SZGLT v Minister for Immigration
[2006] FMCA 698
•2 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 698 |
| MIGRATION – Review of the 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.91R, 91X, 422B, 424A, 427, 474, 483A |
| Chan Yee Kin v Minister for Immigration (1989) 87 ALR 412 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Jiah (2001) 205 CLR 507 VBAP of 2002 v Minister for Immigration [2005] FCA 965 VCAK of 2002 v Minister for Immigration [2004] FCA 459 |
| Applicant: | SZGLT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1443 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 5 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Tagalog interpreter |
| Counsel for the Respondents: | Ms S Mason |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1443 of 2005
| SZGLT |
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 2 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 22 April 2005 and handed down on
19 May 2005, affirming a decision of the delegate of the first respondent made on 13 December 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGLT”.
The applicant has 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 J Silva (Reference no: NO5/50453) contains the following background information. The applicant claims to be a citizen of the Philippines and arrived in Australia on 9 November 2004. On the same date, she lodged an application for a Protection (Class XA) visa with the Department of Immigration. On 13 December 2004, a delegate of the Minister refused to grant a protection visa and on
11 January 2005 the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 62)
According to the applicant’s protection visa application, she was born in Tubod, the Philippines, and lived at an address near Lala (Lanao del Norte Province, northern Mindanao) for at least ten years prior to her departure for Australia. She is a Christian of Bisaya ethnicity. She married in 1993, and her husband and four children remain in the Philippines. The applicant obtained a Bachelor of Science degree and a teaching qualification in 1995, and was employed as a high school teacher.(CB 64)
The applicant’s claims for protection are contained in her answer to question 40 of the visa application. She claims her father owned some 25 acres of farming land in the Tubod area. She has ten siblings, some who work in agriculture and others in business. The Moro Islamic Liberation Front (“MILF”) is active in the applicant’s province, demanding money from the applicant’s family. The family guarded their property and initially made some payments to the MILF. However, the MILF then demanded larger sums, threatened to kill family members and take over their property if the applicant did not pay. They also demanded a portion of the applicant’s salary as a teacher. The applicant left the Philippines because she was scared. The applicant, at her husband’s suggestion, initially went to the United Arab Emirates, but later decided Australia was a safer place for her family to migrate to. She could initially afford only her own travel, but hopes to bring her entire family to Australia.(CB 65)
The tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the first respondent’s written submissions prepared by counsel, Ms Mason:
6. The Tribunal:
(a) Accepted that the applicant is a national of the Philippines for the purposes of her application (CB 69.6).
(b) Accepted that the applicant (like the majority of her compatriots and the Philippine authorities) is opposed to the aims and extortionary taxes imposed by the Islamic rebels and that the applicant has concerns for the economic and social wellbeing of her country and her children because of the rebels’ actions (CB 70.1).
(c) Was not satisfied that the applicant’s account of the Muslims in her province and the impact of the rebels is accurate (CB 70.3).
(d) Accepted as plausible that the applicant’s family had been paying the revolutionary tax imposed by the rebels and that the applicant had counselled her family against doing so but they had ignored her advice (CB 70.5).
(e) Was not satisfied that the applicant had ever come to the adverse attention of the rebels as a result of her disapproval of the tax because:
(i) the evidence provided to substantiate the claim was confined to her oral statements to the Tribunal which were unable to be corroborated because the applicant had only ever shared them with her family (CB 70.6).
(ii) The applicant had not confided in any one else including her church groups and had not taken any steps to sound out whether local teachers (such as herself) had been targeted similarly. Rather the only persons she had told were directly involved in her present visa application (CB 70.9 to 71.1).
(iii) The applicant does not have any profile which would make her an attractive target for the rebels (CB 71.2).
(iv) The Tribunal could not be satisfied that the rebels had in fact threatened the application verbally or by loitering around her home and had not appeared to have been aware of the applicant’s absence from the Philippines in early 2004. The applicant claimed in her protection visa to have escaped without the rebels noticing. Also, there was no evidence that following the applicant’s return from Dubai the alleged extortion/ menacing activities had continued (CB 71.4).
(v) The conduct of the applicant of returning from the United Arab Emirates to the Philippines is not consistent with a person fleeing persecution (CB 71.6).
(f)Found that the applicant had been the subject of past adverse attention from rebels in her home town for refusing to pay the revolutionary tax or for any other reason. Having found that the applicant has not been subject to past persecution the Tribunal had no evidence before it to indicate that there applicant held a well-founded fear of persecution from the rebels or other sources for any reason (CB71.9 to 72.1).
(g)Went on to consider even if this were not the case, whether the applicant might reasonably relocate from her hometown to elsewhere in the Philippines to specifically avoid the rebels in question. The Tribunal concluded that relocation was a reasonable possibility for the applicant (CB 72.2 to 72.5).
(h)Was not satisfied on the evidence before it the applicant has a well-founded fear of persecution within the meaning of the convention (CB 86.3).
Application for review of the tribunal’s decision
On 2 June 2005, the applicant filed an application in this Court for review of the Tribunal decision, setting out the following grounds:
The tribunal made his decision in bad faith.
The tribunal deprived me of the natural justice.
The tribunal denied the evidentiary proof of my claim.
The tribunal’s decision did not reflect the material facts of my claim.
The tribunal has given a decision, which was preset in the back of it’s mind.
The tribunal mixed up many facts with this decision which affected the decision.
The tribunal concentrated in particular fact, while ignored many other facts in this condition.
The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
The applicant attended a first directions hearing on 14 June 2005 before Registrar Segal and, by consent, the Court ordered that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon, by 6 September 2005. That order has not been complied with.
Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Tagalog interpreter. On 24 March 2006, the applicant filed written submissions. She indicated to the Court at the hearing that she would rely upon her written submissions and did not wish to make any oral submissions. The written submissions do not appear to bear any relationship to the grounds pleaded in the original application. The written submissions state that the Tribunal “failed to identify one of the four key elements of the convention definition, ie. that the Applicant must fear persecution.” The applicant refers to s.91R(1) of the Act, which “states that persecution must involve serious harm to the person s.91R(1)(b) and systematic and discriminatory conduct s.91R(1)(c).” The applicant then states that she does fear serious harm in the form of threats to her life and liberty, as well as significant economic hardship.
The applicant acknowledges that the Tribunal accepted that her family had to pay “revolutionary tax” to the MILF. The applicant states that she objected to the payment of this “tax” but continued to do so as a matter of “practical reality”. The applicant states that the Tribunal failed to observe two important points. The first being that the applicant and her family were facing significant economic hardship by paying the revolutionary tax to the MILF on the little earnings they had. She contends the Tribunal failed to recognise that the “tax” imposed by the MILF continued to increase, making it hard for her whole family to subsist. The applicant submits that the second point the Tribunal failed to understand was that she feared threat to her life and liberty because of her opinion about the revolutionary tax.
The next issue that the applicant raises is the Tribunal’s acceptance as uncontroversial that the revolutionary tax and its payment was a practical reality. The applicant claims that the persecution had an official quality, in that it was officially tolerated by the Filipino authorities who were unable to control it. The applicant claims that the national and provincial governments were unable to provide any kind of realistic protection from the MILF. Also that the government does not intervene in the payment of this “tax” from the people to the MILF.
The applicant also states that the country information on which the Tribunal based its decision was not correct because issues such as the revolutionary tax and the MILF were not reported. This was due to a media blackout.
Ms Mason submits that the issues raised in the applicant’s written submissions constitute a further attempt to agitate the merits of her claims and/or to challenge the factual findings of the Tribunal. The references to the revolutionary tax, and its impact on the applicant and her family, seek to challenge the Tribunal’s factual assessment of the applicant’s real chance of harm. This is impermissible to the Courts and falls into the third group of grounds, namely, grounds 3, 4, 6 and 7 of the original application, which are addressed at [16(c)] and [20] below.
The applicant’s written submissions also raise the issue of alleged state protection, which is difficult to follow as the Tribunal findings make no reference to state protection. Finally, the applicant’s references to “a matter of practical reality” in those submissions are difficult to understand, in that they do not appear to relate to any finding made by the Tribunal. There is insufficient detail to assess and comprehend the issue that the applicant is attempting to raise and I do not believe that any meaningful response can be made in respect of this particular issue.
Ms Mason submits that the grounds for review contained in the original application are a pro forma list of grounds commonly used by self-represented applicants in this Court. Further that the grounds in the original application can be more conveniently distilled into these four categories:
a)The Tribunal acted in bad faith, was biased and/or prejudged the matter (grounds 1, 5 and 8);
b)The applicant was denied natural justice (ground 2);
c)The applicant disputes merits/factual findings of the Tribunal decision (grounds 3, 4, 6 and 7); and
d)The Tribunal failed to investigate the applicant’s claims (ground 8).
Ms Mason submits that none of the grounds raised by the applicant are particularised, made out, or demonstrate jurisdictional error.
In respect of the first category of grounds (grounds 1, 5 and 8) in which the applicant alleges bias, bad faith and/or prejudice, Ms Mason submits that if there is an allegation of bias, it must be distinctly made and clearly proved: Minister for Immigration v Jiah (2001) 205 CLR 507 at [69]. In this case there are no specific submissions or evidence before the Court to support this claim. Ms Mason submits that it is rare that a lack of good faith or bias on the part of the Tribunal would be apparent merely from the written reasons: SBBF v Minister for Immigration [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ; SCAA v Minister for Immigration [2002] FCA 668 at [36]-[38] per von Doussa J with approval.
I accept the submission of Ms Mason that there is no evidence of actual bias on the part of the Tribunal, neither is there anything on the face of its decision which gives rise to an apprehension of bias. In the absence of a distinct allegation and clear proof in this regard, this ground must fail in respect of the allegations of bias, bad faith and prejudice.
The second ground makes a claim of a denial of natural justice. Ms Mason submits that there is nothing on the face of the decision or procedures of the Tribunal that suggests that the applicant was denied natural justice. Accordingly, and having regard to s.422B of the Act, Ms Mason submits that the applicant was properly accorded natural justice and procedural fairness. The applicant’s second ground cannot be sustained.
The third category of grounds (grounds 3, 4, 6 and 7) of the original application asks the Court to revisit the merits of the applicant’s case. I accept Ms Mason’s submissions that merits review by the Court is an impermissible exercise. It is not the function of this Court, dealing with an application for relief under s.39B of the Judiciary Act: NAHI v Minister for Immigration [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration (1989) 87 ALR 412 at [420] per Mason CJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [40]-[42].
The eighth ground alleges that the Tribunal did not investigate the applicant’s claims. Ms Mason submits that there is no positive duty on the Tribunal to do so: Minister for Immigration v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [20]. Their Honours Gummow and Hayne JJ make clear that whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate an applicant’s claims, nor is it under a duty to consider utilising such permissive statutory powers: Minister for Immigration v SGLB. For example, the powers found in s.427(1)(d): VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v Minister for Immigration (2002) FCR 407 at [74]-[78].
Ms Mason submits that in accordance with the Minister’s obligation to act as a model litigant, the respondents have also considered the applicant’s claims in light of SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2, and having regard to the information upon which the Tribunal based its decision.
Ms Mason directed the Court’s attention to the Tribunal’s comments at CB 71.1. The applicant told the Tribunal that the only people she told of her visa application were those directly involved in it. She had not confided in anyone else, including her church group, and had not taken any steps to find out whether local teachers in circumstances similar to hers had been targeted. The Tribunal’s comments may appear to give rise to a suggestion that it utilised information from the protective visa application in making such a finding. However, the respondents submit that under closer consideration, this is patently not so. Ms Mason submits that the finding is based upon information provided by the applicant at the Tribunal hearing. The Tribunal records this oral evidence at CB 68.3:
The Tribunal asks if the Applicant had informed the police, or anyone else in authority, or any other group such as her church. The Applicant said that she had not done so. She doubted that the police would undertake any action, and was furthermore apprehensive that news of any complaints would get back to the rebels and simply compound the problems. The Applicant was unable to say whether other teachers or professionals in her area were subject to such threats, as she had decided not to discuss the issue with them.
Ms Mason submits that the applicant’s evidence which gave rise to the Tribunal finding at CB 71.1 is based on information given for the purposes of the hearing. It therefore comes within the exception in s.424A(3)(b); no jurisdictional error is apparent from such a finding.
Ms Mason submits that the Tribunal, in concluding that the applicant had not come to adverse attention of the rebels, stated the following. First, that it could not be satisfied that the rebels had in fact threatened the applicant verbally or caused disturbance around her home. Secondly, the rebels did not appear to have been aware of the applicant’s absence from the Philippines in early 2004. The applicant claimed in her protection visa application to have escaped without the rebels noticing. Also, there was no evidence that following the applicant’s return from Dubai, the alleged extortion or menacing activities continued.(CB 71.4) Ms Mason submits that the Tribunal gave three reasons in the paragraph in question. The Tribunal also refers to the applicant’s oral evidence and states: “When the Applicant went to the UAE, the rebels did not appear to notice her absence, but continued to approach her husband.”(CB 67.9) Given the context in which the findings were made and the summary of oral evidence given, it is reasonable to conclude on the face of the Tribunal’s decision that this was information given by the applicant at the hearing. Therefore, the exception in s.424A(3)(b) of the Act applies.
The Tribunal also found that there was no evidence of any attempt by rebels to extract money from the applicant after she returned from Dubai. This finding relied upon a global absence of evidence or claims, as opposed to a finding that there was no evidence recorded in her protection visa application. There is an unmistakable reference to evidence in the applicant’s visa application in answer to question 43 where she stated (CB 29):
By God’s grace luckily, I escaped with out their notice…
Ms Mason submits that the previous two findings are extremely relevant. In VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [33] per North J:
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.
This is a similar finding to that of His Honour Allsop J in SZEEU v Minister for Immigration at [233]. Each of the other reasons of the Tribunal were independent reasons which drew nothing from the protection visa application. They were sufficient to justify the Tribunal’s conclusion that the applicant had not come to the adverse attention of the rebels. Ms Mason submits that even if the Tribunal erred by having regard to the information contained in the applicant’s protection visa application, there were more reasons or grounds which could not be impeached and according the decision of the Tribunal was not vitiated.
Ms Mason submits that on a broader scale, even if the entire findings relating to adverse attention of the rebels was affected by reason of reference to the protection visa application, the relocation finding by the Tribunal is sufficiently independent and separate so as to warrant the withholding of relief. Ms Mason further submits that this is so even though the finding was worded less than ideally.(CB 72) Also that the following approach of the Tribunal is clearly discernable from its findings and reasons:
a)It found that the situation which the applicant found herself, in her town, does not consitute Convention-based persecution. The Tribunal also referred to her dissatisfaction with social and economic conditions; and
b)It thereafter stated that even though the applicant’s alleged treatment by the rebels is not persecution, found that the applicant would avoid this circumstances by moving to Manila, where rebel presence is much less pronounced.
Ms Mason submits that the Tribunal applied the “What if I am wrong” approach to its relocation finding. That ground is sufficiantly separate to satisfy the threshold discussed by Allsop J in SZEEU v Minsiter for Immigration at [233].
Conclusion
The applicant in these proceedings is a self-represented litigant who has relied on widely circulated pro forma list of grounds which are formalaic in nature and not particularised. The applicant did participate in the Court’s free Legal Advice Scheme, but did not file an amended application. The applicant does appear to have received some assistance in the preparation of her written submissions, as these raised a series of new issues which bear no relation to the formulaic grounds contained in her application. 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. Ms Mason, counsel for the respondents, assisted the Court with written submissions and relevant authorities, addressing the issues raised by the applicant. She also assisted the Court in respect of the Minister’s obligation to act as a model litigant, addressing significant issues that have arisen by reason of recent decisions of the High Court and the Full Federal Court. Unfortunately, the applicant had no comprehension or understanding of these decisions and therefore made no reference to them in her written submissions. To fulfil the Court’s obligation, I have considered all the material contained in the Court Book and reconsidered the Tribunal decision in light of this obligation. I accept Ms Mason’s submissions in respect of the operation of s.424A of the Act, and do not believe that any error arises in relation to the section. Further, on the face of the documents before me, I have been unable to identify any other jurisdictional error and consequently the application should be dismissed.
I am satisfied an order for costs should be made in this matter and I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 30 May 2006
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