SZILY v Minister for Immigration
[2006] FMCA 1498
•9 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1498 |
| 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 – applicant is a citizen of Algeria claiming fear of persecution on the grounds of religion, race, political opinion and membership of a particular social group – whether Tribunal made a decision based on a jurisdictional fact for which there was no evidence – jurisdictional fact – a jurisdictional fact is one that mandates a particular outcome – the legislation makes a fact a jurisdictional fact because it is the legislation that defines the jurisdiction of the decision maker – no jurisdictional error. PRACTICE & PROCEDURE – Notice of Address for Service – parties should file a Notice of Address for Service – Notice of Appearance does not apply in the Federal Magistrates Court. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001, r.6.01
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 followed.
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 referred to.
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 referred to.
Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135 followed.
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 referred to.
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 referred to.
Commissioner of Taxation v Asiamet Resources (No.1) (2004) 137 FCR 146 referred to.
| Applicant: | SZILY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 702 of 2006 |
| Delivered on: | 9 October 2006 |
| Delivered at: | Sydney |
| Hearing date: | 11 September 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is 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 702 of 2006
| SZILY |
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 made on 31st January and handed down on 21st February 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant seeks writs of certiorari, mandamus and prohibition.
Background
The Applicant is a citizen of Algeria who arrived in Australia on
12th July 2005. He applied for a Protection (Class XA) visa on
11th August 2005 but it was refused on 7th September that year. He then applied for review of that decision.
Application for RRT review
The Applicant lodged his application for review on 15th September 2005. He did not submit any other material with his application.
The Tribunal invited the Applicant to attend a hearing on Thursday
17th November 2005. He attended the hearing and gave evidence with the assistance of an interpreter in the French language.
On 29th November 2005 a firm of solicitors, James A. Moustacos & Co. sent a facsimile message to the Tribunal asking for additional time for the Applicant to provide more information to the Tribunal.
The Tribunal replied by facsimile the next day asking that the Applicant should present any additional material by the next day, saying that the Member expected to review all the material before him by the end of the following week.
On 2nd December 2005 Ms Kathryn Viegas, solicitor, from Advocate Immigration Lawyers, sent a facsimile message to the Tribunal, advising that the Applicant had been referred to her and asked for permission to provide further written submission no later than
16th December 2005. The Tribunal replied on 5th December, asking her to submit any relevant material on or before 9th December 2005.
The Tribunal also provided a draft summary of the Applicant’s written claims and oral evidence that had been submitted to the Tribunal.
On 9th December 2005, Ms Viegas submitted by hand a detailed written submission that included photographs taken by the Applicant and other documents, including a certified copy of a refusal letter for a French visa dated 12th December 2004. A copy of the submission appears at pages 97 to 139 of the Court Book.
The Applicant’s solicitor then forwarded a facsimile message to the Tribunal on 12th January 2006, explaining that the Applicant had consulted a psychiatrist at the Prince of Wales Hospital and had made arrangements to see a counsellor.
The Tribunal handed down its decision on 21st February 2006.
The decision appears at pages 157 to 185 of the Court Book.
The Tribunal considered the Applicant’s claim that he is a Berber and that Berbers in Algeria suffer discrimination because they are not Arabs and they are not Muslims. He described being beaten and terrorised by Arab Muslim “terrorists” who killed two of his friends. He had obtained a passport and tried on three occasions to obtain a visa to enter France, but was refused.
He also told the Tribunal how he had been detained and mistreated by the authorities, including being beaten, spat at and threatened with weapons. The Applicant told the Tribunal that he had been involved with a Berber cultural group, and had been questioned by the authorities about it. The Applicant also said he had been involved with a movement called Laruc.
The Tribunal consulted independent evidence, including the Kabylia region of Algeria, from where the Applicant came. The Tribunal did not find sources to indicate that Algerian authorities discriminate against Berbers generally such as to amount to persecution, some sources suggested that the security forces and police continued to ill-treat Kabyles (Berbers from Kabylia).
The independent information also showed that Islamic fundamentalists were in retreat but continued to target moderate Muslims or non-Muslims, including Berbers. The Tribunal also noted reports that showed that there had been no known cases of former asylum seekers who were maltreated or tortured on their return to Algeria. The sources did indicate a risk of detention and interrogation if the persons’ documentation did indicate that they had sought asylum abroad.
The Tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 174 to 186 of the Court Book. The Tribunal accepted that the Applicant holds Algerian nationality.
The Tribunal accepted that the Applicant was a secular Berber from Kabylia and that he supports Berber political and cultural autonomy. The Tribunal noted that the Applicant moved from Kabylia to Algiers in December 2003, where he worked at a major international hotel until he left for Australia in 2005.
The Tribunal stated that the Applicant was reluctant to be drawn on issues such as his own political role, the incidents he was involved in and the political and security conditions in his own village.
The Applicant explained that he was “traumatised”.
The Tribunal made this finding:
The Tribunal was left with the impression that his oral evidence was rehearsed, and that the Applicant, expecting his oral assertions to be accepted without further ado, was ill-prepared for the Tribunal’s testing of his evidence. Absent expert opinion which establishes a link between the Applicant’s poor recall (on the incidents as well as broader conditions in his village) and the claimed experiences, the Tribunal finds that the Applicant’s largely vague and unsubstantiated oral evidence indicates that it is of dubious reliability.[1]
[1] Court Book at 176-177
The Tribunal then set out its assessment of the Applicant’s specific claims under the following headings:
Membership of Berber Groups
Past incidents to December 2003
Incidents after December 2003
Well-founded fear of persecution
Fact of refugee application
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for Convention reasons in Algeria and affirmed the decision not to grant a protection visa.
Application for judicial review
The Applicant commenced proceedings in this court on 8th March 2006. I granted leave to file in court a further amended application.
The Applicant relied on two grounds for relief:
Ground 1
The Tribunal committed jurisdictional error of law in that it relied on a fact that did not exist in arriving at its decision that it was not satisfied that the Applicant met the criterion to be granted a protection visa.
Ground 2
The Tribunal committed jurisdictional error in failing to consider whether the “general security problems” which existed in Algeria, and of which the Applicant was concerned, were Convention related.
The particulars of the first ground are that:
a)The Tribunal stated that there was no claim that the applicant took photographs which he submitted to the Tribunal in support of his assertion that he attended demonstrations and was otherwise prominent in them.
b)The applicant did in fact make a claim that he took the subject photographs. That claim was made through his solicitors and appears at page 108.9 of the Bundle of Relevant documents filed in these proceedings.
Submissions
Counsel for the Applicant, Mr Karp, submitted that the Tribunal’s finding that there was no claim that the Applicant took the photographs that appear at Court Book 116 to 133. The Tribunal, referring to the photographs, stated:
These photographs do not in the Tribunal’s opinion demonstrate the Tribunal’s presence; - he is not visible in the large crowds, and there is no additional information (such as a claim that he took the photographs or that his possession of them is somehow significant) to suggest that they show his presence or prominence.[2]
[2] Court Book at 178
Mr Karp submitted that this finding was clearly incorrect. It was a finding for which there was not only no evidence, but there was evidence to the contrary. He submitted that making a finding that affects the Tribunal’s ultimate conclusion without probative evidence is jurisdictional error, referring to SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [18] – [20]; Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50).
He went on to submit that a decision maker exceeds his or her jurisdiction if there is a complete lack of evidence to support a part of the process of reasoning that leads to an arrival at a state of satisfaction, and in fact there is evidence to the contrary. If that were not so a decision could be based on a fiction, in which case it could be said that the Applicant’s has not been addressed, or that such a decision is arbitrary, capricious or irrational (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59).
The finding for which there was no evidence was relevant to the Applicant’s profile – his level of political activism. Acting on the mistaken belief as to the provenance of the photographs, the Tribunal found that the Applicant was a mere participant in demonstrations, which led to a finding that the Tribunal was not satisfied that the Applicant was politically active, or would be considered as politically active. The Tribunal considered, however, that the Applicant would have had some prominence if he had been the photographer.
It is submitted that the Tribunal’s finding for which there was no evidence could have been pivotal to its decision, as the Tribunal’s finding that the Applicant was in fact the photographer may have raised the Applicant’s profile sufficiently for him to be considered an actual troublemaker and therefore likely to come to the unwelcome attention of the authorities or Islamic extremists.
The Applicant’s second ground is to the effect that the Tribunal failed to consider whether the “general security problems’ in Algeria were Convention-related. The particulars of this claim are:
a)The only “general security problems” to which the Tribunal adverted in its decision were caused by radical Islamists.
b)The only security problems to which the Tribunal adverted in its decision were those relating to Berber demonstrations and the reaction of the security forces thereto, and the targeting of Berbers, amongst others, By Islamic groups who wish to institute their version of Islam.
c)In these circumstances the Tribunal was obliged to consider whether the “general security problems” to which it referred were themselves Convention-related.
Counsel for the Applicant submitted that the second ground to the Tribunal’s observation that the applicant referred to “general security problems” in Algeria.[3] The Tribunal also accepts that if he returned to Algeria the Applicant would continue to make private visits to his home in Kabylia and may need to take some security precautions.[4]
The Tribunal was not satisfied that these proceedings would be necessary to avoid Convention-related persecution.
[3] Court Book at 182
[4] Court Book at 183
Counsel for the Applicant submits that the Tribunal’s references assume that there is “some serious non convention related danger that afflicts the unfortunate citizens of Algeria.”[5] He goes on to say that the security precautions that the Tribunal says the Applicant may wish to take are all in the context of his periodic return to Kabylia from Algiers. There was information before the Tribunal about violence including general unrest in Kabylia and that extremists target moderate Muslims and secular citizens (such as the Applicant). He submits that the information available shows that the danger to secular Berbers in Kabylia that can be identified from the Tribunal decision are Convention-related. As a result, he submits that the Tribunal either;
a)misunderstood the concepts inherent in “persecution for reason of …race, religion…”; or
b)failed to ask itself whether those general security concerns were Convention-related.
[5] Applicant’s Additional Submissions [4]
Counsel for the First Respondent Minister, Mr Lloyd, submitted that the Applicant’s first ground is that the Tribunal made a decision based on a jurisdictional fact for which there was no evidence.
The expression “jurisdictional fact” comes for the decision of the High Court in Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135 at [28]. A jurisdictional fact is one that “mandates a particular outcome”.
Mr Lloyd submitted that:
a)a finding that the Applicant had taken certain photographs does not mandate a particular outcome.
b)Jurisdictional facts can be identified from the legislative scheme. It is the legislation that makes a fact a jurisdictional fact because it is the Act that defines the jurisdiction of the decision maker. There is nothing in the Migration Act that makes the question whether or not the Applicant took certain photos a jurisdictional fact.
Mr Lloyd submitted that, to the extent that his submission about the nature of a jurisdictional fact is not consistent with the judgment in SFGB (supra), then the First Respondent formally submits that SFGB is wrongly decided. That submission will have to remain a mere formality in this court, because the decision in SFGB is a decision of the Full Court of the Federal Court is binding on the Federal Magistrates Court.
Mr Lloyd went on to submit that even if it were the case that facts not specified as jurisdictional facts by the legislation can nonetheless be jurisdictional facts in effect, not all factual errors by a decision maker will constitute jurisdictional facts, even when those facts could potentially have affected the outcome. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, the Full Court of the Federal Court found at [68] that an error in understanding one of the appellant’s claims did not reveal a jurisdictional error.
In Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [50], [53] and [54], the High Court found that a factual error that went directly to the Tribunal’s reasoning and could have made a difference was treated as having no consequence to the case.
Similarly, in Commissioner of Taxation v Asiamet Resources (No.1) (2004) 137 FCR 146, Allsop J held at [176] that a factual misunderstanding in that case did not become an error of law.
In the case under review, the First Respondent submits that the Tribunal may have made an error in understanding a submission on behalf of the Applicant but it could not be sent to have been an error about a question of fact that was central or critical to the Tribunal’s decision. That it might conceivably have affected the outcome is not enough to show that the error of fact was a jurisdictional error.
As to the Applicant’s second ground, Mr Lloyd submitted that the Tribunal specifically addressed the claim about persecutory harm from the authorities or from Islamic extremists. The Tribunal accepted that there were general security problems but did not consider that they constituted discriminatory conduct. It was open to the Tribunal on the evidence before it.
Conclusions
As to the Applicant’s first ground, the finding that the Applicant had taken some or all of the photographs does not constitute a jurisdictional fact. As counsel for the First Respondent submitted, it does not mandate a particular outcome.
Further, I accept that the Migration Act, which defines the decision maker’s jurisdiction, does not make the question of whether or not the Applicant took the photographs a jurisdictional fact. As the Full Court said in SFGB at [20]:
On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal Making a wrong finding of fact:[6] Attorney-General (NSW v Quin (1990) 170 CLR 1 at 35-36.
[6] emphasis added
It does not appear that the concept of jurisdictional fact in SFGB differs from that identified by the High Court in Corporation of the City of Enfield v Development Assistance Commission (supra). In the latter case, the High Court said at [28]:
The Term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a jurisdiction. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.
Bearing that definition in mind, it appears clear that the erroneous finding by the Tribunal that the Applicant had not taken the photographs is a long way removed from a jurisdictional fact. It is speculative at best to consider that the Tribunal’s finding about the level of the Applicant’s political activism could be described as “pivotal” to the Tribunal’s decision. It was a peripheral matter, and it was only a part of the factors considered by the Tribunal in assessing the Applicant’s claim.
It should be borne in mind that the Tribunal made a general finding adverse to the Applicant’s credibility, based on his oral evidence.
At Court Book 176-177, the Tribunal found that the Applicant’s “largely vague and unsubstantiated oral evidence indicates that it is of dubious reliability”. The misunderstanding about the provenance of the photographs was unlikely to have more than a marginal influence on that finding, if it had any at all.
For these reasons, the Applicant’s first ground fails.
The Applicant’s second ground immediately appeared to me to be no more than veiled merits review, even after reading the Applicant’s Additional Submissions. After having heard the oral submissions by counsel for the Applicant, I am no more persuaded.
As counsel for the First Respondent submitted, the Tribunal considered the Applicant’s fear of general harm from the authorities and from Islamic extremists. The Tribunal was not satisfied that the remote threat from those sources, considered cumulatively, would give rise to a real chance of persecutory harm, for reasons of religion or any other relevant Convention reason.[7]
[7] Court Book at 185
The Applicant’s second ground does not succeed.
As I am not satisfied that jurisdictional error has been made out, the Tribunal’s decision is a privative clause decision as defined by s.474(2). Consequently, the decision is not subject to certiorari, mandamus or prohibition (s.474 (1) (c)).
On a point of procedure, I note that both the solicitors for the Applicant and the solicitors for the Respondents chose to file Notices of Appearance. The Rules of this Court do not provide for the filing of a Notice of Appearance. The appropriate document to be filed is a Notice of Address for Service, as provided by Rule 6.01.
The application will be dismissed with costs.
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: 9 October 2006
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