SZKKP v Minister for Immigration
[2007] FMCA 2034
•7 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2034 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to make relevant findings. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 184 |
| First Applicant: | SZKKP |
| Second Applicant: | SZKKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1037 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 November 2007 |
| Date of last submission: | 20 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Newman, Newman & Associates |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms M. Mafessanti, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1037 of 2007
| SZKKP |
First Applicant
| SZKKQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 January 2007 and handed down on 8 February 2007.
The first named applicant claims to be from South Africa and of Indian ethnicity and Hindu faith (“the Applicant”) and is the wife of the second named applicant.
The Applicant’s husband claims to be from India and also to be of Hindi religion. The claims of the Applicant’s husband for refugee status are dependant on the claims of the Applicant.
The Applicant arrived in Australia on 29 June 2006 having departed legally from Johannesburg Airport on a passport issued in her own name and a visa issued on 23 August 2005.
On 4 August 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by members of the Inkatla Freedom Party (“IFP”) for her active membership of “the Minority Front – Small Party” and support of its leader. The Applicant claimed the following:
a)to have been harassed by way of threats over the telephone;
b)that a neighbour of similar political persuasion was “shot dead by the I.F.P. party leaders and to date no arrest has been made by the Police”;
c)she and her husband were attacked by people claiming to be from the IFP and her husband received multiple injuries; and
d)she and her husband were run off the road by the IFP but only received minor injuries.
e)On 3 October 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 26 October 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 31 January 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 March 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 28 November 2006, the Tribunal invited the applicants to come to a hearing on 19 December 2006.
The applicants gave oral evidence to the Tribunal via video link. The Tribunal explored with the Applicant her claims, in particular, her knowledge of the Minority Front and her past activities involving the Minority Front. The Tribunal also noted the Applicant’s assertion of having recently heard that a distant relative looking after her house in South Africa had been found hanged. The Tribunal noted that the Applicant stated that she believed the hanging was linked to the adverse interest in her.
The Applicant’s husband also gave oral evidence and expanded on the claims made in the protection visa application. The Applicant’s husband further claimed that in 2005 the Applicant suffered from a miscarriage while they were in Australia as a result of stress.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal noted documentary evidence received by it after the hearing from the Applicant.
The Tribunal accepted the Applicant’s evidence that she may have a family connection with a political leader of the Minority Front and accepted that the Applicant may have put up posters for the relative.
The Tribunal noted there was no evidence before it to suggest that the Applicant had been involved in broader political activities beyond putting up posters. The Tribunal found that the Applicant knew very little of the policy agenda and platforms of the Minority Front party and was unable to name candidates who stood for the party in the most recent elections in March 2006. The Tribunal found that the politically related activities of both the applicants did not go beyond putting up posters for the relative.
The Tribunal found that, in any event, the applicants were able to relocate within India or South Africa, being the country of citizenship of the Applicant’s husband.
Ultimately, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution from members of the Minority Front by reason of any imputed political opinion or any other Convention related reason.
The proceeding before this Court
The applicants did not attend the hearing before this Court. However, they were represented by Mr Newman, solicitor. Mr Newman confirmed that the outcome of the Applicant’s husband application was dependent on that of the Applicant.
Mr Newman confirmed that the Applicant relied on the ground identified by him in the application filed on 23 March 2007 and a further ground of review in respect of which he sought leave to rely upon.
Further ground of review
Mr Newman was granted leave by consent to add a further ground of review, namely:
“The Tribunal erred in law by failing to find whether or not low level harassment that it found to have occurred was a s a result of political opinion that the Applicant held or for reasons unconnected with it.”
Mr Newman contended that this ground was based on a sentence in the Tribunal’s decision where the Tribunal stated:
“On the basis of her oral evidence before the Tribunal the Tribunal finds that the applicant has suffered low level harassment but has not suffered serious harm such that it amounts to persecution for reason of her political opinion in South Africa.”
Mr Newman submitted that it is not clear whether or not the finding by the Tribunal quoted above is that any harassment suffered by the Applicant for her political opinion in South Africa was “low level” and was not sufficient to amount to serious harm; or, whether the Tribunal was intending to find that any harassment suffered by the Applicant was not by reason of any political opinion expressed by the Applicant.
If this Court were to find that the Tribunal was seeking to make a finding about the level of harassment suffered by the Applicant for political reasons, then Mr Newman contended that the Tribunal had failed to have regard to the miscarriage alleged by the Applicant to have occurred as a result of stress from persecution.
The sentence referred to by Mr Newman must be seen in context of the Tribunal’s decision and in the light of a fair reading of the Tribunal’s decision as a whole.
The sentence quoted comes at the end of the Tribunal’s consideration of the evidence of the Applicant about conduct that she claimed gave rise to her fear of persecution.
Mr Newman agreed that, the past persecution on which the Applicant relied was essentially conduct made up of phone calls received by the Applicant and an incident where the applicants were run off the road. However, a fair reading of the Tribunal’s decision makes it clear that the Tribunal was not satisfied that either incident was as a result of any political opinion imputed to the Applicant.
In particular, in relation to the telephone calls, the Tribunal found that the Applicant did not take them seriously. It noted that the Applicant did not change her telephone number; did not change her workplace or transport arrangements; did not report the telephone calls to police. The Tribunal found that, after the calls began in 2006, the caller could have located and harmed the Applicant wife at her home or workplace, however, did not do so.
In relation to the incident in the car where the applicants claim they were run off the road, the Tribunal found that the matter had been reported to police by the Applicant and that the attacks had been taken seriously by the police. The Tribunal was not satisfied that there was any evidence to support the Applicant’s allegation that such conduct was politically motivated, rather than that she and her husband were the victims of criminal gangs.
These findings were open to the Tribunal on the evidence and material before it and for which it gave reasons.
The sentence quoted above in support of this ground, when read in context of the Tribunal’s decision as a whole, makes it clear that the Tribunal found that any harassment suffered by the Applicant was not for a Convention reason.
In the circumstances, the Applicant’s miscarriage was not found by the Tribunal to be for any Convention related reason.
A fair reading of the Tribunal’s decision in context makes it clear that the Tribunal’s finding, as quoted above, is more in the nature of a clumsy general summation of the matters that it considered in detail in the preceding paragraphs. To read those words otherwise, would be to read the decision of the Tribunal with an eye keenly attuned to error, which is not permissible (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 184 at [46]).
Accordingly, the further ground of review is not made out.
Ground in application filed on 23 March 2007
Essentially, this ground is no more than a restatement of the further ground of review considered above.
Mr Newman did not suggest otherwise.
Accordingly ground 1 of the application is not made out.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal identified the claims made by the Applicant and noted exchanges that the Tribunal had with the Applicant during the course of giving her evidence. A fair reading of the Tribunal’s decision makes it clear that the Tribunal raised with the Applicant concerns about her evidence. The Tribunal also noted the evidence of the Applicant husband in its decision and the exchanges it had with the Applicant husband about his evidence.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered the conduct giving rise to the Applicant’s fear of persecution and was not satisfied that any such conduct engaged against the Applicant or her husband was engaged in for any Convention related reason, in particular, any political opinion imputed to the Applicant.
The findings and conclusions of the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
Otherwise, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 23 March 2007 is dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 6 December 2007
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