SZKCU v Minister for Immigration
[2007] FMCA 1926
•12 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1926 |
| MIGRATION – Not denial of procedural fairness to disbelieve an applicant – power to make a decision after no information provided in response to a s.425 letter – principle in SZIGQ applicable. |
| Migration Act 1958 (Cth), ss.420, 424A, 424C, 425, 474 |
| Selvadurai v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 34 ALD 347 SZHPD v Minister for Immigration and Citizenship[2007] FCA 157 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | SZKCU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 325 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 12 November 2007 |
| Date of last submission: | 12 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Ms K. Hooper of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 325 of 2007
| SZKCU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 29 December 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 14 July 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to be an active member of the Radical Youth League (RYL) and to fear persecution from political leaders and the Indian authorities (Court Book “CB” 26-29).
The application was refused by a delegate of the first respondent on 12 September 2006 (CB 36) and by the Tribunal on review on 29 December 2006 (CB 79).
The matter is now before this Court pursuant to an application for judicial review filed on 2 February 2007, and an amended application filed on 3 October 2007.
Issues for determination
The issues before the Court are as follows:
·Whether it is a denial of procedural fairness to not believe submissions;
·Whether the Tribunal was empowered to make a decision after no evidence was supplied when invited in a s.425 letter;
·Whether the Tribunal was free to rely on country information that it thought relevant.
The application
In his application, the applicant set out the following grounds (numbering added):
(1)The RRT make decision on 29 December 2006. The RRT handed down decision on 23 January 2007.
(2)The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
(3)I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence. The Tribunal’s decision is totally contradictory of Professor Hathway’s quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.
James Hathaway 1991 “The law of refugees status” Butterworths Canada, contrary to its claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that.
(4)The applicant feels that the Tribunal did not give weight to the statements made by him in particular harassment.
(5)The member based his whole decision on one-sided information prepared for denying the application for the people coming from India.
The applicant filed an amended application on 3 October 2007 setting out the following grounds and particulars:
(1)The purported decision of the Tribunal does not reflect that it was made in good faith and according to the rules of natural justice.
(2)The applicants [sic] attended the hearing and gave oral evidence with the department. The reasoning adopted by the Tribunal was misapplied when the Tribunal member stated “…I consider that relocation on return to India is a viable option for the applicant”.
In Randhawa v MIMIA, Davies J observed that the issue the country of the applicant “is a citizen is not Andhra Pradesh but India and the question was whether the applicant was…unwilling to avail himself of the protection of India”.
Again the importance of looking to the protection available from the country of nationality was emphasized by the Supreme Court of Canada in Attorney-General of Canada v Ward, La Forest J held (citing the reasoning of Prof James C.Hathway) that the refugee scheme of “surrogate or substituted protection” is activated upon failure of national protection.
The consideration of the “internal flight principle” was therefore not palpably appreciated by the Tribunal member. I was a citizen not of Andra Pradesh but of India and therefore the option of relocation was not available to me.
This was a constructive failure to exercise jurisdiction in a manner constituting jurisdictional error.
The applicant’s case is that even if he returns to India he will nevertheless fear persecution because of the political problems. When I completed my studies I became the member of Radical Youth League (RYL) and started involving myself in social and political activity. Our activity is to propagate the armed revolution for achieving the new peoples democracy in India and we boycotted the elections and protest against corruption, inequality etc. I have been tortured mercilessly in the local police station. There were many communal violence in my village and the police arrested me and charged with false cases for erupting communal violence and put me in prison. The police took my fingerprints and tortured me in the jail. I feared to go back to my country because the police and political leaders will be killed me.
Findings of the Court in relation to the grounds in the application
Ground one contains no grounds for review and is dismissed.
Ground two alleges an error of law but is neither particularised nor supported by submissions. No error has been established. Ground two is rejected.
Ground three alleges a denial of procedural fairness because “the Tribunal member did not believe in my submissions and oral evidence”, and alleges that an “overly stringent approach” was taken. The Tribunal was aware that the applicant should be given the benefit of the doubt. It stated at CB 99.2:
It is reasonable that an applicant whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras.196-197 and 203-204). However, it is appropriate that the Tribunal assess the specific claims advanced in support of an applicant’s case, bearing in mind that:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
(Selvadurai v The Minister for Immigration and Ethic Affairs and Refugee Review Tribunal, Heerey J, (1994) 34 ALD 347at 348). While the Tribunal accepts that, as observed by Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510, it is hardly surprising that applicants for refugee status may yield to the temptation to embroider their accounts (at paragraph 190), however, for the reasons that follow, the Tribunal does not accept the applicant’s claims that he has suffered, or has a well-founded fear of persecution.
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
It is not a denial of procedural fairness for the Tribunal to not believe the applicant.
Section 424A letters were sent to the applicant (CB 57, 60) setting out doubts that the Tribunal had about the applicant’s evidence. The applicant responded that “I don’t know anything about the details” (CB 62.5). This response was referred to by the Tribunal at CB 87.2. At the hearing the applicant stated that there was nothing that he would like to add (CB 87.4).
A s.425 letter was sent to the applicant advising him that the Tribunal had considered the material before it but was unable to make a decision in his favour on this information alone. A s.424 letter was sent to the applicant on 17 November 2006 requesting that he provide additional specified information (CB 52), in which he was advised that if he failed to provide the additional information by 12 December 2006, the Tribunal would make a decision on the review without further notice. The applicant failed to produce the additional information by 12 December 2006. Therefore the Tribunal was empowered to make a decision on the review without taking any further action to obtain the additional information: s.424C(1).
When the applicant was advised that the Tribunal was unable to make a decision in his favour on the material before it, and when the applicant failed to provide the additional information as requested, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Although the case in SZIGQ involved the non-appearance of the applicant in response to an invitation to appear where the Tribunal was unable to make a favourable decision on the information before it, the Court finds that the principle that the “the inevitable consequence was the rejection of his application” applies to the circumstances in this case. A denial of procedural fairness has not been established. Ground three is rejected.
Ground four complains that the Tribunal did not give weight to statements made by the applicant, in particular, harassment. As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41]. The Court refers to the decision of Lee (ante) that “the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
The decision in Sean Investments v Mackellar [1981] 38 ALR 363 at 375 supports the proposition that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not a court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising the statutory power. An error has not been established in relation to the weight given by the Tribunal to statements made by the applicant. Ground four is rejected.
Ground five alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship[2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established.
As to the Tribunal’s reliance on country information, the Court refers to the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] as follows:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
No error was made by the Tribunal in relying on the country information before it. Ground five is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges a lack of good faith and a denial of natural justice. This ground is rejected for the reasons stated above. In addition, it is clear that the Tribunal gave the applicant the opportunity to respond to the possibility that the Tribunal would make an adverse finding of credibility against the applicant (s.424A letter, CB 60). Ground one is rejected.
Ground two complains about a statement by the Tribunal Member that “relocation on return to India is a viable option for the applicant”. The Tribunal having made a finding of fact that it “is not satisfied that the applicant faces a real chance of persecution should he return to India now or in the reasonably foreseeable future”, the issue of relocation was not determinative of the application; for that reason the issue was not dealt with in the Tribunal’s “Findings and Reasons”. The applicant seeks a review of the statement as to relocation: such review of the merits is not available. In NAHI (ante), the Full Court of the Federal Court decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The statement by the Tribunal that “you could reasonably be expected to relocate” was put to the applicant for comment in the s.424A letters of 17 November 2006 (CB 57.5) and the s.424A letter of 4 December 2006 (CB 61.5). The applicant was invited to respond in writing but failed to do so, other than to say that he could not relocate because of “language problems”, that “politicians and police are totally corrupted”; and that “mental tention [sic]” would prevent him from relocating. As the issue of relocation was not an active issue on which a finding was made, there is no finding on it to be reviewed. Ground two is rejected.
In ground two the applicant seeks to put again facts that were put to the Tribunal. It is not part of the function of the Court to conduct a review of the merits. Ground two is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 20 November 2007