SZJXR v Minister for Immigration

[2007] FMCA 1813

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1813

MIGRATION – Application to reinstate a judicial review application following consent orders signed to discontinue – applicant claimed to have made ‘mistake’ in signing consent orders – applicant understood nature and consequence of consent orders – Minister neither consented nor opposed orders – Rule 16.05(2) circumstances for setting aside orders do not exist – Tribunal not required to disprove claims – Tribunal relied on applicant’s own evidence – Tribunal was not unreasonable – Tribunal dealt with adverse information in a justifiable manner – no reason to set aside decision – application dismissed.

Migration Act 1958, ss.417, 424A, 424A(1), 424A(3)(b).

Federal Magistrates Court Rules, rr. 16.05(2), 16.05(3), 13.01, 13.04.

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
Bizuneh v Minister for Immigration and Multicultural Affairs [2000] FCA 126
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 52; (2004) 207 ALR 12
Re: Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Multicultural Affairs v SZCIJ [2006] FCAFC 62
Minister for Immigration and Multicultural and Indigenous Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZJXR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3893 of 2006

Judgment of: Nicholls FM

Hearing date: 22 October 2007

Date of Last Submission: 22 October 2007

Delivered at: Sydney

Delivered on: 1 November 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made to the Court on 13 June 2007 is dismissed.

2. There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3893 of 2006

SZJXR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed in this Court on 13 June 2007 seeking that orders made by this Court on 6 June 2007 be set aside.

2. The background to this application is:

   a)The applicant is a citizen of Nigeria who arrived in Australia in early 2006 to compete in a sporting event.

   b)On 8 May 2006, the applicant made an application for a protection visa (see Court Book (“CB”) 1 to CB 26).

   c)The application was refused by a delegate of the respondent Minister on 4 August 2006 (see CB 48 to CB 53).

   d)The applicant applied for review of this decision by the Refugee Review Tribunal (“the Tribunal”) (CB 70 to CB 73). She was assisted in this application by a person described as a “community volunteer” (see CB 71).

   e)The Tribunal affirmed the decision under review (see CB 127 to CB 147).

   f)On 22 December 2006, the applicant made an application under the Migration Act 1958 (“the Act”) to this Court, seeking review of the Tribunal’s decision.

   g)On 6 June 2007, the Court made orders by consent dismissing this application, and further, also by consent, ordering the applicant to pay the first respondent’s costs fixed in the amount of $1,000.

   h)On 13 June 2007, the applicant made a further application to the Court, seeking that these orders be set aside and that a final hearing be held in relation to her original application. This application was accompanied by an affidavit made on 13 June 2007 by the applicant.

3. This matter first came on before me on 5 September 2007. The applicant appeared and was assisted by a solicitor, Mr I Brady, of the HIV/AIDS Legal Centre. Mr G Johnson appeared for the first respondent. Mr Brady indicated that in the event that the original application was reinstated for hearing, he would consider assisting the applicant. Neither party however, had come prepared to argue the relevant issue as to whether to Court should set aside its judgment nor to address any of the relevant matters set out in Rule 16.05(2) and Rule 16.05(3) of the Federal Magistrate Court Rules 2001 (“this Court’s Rules”).

4. Notwithstanding that Mr Brady had, on the applicant’s evidence, been approached by the applicant as least as at 13 June 2007 (see the applicant’s affidavit of that date which was sworn before Mr Brady), and therefore, in my view, would have had sufficient time to have turned his mind to these issues (given the time that had expired from that date until 5 September 2007), I nonetheless adjourned the hearing of this matter until 22 October 2007 and made orders enabling the applicant to file any further evidence by way of affidavit and to make any written submissions. I also provided a corresponding opportunity to the first respondents. The first respondent’s position was that the Minister neither opposed the Court setting aside its orders, nor consented to this course of action.

5. When the matter resumed on 22 October 2007, Mr Johnson again appeared for the first respondent and maintained the position that the Minister neither consented nor opposed the application made by the applicant.

6. The applicant appeared in person. She confirmed that Mr Brady was not going to appear nor to assist her in this matter. Nothing further has been heard from Mr Brady.

7. The applicant pressed that the Court set aside the orders made by consent. I understood her to press that the Court consider the grounds set out in the original application. She further pressed by way of explanation as to why the Court should set aside the consent orders, the matters outlined in her affidavit of 13 June 2007.

8. Relevantly, these are:

   a)That she “made a mistake” withdrawing her case.

   b)She is an athlete and she told her coach that she had applied for a protection visa and that the matter was due to be heard sometime in November 2007. She did not tell her coach details of her refugee claim, nor that she was HIV positive.

   c)Her coach advised her that she would be “wasting too much time to go to the Court” and that he could write a letter to the Minister of Immigration and obtain residency for her (I understood this to be a request for the Minister’s intervention pursuant to s.417 of the Act). Her affidavit asserts that her coach had told her that he had done this in relation to other athletes and there had been a successful outcome (that is, they had obtained residency in this way).

   d)She then went to the offices of the first respondent’s solicitors and told them she wanted to withdraw the case.

   e)After some negotiation as to costs, she signed draft consent orders (these were subsequently submitted to the Court) and orders were made on 6 June 2007 in identical terms.

   f)Subsequently, she attended at a community sex health clinic and was told by a “social worker” that “it didn’t sound right that the Minister would let me stay because my HIV status would interfere with this”.

   g)As a result, the social worker arranged for her to speak to Mr Brady.

   h)Before the Court, the applicant stated that as a result, Mr Brady attended Court with her on 5 September 2007, and that she pressed the Court to “reopen” her case and wanted her matter sent back to the Tribunal because she had not provided evidence to the Tribunal and now wanted the opportunity to do so.

9. I should note that the relevant provisions of Rule 13.01 of this Court’s Rules do not apply, as plainly, the applicant did not discontinue the proceedings by way of filing a Notice of Discontinuance. The matter proceeded pursuant to what is set out in Rule 13.04 of this Court’s Rules, in that a draft consent order was signed by each party (the applicant’s evidence also confirms this). The draft consent order stated on its face that it was made by consent and the Court made orders in identical terms as this was considered appropriate in the circumstances.

10. Rule 16.05(2) of this Court’s Rules sets out circumstances in which the Court may set aside orders made after they have been entered. On what is before me, I cannot see that any one of the items set out in that sub-rule apply to the circumstances before the Court now:

    a)The order was not made in the absence of a party. The matter, by consent, was ended prior to proceeding to a hearing.

    b)There is nothing before the Court now to show that the order was obtained by any fraud. Importantly, the applicant does not make any such assertion either in her application, or separately to the Court by way of submission. At best, the applicant claims to have made a mistake in agreeing to the dismissal of the originating application based on the advice of her coach, who on her own evidence, was not in possession of the full facts and was in any event, motivated to help the applicant as she said “he is like a father to me”, and “has helped me financially and has really helped me with my training”.

    c)The orders made were not interlocutory.

    d)Nor were the orders made as an injunction or for the appointment of a receiver.

    e)The orders did reflect the intention of the Court.

    f)The party in whose favour the order was made, that is, the Minister, does not consent to the setting aside of the order.

11. I should just note that this Court’s Rules envisage a different regime as applies to proceedings that are ended early by way of the filing of a Notice of Discontinuance (Rule 13.01), and proceedings which are ended early by the making of orders by consent (Rule 13.04). In this regard, the situation before the Court now can be distinguished from the situation before the Federal Court on appeal in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (“SZFOZ”), where in that case a notice of discontinuance was filed pursuant to the mechanism provided in Rule 13.01. The Court found (at [17]) that there was nothing in the relevant provisions of this Court’s rules which empowered the Court to set aside a Notice of Discontinuance or to reinstate proceedings which had been regularly discontinued in accordance with Rule 13.01 (see [21] of SZFOZ). In the circumstances before the Court now, Rule 16.05(3) reflects the Court’s power to vary or terminate the operation of any orders made by this Court and in circumstances, not limited to what is set out in Rule 16.05(2)).

12. In considering this matter, I am guided in what was said by the Federal Court in Bizuneh v Minister for Immigration and Multicultural Affairs [2000] FCA 126, particularly at [18] to [23].

13. The applicant has now asked this Court to set aside orders made by consent dismissing her application to this Court on the basis that she relied on the advice of her coach that he would seek to request the intervention of the Minister for Immigration in granting her a visa to remain in Australia, and in light of subsequent advice from a social worker, she “was worried” that “she had done the wrong thing”. It is now her understanding “that the Minister for Immigration might not do what my coach said he would”. The applicant characterises the basis on which she seeks the setting aside of the order as being her worry that she had done the wrong thing in consenting to the orders being made. The applicant does not say that she made a mistake in the sense that she did not understand the effect of her giving her consent to the orders made by the Court, and that it would clearly terminate the application originally made to the Court.

14. The applicant, in many senses understandably, has sought to rely on the advice of those around her. What is clear however, from her evidence, is that “the wrong thing” has never been tested. At best, she has put before the Court that she has a worry that she has done the wrong thing. The coach’s advice to seek Ministerial intervention has never actually been tested with the Minister. There was no evidence before the Court, nor was any submission or assertion made that the applicant had in fact sought the Minister’s intervention. The applicant’s worry now derives from advice received from a social worker at a community sex clinic who at best felt “it didn’t sound right that the Minister would let me stay”. None of this has actually been tested.

15. Further, what is also clear from the applicant’s evidence is that she initially acted on the advice of her coach in circumstances where she clearly hid from him, and continues to hide from him (“which my coach still does not know about”) her HIV status. The applicant’s evidence is that she trusted the coach and relied on him and that he has acted like a father to her. Notwithstanding this stated trust, the applicant still has hidden her medical situation from him. This is of course, a matter for the applicant. But what remains clear in all these circumstances is that the applicant herself approached the Minister’s solicitors seeking to “withdraw” her case, and has provided no evidence, nor indeed, made any assertion, to contradict the proposition that she knew exactly what the effect of the orders made by consent would be. That is, that it would result in the “withdrawing of her case” from before the Court.

16. That the applicant relied on her coach’s advice that led to this action by her, and that that advice may have been given by the coach without him being in full possession of all the facts, does not detract from the applicant’s knowledge and understanding of what she was in fact doing when she approached the Minister’s solicitors. Even if the subsequent advice from the community social worker is correct, and it must be said that this advice, as stated, does not rise above her statement that it “didn’t sound right”, because the social worker, with respect, cannot know what may be in the mind of the Minister, given that the exercise of the non-compellable power pursuant to s.417 of the Act, is for the Minister alone to make. But even if this were the case, it does not detract from what remains clear on the applicant’s own evidence, that is, that she knew the effect and consequence of her giving consent to the orders being made in dismissing her application to the Court.

17. Further, I also considered whether in the interests of justice, the present circumstances could justify the setting aside of the order and whether any aspect of the Tribunal’s decision could raise some ground or argument such that the interests of justice would require that the matter be considered at a final hearing before this Court.

18. I have before me the Court Book filed in this matter in relation to the original application before this Court. The bundle of relevant documents contains amongst other things, the applicant’s claims to protection as variously put to the Minister and the Tribunal, both by way of the applicant’s oral evidence at a hearing before the Tribunal (see CB 134.5 to CB 139.1 for the Tribunal’s account of what occurred at the hearing), by way of written submissions provided to the Tribunal (see CB 83 to CB 86 and CB 132 to CB 134.5) and in response in writing to the Tribunal’s letter sent to her pursuant to s.424A of the Act (CB 101 to CB 103) and provided under cover of a letter from her then migration adviser (see CB 108 to CB 115).

19. The Tribunal understood the applicant’s claims to be that she feared persecution if she were to return to Nigeria on the following bases:

    1)“At the hands of the government, because she is member of MASSOB [Movement for the Actualisation of the Sovereign State of Biafra]”.

    2)“At the hands of her uncle’s family who wish her to undergo FGM [female genital mutilation] and to abandon her Christian religion”.

    3)“At the hands of a group of men, possibly be agents of the government who raped her”.

    4)“At the hands of Nigerian Muslims, generally because she is a Christian.”

20. On the material put before it, I saw this as being an accurate reflection of the applicant’s claims. I cannot see that the Tribunal failed to understand or identify any relevant claim, or particularly in light of its subsequent analysis, that it did not understand any integer of each of these claims.

21. In relation to her claimed membership of MASSOB, the Tribunal found, based on the reasons which it gave, that the applicant had copied her initial claims about MASSOB from another person, and in circumstances where there was an absence of corroboration of her claimed involvement in MASSOB, and further, based on the generally superficial nature of her evidence about MASSOB, that the applicant was not a member of MASSOB (CB 144.4).

22. As a consequence of this finding, the Tribunal did not accept a number of attendant claims made by the applicant in this regard. That is, that her parents were involved in MASSOB, that her parents and siblings were killed in an attack related to MASSOB in August 2005 and that her family home was destroyed in such an attack.

23. In relation to the applicant’s claim to fear persecution at the hands of her uncle’s family, the Tribunal found that the applicant did not reside with her uncle in late 2005 and early 2006 as she had claimed, that she had not suffered at the hands of her uncle or any member of his family, and that they were in no position to insist that she undergo FGM. This finding was based on the applicant’s own evidence and inconsistencies in the various accounts of her claims given by the applicant (these were the subject of the s.424A letter (see CB 146.4)).

24. In relation to her claims to fear harm at the hands of a group of men who possibly may be agents of the government who raped her, the Tribunal found, based on the applicant’s written submissions and oral evidence to the Tribunal, that even if it accepted her claim to have been raped by this group of men, the motivation for the alleged attack on the applicant was not related to one of the Convention Reasons, but was one which was “peculiar to her as the child of her father”. The applicant’s evidence had been that the attack took place within the context of an attempt to extort money from her, allegedly owed by her father. The Tribunal found that as the motivation for the alleged adverse interest in her father was not Convention related, it was therefore required pursuant to s.91S of the Act to ignore it, and therefore found there was no basis for finding that the applicant had a well-founded fear of persecution as a member of a particular social group comprising her father’s family (CB 145.5).

25. In relation to the applicant’s claim to fear harm from Muslims generally because she is a Christian, the Tribunal found, based on the applicant’s own evidence, that she had never been harmed by Muslims because of her Christian religion (apart from her uncle’s family – a claim that the Tribunal had already rejected), and based on independent country information available to it (including an amnesty international report provided by the applicant to the Tribunal), that if the applicant were to return to her home town in the reasonably foreseeable future, she would be in a community dominated by people of her ethnicity and religion, and that there would be no more than a remote possibility of her facing persecution because of her ethnicity and/or her religion (CB 146.8).

26. Although not explicitly raised as part of the applicant’s claims, the Tribunal also considered whether contact between the Australian Department of Foreign Affairs and Trade and the Nigerian Ministry of Sport (this matter was referred to in the delegate’s decision but was not pressed by the applicant at the Tribunal) and discussion between the two bodies may have given the applicant a profile with the Nigerian government which would place her at risk of persecution. Ultimately, the Tribunal concluded that there was nothing more than a very remote possibility that this contact could lead to adverse consequences for the applicant (CB 145.5).

1. The Tribunal ultimately concluded that cumulatively taking into account all the factors involving the applicant’s circumstances, and having considered the evidence as a whole, it was not satisfied that the applicant had a well-founded fear of persecution for a Refugees Convention reason if she were to return to Nigeria and was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. It therefore affirmed the delegate’s decision, which was of course, the subject of review.

2. In her original application to the Court made on 22 December 2006, the applicant put forward the following grounds of review:

   “1. The Tribunal has an obligation to substantiate that my claims & circumstances are identical to another applicant & that the applicant’s original claims are identical to another applicant & that the applicant’s original claims are identical to another applicant who came to Australia under identical circumstances.

   2. The Tribunal did not base its decision on probative evidence.

   3. The Refugee Review Tribunal decision is unreasonable & the Tribunal failed to fulfill its obligation according to Migration Act when the Tribunal rejected the applicant’s claim. The Tribunal failed to comply with its obligation information & breach the law by not dealing with adverse information in a justifyable manner.”

   
   [Errors in original.]

Ground One – Tribunal required to substantiate findings

1. In ground one, the applicant complains about the Tribunal’s treatment of what it said was strong evidence to suggest that the applicant, in setting out her claims for a protection visa, had “copied the claims of another person” (CB 143.2). Ultimately the Tribunal found that the applicant was not a member of MASSOB and in part, based this on its finding that the applicant had copied her initial claims about MASSOB from another person (CB 144.4).

2. The applicant’s complaint appears to be that the Tribunal did not, but should have, substantiated (which I understood to mean that it should have proven), that the applicant did not copy such claims. It is now trite to note that a Tribunal is required to consider an applicant’s claims and aspects of those claims, and make findings ultimately relevant to the question it is required to answer. That is, whether the applicant has a well-founded fear of persecution for a Refugees Convention reason. The Tribunal does not have to uncritically accept anything or everything that an applicant puts to it. This Tribunal had the applicant’s claims put to it in part in her protection visa application. It also had other information available to it, which on comparison revealed that the applicant’s claims may have been copied from this other person’s application.

3. Given that the Tribunal’s function requires it to make findings of fact, including findings on credibility, then it was open to the Tribunal in all the circumstances to find, that the applicant, insofar as she had put claims on MASSOB, had copied such claims from another person. The Tribunal is not obliged to “substantiate” its findings in the sense that the applicant appears to put forward now. That is, it was not obliged to have sought evidence beyond what was before it to substantiate its finding. Relevantly, the finding made by the Tribunal in this regard was clearly open to it on what was before it.

4. Further, the Tribunal gave reasons for making this finding. It is also important to note that the Tribunal specifically brought this issue to the applicant’s notice (noting of course, that it had originally been identified by the delegate – see CB 51 where the delegate made a credibility finding similar to the Tribunal, based on its finding the applicant’s claims were identical to another applicant). The Tribunal brought this issue to the notice of the applicant in its letter of 19 October 2006 (CB 102.9 to CB 103.3) and gave the applicant the opportunity to comment. It also gave the applicant such an opportunity at the hearing (see CB 137.8). The Tribunal noted the applicant’s vehement assertion that she had not copied her claims made at the hearing (CB 137.8). In all therefore, this complaint does not assist the applicant.

Ground two – Tribunal did not base its decision on probative evidence

1. The applicant’s second stated ground is that the Tribunal did not base its decision on probative evidence. It is quite clear from any plain reading of the Tribunal’s decision, that it relied on the applicant’s own evidence given either directly to the Tribunal for the purposes of the review, or to the extent that it relied on the applicant’s evidence given to the first respondent’s Department, this information was included in its s.424A letter and also on independent country information which was available to the Tribunal. The applicant does not say how the Tribunal erred in this regard, but nonetheless on what is before the Court, this ground is not made out.

Ground three – Tribunal decision was unreasonable and Tribunal did not deal with adverse information in a justifiable manner.

1. To the extent that a ground of unreasonableness is available as a ground of review to the applicant (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 52; (2004) 207 ALR 12 at [8] citing Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [34] and [37]), then the applicant does not say how the Tribunal’s decision can be described as unreasonable. The Tribunal considered each of the applicant’s claims, indeed, considered an issue not pressed by the applicant but which may have ultimately assisted her, and made findings which were clearly open to it on the material before it. This complaint, on all the material before the Court does not succeed.

2. The applicant also complains that the Tribunal failed to fulfil its obligations according to the Act. I note that this is a case to which s.422B of the Act applies (the application for review was made on 18 August 2006, well after the introduction of this section of the Act). Therefore, the provisions set out in Division 4 of Part 7 of the Act are the exhaustive statement of the natural justice hearing rule (absent bias) and applicable to this case (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61; Minister for Immigration and Multicultural Affairs v SZCIJ [2006] FCAFC 62). In this regard, information on which the Tribunal relied, as a part of the reason for its decision, was either independent country information which fell within the exception contained in s.424A(3)(a) from the obligation in s.424A(1) of the Act, or was information given by the applicant herself for the purposes of the review and therefore fell within the exception under s.424A(3)(b) of the Act. To the extent that it can be said the Tribunal relied on information other than that provided to the Tribunal by the applicant, then all such information was the subject of a letter sent pursuant to s.424A(1) of the Act.

3. The Tribunal invited the applicant to a hearing pursuant to s.425 of the Act and the applicant attended and gave evidence. The Tribunal put to the applicant its concerns about inconsistencies in her evidence and concerns about the credibility of some aspects of her claims.

4. Beyond Division 4 of the Act, to the extent that the Tribunal made a finding involving s.91S of the Act (CB 145.8), I cannot see that the Tribunal’s understanding of this section and its application to the relevant circumstances before it reveals error on its part.

5. As to the applicant’s complaint that the Tribunal did not deal with adverse information in a justifiable manner, to the extent that this is a complaint that the Tribunal did not provide “adverse information” “to her” pursuant to its obligation under s.424A of the Act, then this is not made out. As I have set out above, the information on which the Tribunal relied either fell within one of the exceptions contained in s.424A(3) of the Act, or was the subject of a letter sent pursuant to s.424A(1) of the Act. To the extent that this is a complaint that the Tribunal drew adverse conclusions from the information before it, then such adverse views are, given what the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], not information for the purposes of s.424A(1) of the Act.

6. To the extent that this is a complaint about the findings which were made by the Tribunal, findings which I have already said were open to it on what was before it, then this does not rise above a request for impermissible merits review (Minister for Immigration and Multicultural and Indigenous Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

7. On 5 September 2007, and with reference to orders made on that day, the applicant, who appeared in Court with the assistance of a solicitor, was given the opportunity to put before the Court, evidence or written submissions in support of her application to have her originating application reinstated. It is not clear to this Court what role, if any, was played by Mr Brady subsequent to the hearing on 5 September 2007. But what remains is that the applicant was given the opportunity and some additional seven weeks to provide any material in support of her claim to have the original application reinstated. The applicant has put nothing further before the Court than what she put on 13 June 2007.

8. There is nothing arising from the grounds in the original application of 22 December 2006, nor anything subsequently put by the applicant, nor otherwise discernable by the Court in looking at the material in the Court book, which would reveal jurisdictional error on the part of the Tribunal.

9. In all, the making of the orders dismissing the application to this Court, was made in circumstances where the applicant understood the nature and consequences of the orders. There is nothing before the Court now, nor has the applicant raised any argument, to show that in the interests of justice, the Court’s orders should be set aside. The applicant had the opportunity of pressing any complaint against the Tribunal’s decision before this Court, but gave her consent to this matter being dismissed. I cannot find any reason to set aside the orders made on 6 June 2007 and therefore decline to do so.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls  FM

Associate:  Dawnie Lam

Date:  1 November 2007