SZGLL v Minister for Immigration
[2006] FMCA 568
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 568 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection (Class XA) visa – error identified – exercise of discretion – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A , 474, 483A |
| Abebe v Commonwealthof Australia (1999) 197 CLR 510 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Al Shamry [2001] FCA 919 |
| First Applicant: | SZGLL |
| Second Applicant: | SZGNG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1427 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 10 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Applicants: | The applicants appeared in person with the assistance of a Hindi interpreter |
| Counsel for the Respondents: | Mr G T Johnson |
| 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 the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1427 of 2005
| SZGLL & SZGNG |
Applicants
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 1 June 2005, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 12 April 2005 and handed down on
4 May 2005, affirming a decision of the delegate of the first respondent, made on 25 January 2005, 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 “SZGLL” (applicant husband) and “SZGNG” (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].
Background
The Tribunal decision of Mr Rodney Inder records the following background information. The applicants are husband and wife, who claim to be citizens of Fiji. The applicants have visited Australia on eight previous occasions and they most recently arrived in Australia on 22 December 2004. On 21 January 2005, they lodged an application under the Act for a Protection visa with the Department of Immigration. On 25 January 2005, a delegate of the Minister refused to grant a Protection visa and on 28 February 2005, the applicants applied to the Tribunal for a review of the delegate’s decision (Court Book (“CB”) 106).
The applicants’ Protection visa application contained the following information. The applicants claim they were born in Fiji, are ethnically Indian and their religion Hinduism. The applicant husband claims that the area they lived in Fiji is dominated by indigenous Fijians who have never liked Indians in their country. He claims he formed a 37 member Hindu social group called “Savini” for support and promotion of the religion. The group claims that they were harassed, intimidated and threatened by indigenous Fijians and the existence of the social group led to disputes between the two groups. He claims that in October 2001, some Fijians broke into his house, assaulted him and his wife and, as a result, his wife moved to live with her mother and he was forced to live alone and run his business by himself. He claims that it became difficult to run his business alone as the local indigenous Fijians harassed him and discouraged customers from going to his shop. He claims that they spray painted the shop and there were three break-ins. In December 2001, his car was stolen. The applicant husband claims that these events led him to decide to sell his business and move to a new area ten kilometres away (CB 109).
The tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Mr Johnson and I adopt part of those submissions for the purposes of this judgment:
The Tribunal ultimately was not satisfied that the criteria for the grant of a protection visa were fulfilled and affirmed the delegate’s decision.
There were a number of independent bases for the Tribunal’s decision. Those were:
(a)The Tribunal was not satisfied that there was a Convention reason for the harm suffered by the applicants (CB116.4; 116.75; 119.2; 119.5);
(b)Nor was it satisfied that the applicants had a “well-founded fear of serous harm amounting to persecution for a Convention related reason” upon return to Fiji, even though there are “occasional race based incidents” (CB119.3);
(c)The Tribunal was satisfied that effective protection was available to the applicants in Fiji. The Tribunal followed MIMIA v Respondents S152/2003 (2004) 205 ALR 487. See CB119.5-119.9. Also, the Tribunal was not satisfied that the police had previously refused to assist the applicant as he had claimed (CB116.5; 116.8) and found that the applicant had not taken the matter further (to the Ombudsman or to the Human Rights Commission) because the police had done all he could expect them to do (CB117.5). It was the general findings at CB119, applying S152, however, that were the basis for the effective protection finding;
(d)The Tribunal did not accept that the applicants in fact had the subjective fear that they claimed (CB120).
Application for review of the tribunal’s decision
On 1 June 2005, the applicant husband filed an application for review under s.39B of the Judiciary Act 1903. On 5 September 2005, the applicants filed an amended application which contained the following grounds:
Failure of the tribunal to consider the merits of the case on its own
1.The tribunal member did not consider the oral evidence provided by me at the hearing.
2.The tribunal made a decision based on general information obtained by the tribunal referred to in independent country information source.
3.The tribunal obtained information however they do not have the first hand experience of what is happening in the country. They are relying on the information that the caretaker government has publicly committed itself to maintaining and protecting equal human rights of all Fiji’s Citizens, however they have failed to consider the fact that given the situation and the constant threat from the indigenous Fijians, Indian do not have the confidence to rely on the present government to look after their welfare.
4.The tribunal failed to consider the fact that despite complaints being made they do get ignored by the authorities, and that after few complaints they tend to be considerate of the situation. Despite complaints, the police failed to assist me and I know this because I did made enquiries afterwards and whenever I approached the department it is the same situation.
5.I was unable to produce written evidence at the tribunal hearing due to the incorporation of the local police department in the area. The matter was reported to the head office however, I did not receive any further information in this regards. I have contacted the department again however with no success. I have even contacted my family members for them to obtain the reports made by them, however they have not been provided with it either.
6.The tribunal has failed to consider that despite the commitment of the caretaker government, the circumstances surrounding the initial uproar that it was in response to an increased Indian influence in the country. The Chaudhry government was more interested in ensuring an equal standing between the Indians and Ethnic Fijians, and this was of the main causes of the tension. This was also the reason for numerous attacks on me and my family. My family and I was subjected to physical and verbal abuse because of my financial and social status, my involvement in the Indian community and assistance I provided to the needy families.
7.As a result of the constant abuse I had to sell my business. Prior to coming to Australia I had to change numerous residents because of the continued abuse.
Error of law
1.The tribunal did not consider the element that there is a “serious harm” facing my family in Fiji. This includes a threat to our life and liberty based on both political and religious grounds. There is fear of continued physical harassment and that for Convention reason this needs to be “well-founded” and it does not matter even if the possibility of the persecution occurring is well below 50 percent. I did put to the tribunal a “well-founded” fear however due to lack of evidence and my inability to be able to repeat my statements in the written submission, the tribunal suggested that they were not genuine. I am at present attempting to collect evidence in relation to the claims made by me and would like the tribunal to reconsider them.
2.The tribunal did not consider the fact that I have sold my business and when I made attempts to work to in my town, I was subjected to harassment. Due to fear of be harassed, my wife was did not seek employment. Therefore, upon my return to Fiji I will face significant economic hardship. Whereas, at present my wife and I am able to work here and lead a decent life without any fear and are satisfactorily able to support myself and my family.
3.The tribunal did not consider the fact that the persecution is feared from the Fijian community and not the Government. The persecution is due to the perception of me as an advocate of the Indian and Hindu community. That the persecution feared satisfies the Convention reason as they are due to my race, religion and membership of the “Savini” social group. I would like the tribunal to reconsider that though the 1997 Constitution is still in place and there is state protection, however it is not effective in all the areas of the country and it is impartial. (copied without alteration or correction)
Reasons
The applicants appeared as self-represented litigants with the assistance of a Hindi interpreter. Immediately prior to the hearing, the applicants provided the respondents’ counsel, Mr Johnson, and my associate with copies of written submissions in support of their application. When the applicants were invited to address the Court in support of their application, they indicated that they would rely upon their written submissions and initially declined the opportunity to make oral submissions to the Court.
The written submissions do not identify any jurisdictional error, but primarily explain of some of the issues considered by the Tribunal in its decision. They are more in the form of introductory comments that are typically provided to the Minister’s delegate or the Tribunal in support of their visa application.
Mr Johnson conceded that the Tribunal decision contained a jurisdictional error in the form of a breach of s.424A of the Act. This error is evident in light of the principles established in the recent decisions of SAAP v Minister for Immigration, Minister for Immigration v Al Shamry [2001] FCA 919 and SZEEU v Minister for Immigration [2006] FCAFC 2.
Jurisdictional error arose from the way the Tribunal used airport movement records showing the applicants’ travel history. The movement records evidenced that the applicants had travelled from Fiji to Australia and back on a number of occasions, yet they did not make Protection visa applications on any of those visits (CB 120). The respondents concede that there was a breach s.424A of the Act in relation to the movement records information which formed part of the reasons for the Tribunal decision.
Mr Johnson argues that no relief should flow in relation to the breach because it could not have affected at least two of the independent bases for the Tribunal decision. The bases for the Tribunal decision are set out in [6] above. Bases (a) and (c) are not affected at all by the Tribunal’s reference to the movement records. Mr Johnson argues that basis (b) was also entirely independent of the movement records.
Mr Johnson argues that denial of relief in these circumstances is supported by the recent Full Federal Court decision of SZEEU v Minister for Immigration. His Honour Allsop J held at [231] (with whom Weinberg J agreed at [94]):
Thirdly, if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld.
Justice Allsop repeats this proposition at [255].
Mr Johnson contends that support for this proposition is also found in VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [32]-[33] per North J:
[32] It was argued on behalf of the appellant that if a breach of s424A of the Act in this respect had been shown, then as a result of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 15; (2005) 215 ALR 162 (SAAP), the decision of the Tribunal must be set aside. I cannot accept this submission.
[33]As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.
Mr Johnson submits that support for this line of reasoning is also found in the following decisions: SZECD v Minister for Immigration [2006] FCA 31 at [39]-[41] per Bennett J; SZCJH v Minister for Immigration [2005] FCA 1660 at [23] per Sackville J; NAUW v Minister for Immigration [2005] FCA 1086 at [23]-[24] per Moore J; MZWPK v Minister for Immigration [2005] FCA 1256 at [13] per Heerey J; VEAJ v Minister for Immigration (2003) 132 FCR 291 at [54]-[55] per Gray J.
In the fourth ground of the original application filed on 1 June 2005, the applicant claims that the interpreter at the Tribunal hearing was not competent in the Indo/Fijian dialect and the parties experienced communication difficulties. I note that there is no transcript or expert evidence before the Court to indicate that there was a problem with the interpreter. There is no reference in the Tribunal’s decision record to indicate that there was any problem with the interpreter service during the hearing. Nothing has been recorded to indicate that this problem was raised with the Tribunal at any stage. No claim of jurisdictional error has been made out by the applicants. I further note that the complaint appears to have been abandoned in the amended application filed on 5 September 2005. There has been no further reference to this issue in written or oral submissions to this Court.
Mr Johnson submits that the Tribunal was entitled to have regard to whatever country information that was available to it and it was entitled to place whatever weight on the various parts of that material that it thought appropriate. Mr Johnson referred the Court to the decision of NAOO v Minister for Immigration [2004] FCAFC 26 at [14] per Beaumont, Lingren and Tamberlin JJ:
The Tribunal was, of course, entitled to have regard to all of this information in its assessment of the appellant’s claims. Further, there is no ground for judicial review available, as the appellant now claims, because country information ‘was not actually utilized properly’. This is no more than a claim for ‘merits review’.
In SZANK v Minister for Immigration [2004] FCA 1478 at [16] per Hely J, His Honour held:
I cannot accept these submissions, because it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.
A special leave application in respect of His Honour’s decision was refused.
Justice Hely referred to NAHI v Minister For Immigration [2004] FCAFC 10 at [11] from which His Honour quoted:
‘By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on "country information". The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to "guidance", as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on "country information" that is not true. The question of the accuracy of the "country information" is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of "country information", it would be engaging in merits review. The Court does not have power to do that.’
I accept Mr Johnson’s submission that no jurisdictional error is established with respect to the Tribunal’s use of country information.
The applicant husband complained that some of his own evidence was not accepted by the Tribunal when considering his claim. Mr Johnson submits that this is a matter for the Tribunal. The Tribunal considered the applicants’ claim and there was nothing more it needed to do to complete its exercise of jurisdiction in the way discussed in NABE v Minister for Immigration (No.2) (2004) 144 CLR 1at [55]-[63]. It is submitted that although the Tribunal did not record that it did not accept certain information, evidence or claims, this does not mean that such claims and/or evidence were not considered by the Tribunal in its decision-making process.
Mr Johnson relied on SJSB v Minister for Immigration [2004] FCAFC 215 at [15] per Ryan, Jacobson and Lander JJ. It was noted that s.65(1) of the Act:
…does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
This approach has been confirmed in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [17] per Black CJ, Sundberg and Bennett JJ.
Mr Johnson submits that credibility is a matter for the Tribunal par excellence: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]per McHugh J. The Tribunal is not obliged to accept an applicant’s statement simply because there is no evidence to the contrary: SZATG v Minister for Immigration [2004] FCA 1595 at [36] per Hely J; Abebe v Commonwealthof Australia (1999) 197 CLR 510.
Mr Johnson submits that the issues remaining from both applications utlimately do no more than seek impermissible merits review of the Tribunal decision. Notwithstanding the breach of s.424A as discussed at [10]-[16] above, no other jurisdictional error has been identified that vitiates independent bases for the Tribunal decision. Mr Johnson invited the Court to exercise its discretion in respect of the breach of s.424A arising from the Tribunal’s failure to provide the applicants with copies of the movement records, and dismiss the application.
Conclusion
The applicants appeared before me as self-represented litigants which places an obligation on this Court to independently consider whether any argument based on the materials could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr Johnson, counsel for the respondents, concedes that the Tribunal decision contains a jurisdictional error as a consequence of the Tribunal’s failure to provide the applicants with copies of theapplicants’ movement records and a failure of the Tribunal to provide them with these documents and give them the appropriate opportunity to respond to its contents. I accept that this was not the sole reason for the Tribunal refusal of the application, as three separate and independent reasons were also given by the Tribunal for their decision. Mr Johnson has provided a line of authority that supports the view of the circumstances within which a Court should exercise its discretion and refuse relief in relation to that breach. I am satisfied that at least two of the other reasons for the Tribunal decision are not affected in any way by the Tribunal’s reference to the applicants’ movement records and are completely independent reasons for rejecting the application. I therefore believe that I should exercise my discretion and not grant relief in relation to the breach of s.424A as identified above.
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 the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 26 April 2006
1
20
2