SZJSK v Minister for Immigration
[2007] FMCA 396
•23 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 396 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa. |
| Migration Act 1958, ss.36, 65, 91X, 425, 426A |
| Re: Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 2087 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCA 238 |
| Applicant: | SZJSK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG3409 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 March 2007 |
| Date of last submission: | 23 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs, fixed in the sum of $3,000.
The name of the first respondent be amended to read "Minister for Immigration & Citizenship".
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3408 of 2006
| SZJSK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application dated 20 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”), dated
21 September 2006, which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“Minister”), dated 4 July 2006, refusing the applicant's application for a protection visa.
Section 91X of the Migration Act 1958 (“Act”) provides that the Court must not publish the applicant's name.
Background facts
The Tribunal quoted from the applicant's statement submitted with his protection visa application form, in which he described himself in the following terms:
I was born in Indramayu, Indonesia on 15 October 1967. I came to Australia to seek protection, as the small business I run in Indramayu have been looted and burnt down to ashes. Native Indonesians targeted mostly ethnic Chinese and also other native Indonesian who establish good relationship with an ethnic Chinese.
That quotation is to be found at page 58 in the bundle of relevant documents (“RD”), which is exhibit 1 in these proceedings.
The applicant claims to fear persecution in Indonesia because of his perceived race. The facts alleged in support of the applicant's claim for a protection visa are set out on pages 4 and 5 of the Tribunal's decision, which are found at RD 58 and 59. Relevantly, they are, in summary:
a)the applicant resembles an ethnic Chinese Indonesian, even though he is ethnically Indonesian. As a result, he gets the same adverse treatment as ethnic Chinese do in Indonesia;
b)when the applicant tried to help a Chinese person, he was hit by several local Indonesians. The Indonesians started to hit the applicant on his face and he fell to the ground;
c)his shop was looted and burnt to ashes;
d)the applicant said that the situation in Indonesia is very unstable, characterised by racial discrimination and religious conflict;
e)the applicant stated that tension between ethnic groups had risen dramatically and the Indonesian government had lost its ability to maintain order, or, as he describes it, to restore the situation in order.
The applicant's signed statement lodged with his protection visa application included the following, which the Tribunal quoted at RD 59:
I left Indonesia because I can no longer live in fear of harm and threat to my life.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (“Convention”).
The applicant was invited to attend a hearing of the Tribunal but did not attend, and, in its findings and reasons, the Tribunal sets out a number of matters on which it would have sought clarification from the applicant, had he attended. These included:
a)the Tribunal would have wished to obtain more detail regarding the incidents of actual harm claimed by the applicant;
b)it would also have wanted to know if other members of the applicant's family had been similarly affected;
c)it would have wished to compare the applicant's claims as to the situation in Indonesia with information available to the Tribunal and to discuss this matter with him; and
d)the Tribunal said that there was a question as to the Convention nexus, which would require further investigation. The Tribunal would have wanted to explore in greater detail the motivation of the people the applicant claims attacked him, before making a decision on whether there was a Convention nexus.
Having set out the issues requiring clarification, the Tribunal expressed its conclusion in the following terms:
…I am unable to determine whether the events the applicant described actually occurred and, if they did, whether they were merely isolated incidents over many years or showed a systematic and discriminatory pattern such that they amounted to persecution. Not being able to determine these things, I am not satisfied that the applicant suffered harm amounting to persecution in Indonesia or that he would do so if he were to return there in the foreseeable future. (RD 59)
In essence, the Tribunal found that the applicant did not provide sufficient information to the Tribunal in support of his claims, despite being given an opportunity to do so. A number of relevant questions were, therefore, left unanswered and the Tribunal could not be satisfied on the evidence that the applicant had a well-founded fear of persecution for a Convention reason.
Proceedings in this Court
The grounds for the application are expressed in the following terms:
(1) The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
(2) It is unreasonable for the Tribunal to refuse my application.
(3) I face a risk of being put into danger if I go back to Indonesia.
In relation to the first of these purported grounds, that is not truly a ground of review and merely expresses an observation on the significance of what the Tribunal's task is. Therefore, I will pass on to the other two paragraphs of the application.
Dealing with paragraph 3 first, in which the applicant states that he faces a risk of danger if he returns to Indonesia, in reality, this is a request to this Court to reconsider the merits of his application. These are proceedings for judicial review of the Tribunal's decision and are concerned with the process by which the Tribunal arrived at its conclusion, not the merits of the applicant's claim. The applicant cannot re‑agitate the merits of his claim in this Court in these proceedings and this Court cannot substitute its own view of the facts for the Tribunal's view. Consequently, this purported ground of appeal is not made out.
Turning to paragraph 2 and the assertion that it is unreasonable for the Tribunal's to refuse the applicant's application, this potentially raises questions of Wednesbury unreasonableness or illogicality in the Tribunal's reasoning process. However, in reality, neither of those two points arises here, as the Tribunal's conclusion was not only open to it on the material before it but was mandated by the legislation and does not display the sort of illogicality which might suggest jurisdictional error.
Indeed, the application appears to misconceive the basis of the Tribunal's decision, which was based on a lack of satisfaction. The significance of this arises when one considers s.65 of the Act. That section provides that, if the Minister is satisfied of the matters which are set out in that section, he must grant a visa, but, if he is not so satisfied, he is to refuse to grant a visa. One of the bases of the grant of a visa is that the criteria for the grant of a visa have been satisfied.
In relation to a protection visa, s.36 provides a criterion in that s.36(2)(a) says this:
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia, to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol.
It is important when considering the Tribunal's consideration of the applicant's claim and whether it arrived at the necessary satisfaction to understand that it is for the applicant to make out his claim. In Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437, Gummow and Heydon JJ said, at 450 [57] and with whom Gleeson CJ agreed at 438 [1]:
Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no "client", and no "case" to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client’s cases to witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by a means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out.
In this case, the Tribunal invited the applicant to a hearing, pursuant to s.425 of the Act, as it was required to do, because, as it expressed in its letter to him of 25 August 2006 found at RD 47 and 48, it had considered the material before it in relation to the applicant's application but was unable to make a decision in his favour on that information alone.
The applicant not attending before the Tribunal, the Tribunal was entitled to proceed to its determination, as provided by section 426A of the Act. In such circumstances, the comments of the Full Court of the Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 287, at [5] are relevant:
In assessing the adequacy of [the Tribunal's reasons], it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the applicant had a well‑founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
Similarly, in these proceedings, it is no surprise that the applicant's application to the Tribunal was unsuccessful, when, having matters which it required to be clarified before it could reach the appropriate level of satisfaction, the Tribunal found that the failure by the applicant to provide additional information, because he failed to attend, meant that it could not reach the level of satisfaction required by the Act.
The comments of Allsop J in SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCA 238, at [12] also give useful guidance in these circumstances. His Honour said:
In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason for the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remained. The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction. In SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs, I said the following, at paragraph 29, which is equally applicable to the matter here:
On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A(1) by section 424A(3)(b) it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis … whilst in some cases "unbundling is necessary" in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain. The Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. It was not satisfied that the appellant had a well‑founded fear, because of the subjectively perceived inadequacies in the information. The reason for the decision was simply, and no more than, evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.
Consequently, no jurisdictional error on the part of the Tribunal has been made out and the application will be dismissed.
Recorded : not transcribed
The applicant having been unsuccessful in these proceedings, the first respondent has sought an order for costs. In the usual course, a successful party would be entitled to an order for costs, and there is nothing before me to suggest that the usual course should not be adopted here. Therefore, there will be an order that the applicant pay the first respondent's costs.
Mr Smith, on behalf of the first respondent, has sought an order in the amount of $3,000, which he tells me is 75 per cent of the Minister's solicitor and client costs of the proceedings. Noting that these proceedings were commenced last year and are, therefore, subject to Part 2 of Schedule 1 to the Rules of this Court in which the amount of $5,000 is prescribed as the costs for a proceeding concluded at final hearing, I have no difficulty in awarding the first respondent the amount sought. Therefore, the order will be that the applicant pay the first respondent's costs, fixed in the amount of $3,000.
The first respondent has also sought an order that his name be corrected in the record of these proceedings, given that his title has changed recently, and there will be such an order.
Orders delivered
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 April 2007
0
1
1