SZGMK v Minister for Immigration
[2006] FMCA 906
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGMK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 906 |
| 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.91X, 424A, 477, 483A |
| Minister for Immigration v NAMW [2004] FCAFC 264 Minister for Immigration v Yusuf (2001) 206 CLR 323 Ngu v Minister for Immigration [2004] FCAFC 2 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SAAP v Minister for Immigration [2005] HCA 24 SZBWF v Minister for Immigration [2004] FMCA 424 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | SZGMK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1489 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Spanish interpreter |
| Counsel for the Respondents: | Ms S McNaughton |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent should be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1489 of 2005
| SZGMK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 8 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 22 November 2002 and handed down on 18 December 2002, affirming a decision of a delegate of the first respondent made on 2 April 2001, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated 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 “SZGMK”.
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 Giles Short, reference N01/38346, provides the following background information. The applicant is a citizen of Peru. He arrived in Australia as a visitor in December 2000 and applied for a Protection (Class XA) visa on 11 January 2001. On
2 April 2001, a delegate of the Minister refused to grant a protection visa. The applicant was notified of the decision under cover of a letter dated 2 April 2001. The application for review was lodged with the Tribunal on 30 April 2001.(Court Book (“CB”) 111)
According to the original visa application, the applicant is aged in his early forties. He stated that after he left school in 1975 he worked in his father’s company while studying at an academy prior to university. He stated that his elder brother belonged to the Alianza Popular Revolucionaria Americana (APRA) and he accompanied his brother to meetings. In 1977, his brother travelled to Venezuela, leaving the applicant to replace his brother at their father’s company, which required him to abandon his studies. The company entered into bankruptcy. The applicant obtained work with one of the companies which his father’s company had provided services to. He worked for this company as a mechanic in 1981 and later become a production supervisor. In 1993, he obtained work in a printing company and became involved in the printing of large amounts of propaganda and subversive publications against the government, without the knowledge of the owners of that company. He stated that he had no choice other than to go along with what these people wanted ‘as they belonged to a shock force and had no scruples to achieve what they wanted’. The applicant stated that because of the political problems in Peru and the problems because of the clandestine publication of subversive material, he sought a way to escape. He was invited to come to Australia by his brother and was able to obtain a visitor’s visa to enter the country.(CB 115)
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons is contained in the respondents’ written submissions prepared by Ms McNaughton and I adopt the following paragraph for the purposes of this judgment:
5.The Tribunal appeared to accept the claims made by the applicant that he printed anti-government propaganda for APRA under the Fujimore regime, which would have been dangerous activity. The Tribunal further accepted that the applicant may have witnessed a person being killed at a demonstration against the Fujimori government. However, the Tribunal found that Fujimori had resigned by the time the applicant had left Peru in November 2000, and that Peru was undergoing a process of democratic transformation. After noting that APRA was now the second largest party in the Congress in Peru, the Tribunal stated: “There is nothing in the independent evidence available to me to suggest that printing propaganda for APRA would have to force a person like the Applicant to print its propaganda clandestinely in Peru today. There is likewise nothing to suggest that, if the Applicant were to print propaganda for APRA in Peru today, this would expose him to arrest on terrorism-related charges or on fabricated charges, as he claims.”
The Tribunal did not accept that the applicant had a well-founded fear of persecution on any of the grounds outlined (CB 128):
I do not accept that APRA, which is now the second largest party in the Congress in Peru, would attempt to force a person like the Applicant to print its propaganda clandestinely in Peru today. I do not accept that the Applicant’s children, who remain in Peru, have been being threatened by APRA or that APRA has been asking where the Applicant is. I do not accept that there is a real chance that, if the Applicant returns to Peru now or in the reasonably foreseeable future, he will be threatened with violence by APRA to make him continue his activities printing propaganda for APRA. I likewise do not accept that there is a real chance that APRA will take revenge on the Applicant for having betrayed them. I do not accept that APRA is afraid that the Applicant may say something against them because he witnessed the use of violence by members of APRA. The only example to which the Applicant referred was the death of his friend at an anti-government demonstration under the Fujimori regime. Regrettably there were many such deaths under the Fujimori regime and I do not accept on the evidence before me that the Applicant poses a threat to APRA, or that he could be perceived as posing a threat to APRA, because he witnessed the death of his friend at an anti-government demonstration under the Fujimori regime. I likewise do not accept that there is a real chance that the Applicant will be arrested or otherwise persecuted by the Peruvian Government by reason of his clandestine anti-government activities under the Fujimori regime or by reason of any printing he may carry out for APRA if he returns to Peru now or in the reasonably foreseeable future.
Application for review of the tribunal’s decision
The application for review filed in this Court sets out the following ground:
1.The Tribunal took an irrelevant consideration into account constituting a jurisdictional error as it was of such significance that it led to a finding against the Applicant and in doing so denied the Applicant procedural fairness.
Particulars
i) The Tribunal accepted that, as the Applicant said, printing anti-government propaganda for APRA under the Fujimori Regime would have been a dangerous activity.
ii) The Tribunal accepted that the Applicant may have witnessed a person being killed at a demonstration against the Fujimori Government.
iii) The Tribunal accepted that the authorities in Peru continue to commit human rights abuses and that, in particular, the torture and ill-treatment of persons in custody continues to be a problem in Peru.
iv) The Tribunal failed to put the finding to the Tribunal to the Applicant for comment regarding printing propaganda for APRA is no longer a dangerous activity or an illegal activity and there is nothing to suggest that APRA would have to force a person like the Applicant to print its propaganda clandestinely in Peru today.
Reasons
The applicant in these proceedings is a self-represented litigant and appears with the assistance of a Spanish interpreter. At first directions before a Registrar of this Court, the applicant indicated that he wished to participate in the Court’s free Legal Advice Scheme and was allocated a panel lawyer. The applicant did not contact the panel lawyer and correspondence from that lawyer indicates that letters were forwarded to the applicant without reply. Consent orders were also made granting the applicant leave to file an amended application, giving complete particulars of each ground of review by 23 August 2005. This order has not been complied with, nor the order to file and serve legal submissions 14 days prior to the hearing. When the applicant was invited to make oral submissions in support of his application, he declined to do so and indicated that he would rely on the ground contained in his original application.
Ms McNaughton filed written submissions in response to the application. She submits that the first and third particulars of the only ground of the application do not constitute considerations for judicial review purposes in the sense discussed in Minister for Immigration v Yusuf (2001) 206 CLR 323. Ms McNaughton referred the Court to SZBWF v Minister for Immigration [2004] FMCA 424 at [19] – [20] per Barnes FM:
19.The conclusions drawn by the Tribunal from the independent information were open to it. The factual basis for the applicants’ claim is not established. It has not been established that the Tribunal had regard to irrelevant considerations or failed to have regard to relevant considerations. In determining whether the applicant had a well-founded fear of persecution it was necessary for the Tribunal to have regard to relevant considerations in the sense of considerations made mandatorily relevant by the Migration Act 1958 in the manner discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 34 at [39] per Mason J and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41] per Gaudron J and at [82] per McHugh, Gummow and Hayne JJ. However this is to be distinguished from what Allsop J described in Htun v MIMA (2001) 194 ALR 244 as errant fact-finding. It cannot be said that the Tribunal failed to deal with all the ingredients or integers of the applicants’ claims or the basis for the claimed fear of persecution (cf Htun at [42]). This is not a case in which the inference should be drawn that the Tribunal was not in reality satisfied of the requisite matters under s 65 or that it in any other way fell into jurisdictional error. The Tribunal is not bound to deal specifically with every aspect of the competing evidence before it and the weight to be given to any evidence before it is a matter for the Tribunal itself as part of its fact-finding function. Indeed it is not correct to say that if the Tribunal does not adopt a view expressed in later material (which the applicant considers contrary to earlier material) that it has “ignored relevant considerations” such as to fall within the description of jurisdictional error in Yusuf.
20. The question of relevant/irrelevant considerations is not, as the applicant suggests, an assessment of whether a factual situation is contradicted by a later factual situation but refers to something required to be considered by the legislation or power given. An irrelevant consideration is something proscribed from being given consideration. In the context of the Migration Act 1958 the particular claims as made by the applicant or raised on the material before the Tribunal were considered by the Tribunal but rejected for reasons which were open to it on the material before it. Evidence, such as country information which merely goes to support or contradict an applicant’s claim, is not a relevant consideration in the Yusuf sense.
Ms McNaughton submits that it is apparent from the particulars set out by the applicant, especially the fourth particular, that the applicant contends that the Tribunal breached s.424A of the Act in that it should have put to the applicant for comment the independent country information about the change in political circumstances in Peru. Ms McNaughton argues that the independent evidence relied on and identified by the Tribunal, is information which falls within the exceptions set out in s.424A(3)(a) of the Act. Material that falls within this exception is not required to be put to the applicant for comment: Minister for Immigration v NAMW [2004] FCAFC 264; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.
The first three particulars do nothing more than acknowledge that the Tribunal accepted certain claims made by the applicant. None of these resulted in the Tribunal finding adversely against the applicant. The Tribunal, in its decision, addressed all of the claims raised by the applicant. The Tribunal then quite clearly sets out the issues that it did not accept and the argument that the adverse finding was consequential on the matters identified in particulars (i) to (iii) do not logically follow.
In the absence of any direct submissions in respect of s.424A of the Act, SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2, I believe I am obliged to consider the impact these authorities have on this matter. In particular I note that the Tribunal member makes the following statement in his decision (CB 114):
In accordance with section 418 of the Migration Act, the Tribunal was given the Department’s file CLF2001/5721 relating to the Applicant. In light of the recent decision in the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, I note for the avoidance of doubt that the Departmental file did not contain the documents referred to in the decision under review. The decision record did not contain the heading ‘Part B: Evidence Before Me’, but in the body of the decision record the primary decision-maker made reference to the US State Department Country Reports on Human Rights Practices for 2000, released in February 2001, to four documents derived from the Canadian Immigration and Refugee Board’s REFINFO database and to the Economist Intelligence Unit ‘Country Forecasts’ of February 1996. All these documents are available to me apart from the last document. I have had regard to the evidence contained in those documents referred to in the decision under review which are available to me insofar as it is relevant to the present case.
The applicant attached a new statement to the Tribunal application, which set out areas in the Department’s decision which the applicant challenged.(CB 91) During the hearing, the Tribunal member identified a number of concerns which it wished to raise with the applicant. The Tribunal gave the applicant time to respond to these issues. The time period was extended at the request of the applicant to enable him to attend an appointment at the Refugee Advice and Casework Service, who assisted the applicant in the preparation of a response. The applicant filed a comprehensive response to the matters raised by the Tribunal during its hearing. The Tribunal member also gave the applicant an opportunity to produce translations of letters and articles from newspapers and magazines in support of his claim. However, these items were not included in the response provided to the Tribunal. I believe that the applicant was given adequate opportunity to respond to any issue that the Tribunal member raised. Further, on the face it, no part of the Tribunal decision appears to be based on material that was originally submitted to the Department for the original visa application. That material set out the background to the applicant’s claim and was explored with the applicant, who was given the opportunity to respond to specific concerns of the Tribunal member and submit further documentation to augment any of his claims. The applicant’s evidence which gave rise to the Tribunal’s finding is based on information given for the purposes of the hearing. It therefore comes within the exception in s.424A(3)(b) of the Act and no jurisdictional error is apparent from such a finding.
The substantial part of the applicant’s claim relates to the clandestine printing work he claims he carried out for APRA between 1993 and his departure from Peru in November 2000. These claims were repeated in an attachment to the Tribunal application.(CB 91) These issues were ventilated before the Tribunal and gave rise to three of the specific questions referred to by the applicant in his post-hearing submissions. I am satisfied from the material that appears in the Court Book that the obligations, which are explored in SAAP v Minister for Immigration and SZEEU v Minister for Immigration, do not arise in this case.
I accept the submissions made by Ms McNaughton that the applicant’s claim of jurisdictional error cannot be sustained and the Tribunal decision is a privative clause decision. In respect of the objection to competency, the Tribunal decision was made on 22 November 2002 and handed down on 18 December of that year. A copy of that decision, together with a letter from a Deputy Registrar of the Sydney Registry of the Tribunal was forwarded to the applicant by registered post on 18 December. The letter from the Tribunal contained advice about what steps should be taken should the applicant disagree with the Tribunal’s decision, together with information about the applicant’s current immigration status. The current proceedings seeking review of the Tribunal decision was not filed until 8 June 2005, a period of approximately 53 months later. The application was lodged outside the mandatory time limit of 28 days, as set out in s.477of the Act. Ms McNaughton refers the Court to Ngu v Minister for Immigration [2004] FCAFC 2, where the Full Federal Court upheld the decision of His Honour Nicholson J, who at first instance held that an appeal against a privative clause decision lodged outside the time limit as stated in s.477 of the Act was in those circumstances incompetent, unless a ground of review could be made out. The applicant in this case has not filed any affidavit material or made oral submissions which address the issue of delay. I accept the respondents’ submissions that the notice of objection to competency filed in these proceedings on 29 June 2005 should be upheld.
Conclusion
I acknowledge that the applicant is a self-represented litigant, who neither speaks the language nor understands the legal system in which he is attempting to pursue judicial review of the Tribunal decision. However, I am satisfied that the applicant has been provided with an opportunity to participate in the Court-sponsored Legal Advice Scheme and to file an amended application. Both opportunities have not been pursued. I have reviewed the material made available to me in the Court Book and reconsidered the content of the Tribunal decision to fulfil my obligation to determine whether the Tribunal made a jurisdictional error that has not been identified by the applicant in his application to this Court. I am satisfied on the face of the documents before me that I am unable to identify any error. I accept the submissions prepared by Ms McNaughton, appearing for the respondents, and agree that the matter should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 19 July 2006
0