SZGYZ v Minister for Immigration

Case •

[2006] FMCA 679

•

2 May 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 679
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Mongolia – claim of fear of persecution because of sexuality – no reviewable error. 
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424, 424A, 475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Applicant: SZGYZ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 2196 of 2005
Judgment of: Scarlett FM
Hearing date: 2 May 2006
Date of last submission: 2 May 2006
Delivered at: Sydney
Delivered on: 2 May 2006

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms McNaughton
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2196 of 2005

SZGYZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 30th June 2005 and handed down on 19th July 2005.

  2. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 6th July 2004 not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of Mongolia who arrived in Australia on 3rd January 2005. On 24th January 2005 she applied for a protection (Class XA) visa, but this was refused on 7th February. On 7th March 2005 the Applicant sought a review of that decision by the Refugee Review Tribunal. The Applicant attended a hearing of the Tribunal on 26th May 2005 and again on 2nd June. She gave oral evidence about her fears that she would be persecuted on her return to Mongolia because of her lesbian sexuality. 

  2. The Tribunal wrote to the Applicant on 27th May 2005 under the provisions of s.424A of the Migration Act asking her to comment on inconsistencies between her evidence and that of her partner who was also an applicant for a visa. She was also asked to comment on inconsistencies between her written and oral evidence.

  3. The Applicant’s partner wrote to the Tribunal on 14th June 2005 seeking to clarify the inconsistencies between the evidence of the two people. The Tribunal was conscious that claims concerning sexual orientation may be easy to assert but difficult to substantiate. The Tribunal found that the Applicant did not complete the application for a protection visa herself and could not be satisfied that the written claims as presented truly and accurately reflected what the Applicant told the persons who assisted her. For that reason the Tribunal relied on the Applicant’s oral evidence about her claims to be a lesbian and in a relationship with another applicant.  (see Court Book at p.74)

Tribunal’s Findings and Reasons

  1. The Tribunal accepted that the Applicant was a citizen of Mongolia with a tertiary education, but did not accept that the Applicant was a lesbian who shared a lesbian relationship with another applicant. The Tribunal found that there were internal inconsistencies in the Applicant’s evidence about the treatment she had received from her own family. In short, the Tribunal found the Applicant’s evidence on the matters of her sexuality and her relationship inconsistent and unreliable and was not satisfied that the Applicant is a lesbian, as she claimed to be.

  2. The Tribunal did not accept that the Applicant was mistreated or seriously harmed because of being a lesbian and found that the Applicant did not have a well-founded fear of persecution for reason of her membership of a particular social group or for any other Convention reason.

  3. The Tribunal affirmed the delegate’s decision not to grant a protection visa. 

The Application for Judicial Review

  1. The Applicant has filed an application for relief under s.39B of the Judiciary Act 1903 seeking orders in the nature of mandamus and prohibition. She relies on the following grounds:

    a)the Tribunal made her decision in bad faith;

    b)the Tribunal deprived me of the natural justice;

    c)the Tribunal denied the evidentiary proof of my claim;

    d)the Tribunal did not reflect the material facts of my claim;

    e)the Tribunal has given a decision which was preset at the back of its mind;

    f)the Tribunal mixed up many facts with this decision which affected the decision;

    g)the Tribunal concentrated in particular fact while ignored many other facts in this condition;

    h)I am not agree with the Tribunal finding that I have no real chance of persecution;

    i)the Tribunal finding of my refugee application was not based on the independent country information.  The Tribunal did not consider the Amnesty International report.

  2. The Applicant did not file any written submissions before the hearing.  Counsel for the First Respondent, the Minister, prepared written submissions. She stated that the Applicant had listed a number of “formulaic unparticularised grounds” to which it is impossible to respond, except to submit that none of the grounds can be made out and they should all fail. At the hearing the Applicant said that she had submitted her evidence truthfully. She believed that there may have been misunderstandings in interpretation. During the Tribunal hearing the Applicant that she noted that the Tribunal Member was not paying attention. 

  3. The Applicant said that she was not satisfied because one of the reasons that her case had been decided was due to the inconsistency between her evidence and that of her partner. The Tribunal did not really take the other evidence into account. After two days of hearing, 26th May and 2nd June 2005, the Tribunal should have had enough evidence and there should not have been grounds to refuse her application. For the Respondent Minister, Ms McNaughton of counsel submitted that the way the Applicant had expanded on her grounds largely raised the question of merits review and otherwise were matters for which there was no evidence in support. 

  4. There was no evidence the Tribunal was not paying attention and the Tribunal’s reasons in which is set out the Applicant’s evidence and the partner’s evidence in considerable detail indicated that the Tribunal had been paying attention. In reply to the Applicant’s submission that the Tribunal should not have based its decision on inconsistencies between her evidence and that of her partner, there was ground for the Tribunal to arrive at the conclusion that there had been inconsistencies. There was no evidence about any errors in translation which the Applicant has raised as a possible reason for the Applicant’s case not being fully considered. 

  5. The written grounds raised by the Applicant in the Amended Application are indeed a set of standard form grounds which have been seen so many times in this Court. Two of those grounds raise the question of bad faith and bias, but there is no evidence that the Tribunal acted in this way. Bad faith and bias, whether apprehended bias or actual bias, are serious accusations going to personal fault on the part of the decision-maker. They must be strictly alleged and strictly proved.  There is no indication in the application as to how the Tribunal acted in bad faith or how the Tribunal was biased and nothing appears in the Tribunal decision which would indicate an error of that nature. 

  6. Similarly, the claim that the Tribunal deprived the Applicant of natural justice cannot be sustained. The Applicant attended a hearing and gave oral evidence. The person whom the Applicant says is her partner also gave oral evidence. The Tribunal considered that material. It does not appear to me that there has been any failure to provide natural justice. 

  7. The claims in the application that the Tribunal denied the evidentiary proof of the Applicant’s claim, that the Tribunal’s decision did not reflect the material facts of the Applicant’s claim, that the Tribunal mixed up many facts with the decision which affected the decision, that the Tribunal concentrated on particular facts while ignoring many other facts, that the Applicant does not agree with the Tribunal finding of no real chance of persecution and the Tribunal finding not being based on independent country information are no more than a claim for merits review.  

Conclusion

  1. Merits review, which is a reconsideration of the factual basis for the Tribunal’s decision, is not a function of a Court conducting judicial review. In my view, despite the Applicant’s contention, there was sufficient evidence to allow the Tribunal to arrive at the conclusions which it did.  It is not a function of a Court conducting judicial review to substitute its own view of the facts alleged for those facts found by the Tribunal. The claim by the Applicant that the Tribunal did not consider the Amnesty International report is no more than a request for merits review. 

  2. The Tribunal has powers to obtain evidence under s.424 of the Migration Act, but has no obligation to conduct its own investigations. If the applicant desired the Tribunal to take into account a report from Amnesty International or any other body, then it was up to the Applicant to submit such a report to the Tribunal as part of her case.

  3. I am satisfied that none of the grounds submitted by the Applicant in her application have been made out. As to the Applicant’s claims at the hearing of a possibility of errors in translation of the Refugee Review Tribunal, there is no particularisation of that claim and no evidence of it. As to the Applicant’s claim that the Tribunal should not have relied upon inconsistencies between her evidence and that of the other applicant who gave evidence, in my view, that was open to the Tribunal. I note that after the first hearing in May 2005 the Tribunal wrote a letter to the Applicant under the provisions of s.424A of the Act asking the Applicant to comment on those inconsistencies.

  4. The reply written by the lady whom the Applicant describes as her partner on 14th June 2005 appears to have been taken into account by the Tribunal in arriving at the Tribunal’s decision. It does not appear to me that there is a breach of s.424A of the Migration Act and on my perusal of the decision independent from any claim made by the Applicant it does not appear to me that there is any other jurisdictional error. It appears, therefore, that the decision made by the Tribunal is a privative clause decision as defined by s.474 of the Migration Act. There is no jurisdictional error. Accordingly, the application must be dismissed.

  5. In my view, bearing in mind the history of this matter and noting that certain matters quite properly are not being claimed, it appears to me that the sum of $5,000.00 inclusive of counsel’s fees is a suitable figure.  

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V Lee

Date:  10 May 2006

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