SZGPA v Minister for Immigration
[2007] FMCA 278
•9 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGPA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 278 |
| 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 |
| A v Minister for Immigration [2002] FCAFC 56 SAAP v Minister for Immigration [2005] HCA 24 |
| Applicant: | SZGPA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1649 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Nepali interpreter |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Ms A Mansour of Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 24 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 |
SYG1649 of 2005
| SZGPA |
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 24 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 26 April 2005 and handed down on 19 May 2005, affirming a decision of the delegate of the first respondent made on 23 March 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 “SZGPA”.
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].
Solicitors for the respondents filed a Court Book (“CB”) in these proceedings on 5 August 2005 and I mark that document as Exhibit “A”.
On 27 November 2006, the applicant in these proceedings filed an affidavit, however, the contents of that document are more appropriately described as submissions and I will treat them as such.
Background
The Tribunal decision of E Grotte, reference number N04/48904, contains the following background information. The applicant who claims to be a citizen and former resident of Nepal, arrived in Australia on 29 January 2004. On 27 February 2004, he lodged an application for a protection (class XA) visa with the Department of Immigration under the Act. On 23 March 2004, a delegate of the Minister refused to grant a protection visa and on 15 April 2004, the applicant applied to the Tribunal for a review of the delegate’s decision.(CB 125)
The applicant claims that he used to be a member of the Nepal Communist Party (MASAL), which opposed the absolute monarchy in Nepal. The applicant disagreed with the party’s policy to boycott elections and left to join the Nepali Congress Party. The applicant claims that did not please his former Communist colleagues. After a few years the Maoist faction was formed which established the People’s War. The applicant claims that during the People’s War, the Maoists killed political rivals and various party activists, kidnapped innocent civilians and robbed banks. He claims that many Nepali Congress Party members and activists were murdered and many people were displaced.(CB 127)
The applicant claims that he was targeted by Maoists because he was perceived as being anti-Maoist. He claims that he received warnings. He claims that he objected to the Maoist activities and once openly criticised Maoist activities to a person in a public hotel. He states that this person was in fact a Maoist who was later killed by security officials. The applicant claims that the Maoists blamed him for this.(CB 128)
The applicant further claims that in 2002, Maoists attacked his home while searching for him. He was not at home but his wife was assaulted with a rifle and his whole family was dragged into the street and told that the applicant would be killed. The applicant claims that the Maoists also went to where he was attending a funeral and that the mourners were called outside and asked to produce the applicant but that no one told them where he was. He was advised by the villagers to leave the area and he went to the district headquarters and was given a job as a teacher.(CB 128)
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons are contained in the respondent’s written submissions prepared by
Ms Wong, and I adopt paragraphs 10 to 14 of those submissions:
10.The RRT commenced its reasons for decision by summarising the legal principles applicable to determining the applicant’s claim: CB 125-127. The RRT then sets out the evidence presented by the applicant in support of his claims and summarised independent country information regarding Nepal, the Maoist insurgency and relocation from Nepal to India: CB 127-137.
11. The RRT accepted the applicant’s evidence that (CB 137-138):
(a) the applicant was a citizen of Nepal;
(b) the applicant was threatened with violence by the Maoists if he did not comply with their requests and demands; and
(c) the applicant criticised Maoist activities in a hotel.
12.However, the RRT did not accept that the applicant was at risk of being seriously harmed by Maoists should he return to Nepal: CB 138. The RRT notes that the applicant lived in Beni Bazaar for 18 months, and he claimed to have left Beni Bazaar because he became fearful that the Maoists would find him there and kill him: CB 138.
13. The RRT was not persuaded by this evidence, because the Maoists knew where the applicant was, and if they had wanted to kill the applicant, would have found a way to do so: CB 138. The RRT further stated that the fact that the applicant was able to live in Beni for eighteen months and work as a teacher was strong evidence that he was not of sufficient adverse interest to the Maoists to place him at risk of persecution: CB 138.
14.The RRT affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa: CB 139.
Application for review of the Tribunal’s decision
On 24 June 2005, the applicant filed in this Court an application for review under s.39 of the Judiciary Act. That application did not contain any grounds of review. Despite consent orders made by Registrar Kavallaris at first directions on 6 July 2005, the applicant did not file an amended application. In his written submissions, he has raised a number of grounds of review which are either unparticularised or inapplicable to the circumstances. Ms Wong assisted the Court by identifying three issues which the applicant raised as jurisdictional errors by the Tribunal. They are:
a)the evidence relied upon by the Tribunal was so unreasonable or inadequate that the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect of the correct test (Applicant’s submissions at [2]);
b)the Tribunal overlooked the most recent information available to it (Applicant’s submissions at [3]);
c)the Tribunal failed to consider the fundamental aspects of the applicant’s claims (Applicant’s submissions at [4])
Submissions and reasons
The applicant is a self-represented litigant who, at first directions, indicated a desire to participate in the Court’s free Legal Advice Scheme. He was allocated a panel adviser and the Court file shows that he attended a conference with that adviser and received written advice. As noted above, despite consent orders requiring the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon and any additional affidavit material in support of the application, this was been done. In addition to the affidavit referred to at [5] above, the applicant also filed a document entitled “Outline of my submissions”. When the applicant was invited to make oral submissions, he said that he had spent 18 months in Beni where he had initially believed that he was safe from the Maoists, but then became concerned and believed that he would face serious physical harm by the Maoists. He believed that he had to leave Nepal as quickly as was possible. The applicant stated that relocation in Nepal or India was not an option as his name appeared on a Maoist hit list which would result Maoist violence against him in both those countries.
The applicant’s affidavit and outline of submissions contain his broad claim together with assertions of jurisdictional error by the Tribunal. The outline of submissions states:
I contend that the Tribunal has committed jurisdictional error in that it failed to make correct findings on the evidence before it as the brevity of its reasons showed that the Tribunal made too simplistic an analysis of the claims before it as to my claim that I had been targeted by the Maoists. (Applicant’s submissions at [3])
The applicant’s submissions also suggest that the Tribunal erred in its application of relocation principles and the availability of state protection. It breached the rules of natural justice by failing to provide the applicant with independent country information used by the Tribunal and failed to give him an opportunity to rebut that information. Further, that it failed to observe the common law requirements of procedural fairness and did not comply with s.424A(1) of the Act. These grounds were not set out in any logical pattern but rather were combined with general statements relating to the applicant’s overall claims. Further, none of the grounds were particularised.
Ms Wong submits that the Tribunal decision and its conclusions were neither illogical nor unreasonable but were soundly based on the evidence before it. Further, that it is not apparent from the decision that the Tribunal overlooked any information relating to fundamental aspects of the applicant’s claims. In the absence of particulars, the applicant’s bare assertions of error do not constitute grounds of granting relief against the Tribunal decision. In many respects, the applicant’s complaints amount to a request for merits review of the Tribunal decision which is not available in this Court: A v Minister for Immigration [2002] FCAFC 56; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
As I have previously stated in SZECD v Minister for Immigration [2005] FMCA 554 at [34], merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of an earlier decision. Judicial review asks whether the decision-maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision which could be made in the circumstances. Merits review provides a complete rehearsal of all the issues relevant to the application.
Ms Wong also submits that the applicant’s claim that the Tribunal erred in its application of the relocation principle was not relied upon by the Tribunal in reaching its decision. The applicant further claims that the Tribunal failed to consider imputed political opinion, and failed to examine the issue of adequate state protection.(Applicant’s submissions at [14]) Ms Wong argues that imputed political opinion was not an issue when the applicant made his opposition to the Maoists known. There was also no need for the Tribunal to make a finding about adequate state protection when it had already found that the applicant did not have a well-founded fear of persecution.
In respect of the applicant’s claim that he was not given an opportunity to comment on independent country information, Ms Wong submits there was no statutory or common law obligation upon the Tribunal to provide such an opportunity to the applicant: ss.422B and 424A(3)(a) of the Act; Minister for Immigration v NAMW (2004) 140 FCR 572. The decision of the Tribunal does not disclose a lack of good faith or prejudgment of the issues to be decided. Ms Wong referred to SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J:
38. In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
See also SBBF v MIMIA [2002] FCAFC 358.
In the absence of a transcript or any other evidence in support of the applicant’s contentions, the only material available is the Court Book, which includes the Tribunal decision itself. A fair reading of the Tribunal decision does not support a claim of lack of good faith or prejudgment of the issue by the Tribunal member.
Ms Wong submits with respect to procedural fairness that the applicant was given numerous opportunities to make his claims and provide the delegate and the Tribunal with information in support of them. Evidence before this Court demonstrates that the applicant was afforded full procedural fairness in accordance with the procedures stated in Part 7 of Division 4 of the Act.
The applicant raised the issue of a breach of s.424A of the Act but no particulars were provided. The Court Book indicates that the applicant, with the assistance of his agent, provided both the delegate and the Tribunal with the same material in support of his application. The only difference being that the Tribunal application provided translations in English for all the documents which the applicant relied upon. There is no reference in the Tribunal decision to inconsistencies or any other issue that arose between those two sets of documents. The applicant’s affidavit states at [9]:
9. I contend that the Tribunal fell into jurisdictional error when it failed to comply with s.424A(1) of the Act. As the Tribunal has relied on the inconsistencies between the claims made in the PVA and claims made to the Tribunal to find that I was not a credible witness, the Tribunal was obliged to provide this information to me in writing for any comments pursuant to s.424A(1) of the Act.
The Tribunal’s “Findings and Reasons” did raise the issue of an assessment of credibility of an applicant and set out the recognised authorities in respect of this. However, the Tribunal did not suggest that inconsistencies arose between the material submitted with the original protection visa application and the material submitted with the application for review before the Tribunal. Nor was this issue referred to in any other part of the Tribunal decision. This claim appears to be borrowed from another application for judicial review of a tribunal decision which is unrelated to this matter before this Court. This claim appears to be formulaic and not relevant to this case.
The applicant contends that the Tribunal’s reference to country information without providing the applicant with a copy prior to the hearing constitutes a failure to comply with s.424A(1) of the Act. This contention must be rejected because country information falls within the exception in s.424A(3)(a): Minister for Immigration v NAMW at [66]-[74],[125]-[138]; WAJW v Minister for Immigration [2004] FCAFC 330 at [43]-[46]; QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [20]-[30].
The applicant suggested that the Tribunal failed to ensure that he understood the relevance of the above mentioned country information during its hearing, which also led to him not having a chance to comment on that information. I am satisfied that the country information and its relevance were squarely raised by the Tribunal with the applicant during its hearing. Again, the Court is relying upon the contents of the Tribunal decision in the absence of a transcript or other supportive information.
The applicant’s affidavit and outline of submissions contain a general assertion that procedural errors affected the Tribunal decision and constituted a denial of natural justice. In the absence of any particulars, and in light of s.422B of the Act, there is no basis for this assertion.
Conclusion
I am satisfied that the Tribunal’s findings were open to it for the reasons it gave and do not disclose any legal or procedural error. The obligation under s.424A(1) did not arise because the Tribunal’s findings were based upon information advanced by the applicant with the assistance of his adviser for the purposes of his application to the Tribunal, his evidence at the hearing and the contents of the independent country information identified in the claims and evidence section of the Tribunal decision.(CB 130-137) Therefore, the exceptions in s.424A(3)(b) of the Act applied. I am satisfied that none of the general allegations of judicial error can be sustained. Consequently the applicant’s claim 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 twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 March 2007
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