SZKOM v Minister for Immigration
[2008] FMCA 251
•7 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 251 |
| MIGRATION – Review of Refugee Tribunal decision – procedural fairness – applicant’s request for an adjournment – applicant seeking impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 |
| Minister for Immigration and Indigenous Affairs v Wu Shan Liang [1996] HCA 6 (1996) 185 CLR 259 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affair [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZKOM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1372 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 March 2008 |
| Date of Last Submission: | 4 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms V McWilliam |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 1 May 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1372 of 2007
| SZKOM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application made under the Migration Act 1958 (Cth) (“the Act”) filed on 1 May 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 April 2007 and handed down on 24 April 2007 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The Minister has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a citizen of Nigeria, who arrived in Australia on 3 September 2006. He applied for a protection visa on 15 September 2006. This was refused on 26 September 2006 (See CB 1 to CB 47 for the application and supporting documents). The delegate’s decision is reproduced at CB 48 to CB 57.
The applicant sought a review by the Tribunal (CB 62 to CB 65). The applicant was assisted by the Refugee Advice and Casework Service (Aust) Inc (“RACS”) before the Tribunal. A number of submissions were made by a lawyer who was employed by this organisation on the applicant’s behalf (See CB 73 to CB 75 to CB 82, with the applicant’s statutory declaration attached at CB 83 to CB 104. See also CB 181 to CB 182, and further statutory declaration by the applicant attached at CB 182 to CB 188. See further CB 198 and CB 199).
Hearing before the Tribunal
The applicant attended a hearing before the Tribunal on 12 December 2006. His representative from RACS was also in attendance (CB 165).
The applicant had been employed at the University of Lagos and came to Australia to deliver an academic paper. His claims as originally put were that he feared harm from “cultists” in Nigeria, and “assassins,” “gangsters,” who he claimed were “used by politicians.” (see, in particular, CB 23.1). The applicant’s claims were that he had refused to join these cultists, who were active at his university, and as a result he (and his cousin) had been threatened and harmed. The applicant claimed that he did not believe that he would have been offered protection by the authorities. By way of subsequent submission (on 8 December 2006, a matter of days before the hearing), the applicant made additional claims that he feared harm because of his Yoruba ethnicity, and because of his involvement with the O’odua People’s Congress (“OPC”) (See generally CB 76.4 to CB 77.6 and CB 85.4).
He also claimed that he had been involved in the National Youth Council in 2002, and had given lectures criticising cultistism (CB 90.9 to CB 91.6). He claimed that after he had refused to join the cultists, he had been denied promotions and had been attacked. The applicant also submitted a large number of documents in support of his claims, including a relevant OPC membership card, a letter from his wife and a number of medical reports.
Tribunal’s Findings
The Tribunal found that even if it accepted that the cultists had acted towards the applicant as he had claimed, there was no link between the harm feared and the Refugees Convention (CB 279.5).
The Tribunal said:
“Rather it is clear that his claim is that the cultists threatened him because he did not do something they wished him to do, and for no other reason. The Tribunal therefore finds that the harm he fears hands of the cultists is not harm which would be inflicted for a Convention reason.” (at CB 279.8).
The Tribunal also considered whether the authorities in Nigeria would not protect the applicant against the harm claimed, in circumstances where this might have been for a Convention reason, thus bringing the applicant within the “realm of the Convention” (CB 279.9). However, the Tribunal found that the applicant’s claim was that: “the authorities would be unable to protect him, not that they would refuse to do so” (CB 279.9).
In relation to the applicant’s claims that he was a member of the OPC, the Tribunal found that the applicant was not a member of the OPC nor that he was perceived to be such a member. This conclusion was formed because of the delay in raising this particular claim, and the characteristics of the applicant’s membership card which he had produced and which the Tribunal found “likely to be “counterfeit” (see CB 280 to CB 281). Further, the Tribunal rejected the claim that the applicant had a profile as an advocate of the Yoruba ethnic group, and moves for autonomy by this group on the basis that while this claim had been put forward by the applicant’s advisor, the applicant’s own evidence did not support such a claim (CB 282.1)
Ultimately, as a result of these findings, the Tribunal did not accept that the applicant would be refused assistance by the police or other Nigerian authorities if he were to seek protection against cultists (CB 282.2 and CB 282.6). Therefore, in all, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. It therefore affirmed the decision not to grant a protection visa to the applicant.
Application to the Court
The stated grounds in the application are:
“1. Inappropriate information and documentation on my part and on the part of the decision maker
2. The state of my mental health and torture and pain.
3. My welfare on humanitarian/protection because I’ve lost my job and I have dependants, and I have the fear of being killed in my former country.
4. Australian government has expended money on my recovery of which I owed it obligation, so that I can do the work I know how to do best which is Lecturing/Teaching/Researching.”
[Errors in original]
Hearing before the Court
At the hearing before the Court the applicant appeared in person. Ms V McWilliam of Counsel appeared for the first respondent. The Court also had before it the first respondent’s outline of written submissions (filed on 25 February 2008).
Adjournment request
Prior to the hearing (by letter dated “17 January 2007” – but stamped by the Court Registry as having been received on 21 January 2008) the applicant sought an adjournment of the final hearing of his matter. He pressed this request at the hearing. The applicant submitted that he had just obtained employment, that he had not been in receipt of any “government support,” and had not been able to hire a solicitor. But that as he was working now, he would be able to do so. He sought an adjournment of one year (or more) to enable him to save the money required to hire a solicitor. The applicant also claimed that he had been very sick before the Tribunal, that he had received no assistance, and that the Tribunal had only asked “a few questions.”
Ms McWilliam opposed the granting of any adjournment essentially for two reasons. First, given that the application to the Court was made on 1 May 2007, and that the matter has been before the Court since that time, the applicant has had ample time to obtain assistance. Further, and notwithstanding the applicant’s claims to have been sick before the Tribunal, there was no evidence that he would not be able to conduct the final hearing before the Court.
Second, and ultimately, Ms McWilliam submitted, there would be no utility in adjourning the final hearing because, as had been set out in the Minister’s written submissions, which had been provided to the applicant, the Tribunal’s conclusions were open to it on the evidence before it. The applicant had not put anything before the Court to assert jurisdictional error on the part of the Tribunal, and nor was jurisdictional error otherwise discernible. Therefore, it was submitted, the granting of any adjournment would be a futile exercise.
I agree with Ms McWilliam that an adjournment would serve no useful purpose. The applicant made his application on 1 May 2007 and appeared before a Registrar of this Court on 17 May 2007, when he signed short minutes of order, setting out the process by which his application would be conducted before the Court. He also indicated, at that time, that he wished to participate in the Court’s legal advice scheme, and was subsequently referred to a lawyer on that panel. (The Court file reveals that the applicant’s matter was referred to a lawyer on that panel.)
The applicant’s request for an adjournment, so that he could save money to hire the services of a lawyer, was unsatisfactory in a number of the respects. Other than a general reference: that lawyers are “expensive,” and that it would cost money to hire a lawyer, the applicant made no submissions (and did not provide any evidence to the Court) of any actual attempt that he may have made to obtain the services of a lawyer in the time that had been available to him since 1 May 2007. Nor did the applicant make any submissions to the Court about any attempts he may have made to seek assistance on a pro-bono basis (beyond his request to be referred to a lawyer on the panel of the Court’s legal advice scheme). I note that the applicant did have access to the Court’s Legal Advice Scheme and a lawyer on the panel of that scheme provided advice to the applicant (14 September 2007).
Further, and importantly, the applicant’s request for another year, lacked any detail as to any specific sum that the applicant was required to obtain in order to engage the services of a legal representative, nor any detail whatsoever about how his current employment situation would assist him in achieving any such sum required within the year that he had sought. Despite opportunity the applicant put forward no clear plan as to how he was to achieve his objective.
Ultimately, however, I am persuaded to agree with Ms McWilliam, because on the material before the Court, and for the reasons set out below, I cannot discern jurisdictional error in the Tribunal’s decision, nor any circumstance otherwise suggesting jurisdictional error, such that an adjournment would serve any useful purpose to enable such a matter to be more comprehensively put before the Court. Nor has the applicant put anything before the Court indicating that there would be any useful purpose in allowing the applicant a shorter (than one year) opportunity to obtain legal advice.
The Application to the Court
Nothing in what is stated as the grounds of the application asserts jurisdictional error on the part of the Tribunal. That the applicant has lost his job, and has dependents, and that he would be killed in Nigeria, and that the Australian government has “expended money” on him, are not matters which reveal jurisdictional error on the part of the Tribunal. They are, as Ms McWilliam submitted, for the most part, a re-agitation of the applicant’s claims for protection. The applicant appears to seek impermissible merits review, which is not open to this Court (Minister for Immigration and Indigenous Affairs v Wu Shan Liang [1996] HCA 6 (1996) 185 CLR 259).
Neither can I otherwise discern jurisdictional error in what the Tribunal has done. Any plain reading of the Tribunal’s decision record reveals that the applicant’s claims were understood by the Tribunal and comprehensively addressed. The applicant did have assistance from an adviser (a registered migration agent and lawyer) who assisted him, not only with written submissions, but who also attended the hearing conducted by the Tribunal with the applicant.
Further consideration
The determinative issues before the Tribunal were, in relation to his fear of harm from cultists, that no Convention nexus could be established and, in relation to his claims arising out of his race and ethnicity as a member of the Yaruba people, state protection would be available.
In relation to his claims involving the cultists, the Tribunal accepted the applicant’s claims, but found no Refugees Convention nexus. This issue was squarely raised by the delegate in his decision record (CB 56.8):
“I find that the harm feared by the applicant may be persecutory in its gravity. However I do not consider the harm to be for a Convention reason.”
For the purposes of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, the Tribunal’s obligation to provide procedural fairness at the hearing, pursuant to s.425 of the Act, this determinative issue was clearly raised by the delegate’s decision. It was also raised by the Tribunal at the hearing with the applicant (see CB 273.9):
“The Tribunal said that, based upon its understanding of the applicant’s claims, the cultists were threatening him in an attempt to persuade him to grant high marks to particular people favoured by them. This being the case, the Tribunal did not think the harm he feared was related to any of the five reasons listed in the Convention. The Tribunal invited the applicant to comment on these points.”
In relation to the availability of state protection to the applicant as a member of the Yoruba people, this was also generally raised by the delegate’s decision (but not in the specific context subsequently put to the Tribunal):
“Moreover, as effective protection is available to the applicant, his fear of persecution is not well-founded” (at CB 56.8)
However, the applicant’s claim to be a member of the OPC and the fear of harm which arose from this was raised subsequent to the delegate’s decision. This claim (and the applicant’s reliance on various documents to support this claim), was discussed at the hearing. The Tribunal told the applicant at the hearing (CB 270.5): “that the fact that this claim was not made until almost three months had passed since he applied for protection, reduced the credibility of this claim.”
Further, in relation to the OPC membership card and identity card (said to have been issued to him in 2004 by the OPC) provided in support, the Tribunal noted the issue of the weight that it should give to these documents (CB 272.4) and inconsistencies in his claims in this regard (CB 272.6) which led the Tribunal to tell the applicant: “this was causing it to wonder about the authenticity of the card” (CB 272.6).
The Tribunal further emphasised to the applicant that not having mentioned the existence of his identity card in his application “could lead the Tribunal to conclude that it had been recently fabricated for the specific purpose of supporting his application” (CB 273.4).
In relation to the applicant’s claim to fear that the authorities would kill him if they came to know he was a member of the OPC, the Tribunal said (at CB 273.6): “The Tribunal asked why the applicant had not mentioned this fear in his original application” (that he might be killed by the authorities if they came to know he was a member of the OPC). Further (at CB 274.4): “The Tribunal mentioned again that it might regard his failure to mention the OPC until just prior to the hearing as an indication that this claim was not genuine.”
In relation to the claim made by the applicant’s representative, after the hearing, in the latest of a series of submissions that the applicant conducted: “advocacy of the autonomy of his tribe the Yoruba people …” (see CB 240.8), this was specifically linked by the applicant’s adviser to the applicant’s membership of the OPC (a claim already raised). See CB 181.3:
“In our submission, [the applicant’s] membership of the OPC is entirely consistent with his commitment to the cause of his race, the Yoruba people. It is not reasonable to conclude, based on his evidence before the Tribunal, that he has fabricated his OPC membership in order to advance his claims.”
Clearly, the issue in this regard was the applicant’s claimed membership of the OPC, an issue that had been discussed at the hearing.
The Tribunal found that this reference by the applicant’s migration agent was inconsistent with “the applicant’s own evidence” which “did not suggest that the applicant took an overt role in such advocacy, beyond his claimed attendance at rallies” (see CB 282.2).
It should also be noted that, in terms of procedural fairness, this is a matter to which s.422B of the Act applies, making the matters set out in Division 4 Part 7 of the Act the exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]- [67], SZCIJ v Minister for Immigration and Multicultural Affairs[2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48])
The Tribunal did send a letter to the applicant pursuant to s.424A of the Act (See CB 176 to CB 178) inviting the applicant to comment on certain information essentially dealing with the applicant’s omission in his protection visa application of his membership of OPC, and information that the Tribunal had obtained, suggesting that the relevant documents provided by the applicant “is most likely to be counterfeit” (see CB 177.2).
Additional Complaints
I cannot see that the Tribunal failed in any obligation that can be said to arise from s.424A or s.425. No other relevant part of Division 4 appears to assist the applicant in showing jurisdictional error on the part of the Tribunal.
Before the Court, the applicant complained that he had been very sick at the Tribunal hearing, that he had told the Tribunal about this, and further that he had received no assistance before the Tribunal. He also claimed that the Tribunal had only asked him a few questions. The applicant did not elaborate on any of these matters, despite being given the opportunity to do so before the Court.
First, it is difficult to understand the applicant’s complaint that he received no assistance with his application before the Tribunal. Plainly, the applicant was represented before the Tribunal by RACS, an organisation known to the Court to be active in assisting refugee claimants before the Tribunal. From the material contained in the Court Book, the representative from that organisation (who was both a lawyer and a registered migration agent) assigned to the applicant appeared highly active in making submissions on the applicant’s behalf, and indeed attended the hearing before the Tribunal. From the Tribunal’s account of what occurred at the hearing, the representative was specifically asked whether there was any further submission to be made on behalf of the applicant (See CB 274.7).
As to the applicant’s complaint that the Tribunal “only asked a few questions,” I understood this to be a complaint that the Tribunal did not address relevant issues, or did not properly give the applicant the opportunity to present his evidence and explanations. The applicant has not put before the Court any transcript of the Tribunal hearing despite such opportunity being afforded to him by orders of a Registrar of this Court, relevantly ten months ago, made on 17 May 2007. (In particular, Order 3: “The applicant file and serve any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 21 June 2007.”)
What must be noted in this regard is that the applicant, as found by the Tribunal, is a man of some learning having been educated to “masters level university degree” (CB 281.8) and “is quite obviously quite fluent in English.” Both factors are indicative to the applicant taking some positive action in putting a transcript of the Tribunal’s hearing before the Court. In all the circumstances it was open to the applicant to have done so in the lengthy time available to him.
In any event, despite opportunity in the time available to him, no transcript has been put before the Court to support the applicant’s claims that the Tribunal: “only asked a few questions,” and that he was denied an opportunity to put forward his claims.
The only account of what occurred at the hearing, is the Tribunal’s own account. This reveals that the Tribunal clearly and comprehensively addressed all the relevant issues and matters of evidence which the applicant had put before it, and that the applicant was given the opportunity to not only to address issues of concern at the hearing, but also was given the opportunity subsequently to do so in writing. An opportunity which the applicant and his adviser took up.
In relation to the applicant’s claims that he was “very sick” before the Tribunal, there is nothing in the material before Court to show that the applicant was not in a position to properly take part in the hearing, nor that he was prevented by any illness in making his submissions and presenting evidence to the Tribunal.
It should be noted that by way of attachments to submissions made to the Tribunal by the applicant’s adviser (see letter from RACS of 20 March 2007 – CB 242 to CB 241), documents from the NSW Refugee Health Service were put before the Tribunal, indicating that the applicant had attended at the service (see CB 242 to CB 253), and had been the subject of some medical examination and testing during part of the period that the applicant’s case was before the Tribunal.
However, I agree with submission by Ms McWilliams that this material was not submitted to the Tribunal as evidence of the applicant being unwell at the hearing, or being unable to properly participate at the hearing. Rather, it was submitted as evidence that the applicant had been subject to headaches as a result of a “curse” that had been put upon him by the cultists. The covering letter from RACS states:
“[The applicant] has provided me with copies of these documents after consulting a doctor in Australia in relation to headaches suffered, he feels, as a result of a curse being placed on him.” (CB 240.7).
In its decision record, the Tribunal acknowledged that these submissions had been received on 22 March 2007 (after the hearing held on 12 December 2006). It plainly (and in context properly) understood the documents to have been provided to the Tribunal in support of his claim that a curse had been placed upon him by the cultists.
Relevantly, the Tribunal’s findings in this regard are set out at CB 279.4:
“It is not necessary for the Tribunal to make definitive findings as to whether or not cultists have harmed the applicant or threatened him in the various ways he described, including workplace discrimination, breaking into and ransacking his home, causing him to have headaches by simply confirming his identity during telephone calls, placing powder on a chair, raping his cousin, placing curses on him etc. This is because, even if cultists have done these things, the Tribunal has been unable to identify any link with the Convention in relation to the harm he claims to fear at the hands of cultists”
Importantly, there was nothing in this material to show that these headaches prevented the applicant from being able to give his evidence to the Tribunal at the hearing. In any event, the letter from the NSW Refugee Health Service (annexed to the adviser’s submissions) was a “discharge letter,” and does not point to any difficulties that the applicant may have had at the hearing. Noting that the discharge letter is dated 4 January 2007, a date after the date of the hearing before the Tribunal.
Ultimately, the Tribunal’s decision proceeded on the basis that even if it accepted the applicant’s claims relating to the cultists, no Refugees Convention link could be established.
In relation to the Tribunal’s rejection of the applicant’s claimed membership of the OPC, the Tribunal’s reasons for rejecting the applicant membership, to the extent that they can be said to based on documentary evidence he had provided was the subject of a letter to him. Putting to one side whether the Tribunal’s adverse views of these documents and the applicant’s evidence and the omission of aspects of his claims arising from his claimed membership of the OPC were “information” for the purposes of s.424A in any event (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] - [18]).
Conclusion
In all, I cannot discern jurisdictional error in the Tribunal’s decision. The applicant’s reasons for seeking an adjournment (that is, that he wanted more time to save money from his employment so that he could hire a lawyer) were not put to the Court with sufficient particularity (indeed no particularity), such as to establish any level of confidence that the applicant would be able to achieve this objective.
But even if he were able to do so (putting aside the issue of his not having put to the Court anything about seeking “free” or pro bono assistance in this matter over the long period of time available to him), no jurisdictional error is evident in the Tribunal decision. As such, any further delay in this matter would be futile.
In all, therefore, the applicant’s application for an adjournment is refused. Given that the applicant has not been able to show jurisdictional error on the part of the Tribunal, despite opportunity to do so, nor can such error be otherwise discerned. The application made to the Court is also dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 7 March 2008
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