SZIED & Anor v Minister for Immigration & Anor
[2006] FMCA 1459
•9 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIED & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1459 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of Colombia claiming fear of persecution on the ground of imputed political opinion – relocation – where Tribunal found a well-founded fear of persecution for Convention reasons – whether Tribunal failed to take into account a relevant consideration – whether Tribunal was required to take into account the United Nations Convention on the Rights of the Child 1989 – whether Tribunal was required to treat the best interests of the applicants’ children as a primary consideration – whether the Tribunal’s decision was based on an unwarranted assumption or was irrational or illogical – whether the Tribunal’s decision was based on a finding for which there was no evidence – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal applied the wrong test for determining whether it was reasonable for the applicants to relocate within Colombia – whether the Tribunal failed to carry out the review in a bona fide manner – no jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91R, 422B
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 referred to.
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 referred to.
SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 referred to.
WAGO v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676; [2002] FCAFC 437 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v SELB [2004] HCA 32 referred to.
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 referred to.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to.
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 referred to.
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 31 Fam LR 339; FLC 93-174 followed.
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 followed
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 referred to.
| First Applicant: | SZIED |
| Second Applicant: | SZIEE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 230 of 2006 |
| Delivered on: | 9 October 2006 |
| Delivered at: | Sydney |
| Hearing date: | 25 August 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Turner |
| Counsel for the Respondent: | Ms Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of 7,000.00 and I will allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 230 of 2006
| SZIED |
First Applicant
| SZIEE |
Second 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 5th December 2005 after a hearing that took place on 25th November 2005.
The Refugee Review Tribunal handed down its decision on
20th December 2005. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the Applicants.
The Applicants seek writs of prohibition and certiorari, a declaration that the Tribunal decision is null and void, and an order in the nature of mandamus.
Background
The Applicants are citizens of Columbia. They are a husband and wife. The Applicants arrived in Australia on 22nd November 1997 and applied for Protection (Class AZ) visas on 13th January 1998.
A delegate of the Minister refused to grant protection visas on
16th February 1998.
According to the Tribunal decision, the Applicants were notified of the delegate’s decision on 16th September 2005. They applied for review of that decision on 26th September 2005. The Applicants have had a child since their arrival in Australia and the Tribunal noted that the wife was pregnant again when the decision was made. The application for review only concerns the parents.
Application for Review by the Refugee Review Tribunal
The Applicants applied to the Refugee Review Tribunal on
26th September 2005 and authorised their migration agent to act for them. They nominated the agent as their authorised recipient of correspondence.
The Tribunal invited the applicants to attend a hearing on
25th November 2005. They attended the hearing with their migration agent, Ms Ramos. The agent forwarded an eight page submission to the Tribunal on 23rd November, along with a number of other documents, including printouts of news items obtained from the Internet.
On 29th November 2005, Ms Ramos forwarded a further submission, a letter from the Applicants and some documents in Spanish and their English translations to the Tribunal.
Both Applicants gave evidence at the Tribunal hearing, although only the Applicant Husband had made specific claims under the Refugees Convention. The Applicant Wife relied on being a member of her husband’s family. The Applicants provided their Colombian passports to the Tribunal.
The Applicants told the Tribunal of managing the husband’s father’s farm in Colombia and being targeted for “protection money” or illegal taxes by a group called the Ejercito Popular do Liberacion (EPL). The Applicant Husband fears that if he returns to Colombia he will be harmed by the EPL because he did not pay the illegal taxes and because the EPL fear that he will go to the Federal authorities. He told the Tribunal that the Colombian government cannot protect him because they do not have enough police officers.
The Tribunal raised the question of relocation within Colombia with the Applicant, noting that the EPL had few members. The Applicant said that if he returned to Colombia he would have to go back to the farm and grow coffee. He would not be able to stay away and leave the farm abandoned.[1]
[1] See Court Book at 169
The Tribunal consulted a range of independent country information about the EPL.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 174 through to 178 of the Court Book. The Tribunal accepted that the Applicants are nationals of Columbia, having seen their passports.
The Tribunal in this case did accept that the First Applicant had a well-founded fear of persecution in Columbia. The Tribunal made this finding:
In my view, it is possible that the EPL could target the applicant[2] if he returned to Colombia and lived on his farm. The independent evidence before me indicates that a small EPL group continues to operate. I accept that if the EPL did target the applicant, he could face harm serious enough to amount to persecution within the meaning of s.91R (1) of the Act. In my view, if the EPL targeted the applicant, this would not be because of his involvement with the Liberal Party, but because he had refused to pay money to the organisation. At first glance, the applicant’s fear of persecution does not appear to be Convention related. However, in my view, given the history of violence committed by armed groups in Colombia, it is possible that an armed group such as the EPL would regard a refusal to pay a “war tax” as the expression of a political opinion. In these circumstances, I am satisfied that the applicant has a well-founded fear of persecution essentially and significantly for the reasons of the political opinion that would be imputed to him by the EPL if he returned to his farm and refused to pay the war tax.[3]
[2] Meaning the First Applicant, the husband
[3] Court Book 175-176
The Tribunal then went to consider whether it was reasonable to expect the Applicants to relocate within Colombia. The Tribunal did not accept the First Applicant’s claim that he would feel compelled to go back and work the farm if he were to return to Colombia. The Tribunal noted that he had lived in Australia for eight years and had not lived or worked on a farm in that period, rather he had worked in construction and in cleaning. The Second Applicant, the wife, was qualified as a beauty therapist, an occupation that could be pursued in a city.
The Tribunal made these findings:
·If the parties returned to Colombia, they could settle in a city such as Bogotá or travel to some other area without first going to the farm.
·Whilst the wife was undergoing complications with her pregnancy, the evidence did not suggest that those complications meant that returning to Colombia and living in a city such as Bogotá would be unreasonable.
·It was reasonable to assume that services such as medical care and educational facilities would be better in a large city than in a rural area.
·The Applicants could genuinely access meaningful domestic protection by relocating within Colombia.[4]
[4] Court Book 177
The Tribunal also noted that the Applicant wife’s pregnancy and consequent health problems may well give rise to humanitarian considerations, but that is not something that the Tribunal could take into account.
The Tribunal was not satisfied that the First Applicant was a person to whom Australia had protection obligations under the Refugees Convention and Protocol. He therefore did not satisfy the criterion set out in s.36(2) of the Act. As the wife had made no specific Convention claims, it followed that she could not be grated a protection visa, either.
Application for Judicial Review
By their Further Amended Application filed on 26th April 2006, the Applicants claim relief on the following grounds:
i)The Tribunal failed to take account of relevant material.
ii)The Tribunal’s decision was based upon an unwarranted assumption and/or was irrational and/or illogical.
iii)The Tribunal’s decision was based in part on a finding for which there was no evidence.
iv)The Tribunal denied the Applicants procedural fairness.
v)The Tribunal applied the wrong test.
vi)The Tribunal failed to carry out its review in a bona fide manner.
Submissions
As to the first ground, failure to take into account relevant material, the Applicants’ solicitor, Mr Turner, submitted that the Tribunal failed to take account of:
i)the humanitarian considerations found by the Tribunal;
ii)the location of the applicants’ family and family ties[5]; and
iii)the actual level of protection available in Colombia[6].
[5] This submission was not pressed.
[6] This submission was not pressed.
Mr Turner submitted that the Tribunal is required to take into account all relevant material, referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30[7], and Craig v State of South Australia [1995] HCA 58[8]. He also referred to the United Nations Convention on the Rights of the Child 1989 and submitted that in all cases involving children an administrative decision maker must take account of the best interests of any child connected with the application as a primary consideration. He submitted that the Tribunal had failed to take account of the Applicants’ child or their unborn child in considering whether it was reasonable for the Applicants to relocate to another part of Colombia.
[7] (2001) 206 CLR 323
[8] (1995) 184 CLR 163
The second ground is that the Tribunal’s decision was based on an unwarranted assumption and/or was irrational and/or illogical.
Mr Turner submitted that there was no basis either in evidence or in logic for the Tribunal’s finding at Court Book p.176:
In my view it is inherently unlikely that the applicant’s location would be divulged to the EPL.
He submitted that it was likely that the Applicants’ families would know of their return to Colombia and there can be no presumption that a terrorist organisation could not extract information from those who could be expected to know it. Mr Turner referred the court to the decision of the Full Court of the Federal Court in WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437[9] at [51] and [54] and the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SELB [2004] HCA 32 at [38].
[9] (2002) 194 ALR 676
As to the third ground, that the Tribunal’s decision was based (in part) on a finding for which there was no evidence, the Applicants’ solicitor submits that there is no basis in evidence for the Tribunal’s finding that:
Indeed, it is reasonable to assume that services such as medical care and educational facilities would be better in a large city then in a rural area.[10]
[10] Court Book at 177
He submitted that there was no evidence on which to base such an assumption which can also be seen as a further unwarranted assumption.
The Applicants’ fourth ground, claiming a denial of procedural fairness, was not the subject of any separate submission.
The particulars of the ground are that the Tribunal failed to treat the Applicants’ children as a primary consideration and failed to advise the Applicants that it intended to do so.
The Applicants’ fifth ground claims that the Tribunal applied the wrong test. The particulars of the ground are that the Tribunal, in considering the issue of relocation, only considered whether the issue of whether effective state protection was available in other parts of Colombia rather than whether it was reasonable for the Applicants and their children to relocate to another part of Colombia.
In particular, it is submitted that the Tribunal considered the issue of employment but did not consider all matters particular to the Applicants that go to the question of reasonable relocation. Mr Turner referred the court to the decision in SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 at [56].
The Applicants’ sixth ground is that the Tribunal failed to carry out its review in a bona fide manner. The Applicants’ solicitor submitted that the Tribunal based its decision on the situation in Colombia generally, but declined to take account of evidence of the general situation when it was offered by the Applicants.
The Applicants also submit that the First Applicant, in his evidence to the Tribunal, stressed his strong link to the farm back in Colombia, but the Tribunal dismissed this claim because the Applicant had lived and worked in Australia for eight years in a non-farm environment.
The Applicants submit that this finding ignores the strength of feeling expressed by the First Applicant in relation to his farm.
The solicitor for the Applicant referred the court to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553[11] at 559, where the test for a bona fide hearing is set out.
[11] also [2003] FCAFC 126
Counsel for the First Respondent Minister, Ms Wong, submitted that the Tribunal did take the Applicant wife’s pregnancy into account when determining whether it was reasonable for the Applicants to relocate within Colombia. The Tribunal also considered the actual level of protection available in Colombia.
As to the Applicants’ claim of a lack of logic or making an unwarranted assumption, Ms Wong submitted that the Tribunal reached its conclusion on the basis of sound reasoning process.
The Applicants’ arguments are no more than an attempt to substitute one logical chain of reasoning for another, which amounts to a request for merits review. Merits review is outside the jurisdiction of the court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
As to the Applicants’ third ground, counsel for the Minister submitted that the Refugee Review Tribunal, like any other fact-finding authority, is entitled to make assumptions or draw inferences from the evidence, and take the equivalent of ‘judicial notice’ of facts that are within common knowledge. She submitted that the decision in WAGO v Minister for Immigration and Multicultural and Indigenous Affairs (supra) should be distinguished.
As to the Applicant’s claim in ground 4 of denial of procedural fairness, Ms Wong submitted that the Tribunal was not obliged to treat the interests of the Applicants’ children as a primary consideration.
Counsel for the First Respondent submitted that the Tribunal did not apply the incorrect test when determining that it was reasonable for the Applicants to relocate within Colombia, as the Applicants submit in their fifth ground. She submitted that the Tribunal considered a wide range of relevant factors and correctly applied the principles regarding relocation stated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. She also submitted that the Applicants have failed to demonstrate a lack of good faith on the part of the Tribunal or prejudgment of the issues to be decided.
Conclusions
This is a case that is solely about the finding by the Tribunal that it was reasonable for the Applicants to relocate within Colombia.
The Tribunal had found that the First Applicant had a well-founded fear of persecution for the Convention reason of imputed political opinion.
In my view, the Tribunal considered the principles for relocation set out in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (supra).
As to the Applicants’ first ground, I am not persuaded that the Tribunal failed to take into account all relevant material. The Tribunal considered the following relevant factors when deciding that it was reasonable to relocate within Colombia:
·The First Applicant had worked in the construction and cleaning fields, which could apply in a large city such as Bogotá.
·The Second Applicant was beauty therapist by occupation, a field of employment that she could follow in a city.
·The Applicant could continue his political party membership without fear of persecution.
·The Applicants would not face persecution in another part of Colombia, as the EPL were comparatively few in number and their activities did not extend to the cities.
·There were no financial or other barriers to the Applicants living in Bogotá without having to go to the farm first.
·The complications of the wife’s pregnancy would not make it unreasonable to return to Colombia and live in Bogotá.
·The fact that the Applicants were parents did not make it unreasonable to relocate.
·The Applicants could obtain meaningful protection within Colombia.
The UN Convention on the Rights of the Child does not form part of the domestic law of Australia. Australia’s treaty obligations do not form part of Australian domestic law unless incorporated by statute. The Convention was not incorporated into the domestic law under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) even though it is a “declared instrument” under that Act (see Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 31 Fam LR 339; FLC 93-174 per Callinan J at [220]).
It follows that the Tribunal was not required to take account of the best interests of the Applicants’ then child or the child en ventre sa mere when making the decision. This ground fails.
I am not persuaded that the Tribunal decision was based on an irrational assumption or was irrational or illogical. The Tribunal’s reasoning was based on the evidence and the conclusion reached was open on that evidence. The Applicants’ argument is, to my mind, no more than a challenge to the Tribunal’s factual finding. Merits review is not available in proceedings for judicial review. In any event, lack of logic per se does not indicate jurisdictional error. This ground must fail.
The Applicant’s third ground claims that the Tribunal made a finding which was unsupported by evidence. In my view, the Tribunal is entitled to draw conclusions of the sort that it did, namely that it is reasonable to assume that services such as medical care and educational facilities would be better in a large city than in a rural area. This is no more than a “common sense” finding, and it is not necessary for the Tribunal to be required to have specific evidence of facts that are within common knowledge. This ground fails.
For the reasons given in [40] and [41] above, the Tribunal was not required to treat the best interests of the Applicants’ children as a primary consideration. As to a claimed failure to provide procedural fairness, this application was commenced after the commencement of s.422B of the Migration Act. In SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [6] – [8], the Full Court of the Federal Court has held that s.422B of the Act excludes the common law natural justice hearing rule.
The Applicants’ fourth ground fails.
The Applicants’ fifth ground claims that the Tribunal applied the wrong test when considering whether it was reasonable for the Applicants to relocate within Colombia. For the reasons I have given in [38] and [39] above, I am satisfied that the Tribunal correctly applied the test in Randhawa and considered the relevant factors. This ground fails.
The Sixth ground claims that the Tribunal failed to carry out its review in a bona fide manner. This must be considered in the context that the Tribunal was satisfied that the First Applicant had a well-founded fear of persecution in Colombia. The Tribunal, in my view, did consider the situation in Colombia, and the Applicants’ migration agent was able to submit more information to the Tribunal after the hearing. There is no evidence that the Tribunal did not consider that material, as the Tribunal makes it clear at Court Book 171 that the Tribunal did consider the documents provided by the Applicants:
In addition to material submitted by the applicant, I have considered a range of information concerning the situation in Colombia.
The Applicants’ claim that the Tribunal ignored “the strength of feeling expressed by the First Applicant in relation to his farm”[12] is to my mind no more than a challenge to the Tribunal’s factual findings.
The Tribunal considered this aspect of the evidence at Court Book 176.
[12] Applicant’s Outline of Submissions at [21]
This ground, too, fails.
No jurisdictional error has been made out. The decision is a privative clause as defined in s.474(2) of the Act. Consequently, the decision is not subject to certiorari, declaration, mandamus, prohibition or injunction.
The application will be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 4 October 2006
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