SZGYR v Minister for Immigration
[2006] FMCA 1106
•2 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGYR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1106 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal – whether any reviewable error disclosed by decision of the RRT – applicant a citizen of Moldova – whether there was a breach of Migration Act 1958 (Cth), s.424A(1) – whether the Tribunal member was biased – illogicality – no reviewable error – humanitarian considerations. |
| Migration Act 1958 (Cth), ss.417, 424A, 474 |
| WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 referred to SZFVL v Minister for Immigration & Anor [2005] FMCA 991 distinguished SBBS v minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed NACB v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264 referred to |
| Applicant: | SZGYR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2168 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 May 2006 |
| Date of Last Submission: | 23 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr McInerney |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00 and I will allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2168 of 2005
| SZGYR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 28th June 2005 after a hearing that took place on 23rd May 2005. The Refugee Review Tribunal handed its decision down on 19th July 2005.
The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (to use the Minister’s title at the time) made on 31st January 2003 not to grant the Applicant a protection visa.
Background
The applicant is a citizen of Moldova. She arrived in Australia on
25th November 2002. She applied for a protection visa on 8th January 2003, but it was refused. The Refugee Review Tribunal, differently constituted, affirmed that decision, but the decision of the Tribunal was set aside by a decision of this court.
On 5th April 2005 the Tribunal wrote to the applicant and invited her to attend a hearing of the Tribunal on 23rd May 2005. The applicant wrote and accepted the invitation. Her solicitors wrote to the Tribunal on
19th May and made a four-page submission. In that submission, they put to the Tribunal that the applicant should be considered as part of a social group, namely young women in Moldova. They provided the Tribunal with information about the involvement of organized crime in the trafficking of young women, principally those aged between 15 and 30 years.
The applicant attended the hearing and gave evidence with the assistance of a Russian interpreter. Her solicitors wrote again to the Tribunal on 24th May, providing further information on a subject arising out of the hearing.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 62 through to 67 of the Court Book.
The Tribunal accepted that the applicant was a citizen of Moldova, on the basis of her passport, and assessed her claims against Moldova.
The Tribunal also accepted that the applicant had been abducted in September 2002 and had escaped from where she was held.
Further, the Tribunal accepted that the men who abducted the applicant were involved in the trafficking of women, which appears to be rife in Moldova.
The Tribunal accepted that the applicant had been found by the police after her escape and had been treated sympathetically. The Tribunal found:
“It cannot conclude that the state was unwilling or unable to protect the applicant in relation to the incident, although it acknowledges that the authorities in Moldova have not been very successful in prosecuting traffickers.”[1]
[1] See at page 63 of the Court Book.
The Tribunal considered independent country information about Moldova, particularly in respect of its laws, policies and actions on the subject of trafficking in women. Whilst the Tribunal acknowledged that there had been serious problems in Moldova regarding trafficking in women and girls, it noted that there had been substantial recent improvement in recent times.
Again, whilst the Tribunal accepted that the applicant had been the victim of an abduction, it considered that the chance of such an abduction recurring in the reasonably foreseeable future was remote. The Tribunal also rejected the applicant’s claim that some phone calls that her siblings had received since she left the country indicated that the applicant was still of interest to the people who had abducted her before. The Tribunal noted that the applicant had reached the age of 33, which put her out of the target age-group for trafficking.
The Tribunal noted independent country information about the problem of trafficking in women in Moldova, including the establishment of a Centre for the Prevention of Trafficking in Women in 2001, administered by the Association of Women Lawyers under the aegis of the UN Development Program, and referred to an account downloaded from the Internet, Preventing Victimisation in Moldova.[2] The Tribunal also noted that the tolerance of traffickers has changed since the applicant left Moldova and the applicant herself has moved out of the age group usually targeted for trafficking. The Tribunal referred to a report, Moldova’s Place in the Web of Human Trafficking, which stated that very few women ensnared by traffickers were over the age of 30. The applicant herself was aged 33 at the time of the Tribunal hearing.[3] The Tribunal considered that the applicant could reasonably expect to return to Chisenau, the capital of Moldova, and find work, as she is qualified in nursing.[4]
[2] Again at page 63 of the Court Book.
[3] See at page 65 of the Court Book.
[4] See at page 66 of the Court Book.
The Tribunal was satisfied that the applicant was the victim of “an opportunistic criminal act” and that the chance of a reoccurrence was remote.[5] The Tribunal was satisfied that the chance of serious harm in the form of being targeted for trafficking in the reasonably foreseeable future was remote and, therefore, was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
[5] Court Book page 66
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
Humanitarian consideration
The Tribunal noted, however, that there were strong humanitarian considerations in the applicant’s case:
The applicant was a very credible witness and her subjective fear was evident. She has clearly suffered a very bad experience which has left its mark and she has not had counselling.
Nevertheless, the distance from the scene of her distressing experience, and the absence of trafficking in Australia, have reassured her and in the past 2 ½ years the applicant has settled and been able to lead a normal existence. She has found employment which is beneficial to the Australian community. Given this, the applicant has asked the Tribunal to consider her application on humanitarian grounds. However, the Tribunal’s role is limited to determining whether the applicant satisfied the criteria for the grant of a protection visa. A consideration of her circumstances on other grounds is a matter solely within the Minister’s discretion.[6]
[6] See Court Book at pages 66-67.
Whilst the Tribunal clearly acknowledged the humanitarian aspects of the applicant’s situation, it did not have the power to make a decision on those grounds. The Minister has the sole discretion in those matters under s.417 of the Migration Act.
Application for Judicial Review
The applicant filed an application under s.39B of the Justices Act 1903, claiming that the Refugee Review Tribunal wrongly applied the tests of “State protection” and “persecution”. She seeks an order that her application be remitted to the Tribunal to redetermine its decision.
The applicant filed an Outline of submissions on 4th May 2006. In that document she referred to the factual matters that the Tribunal had accepted and to the matters that the Tribunal did not accept. She submitted that the Court should set the Tribunal’s decision aside and refer the matter back to the Tribunal for further determination, for three reasons:
a)The Tribunal failed to comply with s.424A(1) of the Migration Act;
b)The Tribunal was unfair and biased; and
c)The Tribunal’s arguments were illogical and controversial.
The applicant’s submission referred the Court to the Full Court decision of WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 and the decision of Driver FM in SZFVL v Minister for Immigration & Anor [2005] FMCA 991.
Conclusions
Dealing with the applicant’s first claim, a failure to comply with
s.424A (1) of the Migration Act, I am not satisfied that the applicant has shown any breach of s.424A. The Tribunal referred to independent country information, at pages 63, 65 and 66, but this information is covered by the exception in s.424A (3) (a). Similarly, the Tribunal based its decision on information provided by the applicant, which is covered by the exception in s.424A (3) (b).
It does not appear to me, with respect, that the decision of the Full Court in WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (supra) is of any relevance or assistance to the applicant in this case. I have also read with interest the decision of Driver FM in SZFVL v Minister for Immigration & Anor (supra); I believe that it should be distinguished. It can only be relevant in respect of the applicant’s illogicality argument, if at all, but it does not assist the applicant, in my view. The applicant claims that the Tribunal deterred her from obtaining further evidence or information by leading her to believe that her claims (including the ones relating to telephone calls received by her relatives after she had fled Moldova) had been accepted. The applicant provides no evidence to support that assertion.
The applicant’s second claim is that the Tribunal’s decision was unfair and biased. The applicant provides no evidence or particularization of that claim. Bias or bad faith is a serious matter involving personal fault on the part of the decision maker. It is an allegation that should not be lightly made and must be clearly alleged and proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]). 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 (SBBS at [44]).
In this case, there is no evidence of any bias on the part of the Tribunal member.
The applicant argues that the Tribunal’s findings were “illogical and controversial”. It is obvious that being controversial does not establish jurisdictional error. The want of logic on the part of the Tribunal does not of itself constitute jurisdictional error (NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235).
In this case, the Tribunal’s decision does not show any signs of illogicality.
The applicant’s other claims are no more than a challenge to the factual findings of the Tribunal. The findings of fact were open to the Tribunal on the evidence before it.
There is no jurisdictional error. I am mindful that the applicant is not legally represented. My own examination of the material before me does not show any arguable case of jurisdictional error.
As there is no jurisdictional error, I am satisfied that the Tribunal’s decision is a privative clause decision as defined by s.474(2) of the Migration Act. There is no basis for any order in the nature of certiorari or mandamus.
The application must be dismissed. I will make an order for costs in favour of the First Respondent.
As I indicated above at [15], the Tribunal set out reasons why the applicant would have a case for consideration by the Minister on humanitarian grounds under s.417 of the Migration Act. This, of course, is solely a matter for the discretion of the Minister. In my observation of the applicant in the proceedings before me, I have formed a favourable view of the applicant, and I endorse the Tribunal’s member’s views. After the conclusion of any court proceedings which the applicant may choose to take, there would appear to me to be good grounds for the Minister to consider exercising her discretion in this applicant’s case.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 4 August 2006
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