SZJFE & Anor v Minister for Immigration
[2007] FMCA 1541
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1541 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R, 91X, 415, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 NABE v Minister for Immigration(No.2) [2004] FCAFC 263 SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 |
| First Applicant: | SZJFE |
| Second Applicant: | SZJFF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2254 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 22 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Advocate for the Applicants: | The applicants appeared in person with the assistance of a Gujarati interpreter |
| Counsel for the First Respondent: | Mr M P Cleary |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 15 August 2006 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2254 of 2006
| SZJFE |
First Applicant
And
| SZJFF |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonyms “SZJFE” (applicant husband) and “SZJFF” (applicant wife).
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 15 August 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 27 June 2006 and mailed to the applicants on 18 July 2006, affirming a decision of a delegate of the first respondent made on 15 September 2005, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 15 November 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of I O’Connell, reference 060386226, provides the following background information:
The applicants, who claim to be citizens of India arrived in Australia on 9 July 2005 and applied to the Department of Immigration and Multicultural Affairs for Protection (Class XA) visas on 17 August 2005. The delegate decided to refuse to grant the visas on 15 September 2005 and the Tribunal, differently constituted, affirmed the delegate’s decision on 6 December 2005. The Applicant sought review of the Tribunal’s decision by the Federal Magistrates Court and on 18 April 2006 the Court set aside the decision by consent and remitted the matter to the Tribunal to be determined accordingly to law.(CB124)
A summary of the applicants’ claims are contained in the written submissions prepared by Mr Cleary and I rely upon paragraphs 8 and 9 of those submissions:
8. The applicants are husband and wife. The applicant husband claims to fear harm by reason of his political opinion (CB1-37 and 126-130). He fears harm from the BJP political party in Gujarat.
9. The husband applicant claims he was an active member of the Congress Party and had been harmed by members of the BJP party in the past and fears harm should he return to India (CB126-129). He claims he will not be able to avail himself of State protection because the authorities are aligned with the BJP and that his brother-in-law was seeking to kill him (CB129-129).
A summary of the Tribunal decision is contained in paragraphs 11 and 12 of Mr Cleary’s submissions:
11. The Tribunal found that the applicant husband did not have a well-founded fear of persecution for a Convention reason and was not someone to whom Australia had protection obligations under the Convention (CB133). The Tribunal rejected the application for asylum on the following grounds (CB132-133):
· it found that the applicant’s husband’s involvement and commitment to the Congress Party was peripheral as he was vague, hesitant and equivocal about that political party’s platform;
· it did not accept that he faced harm from BJP by reason of his affiliation with the Congress Party or assistance with Muslims in the riots of Gujarat in 2002;
· if found that the events the applicant husband relied upon to ground his fear of persecution “were primarily and essentially a result of the applicant’s business deals” (CB132);
· it found that the applicant husband had only a minor involvement in the Congress Party such that it was implausible his brother-in-law would seek to kill him for reason of his political opinion;
· it did not accept either of the applicants would be harmed if the applicant husband returned to India.
12. For these reasons, the Tribunal found that the applicant husband was not a refugee and affirmed the delegate’s decision.
Application for Review of the Tribunal’s Decision
On 15 August 2006, the applicants filed an application for review under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicants were granted leave to file an amended application. On 10 April 2007, the applicants filed an amended application containing the following grounds:
GROUND ONE
The Tribunal failed to evaluate the Applicant’s claims in a Constructive and Articulate manner because of the following finding it made without drawing a balance between the Applicant’s written claims and the oral evidence given by the Applicant at the hearing on 25th June October 2006 which gave the Tribunal the ample opportunity to have cleared up its doubts rather than concluding:-
“The Tribunal put to the Applicant that the incidents he described seem to revolve more around his inability to pay his debts to potato farmers rather than his political opinion” (Court Book page 129, para 03)
The Applicant submit that the Tribunal was not assessing the Applicant’s claims in a constructive and articulate manner because it failed to consider properly the following information:
(a) “The Tribunal asked the Applicant asked the Applicant about his involvement in the Congress Party. The Applicant stated that at election Time h encouraged people to vote for the Congress Party by doing door-knocks and taking people to the Polling booths”. (Court Book page127 para02)
(b) “The Tribunal asked the Applicant about his involvement in the Congress Party other at election time. The Applicant stated that he would attend the Party meetings at the Party office and he would make suggestions. He stated that he also helped in the Congress Committee and that he assisted the Muslims”. (Court Book page 127 para 04)
(c) “The Tribunal asked the Applicant what difficulties he had experienced in India. The Applicant stated that when there were riots in Gujarat in 2002, he along with other members of the Congress Party had tried to help the Muslims but the members of the BJP had objected to this and harassed them for helping Muslims”. (Court Book page 127 para 06)
(d) “The Tribunal asked the Applicant what his helping of the Muslims involved. The Applicant stated that he arranged food and Acomodation for them. The Applicant was asked to elaborate on this. He said that he provided transport to assist them to get to alternative accommodation and also assist them to get food. He said that he provided vehicles for this. He said that he transported them to safe places.” (Court Book page 127 para 06)
(d) “He stated that his sister’s husband is a member of the BJP and they objected to Congress Party people assisting Muslims. He stated that his brother in law suggested to him and threatened that he should participate in the BJP and that Congress people should not be siding with Muslims”. (Court Book page 128, para 01)
The Applicant submit that the Tribunal has failed to act accordingly to its responsibilities and obligations under Sec.415 of the Migration Act 1958 and thereby made a jurisdictional error as per the principles enunciated in the Full Federal Court decision in NABE.
GROUND TWO
That the Tribunal, by its failure to conduct the review of the Applicant’s claims in a constructive and articulate manner invariably failed to carry out the mandatory jurisdictional commitment developed upon it under Sec.91R of the Migration Act 1958, whether the Applicant’s life would be in danger due to any ‘real chance’ of facing serious harm due to the following irrational findings the Tribunal made:-
“The Tribunal put to the Applicant that the Tribunal considered it to be somewhat implausible that his brother in law would wish to kill him because of his membership of the Congress Party, particularly in light of the fact that the Tribunal did not consider his involvement in the Congress Party to be of great significant or profile.” (Court Book Page 130 para 01)
“The Applicant did not provide to the Tribunal other incidents of harm that he claims to be perpetrated by the BJP other than that he claimed that his brother in law threatened to as his brother in law is a member of the BJP and objected to the Applicant’s affiliation to the Congress Party. As discussed with the Applicant at that hearing, the Tribunal finds that this claims to be highly improbable”. (Court Book page 133 para 01)
The Applicant submit that the Tribunal overlooked the physical injury the Applicant suffered from the BJP members as indicated by the Applicant at the hearing and overlooked the Applicant’s oral evidence as follows:
“The Applicant was asked how these matters related to his political opinion. The Applicant stated that the BJP people provided support to the potato farmers who were attempting to take him to Court and who were responsible for stealing of his cows. The Tribunal asked the Applicant what he meant by harassed. The Applicant stated that he required hospital treatment for three days after he was beaten by sticks in 2003, he stated that this was instigated by the BJP members”. (Court Book page para 05).
Submissions and Reasons
The applicants are self-represented litigants who and appeared with the assistance of a Gujarati interpreter. They were originally represented by Mr C Jayawardena. However on 16 November 2006, Mr Jayawardena withdrew from this matter. The applicants filed written submissions at the hearing and indicated that they wished to rely upon those submissions and did not wish to make any oral submissions.
The first ground one claims that the Tribunal failed to evaluate the applicant husband’s claim in a constructive and articulate manner. The applicants’ written submissions refers to NABE v Minister for Immigration(No.2) [2004] FCAFC 263 at [55] and [63] per Black CJ, French and Selway JJ:
55 Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):
‘... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.’
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions – namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the applicant’s membership of the group of ‘businessmen in Russia’ was a reason for his persecution.
63 It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.(emphasis added)
The applicants’ written submissions submit that the Tribunal committed jurisdictional error by dismissing the applicant husband’s claims and alleging that he was not a person of truth. Further the applicants submit that they wished to pursue the following issues:
(a) Whether the Tribunal misunderstood and failed to address the applicant’s case;
(b) Whether there was a constructive failure by the Tribunal to exercise jurisdiction;
(c) Whether failure to accord natural justice (i.e. procedural fairness).
The applicants rely upon Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 which they say concluded that that Tribunal failed to observe grounds similar to their three grounds listed above.
The applicants also submit that the Tribunal’s following finding was wrong because it failed to “constructively and articulately” evaluate the applicant husband’s involvement in the Congress Party, his service to Muslims and the BJP’s hatred of him:
Rather on the basis of the Applicant’s evidence at the hearing the Tribunal finds that these events were primarily and essentially a result of the Applicant’s business deals.(CB 132.9)
The applicants submit that the Tribunal’s final finding was a complete misconstruction:
Thus for all the reasons set out above, the Tribunal does not accept the Applicant faced harm in the past by reason of his ‘imputed’ political opinion…(CB 133.3)
Mr Cleary submits in respect of ground one that contrary to the applicants’ argument that the Tribunal did not evaluate their claims in a constructive and articulate manner, the Tribunal did consider the claims in some detail. He submits that the Tribunal carefully examined the applicant husband’s evidence given at the hearing by testing it against his claim that he had a well-founded fear of persecution because of his political opinion and affiliation to the Congress Party. There is no indication that the Tribunal misunderstood the claim made. The applicants did not assert in what way the Tribunal misunderstood or misconstrue the claim. Mr Cleary submits that a similar argument was advanced but rejected in NABE (No.2).
I agree with Mr Cleary’s submission and that the Tribunal did discuss the applicant husband’s claim in its decision under the sub-heading “Claims and Evidence”. Particularly, the Tribunal decision records that all the issues raised by the applicant husband in his protection visa application were ventilated at the hearing. At the conclusion of the hearing, the member invited the husband to provide further information within a week in support of the issues discussed. It also invited him to submit material if he believed the Tribunal had misunderstood his claims.
Mr Cleary submits that the assertion in ground one that the Tribunal breached s.415 of the Migration Act, and there was jurisdictional error as in NABE (No.2), was without particulars. Also, that s.415 concerns the power of the Tribunal generally and is not usually relied on in alleging jurisdictional error. Mr Cleary notes that in NABE (No.2), the Court found no jurisdictional error.
Section 415 of the Migration Act provides:
(1) The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision;
Mr Cleary submits that this was what the Tribunal did, and the remainder of s.415 is not relevant to these circumstances. It may be inferred that the applicants believe that the Tribunal should have varied or set aside the decision, but that does not show how the Tribunal failed in its responsibilities and obligations under this section. I agree with the submission made by Mr Cleary that this element of ground one is meaningless.
The applicants rely on NABE (No. 2) at [41]-[43] and [48]-[49] which discusses s.415 and the review process:
41 The powers of the Tribunal on review are set out in s.415. It may ‘for the purposes of review of an RRT-reviewable decision’ exercise all the powers and discretions which the Act confers on the primary decision-maker (s.415(1)). It may affirm or vary the decision, set it aside and substitute a new decision or remit the matter for reconsideration (s.415(2)).
42 The nature of the review process emerges from the provisions of the Act relating to the conduct of such reviews. Initially the Tribunal is to be provided with a copy of the reasons for the decision under review and documents considered by the Secretary of the Department to be relevant to the review (s.418). The Tribunal is required, in conducting review, to act ‘according to substantial justice and the merits of the case’ (s.420(2)(b)).
43 The Tribunal may receive evidence by way of statutory declaration from the applicant and may also receive written arguments from the applicant and the Secretary (s.423). It may ‘get any information that it considers relevant’ (s.424) and, unless able to decide the case in favour of the applicant on the papers, must afford the applicant the opportunity to appear, give evidence and present arguments (s.425).
48 The review process, as is apparent from the provisions of the Act involves, in a case such as the present, a determination on the merits of whether or not the applicant satisfies the criteria for a protection visa. The conduct of a review is a necessary condition of the exercise of the Tribunal’s powers in making a final decision of the kind set out in s.415(2). A failure to undertake a review would vitiate any purported decision made pursuant to s 415. Like provisions with respect to the Immigration Review Tribunal condition the valid exercise of that Tribunal’s powers so that, for example, a failure to afford an applicant the oral hearing required by the Act where a favourable decision is not possible on the papers, would render any purported decision invalid. This is not just a failure of natural justice. It is a failure to conduct a review as required by the Act – Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [14] per Gleeson CJ, [43] per Gaudron and Gummow JJ (McHugh J agreeing at [63]), [149] per Hayne J and [163] per Callinan J. In discussing the review function, Callinan J said at [163]:
‘If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister’s decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister’s decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction.’
49 As the Full Court observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 640 [44]:
‘It is central to the exercise of the dispositive powers conferred by s.415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss.423, 424, 425 and 426 of the Act.’
In the absence of particularisation of a failure to observe any of the steps set out in NABE (No. 2), it would appear, on a fair reading of the Tribunal decision, that the requirements were observed. Both issues raised in the first ground cannot be sustained and that ground must fail.
The second ground states that the Tribunal failed to carry out its jurisdictional commitment under s.91R of the Migration Act by finding that the applicant husband would face no harm on return to India in the reasonably foreseeable future. The applicants submit that the Tribunal misinterpreted the husband’s claims and bypassed the relevant test. The applicants refer to SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 at [31] per Wilcox J:
I agree with what Crennan J said about the consequences of Marshall J’s view. Plainly, persecution is not established merely by proof that somebody has made a statement (the ‘threat’) about an intention to kill the person seeking recognition as a refugee. The relevant decision-maker must evaluate the ‘threat’ and determine whether it amounts to ‘serious harm’ within the meaning of s.91R(2)(a) of the Act. That evaluation needs to take into account all the surrounding circumstances including: the nature of the relationship between the relevant people; the occasion and manner of making the ‘threat’; any immediate effect of the ‘threat’ upon the threatened person; the opportunity (if any) for the threatener to carry out the threat; and so on. Subsequent events may also be relevant, bearing in mind that the ultimate question for the Tribunal is not what has already happened to the protection visa claimant, but what might happen to that person in the future, if he or she returns to the country of nationality.
The applicants argue that as a consequence of SZAYT, the Tribunal’s rejection of the husband’s claims was wrongly made.
Mr Cleary referred to VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 at [49] which held that s.91R would not apply to persecution unless three conditions were satisfied. The first is that membership of a political group or holding a particular opinion be an essential and significant reason for the alleged persecution. Mr Cleary submits that in this case, the Tribunal found that the events the applicant husband relied on to ground his fear of persecution “were primarily and essentially a result of the applicant’s business deals”.(CB 132) Consequently, the first of the conditions for the operation of s.91R was not satisfied. Therefore, the Tribunal had not committed any jurisdictional error.
The other assertion in the second ground is that the Tribunal overlooked the physical injury of the husband. Mr Cleary submits that the Tribunal did refer to the applicant husband being beaten by sticks.(CB 132.7) However, the Tribunal found that the conflict arose because of his business venture, which was a finding open to the Tribunal on the evidence.
I agree with the submission made by Mr Cleary that the primary requirement of s.91R as confirmed by VBAO is that “membership of a particular group or the holding of a particular opinion be essential and significant reason for the alleged persecution”. The Tribunal decision clearly states:
However on the basis of the main applicant’s oral evidence the Tribunal considers that the main applicant’s involvement in and commitment to the Congress party is peripheral as he was vague, hesitant and equivocal about the platform of the Congress Party, his involvement in the party and the timing of elections he claimed to have assisted in.(CB 132.7)
Neither element of ground two can be sustained and this ground must fail.
Conclusion
The applicants appeared at the hearing with the assistance of a Gujarati interpreter. The applicants filed an amended application, which appears to have been prepared by a third party with some knowledge of this jurisdiction. The applicants relied predominantly on that amended application and did not make significant oral submissions. Mr Cleary assisted the Court with written and oral submissions in response to the amended application. I accept Mr Cleary’s submissions that neither of the grounds pleaded can be sustained. I have reviewed the Tribunal decision and Court Book but have not been able to identify any error on the face of those documents. I am satisfied that no jurisdictional error is apparent. Consequently, the application must be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 10 September 2007
0
5
0