SZJIB v Minister for Immigration - [2007] FMCA 1697

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJIB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1697

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.91X, 91R, 424A, 476
FederalMagistrates Court Rules 2001 (Cth), rr. 44.11(c), 44.12

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chand v The Minister for Immigration & Ethnic Affairs [1997] 1198 FCA
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 599
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 264
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 369
SZAYT v Minister for Immigration& Multicultural Affairs [2005] FCA 857
SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592
SZDTQ v Minister for Immigration & Multicultural Affairs [2005] FCA 867
SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA FC 2
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
VAF v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276

Applicant:

SZJIB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2503 of 2006

Judgment of:	Lloyd-Jones FM
Hearing date:	7 August 2007

Delivered at:

Sydney

Delivered on:

26 October 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person with assistance of a Hindi Interpreter

Counsel for the Respondents:

Ms SA Sirtes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 7 September 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of an incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2503 of 2006

SZJIB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZJIB.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 7 September 2006 for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision made on 31 July 2006 and sent to the applicant on 10 August 2006, affirmed a decision of a delegate of the first respondent made on 18 April 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant 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 Migration Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 of the rules and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 3 October 2006. I have marked it Exhibit "A" and it was read into evidence.

Background

The Tribunal decision of Ms A Younes, reference 060435143, provides the following background information:
The applicant, who claims to be a citizen of India, arrived in Australia on 14 February 2006 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) Visa on 24 March 2006. A Delegate decided to refuse to grant the visa on 18 April 2006 and notified the applicant of the decision and his review rights by letter dated 18 April 2006 and posted it on 18 April 2006. The Delegate refused the visa application as the application was not a person to whom Australia had protection obligations under the refugee convention. The applicant applied to the Tribunal on 15 May 2006 for a review of the Delegate's decision.
(CB 79)
The applicant's claims are set out in a statement attached to his protection visa application. This is reproduced in the Tribunal decision under the heading "Claims and Evidence":
·    He belonged to a Hindu community and he left India because of "suppression by opposition parties".
·    For about two years, he was a worker for the Bhartiya Samajwadi Party ("BSP Party"). He was leading a happy life until about two years ago when he started to receive threatening calls telling him to stop his activities with the party, otherwise he would "bear the consequences". Subsequently to that increase in the cause he went to complain to the police but the police did not care, nor did they want to help. On the night of when he complained, he received a call telling him about the complaint and "if we come to know about this again, we will not spare you". He got scared. A few days later, the police went to his house with a search warrant on the pretext that there were hidden weapons in his house. They did not find anything but they arrested him and he was later released on bail.
·    The threatening calls continued and he was told to leave the party. He then realised that the calls were from the "opponent party".
·    "One day" when he was in the office, his wife called him to inform him that their son had not returned from school. He went to the school but no one was there. There was no point in complaining to the police as he could have been arrested himself. He approached "many union leaders. I talked to the Minister over the phone but to no avail…" Later that night, their son returned and he was in very bad shape. Their son "grumbling. They will call all of us. Nobody will be spared". He took his son to the hospital and the doctor advised him to take him to a new environment. The applicant took his son to relatives.
·    Consequently, he and his wife decided to come to Australia (wife returned to India).
(CB 81)
A summary of the Tribunal decision is contained in the written submissions prepared by Ms Sirtes, for the first respondent, and I rely on paragraph 6 of those submissions for the purposes of this judgment:
The Tribunal:
(a) accepted that the applicant was a national of India and that he is a Hindu (CB 84.1)
(b) expressed he did not rely on inconsistency between the applicant's statement of claim (which, it emerged, had been prepared by his wife) and his oral evidence (CB 84.3);
(c) found the applicant's oral evidence at the Tribunal hearing to be "vague and lacking in relevant details" (CB 84.4 to 85.4);
(d) on the basis of the applicant's unimpressive oral evidence, the Tribunal was not satisfied that the applicant was ever a member of the BSP and that he had ever been involved in party activities. On that basis, the Tribunal rejected the many aspects of his claim which related thereto. (CB 85.5 to 85.8);
(e) did not accept the applicant had suffered any of the harm he claimed or that any harm he had suffered was attributable to a convention reason (CB 85.9).

Application for review of the Tribunal decision

On 7 September 2006 the applicant filed an application for review under s.39B of the Judiciary Act.In accordance with orders made at the first Court date, the applicant filed an amended application on 28 November 2006 setting out the following grounds:
1. That the Tribunal failed to assess the applicant's "fear of harm" suffered according to the refugee criteria and misapplied the applicant's claim due to the following finding:
"In summary the Tribunal does not accept that the applicant has suffered any harm attributable to a convention reason, nor does the Tribunal accept that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future." (CB 84, para.4)
The applicant submits that the Tribunal failed to take into consideration of the "real harm" suffered by the applicant on account of his son being kidnapped by the applicant's persecutors, which amounted to serious harm suffered by the applicant which was a well founded fear suffered by the applicant.
2. The applicant further submits that the Tribunal misconstrued the law relating to status of refugees under the 1951 Convention due to the following conclusion which resulted in rejecting the applicant's claims as unfounded:
"…in consideration of evidence as a whole, the Tribunal is not satisfied that the applicant was ever a member of the Samajawadi Party, or that he was ever involved in any activity relating to the party, or that the applicant knew Mr Kitani who was the area leader or that he ever received threatening calls telling him to stop activities with the party, or that he complained, he received a threatening call, or that a few days later, the police went to his home with a search warrant on the pretext that there were hidden weapons in his house, or that he was ever arrested or detained or ill treated in any way by the police, including not limited to being made to sit down for hours, or that the threatening calls continued…" (CB 85, para 3).
The applicant submits that the Tribunal failed to assess the applicant's claims in a constructive and articulate manner and the above conclusion indicates very clearly that the Tribunal treated applicant's evidence in a haphazard way and thereby failed to carry out the mandatory statutory function of a "merits review" in terms of s.414 of the Migration Act 1958.
On 22 February 2007, the applicant filed another amended application which I have marked as Further Amended Application which sets out the following ground:
1. The Tribunal exceeding its jurisdiction and constructively failing to exercise the jurisdiction in the following manner and committing jurisdictional error:-
(A) AVOIDING TO CONSIDER PRIMIARILY whether there would be ‘a real chance that the Applicant’s life will be in danger’ if asked to return to his Country of Origin, Pakistan. This failure was in clear breach of Sec. 91(1)R of the Migration Act 1958.
The Applicant submit that this was the ‘primary criteria’ the Tribunal should have looked into firstly, before it decided to uphold the decision made by the Delegate of the Respondent who stated that the ‘claimant does not have real chance of Convention based persecution if returned to India’.
In this regard the Applicant states that the Tribunal had the following information on record namely-
“The tribunal asked the Applicant if he has ever been arrested and/or detained by the Indian Authorities and the Applicant stated that he had stated “last year…when the problem happened in March last year they kidnapped my son.” (CB page 85, para 02).
The Applicant submits that the Tribunal failed to give proper weight to the Applicant’s evidence and the persecution he and his family suffered.
(B) NO SECTION SEC.424A NOTIFICATION IS CONTAINED OR REFERRED TO IN THE MATERIAL ON THE FACE OF THE RECORD
The Tribunal failed to call for further information from the Applicant as per the general requirement of the Act when the acknowledgement of the application and undertaking formal assessment of the application and later making of the following finding:-
“In consideration of evidence as a whole, the Tribunal is not satisfied that the Applicant was ever a member of the Samajwadi Party, or that he was ever involved in any activities relating to the Party, or that the Applicant knew a Mr. Kitani who was the area leader, or that he has ever received threatening calls telling him to stop activities with the party………”
The Applicant submits that the Tribunal failed to assess the Applicant’s claims of ‘political opinion’, whether he has a genuine claim, a mandatory statutory function of a ‘merit review’ in terms of sec.414 of the Migration Act 1958, which was a clear cut jurisdictional error made by the Tribunal.

Submissions and reasons

The applicant is a self-represented litigant who appeared at the hearing with the assistance of a Hindi interpreter. In accordance with orders made at the directions hearing on 7 December 2006, the applicant filed written submissions on 23 July 2007. He said at the hearing that he would rely upon those submissions and declined to make oral submissions.
The applicant’s written submissions contend that the Tribunal failed to comply with s.91R of the Migration Act in considering whether there would be a "real chance of serious harm" if the applicant were to return to India. The applicant relies on SZAYT v Minister for Immigration [2005] FCA 857 at [31] per Wilcox J:
31…Plainly, persecution is not established merely by proof that someone 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 the making of "threat"; any immediate effect of the "threat" upon the threatened person; the opportunity (if any) for the threatened to carry out the "threat"; and so on.
The applicant submits that the Tribunal failed to carry out the relevant exercise as required by s.91R, which was a serious lapse on the part of the Tribunal going to the root cause of the applicant's “status of refugee” in terms of Article 1A(2) of the Refugees Convention.
The applicant also referred to SZDTQ v Minister for Immigration& Multicultural Affairs [2005] FCA 867 at [11] per Branson J:
The appropriate test for the determination of whether a fear of persecution is well-founded is whether there is a "real chance" of persecution, in the sense of a substantial as distinct from a remote chance (Chan Yee Kan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379).
The applicant submits that in this matter, the Tribunal failed to consider whether there would a "real chance" that the applicant could be subjected to persecution if he were to return to India.
In relation to the Tribunal's failure to conduct the review in a "constructive and articulate manner" the applicant referred to the Full Federal Court decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 264 at [48] per Black CJ, French, Selway JJ:
48…The conduct of a review is a necessary condition of the exercise of the Tribunal's power 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…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 & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [14] per Gleeson CJ, [43] per Gaudron, Gummow JJ (McHugh J agreed 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 absolutely 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, he must make a decision on the application and any documents properly submitted by the applicant, with, as part of, or relevant to it. To file, to refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction.
The applicant further submits that the Tribunal dealt with a large number of questionable issues in a single paragraph without due regard to relevant written material such as the applicant's written statement of claim and his oral evidence (CB 85.3). Hence the applicant submits that the Tribunal dealt with his claims in a haphazard manner.
The applicant's written submissions do not specifically address of the individual grounds nor make any reference to the second ground. As indicated above the applicant declined the invitation to make any oral submissions in support of either of his amended application of 28 November 2006, further amended application of 22 February 2007 or his written submissions. Similarly, when invited to respond to the written submissions prepared by the respondent counsel this invitation was also declined. The only comment made by the applicant was that he would rely on the contents of the amended application, the further amended application and his written submissions.
It would appear that these documents have been prepared by an unidentified third party and the applicant appears to have little knowledge of their content. It is the applicant's obligation to make out his own case: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 599 at 596 per Kirby J. To a limited extent, the applicant has done this by relying on submissions prepared for him by an unidentified third party. He was also provided with the opportunity to participate in the Court’s free legal advice scheme.
The applicant filed an amended application, a further amended application and written submissions. He had the opportunity to address the Court in oral submissions in support of his application and the arguments set out in these documents. To the extent that the applicant has responded to these invitations, I am satisfied that the applicant cannot now complain that the Court did not take into account the issues raised.
Ms Sirtes responded to the “Constructive Failure” claim which alleges that the Tribunal failed to exercise jurisdiction in three respects. First, that the Tribunal did not consider whether the applicant's life would be in danger. It is submitted that this is not a function of the Tribunal. A threat to the applicant's life is not required in order to establish persecution in a Convention sense. However, it is more likely that the applicant is alleging that the Tribunal failed to consider whether there was a real chance of persecution.
Ms Sirtes argues that if the applicant is submitting that the Tribunal failed to consider the real chance of persecution then that is an impermissible attempt at a merits review and unsupported by the Tribunal's reasons for decision. The Tribunal set out the relevant test (CB 79.4-80.9) and went on to consider whether there was a real chance that the applicant would suffer harm amounting to persecution (CB 85.5-85.9). SZAYT, which the applicant relied upon, focuses on the error that is not present in this matter.
The claim in SZAYT was that the Tribunal committed jurisdictional error by failing to evaluate the genuineness and seriousness of the threat of to the applicant's life. In the matter before this Court, the Tribunal did not accept that the alleged threat had been made and accordingly there was no subsequently failure to consider the quality and nature of the threat.
Ms Sirtes submits that the second aspect of the constructive failure claim is that the Tribunal failed to give proper weight to the applicant’s evidence about the persecution he and his family suffered. Ms Sirtes submits that the weight to be given to particular evidence is a matter which the Tribunal is entitled to decide and failure to accord weight to such evidence is not a matter which gives rise to jurisdictional error: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ:
197…In the end, the criticism made by the applicant of the Tribunal's reasoning are criticisms of a factual finding it made and the criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.

In Chand v The Minister for Immigration & Ethnic Affairs [1997] 1198 FCA, von Doussa, Moore and Sackville JJ cite Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 as follows:
The RRT is required to evaluate all of the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.
There is no error in the Tribunal disbelieving, rejecting or simply not being satisfied with the applicant’s evidence.
The third issue of the constructive failure ground, which is under the heading ground two, submits that the Tribunal failed to assess the applicant's claims as they pertained to his political opinions. Ms Sirtes submits that the Tribunal decision was largely directed to that very consideration. However, the Tribunal was not satisfied that the applicant was a member, or even involved in the activities of, the Bhartiya Samajwadi Party (BSP). It rejected his claim on that basis. Again, this was open to the Tribunal and no jurisdictional error arose.
I accept the submissions of Ms Sirtes and agree that the three aspects of the “Constructive Failure” claim cannot be sustained. As I indicated above, the person who assisted in the preparation of the amended, further amended applications and written submissions appears to have misunderstood the case authorities or their principles and misapplied them to the facts of this case. In the circumstances, the alleged failures of the Tribunal do not arise.
The second ground of the amended application alleges that the Tribunal “failed to call for further of information from the Applicant as per the general requirement of the Act”. Ms Sirtes submits that the Tribunal is not required to put to an applicant its thought processes or subjective determination for comment. The law has not changed despite the recent decision in SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [65] per Moore J and at [206] per Allsop J (citing Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 369 at [95] and VAF v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24]).
Ms Sirtes also submits that the concept of “information” does not extend to identifing gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [26]-[27]. Accordingly the Tribunal is not required to "call for more information" and the applicant did not seek a further opportunity to do so.
In Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at [78], Kirby J found that the function of the Tribunal is to respond to the case before it and as advanced by the applicant. It is not obliged to make the applicant's case and the Tribunal was entitled to conclude that the applicant had sufficient opportunity to do so. It is also not required to put to the applicant its intention to reject material for lack of probity or other reason, that the applicant was not a believable witness or that it was not satisfied with the calibre of his evidence. All these qualify as thought processes and conclusions of the Tribunal.
In SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 at [47], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said:
…It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events…
Ms Sirtes submits that there is no breach of the provisions of the Migration Act as suggested by this ground.
The second ground of the amended application is not clear about which provision of the Migration Act is relied upon, other than that s.414 requires the Tribunal to conduct merits review. Further, although the written submissions do not clearly address the second ground, I believe it is acceptable to assume that the submissions claim that the Tribunal undertook its review in a haphazard way and should have asked the applicant to have provided further information to fill any gaps that the Tribunal perceived were in the applicant's evidence.
I am satisfied that Ms Sirtes has correctly addressed that issue and I agree with her submission. I am satisfied that the second ground cannot be sustained.
Part (b) of the ground in the further amended application claims that the Tribunal failed to issue the applicant with a s.424A notice. Although not clearly particularised, it would appear that the applicant believes that the Tribunal may have relied upon his statement attached to his original protection visa application. An examination of the Court Book indicates that the statement was prepared by the applicant’s wife but was not re-submitted with the application for review before the Tribunal. The Tribunal decision reproduces part of the translated statement under the heading “Claims and Evidence”. The decision also set out, in considerable detail, the discussion between the applicant and the Tribunal member at the hearing: CB 81-83. In addition, it referred to a brief oral submission by the applicant’s adviser and the country information referred to by the Tribunal.
The decision also sets out the following paragraph which explains how the Tribunal dealt with the statement and evidence given by the applicant (CB 84):
In consideration of the evidence as a whole and for reasons outlined below, the Tribunal is not satisfied that the applicant is a member of the Samajwadi Party. The Tribunal notes that there are some differences in the information contained in the Statement provided in support of the application and the applicant’s oral testimony. Given the applicant’s evidence that his wife had prepared that document, in reaching its findings, the Tribunal has not relied on any noted inconsistencies.
In the circumstances, I am satisfied that the Tribunal was not obliged to issue the applicant with a s.424A letter.

Conclusion

I believe that none of the grounds can be sustained and, consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

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

Associate:

Date: 26 October 2007