SZHZN v Minister for Immigration

[2006] FMCA 417

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZN v MINISTER FOR IMMIGRATION [2006] FMCA 417

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.65(1) & 424A

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 225
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595
Abebe v The Commonwealth (1999) 197 CLR 510
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant: SZHZN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File number: SYG3860 of 2005

Judgment of: Barnes FM

Hearing date: 23 March 2006

Delivered at: Sydney

Delivered on: 23 March 2006

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr GT Johnson

Solicitors for the Respondent: Phillips Fox

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the amount of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3860 of 2005

SZHZN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 9 December 2005.  The applicant is a citizen of Peru who arrived in Australia in November 1997.  He applied for a protection visa on 28 October 2005.  The application was refused on 9 November 2005.  He sought review by the Tribunal on

   
   

   14 November 2005.  He was invited to and attended a Tribunal hearing on 7 December 2005. 

2. The applicant claimed to have been involved in politics as a member of and activist with the American Popular Revolutionary Alliance (APRA) and to have been persecuted in Peru by the former Fujimori government.  He claimed to fear being killed by activists of the Fujimori Party if he returned to Peru, because when Fujimori was in power the applicant had been involved in the APRA political movement against that government. 

3. According to the Tribunal reasons for decision, at the hearing the applicant claimed to have had physical and verbal confrontations with Fujimori activists.  He claimed that he had been politically active.  He printed APRA material cheaply, went to meetings and encouraged people to join and support the Party.  He claimed that Fujimori activists were looking for him when he left. 

4. The applicant also claimed to fear persecution in Peru by reason of his minority white race.  He claimed that his paternal family name was English and was uncommon.  He regarded himself as white and as part of a small minority in Peru. 

5. The Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa.  It set out the applicant's claims made in his protection visa application and at the hearing, noting that the protection visa application claims were repeated in written submissions provided by the applicant to the Tribunal and elaborated upon at the Tribunal hearing. 

6. The Tribunal referred to the very general claims of past persecution made by the applicant in his protection visa application but stated:

   “leaving aside the vagueness of the written claims and the emergence only at the hearing of any detail about his claimed activities and actual experiences the Tribunal does not accept that the applicant was an APRA activist because he knew very little of substance, or that was correct, about APRA.” 

7. The Tribunal detailed areas of concern in this respect arising from the evidence given by the applicant at the Tribunal hearing, in particular in relation to the extent of his knowledge about leadership and times of change of leadership in relation to APRA. 

8. The Tribunal recorded that when such concerns were put to the applicant in the hearing he claimed “that he has not followed developments there”.  The Tribunal did not accept this as a plausible explanation for why the applicant got what it described as ‘basic facts’ so wrong.  It found the fact that the applicant had not followed developments in Peru to be consistent with its finding that he was not an APRA activist.  This finding was said to be based on the Tribunal’s finding that many of the claims the applicant made about APRA were not supported by independent country information.  The Tribunal gave examples, detailing independent country information contrary to the applicant's claims that APRA was instrumental in Fujimori's downfall and that because of this Fujimori's supporters tried to kill APRA people to take revenge.  It found no independent country information to support the applicant's assertion that APRA members, supporters or activists were or are persecuted in recent years by anyone, including Fujimori's party, its supporters or activists. 

9. As the Tribunal did not accept that the applicant was an APRA activist, it did not accept that he had had confrontations with Fujimori Party activists and supporters or that they were looking for him before he left Peru or that he would be targeted by such groups or persons on return to Peru for reasons associated with his political opinions or activities. 

10. The Tribunal went on to say that even if the applicant was an APRA member, activist or supporter or became such a person on return to Peru, it was not satisfied that his fear of persecution from Fujimori Party activists, members or supporters was well founded within the meaning of the Refugees Convention: 

    “because of the passage of many years since the applicant claimed to have been such a person and because the Applicant did not submit, nor has the Tribunal been able to locate, any independent country information to suggest that such persons are persecuted, or have been persecuted in recent years, by Fujimori Party or its activists, members or supporters.” 

11. The Tribunal was not satisfied that the applicant had suffered or would suffer discrimination serious enough to amount to persecution for reason of his minority white race in Peru.  It had regard to evidence about the applicant’s education, profession and employment and the fact that he had back-tracked to some extent in his evidence in this respect, indicating in the hearing that his ‘white’ race was not really a problem.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reasons related to his ‘white’ race if he returned to Peru.  It was not satisfied that he was a person to whom Australia had protection obligations. 

12. The applicant sought review in this court by application filed on
    29 December 2005. The application relies on general and unparticularised grounds as discussed below.  He also filed a document headed ‘Affidavit’ on 16 March 2006 which canvasses possible grounds of review.  I have considered the matters raised in each of the documents filed by the applicant as grounds and also as submissions as well as the matters raised today in the applicant’s oral submissions. 

13. Dealing first with the grounds in the application, it was contended generally that the Tribunal failed to apply the correct test and failed to constructively exercise its jurisdiction, made an error of law, made a decision that was manifestly unjust and failed to address a central issue raised by the applicant in that it did not consider whether the applicant had a well-founded fear of persecution if he were to return to Peru by reason of “either his membership of political opinion’.  I take it that this is intended to state by reason of either his membership of a particular social group or by reason of his political opinion.   

14. Such a generally expressed ground does not establish a jurisdictional error.  In particular, it has not been established that the Tribunal failed to address the issue of whether the applicant had a well founded fear of persecution on either of the bases raised by him.  It considered his claims based on political opinion and involvement with APRA.  In addition to rejecting his claim that he was an APRA activist as claimed, it went on to consider the future on the basis that he was an APRA member, activist, or supporter or would become such a person on return to Peru.  However it found, for reasons which it gave, that it was not satisfied that the applicant’s fear of future persecution was well founded within the meaning of the Convention. It also considered the claim in relation to the applicant’s race.  It addressed not only claims of past harm but also the possibility of future persecution. 

15. Ultimately the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa.  As the Full Court of the Federal Court stated in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 225 at [15] s.65(1) of the Migration Act 1958 (Cth) (the Act) does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied.

16. The other ground in the application is that the Tribunal breached the requirements of procedural fairness “in assuming that the applicant could have no well-founded fear of persecution” and that the Tribunal failed to take into account that the applicant's fear of persecution may be well-founded even though the possibility of that persecution occurring may be of a “substantially low percentage”. 

17. This ground does not identify any procedures of the Tribunal with which the applicant takes issue, whether expressed in terms of procedural fairness or otherwise.  No lack of procedural fairness is established.  It is asserted that the Tribunal did not understand or apply the correct test in relation to well-founded fear of persecution.  However the Tribunal set out the correct test out in the template introduction to its reasons for decision and there is nothing in its reasons for decision to indicate that it misunderstood or misapplied the test.  In particular, there is nothing to establish that it simply assumed that the applicant could have no well-founded fear of persecution.  Rather it considered, but did not accept, his claims to have been an APRA activist and to fear persecution on return to Peru on that basis.  Nonetheless it also considered whether he had a well-founded fear on the basis that he was such a member, activist or supporter or became such a member, activist or supporter.  In that context it had regard not only to the passage of time since the applicant claimed to have been such a member or activist, but also to the absence of any independent country information that APRA members, activists or supporters are or have been persecuted in recent times.  No jurisdictional error is established on this basis. 

18. The applicant's affidavit repeats and elaborates upon some of his claims.  The first two paragraphs repeat the general assertion of jurisdictional error in ground 1 of the application.  As I have indicated it is not established or apparent that an incorrect test was applied by the Tribunal.  It considered the applicant's claims. 

19. Further, insofar as the affidavit refers expressly to a claim by reason of membership of a particular social group, it is apparent on the material before the court that the Tribunal dealt with the full extent of the applicant's claims as put before it.  There is no suggestion of identification of some relevant particular social group to which the applicant claimed to belong other than the claims based on his ‘white’ race and political opinion.  If he seeks to characterise either aspect of his claim relating to APRA involvement and assistance or his ‘whiteness’, in terms of particular social group, those claims were dealt with by the Tribunal.  No jurisdictional error is established in the Tribunal's approach or reasons in this respect. 

20. The Tribunal did not accept, for the reasons which it gave, that the applicant faced a real chance of persecution, even as an APRA member or activist or supporter or as a member of a minority white race.  Its findings in that respect were findings of fact, being matters for the Tribunal, which were open to it on the material before it.

21. The third paragraph of the affidavit states that a Senate Committee has recommended the introduction of ‘a complementary protection visa’.  However this statement does not go towards establishing jurisdictional error on the part of the Tribunal.  As I indicated to the applicant the court's role in these proceedings is limited to a consideration of whether the Tribunal has fallen into jurisdictional error.

22. The fourth paragraph repeats the last ground in the application with the addition of a suggestion that the Tribunal failed to take into account that a fear may be well founded not only if it is a low risk but also if it is a low risk in respect to the applicant's human rights if he returns to Peru.  It is submitted that the alleged failure of the Tribunal (in making an assumption that the applicant could have no well founded fear of persecution and its failure to appreciate that a low risk of persecution would suffice) should be a clear indication to the court that the Tribunal accepted that the applicant had reasonable grounds to be granted a protection visa. 

23. The precise nature of this contention is not entirely clear.  As indicated, it has not been established that the Tribunal failed to state or apply the test of well-founded fear of persecution correctly.  Insofar as there is an assertion of unreasonableness (which is picked up in a later paragraph of the affidavit), it has not been established that the Tribunal decision was unreasonable in a manner indicating that it fell into jurisdictional error or indeed at all.  Nor has any want of logic, either of itself or constituting jurisdictional error, been established.  See VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at 18 to 22. While Allsop J pointed out in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [131] to [137] that the precise extent of the role of factual error, want of logic and irrationality in the reaching of factual conclusions and a state of satisfaction is not entirely clear, it is not necessary to consider this issue further, as no unreasonableness or lack of logic is apparent on the material before the court. It has not been established that the decision is unreasonable in the sense that it indicates that the wrong test has been applied or in any other manner. The applicant seeks merits review which is not available in this court.

24. Paragraph 5 of the affidavit contends that the Tribunal failed in asking itself whether it was “satisfied that the applicant would be harmed” for the reasons he claimed if he returned to Peru and that the Tribunal failed to appreciate and realise the applicant's claims regarding “unofficial persecution”.  There is nothing in the Tribunal reasons for decision to support the contention that the Tribunal failed to appreciate and realise the applicant's claims in relation to the nature or source of the persecution feared, whether from official or unofficial sources.  It dealt with the applicant's claims as put in relation to both his political opinion and minority white race.  No error is established in the manner in which the Tribunal addressed the future. 

25. Paragraph 6 states that the Tribunal erred “in establishing the notion that relocation within Peru would be a possible and/or practical option for the applicant.”  There is nothing in the Tribunal reasoning that depends on the application of the principles of relocation. 

26. Paragraph 7 is an exhortation that the court remind the Department and the Tribunal of a warning of the High Court (which the applicant claimed was made in relation to government obligations with respect to international agreements.)  However, this paragraph does not assert or establish a jurisdictional error on the part of the Tribunal.

27. Paragraph 8 raises the contention of unreasonableness that I have discussed above.  Paragraph 9 asserts generally an error in the Tribunal's conclusion. Neither establishes jurisdictional error, but seeks merits review. 

28. In oral submissions the applicant took issue with aspects of the Tribunal procedures and the conduct of the Tribunal hearing.  In particular, he claimed that he had not had the opportunity to prepare and that he had not obtained enough information because he had been in Australia for more than eight years and did not read Spanish language newspapers or information.  There is no transcript of the Tribunal hearing before the court.  There is nothing to indicate that the applicant made any application for an adjournment of the Tribunal hearing or that he was not given an opportunity in the hearing to present his case.

29. Insofar as his contention relates to the Tribunal concerns about the extent of his knowledge of past events in Peru involving APRA, the Tribunal did take into account the fact that at the Tribunal hearing he knew very little of substance or that was correct about APRA. It also took into account his claim that he had not followed developments there, but did not accept this as a plausible explanation for why he got basic facts so wrong.  It found the fact that the applicant had not followed developments in Peru to be consistent with its finding that he was not an APRA activist.   There was no obligation on the Tribunal to allow the applicant further time to inform himself as to events in Peru.  It was open to the Tribunal, as the forum of fact, to determine whether or not to accept the applicant's explanation for his lack of knowledge and to have regard to whether the applicant, who claimed to be an APRA activist, had in the time he had been in Australia, followed events in Peru. 

30. The applicant takes issue with the time available to him to present his case and the Tribunal reliance, in part, on the absence of independent country information from him supporting his claims.  This does not establish jurisdictional error on the part of the Tribunal.  It is for the applicant to advance his own case and to put forward the information and materials on which he relies in support of his claims.  Moreover, as Justice Hely stated in SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [36], the Tribunal is not required to accept a claim merely because positive evidence to the contrary is absent. Also see generally Abebe v The Commonwealth (1999) 197 CLR 510, per Gummow and Hayne JJ at 187.

31. It seems that the applicant also takes issue with the short time between his original application for a protection visa and the ultimate decision from the Tribunal. In that respect I note that the application for a protection visa appears to have been made at a time when the applicant was in detention.  There is nothing to indicate that the Tribunal failed to comply with the notification requirements of the Migration Act 1958.  Nor is there anything in the material before the court to indicate that the applicant sought further time or an opportunity to submit further country information in circumstances such as to give rise to any lack of procedural fairness, failure to comply with the procedures of the Migration Act 1958 or other jurisdictional error on the part of the Tribunal.

32. The applicant also takes issue with the fact that the Tribunal member asked him only a few questions in the Tribunal hearing.  As indicated, it is not for the Tribunal to make out the applicant's case.  The Tribunal is not obliged to prompt or stimulate an elaboration that is not offered by the applicant. 

1. For the sake of completeness, counsel for the respondent addressed the issue of whether any ground was raised or might be raised under s.424A of the Migration Act 1958 in light of the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. However it is apparent from the Tribunal reasons for decision that, insofar as it relied on what might be called shortcomings in the applicant's evidence, it was his evidence at the Tribunal hearing that was in issue. In any event the applicant's claims as presented in his protection visa application were repeated in the written submissions made by the applicant to the Tribunal. Hence such information was given to the Tribunal for the purposes of the application within s.424A(3)(b) and the s.424A(1) obligation did not arise.

2. The applicant also raised some issues in the hearing about his personal situation.  He took issue with the merits of the Tribunal decision in rejecting his claim to have a well-founded fear of persecution.  However this is not a rehearing.  His claims do not establish a jurisdictional error on the part of the Tribunal. 

3. As no jurisdictional error has been established the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The amount of $4,800 which is sought is appropriate in light of the nature of this and other similar matters.  

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  13 April 2006.