SZFZP v Minister for Immigration
[2006] FMCA 721
•12 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFZP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 721 |
| MIGRATION – Visa – protection visa – 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 the Philippines claiming fear of persecution because of threats from her company because of her involvement in union activities – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.425, 475A |
| The Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v The Commonwealth (1999) 197 CLR 510 Applicant A v The Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Minister for Immigration & Multicultural Affairs v SGLD (2004) 207 ALR 12 |
| Applicant: | SZFZP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 795 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 May 2006 |
| Date of last submission: | 12 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2006 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the Second Respondent to the Application.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 795 of 2005
| SZFZP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 15th February and handed down on 8th March 2005.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of the Philippines who arrives in Australia on 15th September 2004 and applied for a protection (Class XA) visa on 8th October 2004. After her application was refused on 13th October that year, the Applicant sought a review of that decision from the Refugee Review Tribunal.
Application to the Refugee Review Tribunal
The Applicant lodged an application for review with the Refugee Review Tribunal on 17th November 2004. A copy of her application appears at pages 30 to 33 of the Court Book. She appears not to have lodged any documents with her application.
The Tribunal wrote to the Applicant on 23rd December 2004 and invited her to attend a hearing of the Tribunal on Tuesday, 15thFebruary 2005. The Applicant attended on that date and gave evidence with the assistance of a Tagalog interpreter. She told the Tribunal that she had been a member of a labour union who had been active in a campaign to secure better pay for employees of the telecommunications company for whom she worked. She claimed to have been threatened by a person in the administration of the company and warned to discontinue her activities. The Applicant told the Tribunal that she had been threatened about four more times before she applied for leave.
The Applicant said that she resigned from her job at about the end of August 2004 because she feared for her life. She left for Australia on 15th September 2004. The Applicant's husband and three children remain living in the Philippines, in her former home in Quezon City.
The tribunal’s findings and reasons
The Tribunal's findings and reasons are set out in the Court Book on pages 45 and 46.
The Tribunal found that the Applicant was a national of the Philippines, having sighted her passport at the hearing.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution and said on page 45 in the Court Book:
Accepting the Applicant's account of the circumstances which lead to her departure from the Philippines, I'm not satisfied that she has a well-founded fear of persecution in that country. I do not consider the verbal threats she experienced prior to her departure constituted harm of such seriousness or significance as to amount to persecution. Nor am I satisfied on the available evidence that the company representatives had any serious intention of making good their threats and actually harming the Applicant.
The Tribunal affirmed the decision not to grant a protection visa.
The application for judicial review
In her Amended Application filed on 23rd May 2005, the Applicant seeks orders for constitutional writs on the following grounds:
a)That the Tribunal failed to comply with s.424A Migration Act;
b)That a breach of the rules of natural justice and procedural fairness occurred in connection with the making of the decision;
c)That the decision involved an error of law, whether or not the error appears on the record of the decision;
d)That the Tribunal fell into jurisdictional error by ignoring relevant material, failing to ask correct and relevant questions and relying on irrelevant material in the making of the decision;
e)Failure to observe procedures required by law to be observed.
I note at this stage that the Applicant's Amended Application adds the Individual Member and the Principal Member of the Refugee Review Tribunal as Second and Third Respondents. This is incorrect procedure. The Refugee Review Tribunal is the correct party, not the Principal Member or the Individual Tribunal Member.
The Amended Application sets out five statements of particulars (a) through to (e). My reading of them indicates that they bear only a marginal relationship to the five grounds advanced by the Applicant.
In particulars (a) the Applicant complains that the Refugee Review Tribunal misconstrued the meaning of the term "refugee" in that it made no findings to determine whether her fear of persecution was well-founded and falls within the United Nations Convention. The Applicant claims that the Tribunal failed to investigate a claim made in her primary application which is one of the bases of lodging a review application, namely a claim that she was a member of the labour union.
The particulars go on to say that the Tribunal failed to investigate the extent of the Applicant's involvement in the labour union. The Applicant sees this as a failure of - sees the lack of investigation by the Tribunal as a failure to provide natural justice and a failure to comply with the procedures that were required by law to be observed in connection with the making of the decision. I would comment that that conclusion to me to be misconceived and I shall return to that shortly.
In particular (b) the Applicant claims that the Tribunal fell into administrative error by failing to assess whether the actions of her former employer and work colleagues which resulted in her resigning from her position because of fear of being harmed or killed and consequently lost her only means of earning a livelihood, constitutes persecution within the UN Convention.
In particular (c) the Applicant claimed that the Tribunal did not complete its jurisdictional functions as it failed to investigate whether the authorities were able to or willing to protect her or offer her any financial or other form of assistance in order to assist her continued living in the Philippines.
The Applicant in particulars (d) complained that the Tribunal exceeded its jurisdiction by finding that the possibility of her being of any interest to her former employer and work colleagues and consequently facing any harm of threats from these persecutors was clearly far-fetched. She alleges that this assertion by the Tribunal is merely based on assumption and there is no evidence before the Tribunal to justify this assumption and consequently the decision. The Applicant says this is an exceeding of powers by the Tribunal and a failure to apply the rules of natural justice.
Finally in particulars (e) the Applicant says that the Tribunal failed to complete its jurisdiction by failing to investigate both verbal threats made on her and the threats and physical attacks made on another labour union member. The Tribunal ought to have investigated such claims further.
The Applicant did not provide a written submission but made an oral submission to the Court. The Applicant said that it would be unfair for her to return to the Philippines. The Applicant said that the Tribunal had made an error by denying her request to stay further in Australia. The Tribunal had failed to investigate the extent of her involvement and a variety of other matters. The Applicant said that the Tribunal told her that these matters could be investigated during the hearing which took place on 15th February 2005. The Applicant also said that the reason she left the Philippines was because of the verbal threats and she did not want to wait until the physical threats.
Counsel for the Respondent Minister, Mr Reilly, submitted a Written Outline of Submissions in which he points out at para.4 that the Tribunal's conclusions are factual ones that were open for the reasons it gives. The Court cannot review the merits of the Tribunal's decision. He refers me to The Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact. (See Abebe v The Commonwealth (1999) 197 CLR 510, at [137]).
Counsel for the Respondent examines the five particulars in the Amended Application to which I have recently referred. In that the Tribunal failed to make findings or investigate the extent of the Applicant's union involvement but the Tribunal was prepared to accept the Applicant's claims as to her past experience - the extent of the union involvement, this assertion is wrong. The Tribunal was prepared to accept the Applicant's claims as to her past experience.
And it is also submitted the Tribunal was aware that the Applicant had claimed to have resigned from the company and claimed to have no job to return to but noted that this did not fall for consideration which is submitted to be clearly correct as the Applicant did not allege she would be denied the capacities to subsist for a Convention reason in the Philippines and being outside the Philippines for reasons of economic misfortune would not suffice for refugee status. I am referred to the decision in Applicant A v The Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at [283] per Gummow J.
As for the third particular, claiming that the Tribunal should have considered the availability of state protection, counsel for the Respondent submits that as the Tribunal was not satisfied that the Applicant's fears were well-founded, state protection was not a relevant issue.
As to the fourth particular which is a claim that there was no evidence for the Tribunal's conclusion that her fear of revenge by the company was far-fetched. This conclusion was open to the Tribunal he submits for the reason that it gives.
As to the final particular, which is a claim that the Tribunal was under a duty to investigate the Applicant's claims, the Respondent submits that it is well-established that there is no such duty and refers the Court to Minister for Immigration & Multicultural Affairs v SGLD (2004) 207 ALR 12 at [43]. In my view these submissions by counsel accurately set out the law.
I note from particulars (a) that Tribunal is alleged to have made no findings to determine whether the Applicant's fear of persecution is well-founded and falls within the United Nations Convention. It is quite clear from p.45 of the Court Book that the Tribunal did find that it was not satisfied that the Applicant had a well-founded fear of persecution.
Turning to the allegations of a failure to investigate by the Tribunal which appears in particulars (a), (c) and (e) I am satisfied that there is no obligation on the Tribunal to use its powers to investigate further under s.424 Migration Act.
Counsel for the Respondent pointed out that whilst the Applicant asserted the Tribunal had indicated there would be a further investigation at the hearing on 15th February, this has not been proved by production of a transcript of the hearing and it seemed coherently unlikely due to the fact that the Tribunal's decision was handed down on the same day as the hearing.
Particulars (b), in particular, allege a failure to assess the actions of the Applicant's former employer and work colleagues. And it goes on to deal with certain factual matters. This is to my mind a challenge to factual findings made by the Tribunal and constitutes a request for merits review which is outside the scope of judicial review conducted by the Court. Similarly, in particular (d), the Applicant challenges the Tribunal's conclusions that the Applicant's claim of facing any harm or threat from her former employer and work colleagues was clearly far-fetched.
In my view this is a conclusion derived from the Applicant's evidence and it was open to the Tribunal to make it. It is the Tribunal which is the fact-finding authority and so long as there is evidence to justify a finding of fact, then the finding will not be susceptible to judicial review.
I turn to the five grounds which appear in the Amended Application. I commented earlier that the grounds and the particulars did not bear a great deal of resemblance to each other, but in my view it is appropriate to deal with them in any event.
The first ground alleges a failure to comply with s.424A Migration Act. The Tribunal made its decision on the basis of the Applicant's account of the circumstances given in evidence by the Applicant at the hearing. The passage which I quoted earlier indicates that the Tribunal did not make any adverse reflections on the Applicant's credibility and did not disbelieve the factual matters put by the Applicant, but took the view that taking the Applicant's case at its highest it did not amount to a well-founded fear of persecution.
It is quite clear that under s.65 Migration Act if the Minister or the delegate or in the place of the delegate, the Tribunal, is satisfied that an Applicant meets the criteria for a visa, then that visa must be granted but if the decision-maker is not so satisfied then the decision-maker must not grant the visa. Here the Tribunal was not satisfied that accepting everything that the Applicant put that this amounted to a well-founded fear of persecution. There is no breach of s.424A Migration Act.
The reference in passing on page 43 of the Court Book in the final paragraph,
[t]he Applicant's oral evidence was essentially consistent with her written claims and the other information provided in her protection visa application -
does not constitute a breach of s.424A Migration Act. It is no more than an assertion by the Tribunal that it accepts the factual matters put by the Applicant. The Tribunal found no inconsistency, made no reflections on the credibility and accepted the factual situation that the Applicant wished to make. The only problem was that those facts did not constitute evidence which would satisfy the Tribunal of the criteria for a visa being met. That is a not a breach of s.424A Migration Act.
As to the second ground that there was a breach of the rules of natural justice and procedural fairness there is none. The Applicant was invited to attend a hearing. She attended that hearing and she gave evidence. The Applicant may think that the decision was unfair but the procedure which the Tribunal followed in connection to the making of the decision complies with the rules of natural justice and procedural fairness.
The third ground is one that has appeared from time to time and I quote,
that the decision involved an error of law whether or not the error appears on the record of the decision
If the error does not appear on the record of the decision there must be some evidence produced to show that error is. The Applicant claims that the Tribunal had a duty to investigate but provided no evidence that the Tribunal had indicated any intention to investigate at the hearing by way of a transcript or anything else. There is no error of law which appears on the record of the decision. And as to whether - and as to any error of law elsewhere there is no evidence of it. That ground must fail.
The Applicant claims that the Tribunal ignored relevant material or failed to ask correct and relevant questions and relied on irrelevant material in the making of the decision. The Tribunal's decision was made entirely on the basis of the Applicant's evidence. What weight the Tribunal gives to particular pieces of evidence is entirely a matter for the Tribunal and no relevant material has been pointed out to the Court that the Tribunal ignored. Nor is there evidence of any irrelevant material upon which the Tribunal relied. This ground must fail.
Finally, the Applicant claimed that procedures that were required by law to be observed in connection with the major decision were not observed. I have already indicated that there is no breach of s.424A Migration Act. There is no duty on the part of the Tribunal under s.424 to conduct its own investigations. The Applicant was invited to attend the hearing under the provisions of s.425 of the Act and was given adequate notice. There is no breach of procedure.
I have read through the decision thoroughly and I can discern no jurisdictional error on the part of the Tribunal to which the Applicant has not referred. For these reasons I am of the view that the application must be dismissed.
There is an application for costs in the sum of $5,000.00. I understand that to be inclusive of counsel's fees and in my view this was an appropriate matter for counsel to be briefed. I propose to make an order for costs in the sum of $5,000.00.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 19 May 2006
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