SZGOP v Minister for Immigration
[2007] FMCA 203
•2 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 203 |
| 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, 422B, 424A, 483A |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Minister for Immigration v NAMW [2004] FCAFC 264 NAAH vMinister for Immigration [2004] FCA 554 NADR vMinister for Immigration [2003] FCAFC 167 NAIZ v Minister for Immigration [2005] FCAFC 37 NARE vMinister for Immigration [2004] FCA 554 Randhawa v Minister for Immigration [1994] 52 FCR 437 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 SBBS v Minister for Immigration (2002) 194 ALR 749 SZCIJ v Minister for Immigration [2006] FCAFC 62 SZDFO v Minister for Immigration [2004] FCA 1192 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | SZGOP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1624 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Advocate for the Respondents: | Mr L Leerdam |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 23 June 2005 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 |
SYG1624 of 2005
| SZGOP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 23 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 4 May 2005 and handed down on
26 May 2005, affirming a decision of the delegate of the first respondent made on 24 September 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs 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 “SZGOP”.
A Court Book (“CB”) prepared by the respondents’ solicitors was filed and served on 26 July 2005. It was marked Exhibit “A” and read into evidence.
The applicant filed an affidavit sworn on 24 October 2005 and filed in these proceedings on the following day. Attached to the affidavit is a transcript of the Tribunal hearing, which was held on 23 February 2005. The affidavit also restates a number of the applicant’s claims. As the applicant is a self-represented litigant and was unaware of the formalities of the Court, I will grant leave for this document to be read into evidence, noting that the applicant made no reference to its contents in his submission or reply.
Background
The Tribunal decision of J Duckmanton, reference N04/50053, provides the following background information. The applicant, who claims to be a citizen of Fiji, last arrived in Australia on 5 September 2004. On 22 September 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 24 September 2004, a delegate of the Minister refused to grant a protection visa and on 21 October 2004 the applicant applied to the Tribunal for review of the delegate’s decision.(CB 102) The applicant’s primary visa application indicates that he was 26 years old at the time. Also that he was born and educated in Lautoka and speaks, reads and writes English and Hindi. The applicant has never married and lived at the same address in Lautoka all of his life before coming to Australia. He travelled to Australia in September 2003 “to play soccer” on a Fijian passport and then returned to Fiji. The applicant was employed in Fiji as a screen printer between 1998 and 2004 and on his last arrival in Australia, he was on a one-month visitor’s visa issued in Suva.(CB 104)
A convenient summary of the applicant’s claims is contained in the respondents’ written submissions prepared by Mr Leerdam and I adopt paragraph four of those submissions for the purposes of this judgment:
4.The applicant is a citizen of Fiji who claimed a fear of persecution due to his Indian ethnicity, religion and political opinion. He claimed that:
4.1 From the time of the first coup in 1987, he and his family had been attacked on numerous occasions. He feared that in the future he would be seriously harmed or killed by native Fijians.
4.2 The situation was particularly bad after the 2001 coup. In June, August and November 2001, various objects were thrown at his house, and in February 2002, the walls of the house were smeared in pig’s blood. In May, June, August and October 2002, the native Fijians destroyed or stole the crops planted by his family.
4.3 In January, March, April and November 2003, he was assaulted and kicked in the street by native Fijians.
4.4 Neither he nor his family had attempted to re-locate because his father had worked for the same company (a sugar-cane corporation) for the past 25 years; his brother and sister were at school, and he had been working for the same screen-printing company for 6 years. Neither he nor his father would find it easy to find alternative employment in another location and renting accommodation would therefore also become a problem.
4.5 He had not applied for a Protection visa during his earlier visit because his migration agent had advised him (2 days before his visa was due to expire) against it, and instead, advised him to lodge applications for a Student visa and a Skilled visa.
Tribunal’s Findings and Reasons
A summary of the Tribunal’s reasons is also contained in Mr Leerdam’s submissions and I adopt paragraphs five and six of those submissions:
5. The RRT accepted that the applicant, like many other Fijian Indians had been robbed, assaulted, beaten, abused, and badly treated by native Fijians between 1987 (after the first coup) and early 2003.
6.However, the RRT found that the neither the applicant nor his family genuinely feared persecution. The RRT found that the essence of the applicant’s claims were that he feared persecution because of his ethnicity, However, it found that:
6.1 On the applicant’s own evidence, there were no incidents of note for the past 2 years.
6.2 The applicant did not apply for a Protection visa when he was in Australia in September 2003.
6.3 Country information indicated that the situation in Fiji had been stable for the last couple of years and a state of lawlessness no longer existed.
6.4 Evidence given by the applicant was that his younger siblings continued to live with his parents at the same address (close to Lautoka) at which he had lived all his life before his departure to Australia. Neither he nor any member of his family had relocated to another part of Fiji. No other members of his family had ever left Fiji.
6.5 He had not departed Fiji when he first obtained a Fiji passport in 1998, or applied for refugee status when he first visited Australia.
Application for review of the Tribunal’s decision
On 23 June 2005, the applicant filed an application for review under s.39B of the Judiciary Act, which, under the heading ‘Grounds of application’, are 52 individual paragraphs. Contained within these 52 paragraphs are various claims of jurisdictional error, together with submissions and background information.
On 25 October 2005, the applicant filed an amended application which contained the following grounds of review:
1.The applicant is a citizen of Fiji. If the Applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
Particulars
a. The applicant lodged a claim under the 1951 Convention relating to refugees and the 1967 Protocol relating to the status of refugees;
b. The applicant was outside the country of his nationality at the time of the application;
c. The applicant applied for a protection visa on the grounds of persecution because of his race and religion — areas covered under the definition.
d. The Tribunal erred in not considering the applicant’s claims because it failed to take into account the precise nature of the applicant’s claims.
e. The Tribunal erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa.
f. The Tribunal used the applicant’s previous visit to Australia as a determining factor in not recognising his claims of persecution. This conclusion on the part of the Tribunal was a biased conclusion and also jurisdictionally incorrect.
g. This was a very crucial part of the hearing because in forming an opinion that the applicant could have applied for a protection visa on his first visit, the Tribunal refused to consider the applicant’s claims in its entirety. This disregard of the applicant’s claims would place the applicant at the mercy of indigenous Fijians against whom his claims were lodged on grounds of race and religion.
h. By not taking this crucial point into consideration, the Tribunal denied the applicant legitimate grounds to make his claim refugee visa.
2. The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that the Tribunal wrongly applied four key elements to the Convention definition in relation to the applicant’s claims and it asked itself wrong questions that seemed biased and did not pay any heed to the information provided by the applicant.
Particulars
a. The applicant had lodged an application for a protection visa on the grounds of race and religion persecution;
b. During the hearing the Tribunal was adamant in asking the applicant why, in light of his claims of him and his family having suffered repeated harassment, assaults, insulting words and behaviour, and extortion at the hands of native Fijians, neither he nor any member of his family had (1) relocated to another part of Fiji; (2) in his case applied for refugee status when (a) he first obtained a Fiji passport in 1998, or (b) when the opportunity arose when he first visited Australia for 3 weeks in September/October 2003.
c. The Tribunal was wrong in generalising the applicant’s claims against a backdrop of perceived actions that ought to have transpired. The Tribunal assumed that if the applicant and his family were being harassed and assaulted they should have simply picked up, packed up and left for another location.
d. The tribunal has shown its lack of depth and understanding in not viewing the Fiji scenario as it really exists. In Fiji it is not possible for people of low economic standings to simply relocate, There is no possibility of doing this because poor families cannot find another place to live for the simple reason they cannot acquire land or take over lease of an existing property. Their financial situation is just enough to make ends meet.
e. The Tribunal ought to have studied the latest reports from states that more than 82,000 family squat in the Suva-Nausori corridor and the numbers are expected to reach 90,000 by 2006. The information states that the squatter problem is not only limited to Suva and Nausori but throughout the country.
f. This then touches on the very core issue of why a person like the applicant cannot relocate to another part of the country. When a man such as this earns only $400.00 per month, there are very little choices available to him. It is a typical situation whereby a person will constantly get abused or violently beaten, yet he cannot move away from his home because it is not viable to do so.
3.During the hearing the Tribunal was mainly just interested in asking the applicant questions that suggested that it was not interested in determining the issues at hand. This gave the impression that the Tribunal had reached a conclusion. This displays a pre-meditated bias against the application and denied the applicant natural justice. The applicant was on oath and affirms his claims were truthful yet the transcript of the hearing will show that the Tribunal did not address any specific Convention related issues.
Particulars
a. The applicant had lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) in the first instance;
b. The Tribunal persisted in asking why the applicant had not applied for a protection visa when he visited Australia in 2003. In pursuing this line of questioning the Tribunal displayed bias by not accepting the applicant’s explanation provided with evidence that showed that in 2003 he had paid a substantial sum of money to a migration agent to lodge a student visa application. This was a crucial answer that the Tribunal did not take into consideration and in not considering the reasons given by the applicant, denied the applicant any real chance of presenting substantive rational reasons.
c. The Tribunal erroneously reached the conclusion that because this applicant had not applied for a protection visa in 2003 meant that the applicant was not at risk of persecution.
d. This view held by the Tribunal denied the applicant any chance of getting a fair hearing. The Tribunal’s view was therefore clouded with pre-conceived notions thus denying the applicant natural justice.
e. This line of questioning was purely an attempt by the Tribunal to discredit the applicant and therefore was a procedurally incorrect thing to do as that line of bias jeopardised the applicant’s chances of getting a reasonably unbiased hearing.
f. The Tribunal was biased in its thoughts and had already concluded that the claims were not relevant to the Convention.
4. The applicant’s submissions to the Tribunal contained detailed accounts of the serious harm he had suffered; details that the Tribunal refused to take into account. By refusing to even take the claims into consideration the Tribunal denied the applicant procedural fairness.
Particulars
a. The persecution which the applicant feared was for one or more of the reasons enumerated in the Convention definition — race, religion, nationality, membership of a particular social group or political opinion. The applicant came within the definition under race, political opinion and religion, yet the Tribunal did not apply the definition to the applicant’s case and in doing so refused to take the applicant’s case into consideration.
b. Rather then considering the matter in hand, the Tribunal brought in personal bias and stated that the applicant had not seized an opportunity in the past to seek Australia’s protection from the harm he claimed to have suffered in Fiji.
c. Despite the applicant’s explanation, the Tribunal refused consider any reasons and kept badgering the applicant’s explanations regarding this point.
d. The Tribunals demeanour demonstrated outright contempt for the applicant because by questioning the applicant on his credibility and expressing personal views or conclusions, the Tribunal refused to consider the claims under the Convention nexus.
5. The Tribunal while referring to ‘information we have ... The situation has settled down considerably...’ did not at any stage invite the applicant to comment on independent country information. In doing so the Tribunal denied the applicant to sight the same information for it only verbally summed up the information and expected the applicant to give immediate comment.
Particulars
a. This was procedurally wrong on the part of the Tribunal. The Tribunal erred in not presenting to the applicant any evidence of the country report, as well as other reports which the Tribunal relied upon in forming an expressed opinion at the time of the hearing.
b. Not at any stage did the Tribunal provide the applicant an opportunity to provide rebuttal comments on the so-called independent country information that the Tribunal claimed to have.
c. In contrast to the Tribunal’s verbal presentation of a brief reference of the so-called country information, the Tribunal did not even produce this information in the written material in the decision record.
d. One cannot expect a fair hearing against a backdrop of general country reports. What the Tribunal presented had no bearing on the applicant’s claims.
e. The Tribunal did not relate how it formed the perception that racially there is nothing wrong and that the applicant had not suffered in the past and therefore it was not satisfied that there is a chance that he would suffer harm if he returned to Fiji.
f. The fact that the Tribunal relied on outdated reports that had no bearing on the applicant’s personal claims denied the applicant procedural fairness and natural Justice.
6. The Tribunal again relied on the so called Independent evidence in dismissing the applicant’s claims based on race and religious reasons. In verbally presenting the outdated so-called independent country information, the Tribunal concluded wrongly that there was nothing of significance to harm the applicant. This Tribunal erred in this regard.
Particulars
a. While the Tribunal made a verbal reference to resource material referred to as independent country information, it failed to use the following relevant information to make some serious and revealing findings using the reports. For example:
a. The 2004 US Department of State, Country Reports on Human Rights Practices for 2003 — Fiji, 25 February, stated as a fact that “ethnic discrimination remained a serious problem.” This information was vital for the applicant to elaborate his argument in showing the Tribunal the effects of persecution he had faced and the persecution he would face if he was made to return to Fiji.
b. The 2003 report by the Committee on the Elimination of Racial Discrimination also contained facts that would have given the applicant an opportunity to show that the report highlighted issues such as:
1.The State party should ensure that specific protection and enhancement of indigenous Fijians rights should comply with international standards relating to the prohibition of racial discrimination;
2.The State party continues to politicise culture, identity and ethnicity in order to maintain indigenous hegemony;
3.The State party was encouraged to explicitly promote a national identity that unites rather than divides indigenous and Indo-Fijians;
4.The Committee was concerned that hate speech and assertions of the supremacy of indigenous Fijians occur regularly;
5.The Committee recommended that the State party adopt all the necessary measures to put an end to the discrimination of superiority based on ethnic origin, which are socially unjust and dangerous as well as in breach of the Convention.
b. The issues raised above shows that the State in Fiji is discriminatory in its policies and that if taken into account the applicant’s fears all fall within the definition as provided for In the Convention.
c. The Tribunal therefore In being selective in the Information it verbally presented displayed bias and deceit, In failing to provide the applicant this vital information denied the applicant an opportunity to present his own statistical and evidentiary documents to support his case.
7. The Tribunal erroneously rejected that there was no real chance that the applicant would be attacked or face further prosecution if he was to return to his country on the basis of his race, religion etc.
Particulars
a. The Tribunal based this judgement on a general approach to the claims made by the applicant rather than look at the merits of the applicant’s individual case.
b. The Tribunal hardly asked the applicant questions in assessing the applicant’s fear and in the most asked questions that was leading the applicant to give answers that could be construed by the Tribunal that the app was not at risk or that he tacked credibility.
c. The Tribunal wrongly assumed that the applicant would not suffer Convention based persecution.
d. The Tribunal erroneously assumed that there is no real chance that the applicant would be persecuted If he returned to Fiji.
e. The Tribunal in trying to determine “well-founded fear” relied a lot on mere speculation, assumptions and independent evidence that had no bearing or direct reference to the applicant’s claims and in doing so displayed bias, procedural unfairness and jurisdictional error.
f. The applicant was not accorded procedural fairness in that the applicant was not given proper opportunity to present his case in light of this ambiguous and misleading information.
g. The transcript of the hearing will show that the Tribunal was not interested in interviewing the applicant. A typical example is on page 8 line 50 when the Tribunal prematurely says “I don’t have any other questions...”. It is the applicant who tells the Tribunal: “You didn’t ask me why, why may parents ...“. This suggests that the Tribunal was more interested in finishing the hearing and leads one to conclude that the hearing was just conducted for it.
8. The Refugee Review Tribunal did not comply with section 424B and 425 of the Migration Act 1958
Particulars
a. The Tribunal proceeded to make the decision without regard to any further relevant information being provided to the applicant or without stating to the applicant that it had come to the stage where it would make a decision and that the applicant had a last opportunity in negating anything that the Tribunal had presented.
b. The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act 1958.
9.The Respondents wrongly refused to take the following relevant considerations into account in the exercise of the power:
Particulars
i.The total disregard to the status of the applicant’s fear;
ii.Total disregard for the applicant’s religious persuasion and his current fears;
iii.The general country information without consideration of the facts of the case with particular reference to the applicant’s perceived and objective fear;
iv. The information provided by the applicant to substantiate his claims.
10.The Respondents wrongly failed to take into account the following relevant considerations into account In the exercise of the power:
Particulars
i.The independent information provided by the Applicant.
ii.To independently investigate the Applicant’s evidence of fear that she would be persecuted.
11.The Tribunal incorrectly applied the internal flight principle and without regard to the evidence erroneously assumed that the applicant could relocate elsewhere in Fiji without paying particular attention to the applicant’s personal claims.
Particulars
a. The Tribunal generalised the whole situation by claiming that the applicant could have moved to another area.
b. The Tribunal wrongly assumed that the safety of the applicant would improve by relocating.
c. The transcript of the hearing will show that after asking the applicant why he had not relocated, the Tribunal then said on page 9, “Why would you want to move?’ This was therefore an attempt by the Tribunal to mislead the applicant and confuse the issue.
d. Such indecisiveness suggests that the hearing lacked any consistency and depth and denied the applicant the opportunity in presenting a detailed account of his fear and persecution.
12. The Tribunal breached the rules of natural justice in connection with the making of the decision in that the Tribunal purposely committed the following:
Particulars
a. The applicant was given ambiguous information.
b. The Tribunal proceeded to make the decision without applicant the opportunity to be further heard.
c. The Tribunal proceeded to make the decision without further relevant information being provided to the applicant or inviting the applicant to provide further information in light of the direction that the hearing took.
d. The Tribunal failed to give the applicant a fair hearing and displayed bias and pre-mediated conclusions.
13.The Tribunal should be reconstituted so that the applicant has an opportunity to make proper representations to counter any and every assertion, assumption and speculation made by the Tribunal.
14. In the interest of justice the matter should be sent back to the Tribunal and the Tribunal’s decision should be quashed. (copied without alteration or correction)
Submissions and reasons
The applicant attended a hearing before the Tribunal on 23 February 2005 without the services of an interpreter as the applicant is fluent in English. The applicant did not have an adviser present nor did he bring any witnesses.
The applicant appeared before this Court as a self-represented litigant, although he had been previously represented by Mr Kumar of counsel on a direct access basis. However, the Court was advised prior to the hearing that Mr Kumar would not be appearing. Detailed written submissions were prepared and filed on behalf of the applicant, and the applicant indicated that he would rely upon those submissions and did not wish to make any further oral submissions.
Mr Leerdam, for the respondents, submits that none of the applicant’s grounds establish jurisdictional error in the Tribunal’s decision. The Tribunal accepted the applicant’s claims that he had been harmed by indigenous Fijians between 1987and 2003, but found that the applicant had not suffered any harm since early 2003, and would not suffer persecution in the reasonable foreseeable future.(CB 108)
The first ground of review claims apprehended bias on the part of the Tribunal and the applicant did not get a fair hearing. This bias amounted to jurisdictional error. It is submitted that the Tribunal did not address the applicant’s claims at all. The transcript of the hearing shows that the Tribunal concluded the hearing in the space of a few minutes.(Transcript of Tribunal hearing, pp.6-8) The Tribunal stated:
I don’t have any other questions. Is there anything else you wish to tell me?(Transcript of Tribunal hearing, p.8)
Up to this point in the hearing, the Tribunal made no attempt to question the applicant about his substantive claims, which were contained in questions 40 to 44 of the original protection visa application.(CB 18-21; 26-50) The submissions then set out the authorities in respect of the test for apprehended bias.
The applicant submits that the Tribunal approached its hearing without having read his claims in their entirety. During the hearing, the Tribunal said:
Having said that, I don’t think I’ve read everything here before me, and I will let you have a decision as soon as possible. Okay?(Transcript of Tribunal hearing, p.11)
It is submitted this suggests that the Tribunal did not have an impartial mind at the hearing. The Tribunal’s conduct created the impression, in the applicant’s mind, that it had already decided against him. Yet the applicant reminded the Tribunal repeatedly that it had not asked him questions on a specific ground. In support of this argument, the applicant referred to where the Tribunal stated it had no more questions.(Transcript of Tribunal hearing, p.8) However, the applicant said:
You didn’t ask me why, why my parents haven’t…(not transcribable)…(Transcript of Tribunal hearing, p.8)
Mr Leerdam submits that the applicant claims that the Tribunal did not question him about his substantive claims but confined its questions to specific issues during the hearing. This was hardly surprising, given that the Tribunal ultimately accepted most of the applicant’s claims about harm suffered in the past. The fact that the Tribunal largely confined its questions to issues which it was most concerned, does not suggest bias. Mr Leerdam submits that there is nothing in the transcript to suggest that the Tribunal did not consider the answers to its questions, as well as the applicant’s other evidence. Bias or apprehended bias is not a finding that should be made lightly, as it is a finding against the Tribunal member personally. The Full Federal Court outlined a number of principles in relation to bias in SBBS v Minister for Immigration (2002) 194 ALR 749 at [42] to [48]:
42.There are a number of judgments of single judges of the court in which the principles applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review have been stated. They are set out fully and analysed by Mansfield J in SBAU. It is unnecessary to repeat in detail his Honour's comprehensive review of the authorities. The propositions which emerge are summarised by us below.
43.First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial: see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] per Heerey J and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 J at [25] per Hely J.
44.The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review: SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [35] per Mansfied J and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
45.Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism: see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.
46.Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness: SBAU at [31].
47.Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task: SBAU at [32].
48.Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power: SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 (SCAZ).
Nothing in the transcript or other material before the Court suggests that the Tribunal did not properly consider the applicant’s claims. There is no evidence that the Tribunal did not bring an impartial mind to its decision-making.
The applicant claims a denial of natural justice because of the failure on the part of the Tribunal to disclose to the applicant the substance of adverse information relied upon by it in reaching its decision. This denial of natural justice amounts to jurisdictional error. The applicant argues that the Tribunal did not comply with its obligation to put adverse information relied upon (as part of the reasons for the decision) to him for comment in accordance with s.424A of the Act: SZEEU v Minister for Immigration [2006] FCAFC 2. The Tribunal asked the applicant:
Q.You had a passport since 1998.
A. Yes.
Q. Why didn’t you leave Fiji before you did?(Transcript of Tribunal hearing, p.6)
The applicant argues that the Tribunal relied on information that was contained in the Departmental file. This information relates to the applicant’s passport and his departure from Fiji. The following exchange took place at the Tribunal hearing:
Q.Yes, then you were in Australia. You didn’t apply for a protection visa…
A.Because…
Q.…and you weren’t returned – you lodged application for a student visa two days before you left – and you had been here a month and you didn’t apply for a protection visa. This is what this is about. A protection visa.
A.Yes.(Transcript of Tribunal hearing, p.7)
The applicant argues that the Tribunal relied on such information as found in the Departmental file.
Mr Leerdam submits that the applicant’s passport was provided to the Tribunal during its hearing. Therefore, information from the passport falls within the exception of s.424A(3)(b) of the Act. There was no obligation under s.424A(1) in relation to this information. Mr Leerdam further submits that the applicant’s claim of breach of natural justice, because of its failure to provide the applicant with adverse information, does not arise. The only obligation of the Tribunal with respect to provision of adverse information is found in s.424A. Section 422B of the Act operates to exclude the application of any other principles of natural justice which may exist: Minister for Immigration v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration [2006] FCAFC 62.
The applicant claims the Tribunal failed to consider his well-founded fear of persecution. A failure by the Tribunal to deal with a particular claim is a failure to properly exercise its jurisdiction. In support of this claim, the applicant referred to the Tribunal’s ‘Findings and Reasons’ which summarised all the applicant’s claims and concluded:
…I do not accept these as satisfactory, and they indicate to me that neither the Applicant nor his family genuinely fear persecution in Lautoka or genuinely believe that they are at real risk of persecution because of their ethnicity in the reasonably foreseeable future.(CB 108)
Mr Leerdam submits that the applicant has not specifically identified what claims the Tribunal did not consider. The Tribunal accepted that the applicant may have been harmed in the past, but found that it did not consider there to be a real chance of persecution in the future. There was no need for the Tribunal to identify every claim in relation to past harm which it accepted.
The applicant claims the Tribunal failed to correctly apply the law in relation to state protection by not even considering it in relation to the applicant’s claims. This caused a denial of natural justice and was procedurally incorrect. The applicant claims the Tribunal had not determined if there would be effective state protection for the applicant were he to return to Fiji. The applicant submits that the Tribunal had failed to consider his claim and/or misapprehended his claim.
Mr Leerdam submits that the question of state protection only arises when the Tribunal finds that there is a real chance of serious harm in the future. Since the Tribunal found no real chance of serious harm, it was not necessary to consider whether the state would be able to protect the applicant from that harm.
The applicant claimed that the Tribunal failed to observe s.424A and purported to make a decision that was not authorised by the Act. The applicant referred to the Tribunal relying on independent country information in its decision:
…and independent country information indicates that the situation in Fiji had been stable for the last couple of years and a state of lawlessness no longer exists.(CB 108)
Similarly, the Tribunal also stated at its hearing:
Q. …And the country information indicates that things have changed, settled down in Fiji. Those are all facts that I can ignore.(Transcript of Tribunal hearing, p.11)
The applicant argues that the Tribunal did not disclose this information to him at any stage for him to rebut the issue of discrimination and state protection. It only made a cursory mention that it had this information at its disposal. The applicant submits that the Tribunal should have brought any evidence against his case to his attention: SZEEU v Minister for Immigration. The applicant was not served with a notice under s.424A and therefore the information is not excluded by s.424A(3) of the Act.
Mr Leerdam submits that the information in question falls within the exception of s.424A(3) and so does not give rise to an obligation under s.424A(1). Insofar as this claim relies on s.424A(1), the material referred to by the applicant was not specifically about the applicant or any other particular person. Thus, there was no obligation on the Tribunal to give particulars of that information to the applicant under s.424A(1) as such information is within the exception in s.424A(3)(a): Minister for Immigration v NAMW [2004] FCAFC 264.
The applicant claims constructive failure by the Tribunal to exercise jurisdiction and failure to carry out its statutory function. It is submitted the Tribunal is charged with the statutory function of fact finding and assessing a claim. In the applicant’s case, the Tribunal did not direct the hearing to specifics but allowed it to continue on an unchartered course. It is claimed that the Tribunal was judicially wrong in the manner in which it questioned the applicant. The applicant submits that the harm suffered by him is the very basis of his claims. Which the Tribunal misapprehended. By the very nature of the Tribunal’s questioning, it reached the conclusion that the applicant’s claims were not based on a “well-founded fear of persecution”.
Mr Leerdam, in response to the claim that the hearing followed an unchartered course, submits that since the Tribunal accepted the applicant’s claim of past harm, it is hardly surprising that most of its questions focussed on the possibility of future harm, including concerns that it had about whether or not the applicant genuinely had a fear of persecution in the years immediately prior to the hearing. Further, most of the submissions in relation to this ground address the merits of the Tribunal decision. It is not a function of the Court to engage in merits review of the Tribunal decision: SZDFO v Minister for Immigration [2004] FCA 1192; NARE vMinister for Immigration [2004] FCA 554; NAAH vMinister for Immigration [2004] FCA 554; NADR vMinister for Immigration [2003] FCAFC 167.
The applicant claims that the Tribunal denied him procedural fairness in not determining his claims under the definition of race, politics and membership of a particular social group. Further that the Tribunal had a predetermined conclusion about his case and failed to address definitions under the Convention and his specific claims. The applicant submits that these are matters fundamental to the function of the Tribunal under the Act. By displaying such procedural unfairness, the Tribunal failed to properly determine the applicant’s case. The applicant questions how the Tribunal could have reached a conclusion without addressing the claims under race, politics and particular social group, which went to the heart of the applicant’s case.
Mr Leerdam submits that the particulars in relation to this ground relate to the merits of the Tribunal decision. These issues have already been addressed at [16] and [26] above.
The applicant submits that unreasonableness and illogicality flow from the Tribunal’s failure to make a finding on factual bases. The applicant submits that the Tribunal’s decision is illogical: Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30. He also submits the decision is manifestly unreasonable and affected by Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680. In support of this claim, the applicant argues that the Tribunal failed to scrutinise the claims. The unreasonableness flows from the Tribunal failing to adopt its statutory function under the Act and to make findings of fact and applying the law to the facts. Also that the Tribunal did not address the applicant’s main basis for his claims. The Tribunal did not assess whether the applicant would suffer future harm having regard to the previous pattern in Fiji. It failed to ask any questions in relation to the applicant’s class. The applicant submits that the Tribunal was illogical in its application to its findings of fact. Despite there being evidence to support findings of harm, the Tribunal reached the opposite conclusion. The applicant submits that it was irrational or unreasonable for the Tribunal to come to the conclusion it did in the fashion which it did.
Mr Leerdam submits that the Tribunal decision was based on its findings that the applicant has not suffered any harm in the last two years, on country information that racial tension in Fiji had lessened, and on its view that the applicant’s behaviour in not applying for a protection visa on his previous visit to Australia did not suggest a genuine fear of persecution in Fiji. He submits that the findings were based on evidence before the Tribunal and were open to it.
The applicant submits that he constitutes a particular social group against which the finding of protection ought to have been made. The applicant submits that he belongs to a particular group of Indo-Fijians who are perceived to be wealthy land owners, which puts them in a vulnerable position. The applicant submits that the characteristics of this particular social group are:
a)Nuclear group of Indo-Fijians who own land;
b)Lack of extended family support;
c)High vulnerability to attacks because of racial and political indifference;
d)High vulnerability to attacks based on the perception of being wealthy.
The applicant contends that by failing to identify this vulnerable group, it is unlikely that the Tribunal would then make a finding of effective state protection for this group. The applicant contends that aspects of harassment and risk of this social group were not considered by the Tribunal.
Mr Leerdam submits the applicant’s claims were not that he belonged to a particular social group, but that he feared indigenous Fijians because of his Indian ethnicity. The applicant also did not claim that he was targeted because he was perceived to be a wealthy land owner. The particular social group now claimed by the applicant was therefore not raised before the Tribunal. It was also not apparent from the material before the Tribunal, especially given the applicant’s repeated claims that he was not wealthy at all.
Mr Leerdam submits that the Tribunal’s findings applied equally to the applicant’s ethnicity and religion because the two were related and perceived as such by indigenous Fijians. With respect to the land tenure laws, the applicant did not make any claims to fear that his family would lose their land because of their ethnicity.
The applicant claims that the Tribunal made no relocation findings even though it was within its mandatory scope to consider practicality and reasonableness of relocation: NAIZ v Minister for Immigration [2005] FCAFC 37. It is submitted that the Tribunal failed to consider the reasonableness of relocation having decided that there was effective state protection. The applicant submits that it is not reasonable for the applicant to relocate: Randhawa v Minister for Immigration [1994] 52 FCR 437.
Mr Leerdam submits that the Tribunal did not need to make a finding on relocation, as it found that the applicant did not have a well-founded fear of persecution in the area in which he lived. The relocation principle is simply one part of the Convention definition of a refugee, as interpreted by the Australian courts. It becomes relevant if an applicant could avoid persecution by simply moving to another part of the country in question. There is no error in not considering whether or not the applicant can relocate to avoid persecution. In this decision, the Tribunal did find that the applicant failed to relocate, which it assessed as reasonable if the applicant’s fear were genuine, suggesting that he did not have a well-founded fear of persecution at all. This was not a finding about relocation, but a finding about the applicant’s subjective fear based on his actions in the past. It was a reasonable conclusion for the Tribunal to draw in the circumstances.
Conclusion
The applicant appeared as a self-represented litigant, however his amended application and submissions had been prepared by Mr Kumar of counsel, who regularly appears in this jurisdiction but withdrew before the hearing. The applicant did not appear to understand the nature of his application or the contents of the documents which were prepared and filed on his behalf. He declined to make oral submissions and said he would rely on the documents filed. Although there was a considerable volume of material filed for the applicant, their contents were formulaic, vague and in many particulars, repetitive.
Mr Leerdam, appearing for the respondents, assisted the Court by addressing the relevant points that arose. I am satisfied that none of the grounds raised alleging jurisdictional error on the part of the Tribunal can be sustained. Consequently, the application 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 thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 1 March 2007
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