SZHPG v Minister for Immigration
[2008] FMCA 214
•6 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 214 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZHPG”. |
| Migration Act 1958 (Cth), s.91X |
| Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 |
| Applicant: | SZHPG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2965 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Tamil interpreter |
| Counsel for the Respondents: | Ms V McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 24 September 2007 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 |
SYG 2965 of 2007
| SZHPG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The female applicant was born in 1947 in Kuala Lumpar, Malaysia. Her passport was issued in Shah Alam, Malaysia in May 2005. She notes on her Protection (Class XA) visa application that she speaks Tamil and that her ethnicity is “British as I know”.
The applicant claims that her deceased father was an Australian soldier and that she was abandoned at birth or stolen from her biological mother. She claims that she was adopted by a family of Indian origin, all of whom had dark complexions. The applicant claims that her foster mother died when the applicant was 17 years old and her foster brothers died shortly thereafter.
The applicant claims that she was forced to marry at the age of 21 and was abused by her husband with whom she had four children. She claims that her second husband, with whom she had another child, left her to raise the child herself.
The applicant claims that her fear of persecution began in 1969 when communal violence between Muslims and other communities broke out. She claims that she went from place to place to escape the violence. In 2001, she had to leave Kampung Medan as her house was ransacked and destroyed and her son seriously injured.
The applicant states that she does not have any formal education and does not read or write English, Malay or Tamil.
She states that the Malaysian authorities often disputed her Malaysian citizenship and she was abused and harassed by the police when they suspected she had connections with Australia and Britain. The applicant claims that she was often attacked or intimidated by Islamic “fanatic minded people” after the Gulf war.
The applicant claims that in November 2004, she was detained by the police for not being in possession of valid identification.
The applicant arrived in Australia on 21 May 2005 and applied for a protection visa on 16 June 2005. A delegate of the first respondent refused to grant a visa on 12 July 2005 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision but this was set aside by the Federal Magistrates Court on 13 April 2007 and remitted to the Tribunal to be determined according to law.
The second Tribunal rejected the applicant’s claim on 14 August 2007 (reference 071427589) which is the decision that is the subject of these proceedings.
Consideration
At the first Court date, the applicant indicated that she wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel advisor and, in the absence of anything to the contrary, it is assumed that the applicant received her advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 11 December 2007. At the time of the hearing, nothing had been filed. She also confirmed that she had not submitted a short written outline of submissions and a list of authorities. The applicant relied on the six grounds of review contained in her application filed on 24 September 2007. None of these grounds were particularised. When invited to make oral submissions in support of her application, she said that it was not possible for her to return to Malaysia as she feared for her life in Malaysia from fanatics pursuing a Jihad.
The Tribunal had available to it the decision of the delegate and hearing tapes of the evidence provided to the previously constituted Tribunal on 7 October 2005. It also had the statement dated 21 June 2007 attached to the second Tribunal application, and the applicant’s evidence at the second Tribunal hearing on 5 July 2007.
Briefly, the applicant claims that she had been harassed by fanatical Muslims (CB 366.7-367.7), Muslims in general (CB 367.9, 369.7), the Malaysian police (CB 367.2, 372.9, 373.10) and Malaysian government officials (CB 367.2) for reason of her race, nationality and particular social group – mainly her white appearance and European background. The applicant claims she was subject to sustained and serious targeting and mistreatment because of her mixed race appearance, including being detained, raped, beaten and urinated on by police. Also that she was targeted for harassment and bribes, yelled at, spat on, had stones hurled at her, watched her dog being killed by Muslims, had her house destroyed in 2001, petrol bombs thrown at her house in 2005 and charged with preventing Malaysian police officers from exercising their duty.
The Tribunal rejected the applicant’s claims on the basis of her credibility (CB 386.3). That finding was based on the following:
i)the Tribunal’s own observations of the applicant (CB 386);
ii)independent evidence concerning Malaysia’s population size and composition (CB 386);
iii)independent evidence which did not support the applicant’s claim that Muslims targeted persons of European or partial European appearance in Malaysia (CB 387);
iv)the lack of supporting documentary evidence from the applicant (CB 387.7);
v)the plausibility of the applicant’s claims concerning contact with her son, the claimed attacks and her treatment by police (CB 388);
vi)the fact that the applicant did not initially raise the claim that she was facing charges in Malaysia (CB 389.1); and
vii)that she did not leave Malaysia until 2005 although she was in possession of a valid passport from 2000 (CB 389.4).
Ground one
1. The reasoning adopted by the Tribunal member was illogical so that the factual result was perverse and the decision was unreasonable (Parramatta City Council v Pestell (1972)); (Prasad for Immigration and Ethnic Affairs (1985)). The consideration of the “Interst flight principle” was not fully an probably appreciated by the Tribunal member.(Randhawa) This led to a wrong conclusion and therefore a jurisdictional error.
This claim is made in the absence of particulars or submissions, either oral or written and does not identify which part of the Tribunal’s reasons is illogical.On a fair reading of the decision record, it is not apparent that it is illogical to the extent that it warrants a finding of jurisdictional error.
Ms McWilliam, for the first respondent, referred to Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 at [22] per Black CJ, von Doussa and Carr JJ:
[22] The present point arises for discussion, of course, in the context of judicial review, and the general principles that limit the scope of judicial review need to be borne firmly in mind. In relation to findings of fact and related questions of illogicality in reasoning, the judgment of Mason CJ in Bond at 355 - 360 provides authoritative guidance. After reviewing the authorities, Mason CJ (with whom on this point Brennan, Toohey and Gaudron JJ agreed) said (at 356):
"Thus, at common law, according to Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
I am satisfied that the authorities establish that something more than mere illogicality needs to have taken place in order to find jurisdictional error.
In ground one, the applicant also asserts that the Tribunal failed to fully and properly appreciate the interstate flight principle. I believe that the applicant misunderstands the Tribunal rejected the applicant’s claims on the basis of an adverse credibility finding. That finding was open to the Tribunal on the evidence that had been placed before it and the Tribunal has clearly articulated the reasons for its findings in the decision record. In those circumstances, the obligation to consider the interstate flight principle would not arise. I am satisfied that ground one cannot be sustained and should be dismissed.
Ground two
2. At the hearing I was denied the opportunity to explain fully why it was that the I believed that the harm arose as a result of selective harassment and my imputed European appearance.
This claim is made in the absence of particulars or a copy of the transcript of the Tribunal hearing. The only material before the Court is the Tribunal decision which contains the following information:
The applicant appeared before the Tribunal on 5 July 2007 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in Tamil and English language. The applicant’s oral evidence is summarised below.
The applicant confirmed her understanding of the interpreter. (CB 374.7)
I acknowledge the difficulties the applicant faces in being unable to speak English or understand the Court system in which she appears as a self-represented litigant. The applicant did have the services of a competent Tamil interpreter and she confirmed with the Tribunal that there was no difficulty in using this communication method. However, the applicant has an obligation to make out her own case: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at [596] per Kirby J. The relevant facts pertaining to the application need to be supplied by her in as much detail as necessary for her to establish the facts.
In the absence of a hearing transcript or evidence of a complaint made to the Tribunal during or immediately after the hearing, it is not now open to the applicant to complain that other facts were not taken into account. She was not given an adequate opportunity to raise these during the hearing. The ground cannot be sustained and should be dismissed.
Ground three
3. The Tribunal failed to take a relevant consideration the constant harassment continued for many years and that I was always a target of Malaysian Authorities because of my appearance. These were indicative of the fact that I was a target of Malaysian society that motivated persistent harassment and torture.
Contrary to this ground, the Tribunal did take into account the applicant’s claim to have been harassed for many years and to have been targeted by Malaysian authorities on the basis of her appearance. The Tribunal addressed this issue in its “Findings and Reasons”:
(i) …the basis of the applicant’s claims relate to her appearance and perception that in Malaysian society she is viewed as being totally white skinned and of European appearance. The Tribunal does not accept that the applicant is perceived as such in Malaysian society… The Tribunal considers that the applicant would be perceived as being of mixed race appearance being white and ethnically Indian, in Malaysian society. The Tribunal does not accept that the applicant is perceived as a totally white skinned person of European appearance in Malaysian society. (CB 386.5)
(ii) The Tribunal has considered the applicant’s claim that she was considered suspiciously by the Malaysian societies because she had an Australian citizen son. The Tribunal does not accept that it is credible that such a person would have an adverse profile in Malaysian society and does not accept that the applicant would be viewed adversely or would have a profile that would attract an interest of the authorities or any other person for that reason. (CB 389.6)
(iii) While the Tribunal accepts the documentary evidence provided by the applicant that there were bombings in some churches and an increase in worldwide tension and Muslim extremists, the Tribunal does not accept that it is credible that this resulted in the applicant, a woman in her fifties, becoming the target of the sustained and severe physical harassment and targeted as she claims. The Tribunal does not accept that the applicant is facing charges in Malaysia for hindering the police and does not accept that she was subject to any of the attacks that she claimed occurred in 2001, 2002, 2003, 2004 and 2005 or that she was involved in any incident of communal violence either in the recent years or in the 1980’s or 1960’s. (CB 390.2)
After considering the evidence above, the Tribunal came to the following conclusion:
Having considered all of the evidence, the Tribunal does not accept the applicant’s claim that she was harmed in the past in Malaysia by extremist Muslims, Muslims in general, the Malaysian police and the Malaysian government for reasons of her race, nationality, particular social group or any other Convention reasons. (CB 390.9)
On a re-reading of the entire Tribunal decision, I am satisfied that this ground of review is misconceived as the Tribunal took considerable effort in recording and explaining its findings in respect of this claim. I am satisfied that this ground should be rejected.
Ground four
4. The Tribunal misapplied the test or alternatively misinformed the applicant about the test.
As with all the claims made in this application, this ground is without particulars, affidavit evidence or written or oral submissions. The “test” which is the subject of this complaint has not been articulated. I accept Ms McWilliam’s submissions that before the Tribunal is obliged to consider the legal principles applicable to the applicant’s circumstances, the applicant faces the preliminary hurdle of convincing the Tribunal that she is telling the truth. She did not overcome this hurdle and, as such, there is no obligation on the Tribunal to apply a particular legal test. This ground is misconceived and should be dismissed.
Ground five
5. The Tribunal member failed to give proper and adequate reasons which she was required by the Act to do, and, therefore the Tribunal failed to exercise its jurisdictions.
This ground also does particularise or specify what the Tribunal failed to record in its decision. The basis of the Tribunal’s findings is that the Tribunal did not accept the truth of the applicant’s claims and those are briefly summarised at [14] above. On a fair reading of the decision record, there is nothing to suggest that the reasons given by the Tribunal were inadequate. To the contrary, the decision contains a detailed record of the material and evidence given by the applicant to the delegate and both Tribunals. This was set out coherently and there is no evidence to suggest that material has been omitted. The conclusions drawn from that material are explained and it is readily apparent that the Tribunal did not accept the truth of the applicant’s claims. In the circumstances, this ground should be dismissed.
Ground six
6. The Tribunal erred in failing to consider all claims and issues put forward by the applicant.
The only information before the Court is the Court Book and the decision record. The applicant’s claims are contained in her statutory declarations of 7 June 2005 and 21 June 2007 (CB 32-37, 274-278). The decision records that access was provided to the hearing tapes of the originally constituted Tribunal and reviewed by the second Tribunal. The content of the hearing tapes are summarised in the decision record. The evidence the applicant provided at the second Tribunal hearing is similarly summarised under a separate heading.
No particulars have been provided as to the nature of the claim or issue which the applicant asserts the Tribunal ignored. Nor does she indicate whether the material she alleges was overlooked could have affected the outcome of the case in circumstances where there was such a comprehensive adverse credibility finding. This ground is meaningless in the terms it is put and should be dismissed.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Tamil interpreter. She was provided the opportunity to take part in the panel advice scheme to obtain assistance with her application. The applicant was also given the opportunity to file an amended application fully particularising the grounds of review but this was not pursued. The application to the Court consists of six un-particularised grounds of review expressed in very broad and unspecific terms. This appears to have been prepared by a third party with limited understanding of what is required in judicial review. The applicant acknowledged that she is illiterate and cannot communicate in English. The assistance of the unknown third party has not been of any real practical assistance to the applicant and is only vaguely relevant to the Tribunal decision.
Ms McWilliam assisted with written and oral submissions in respect of the application. I am satisfied that all the issues identified in the application have been satisfactorily addressed by Ms McWilliam’s submissions. This imposed an obligation on the Court to independently consider whether any argument based on the material contained in the Court Book or the decision record can support a claim of jurisdictional error. On a fair reading of that material, it is not apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision-making process. The substantial finding of the Tribunal was based on the applicant’s credibility and these reasons are clearly set out in the decision record. 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 the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 6 March 2008
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