides that an application for review must be lodged with a Registry of the Court within 28 days of the notification of the decision.
ii)The applicant was notified by letter of the Tribunal decision on 2 December 2003 and he filed an application for judicial review of the decision on 9 February 2005 which has not been filed within 28 days of notification of the decision as required by sub-s.477(1A) of the Act.
Background
The Tribunal decision of Shahyar Roushan, reference number N02/44259, contains the following background information. The applicants are husband and wife. They claim to be citizens of Poland and they arrived in Australia on 5 March 2001. On 3 June 2002, they lodged an application for a Protection (Class XA) visa under the Act with the Department of Immigration. On 30 August 2002, a delegate of the Minister refused to grant a protection visa. On 6 September 2002, the applicants applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 140)
According to the protection visa application, the applicant husband is a 41 year old ambulance driver. He is also a qualified mechanic and a nurse. He worked as an ambulance driver in Poland from 1981 to 2001.(CB 143)
Applicants’ claims
The applicants’ claims in the protection visa application were set out in a statutory declaration filed with the application.(CB 41-43)
A substantial part of the applicant husband’s duties was to transfer seriously ill people to hospital. Part of his job was to carry these people on stretchers for these transfers. The applicant husband stated that during while working as an ambulance driver in Poland, he became aware of the illegal sale of bodies for body parts. The applicant husband claims that his personal problems commenced when he was transferred to a particular unit that was involved with these suspect activities. The applicant husband claims that he initially conveyed this information to a colleague who was also a member of the police force, who advised him that little could be done unless he was able to provide details of these activities. When the applicant husband commenced enquiries, this resulted in him being threatened, beaten, arrested and detained. His family’s safety was also threatened.
In the application to the Tribunal in response to the question “Please tell us why you consider yourself to be a Refugee”, the applicants wrote, “I am a refugee and eligible for a protection visa.” In a later submission to the Tribunal, the applicants’ migration agents ‘Nesk Immigration Services’ prepared a submission containing the following statement (at CB 123):
[SZFRX] is submitting that he is positive that he is a member of a particular social group namely “witness of crime in Poland”.
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondents’ written submissions, prepared by Mr Cox. I adopt the following paragraphs for the purposes of this judgment:
19.The RRT noted that both at hearing and in a post-hearing submission, the applicant's advisor had submitted that the applicant was a member of a particular social group being 'witness of crime in Poland'.
20.The RRT also noted that the applicant also claimed membership of a particular social group being 'ambulance service employees in Poland' at hearing.
21.However any potential group be described, it is clear that the RRT found that the motivation for harming the applicant arose from a desire to prevent the applicant from disclosing criminal activity. [CB 159.7]
22.In relation to the proposed 'witness of crime in Poland' particular social group, the RRT found that no such cognisable or recognisable group existed in Poland. This was because the RRT did not consider that witnessing a crime could be considered a uniting characteristic that would set such a group apart from the rest of the Polish community. [CB 159.2]
23.The RRT did consider that the second proposed group 'ambulance service employees in Poland' was a cognisable group in Polish society. However, the RRT did not accept that the applicant's fear of harm was for reason of that particular group. On the facts, the RRT found that the reason for the harm feared was that criminals wished to prevent the applicant from uncovering their activities and impeding their profitable trade in human corpses. [CB 159.7]
26.The RRT's reasoning and findings are found at CB160-163. The RRT referred to independent country information concerning a widespread investigation by Polish police into the trade in human corpses. [CB 160.3] The RRT also discussed, in detail, specific law that had been enacted in Poland to protect witnesses in serious criminal cases. [CB 160.9]
27.In relation to the alleged corrupt collaborative acts of local police in 1999, the RRT referred to independent information in order to answer the question as to whether the Polish authorities had the ability and willingness to address and fight corruption at a level sufficient to remove a real chance of harm to the applicant. [CB 162.2]
28.It then referred to country information which indicated Polish government had undertaken a fight against corruption as one of its highest priorities. [CB 162.4] The RRT noted that no report of Police corruption was to be found in independent information that reported corruption allegations against employees of the Lodz ambulance service in Poland. [CB 162.9]
31.The factual findings of the RRT on relocation were based on the applicant's own evidence at hearing and independent sources. [CB 163.7 - 164.2]
Application for review of the Tribunal’s decision
On 9 February 2005, the applicants filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.The Tribunal has no evidence before it to make any justification on the level of my political profile. The Tribunal ignored materials relevant to my claims and therefore reached a mistaken conclusion that me and my family have no well-founded fear and have not faced harm in the past and will not be in danger in the future. [copied without alteration or correction]
On 9 May 2005, the applicants filed an amended application which in effect was a photocopy and repeat of the repeated contained in the original application. However, appended to the amended application is a document entitled ‘Additional Grounds’ which contains the following four new grounds of review:
1.The Refugee Review Tribunal failed to correctly address the concept of ‘membership of a particular social group’ (s.36(4)) (CB 159).
2.The Refugee Review Tribunal failed to address whether an honest ambulance service employee in Poland might have a well-founded fear of being persecuted (s.36(3)) (CB 159).
3.The Refugee Review Tribunal failed to assess whether the applicant, being an honest employee of the Polish Ambulance Service, had a well-founded fear of being persecuted, involving serious harm including threat to the applicant’s life, significant harassment, significant physical ill-treatment, significant economic hardship that threatens the person’s capacity to assist, denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (s.91R) (CB 159).
4.The Refugee Review Tribunal in coming to the conclusion that it was satisfied that adequate state protection was available to the applicant (CB 16) directed itself to the incorrect question.
Reasons
The applicants appear as self-represented litigants assisted by a Polish interpreter. When the applicants appeared at first directions, they indicated that they wished to participate in the Court’s Legal Advice Scheme and were subsequently allocated a panel lawyer who held a conference with them. The applicants were also ordered to file and serve an amended application, with complete particulars of each ground of review relied upon, together with any affidavit material, including a transcript of the Tribunal hearing. The applicants have complied with this order, filing a photocopy of their original application to which was attached the document titled ‘Additional Grounds’ with the four new grounds as reproduced above at [11]. An order was also made requiring the applicant to file and serve written submissions together with any authorities that they relied upon 14 days prior to the final hearing. This order has not been complied with.
When the applicants were invited to make oral submissions in support of their application, the applicant husband made a number of statements. He claimed that the Tribunal did not consider their claim in detail, in that it did not contact anyone in Poland to verify their claims. The applicant husband spoke about the Tribunal’s reference to the Polish government enacting specific laws to protect Crown witnesses in serious criminal cases committed by organised groups, through the provision of physical protection, assistance in relocation, finding new employment, change of identity and financial support in cases of inability to work.(CB153-156) He said that these programs did not operate effectively and was not confident of reliance on that system. As a result, the applicant husband claims that he cannot return to Poland because of the threats that exist from the corrupt group involved in the trade of human corpses. He also stated that his son and daughter, who arrived in Australia and were part of this protection visa application, now withdrew from it as both have married Australian citizens and have a right to remain in Australia. If the applicants were forced to return to Poland, it would result in a major familial disruption as the children would remain in Australia.
Mr Cox filed written submissions which were supported by comprehensive oral submissions. Mr Cox submits that the ultimate conclusion reached by the Tribunal was based on three separate and independent bases, those being:
a)That the harm feared does not have a Convention nexus;
b)That effective protection was available to the applicants in any event; and
c)The applicants could relocate within Poland.
Mr Cox submits that relief in the form of constitutional writs can only be granted when it is found that all three bases are affected by jurisdictional error.
The grounds in the original and amended application do not identify any jurisdictional error in the Tribunal decision. It is difficult to extrapolate from the grounds any form of error that may exist. The first ground raises an issue in relation to ‘political profile’ without any particulars. Mr Cox submits that this ground appears to have no application to this matter. The second ground does not particularise what material it is alleged was ignored, and Mr Cox submits that it is therefore not amenable to reply. I agree with this submission. However, the four grounds in the document entitled ‘Additional Grounds’ do raise issues which need to be addressed. I will put to one side the material contained in the original and amended applications and consider the material raised in the additional grounds.
The applicants’ claim is set out clearly in a letter from their migration agent received by the Tribunal on 24 September 2003 (CB 123):
[SZFRX] is submitting that he is positive that he is a member of a particular social group namely “witness of crime in Poland”…
[SZFRX] would like to state that he fears that he will not be able to find protection in his country from the Polish authorities. The information contained in the enclosed newspaper’s articles is a clear evidence that the witness protection program is still a problem in Poland. It should be noted that some family members who rise corps trade problem could be well protected, however ambulance employees are in a much difficult position.
It should be noted that [SZFRX] is a committed person who would be unable to remain uncritical about problems around him. If he returns to Poland he would again engage in disclosing corps trade that would bring him to the attention of his persecutors and this would bring his family safety to a serious risk again. As it was said at the course of the Tribunal hearing well being of his children was the main reason to leave Poland. To avoid such a risk he would have to refuse to engage in fight against corps trade and this denial of his right to express his opinion would in itself amount to persecution in his situation.
In the Tribunal’s ‘Findings and Reasons’, it found that the applicants gave evidence in a frank and straight forward manner and that that evidence was largely consistent with the statement provided in support of their protection visa application. The Tribunal then acknowledged and accepted the following aspects of the applicants’ claim at CB 157:
The Tribunal accepts that the applicant was working as an ambulance driver/paramedic from 1981 until his departure from Poland. The Tribunal accepts as plausible that the applicant was a witness to criminal actions involving a trade in human corpses perpetrated by some doctors, assistant paramedics and funeral parlour owners acting in concert. In accepting these claims the Tribunal has had regard to the independent evidence cited above which confirms that Poland is not unfamiliar with such forms of criminal activity. The Tribunal accepts that the applicant raised the issue with his superiors and spoke about these incidents to his colleagues and friends. The Tribunal further accepts as plausible that as a consequence of becoming aware of and speaking to colleagues and friends about these incidents he received anonymous threatening phone calls and was assaulted in early 2000. The Tribunal also accepts that his son was assaulted as a way of intimidating and warning the applicant sometime between March and September 1999…
Nevertheless, having regard to the applicant’s overall credibility, the Tribunal is prepared to give him the benefit of the doubt and accept that local police officers may have acted corruptly by collaborating with the doctors involved in the illegal trade in human corpses in order to intimidate the applicant by detaining him for 24 hours under a false accusation.
Mr Cox submits that despite the claim in the first of the additional grounds, the Tribunal did correctly apply the relevant legal principles referred to in Applicant S v Minister for Immigration (2004) 206 ALR 242 at [36] per Gleeson CJ, Gummow and Kirby JJ; Ram v Minister for Immigration (1995) 57 FCR 565 at 569 per Burchett J.
The Tribunal then addressed the claim that ‘witness of crime in Poland’ was membership of a particular social group. The Tribunal set out the elements that identify a particular social group as “a collection of persons who share a certain characteristic or element which unites them and distinguishes them from society at large”. Those characteristics or elements are:
a) Such persons who exhibit some common element;
b) The element must unite them;
c) They must share as a cognisable group within their society;
d) The group must be identifiable as a social unit;
e) The characteristic element which unites the group cannot be a common fear of persecution;
f) The group must not be defined by the persecution.
The Tribunal, applying this criteria to the current case, made the following finding at CB 159.2:
The Tribunal is of the view that witnessing a crime cannot be considered a uniting characteristic that sets “witnesses of crime” apart as a social group from the rest of the Polish community. Any person can be a witness to a criminal act. Witnesses of crime, apart from having witnessed an act on the very wide spectrum of criminal activity, may have nothing in common in terms of background, experience or characteristics. Class, gender, age, level of education, occupation, economic status, and ethnicity are only some obvious factors that may distinguish one witness of crime from another. The Tribunal does not accept that persons who have witnessed a criminal act of any sort share a certain characteristic or element which unites them and enables them to be a cognizable or a recognizable group in Poland. The Tribunal, therefore, does not accept that as a “witness of crime in Poland” the applicant was a member of a particular social group for the purpose of the Convention definition.
The second of the additional grounds raises two separate arguments. The first is the operation of s.36(3) of the Act, which states:
Australia has taken not to have a protection obligation to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporary or permanent and whoever that right arose or is expected, any country apart from Australia, including countries of which the non-citizen is a national.
This claim is not particularised, nor is any evidence tendered in support of the claim. It is difficult to identify its relevance to the argument being mounted by the applicant in this case and I do not believe it warrants further examination or speculate as to the claim that is being attempted to be made.
The second issue raised in the second additional ground is the identification of another particular social group, being defined as ‘an honest ambulance service employee in Poland’. This is in effect the same argument as that raised under the first ground but with a more narrowly defined particular social group. However, applying the same tests as those applied to ‘witness of crime in Poland’ produces the same outcome. The Tribunal reached its conclusion at CB 159.9:
It follows that the persecution the applicant fears cannot be said to be essentially and significantly for the reason of his membership or perceived membership of a particular social group (ambulance service employees in Poland), his express or imputed political opinion or any other Convention reason. The Tribunal finds that the incidents the applicant has described and the harm he claims to fear do not have the requisite connection with one or more of the Convention reasons.
The third additional ground cites the terms of s.91R of the Act. However, no particulars or evidence have been provided other than a statement that the Tribunal failed to assess whether the applicants had suffered a well-founded fear of persecution for a Convention related reason. Clearly, the Tribunal did address this question when making the relevant considerations which were considered under the first ground.
Mr Cox submits that the applicant husband alleges in the fourth additional ground that the Tribunal directed itself to an incorrect question when concluding that adequate state protection was available to the applicant. Again, this claim was not particularised and no evidence has been submitted by the applicants in support of it. The Tribunal, in its decision, referred to independent country information which sets out state initiatives in Poland for the protection of Crown witnesses against retribution, such as trials in closed courts, witness and family protection.(CB 160-161) The Tribunal was satisfied that if the applicants returned to Poland in the reasonably foreseeable future and continued to speak about criminal acts the applicant husband witnessed, the authorities would be capable of providing protection should they be threatened. The Tribunal formulated the question as:
(W)hether the authorities in Poland have the ability and the willingness to address and fight corruption at a level sufficient to remove a real chance of harm to the applicant.(CB 162)
The Tribunal detailed at a declaration that the Polish government made, in respect of its fight against corruption and its ability, willingness and capacity to remove the kind of harm as feared by the applicants (CB 162): Minister for Immigration v Khawar (2002) 210 CLR 1; Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487 at [26] to [29] per Gleeson CJ, Hayne and Hayden JJ.
Mr Cox submits that the relocation finding of the Tribunal has not been challenged by the applicants. He submits that the Tribunal’s factual findings on relocation were based on the applicants’ own evidence at the hearing and independent country information.(CB 163.7-164.2) The Tribunal applied Randhawa v Minister for Immigration (1994) 52 FCR 437. Mr Cox submits that a finding on relocation provides a separate and independent basis for the Tribunal to affirm or refuse to grant a protection visa: Applicant S256 of 2002 v Minister for Immigration [2004] FCAFC 170 at [18].
Mr Cox raised the issue of a delay of approximately 13 months in the applicants applying for judicial review of the Tribunal decision. The Tribunal decision was handed down on 2 December 2003 and the applicants were informed of it by letter dated 2 December 2003, with a copy of the decision attached.(CB 135) The applicants’ authorised recipients were also sent a copy of the same correspondence. The application to this Court was not made until 9 February 2005. Mr Cox submits that in the event that I find jurisdictional error in the Tribunal decision, relief should be withdrawn on a discretionary basis for unjustified delay: SZHJR v Minister for Immigration [2006] FCA 203 at [20]-[21] per Sackville J.
The solicitors for the respondents filed a notice of objection to competency on 10 March 2005, objecting to the jurisdiction of this Court to grant an order under the Judiciary Act on the grounds that the application was not lodged within 28 days of notification of the decision by the Tribunal, which is a breach of s.477(1A) of the Act. Mr Cox submits that in Ngu v Minister for Immigration [2004] FCAFC 21, the Full Federal Court upheld the first instance decision to the effect that an appeal against a privative clause decision, lodged outside the mandatory time limits in s.477, is incompetent if a ground of review cannot be made out.
Mr Cox submits that in accordance with the Minister’s obligation to act as a model litigant, the respondents have also considered the applicants’ claims in light of SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2, having regard to the information upon which the Tribunal based its decision.
The Tribunal was in receipt of the Tribunal application and a copy of the Department decision, forwarded by the applicants’ then agent, Callaw International Immigration Law Services. The agent subsequently withdrew representation and a new agent was appointed. The new agent submitted documents to the Tribunal in support of the applicants’ claim for protection, namely, articles from the Polish newspaper and a statutory declaration from the applicant husband’s mother. This information was supplied after the Tribunal wrote to the applicants inviting them to submit further material in support of their claim. All of the reasons of the Tribunal were independent and drew nothing from the protection visa application. The Tribunal acknowledged that the applicant husband may have suffered at the hands of local police officers, some doctors, paramedics and undertakers.(CB 157.6) Mr Cox submits that even if the Tribunal erred by having regard to information contained in the applicants’ protection visa application, there were other reasons or grounds which could not be impeached according to the decision of the Tribunal.
Mr Cox submits that on a broader scale, even if the entire finding relating to the adverse attention of the criminal element involved in the illegal sale of corpses was affected by reference to the protection visa application, the relocation finding was sufficiently independent and separate so as to warrant the withholding of relief. The Tribunal clearly found the applicant husband’s witnessing of localised criminal activity did not constitute membership of a particular social group. It further found that the applicant husband’s alleged treatment by criminal elements was not persecution and that he could avoid the situation by moving to another area within Poland where those activities did not occur. Mr Cox submitted that the Tribunal applied the “what if I am wrong” approach to its relocation finding. That ground is sufficiently separate to satisfy the threshold discussed by Allsop J in SZEEU v Minister for Immigration at [233].
Conclusion
The applicants in these proceedings are self-represented litigants, appearing with the assistance of a Polish interpreter. The original application and the amended application, which is a photocopy of the original, do not raise any grounds of review. However, attached to the amended application is a document headed ‘Additional Grounds’ which raises four issues, although they are not particularised. It has not been supported by any evidence or submissions. This places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
Mr Cox, appearing for the respondents, assisted the Court with written and oral submissions addressing all the issues raised by the applicants, and further issues the Court is obliged to consider but the applicants did not identify in any of the documents they filed. To fulfil the Court’s obligation, I have considered all the material contained in the Court Book and reconsidered the Tribunal’s decision in light of this obligation. I have also accepted Mr Cox’s submissions in respect of the operation of s.424A of the Act and I do not believe that any error arises in relation to that section. On the face of the documents before me, I have been unable to identify any jurisdictional error. I am satisfied that in respect of all the issues that have been addressed by Mr Cox in his submissions, no jurisdictional error can be identified. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 28 June 2006
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