SZKUJ v Minister for Immigration

[2007] FMCA 2016

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2016

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – allegation that Tribunal failed to act in good faith not made out – Wednesbury unreasonableness not applicable to non-discretionary decisions – claim had no Convention nexus.

Migration Act 1958, ss.65, 66, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (2003) 198 ALR 59

Applicant: SZKUJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1914 of 2007

Judgment of: Cameron FM

Hearing date: 22 November 2007

Date of Last Submission: 22 November 2007

Delivered at: Sydney

Delivered on: 22 November 2007

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr. A. Izzo

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,740.

.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1914 of 2007

SZKUJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India where, he claims, he was romantically involved with a young woman in Mumbai.  He alleges that while he was in India the relationship was discovered by his family and by the family of the young woman in question and that this subsequently led to him being threatened and assaulted by associates of the young woman’s brother. The applicant left India and arrived in Australia on 9 January 2007.

2. The applicant claims to fear persecution in India by reason of his relationship with a young woman in Mumbai.

3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on

   
   6 March 2007

   . The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its role is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 64 – 65). Relevantly, they are in summary:

   a)the applicant was in love with a girl in India but her family and his parents did not approve;

   b)when his girlfriend’s family found out, the applicant was beaten by associates of his girlfriend’s brother;

   c)the applicant fled to his home but his parents were not willing to assist him;

   d)he hid with a friend who organised his passage to Australia;

   e)the applicant fears returning to India because his girlfriend’s brother is an underworld figure and because his own parents have rejected him; and

   f)the applicant had not sought police protection on the basis that the authorities co-operated with underworld figures. The applicant also told the Tribunal that he was no longer in a relationship with the girl in question and they were not in contact with each other.

The Tribunal’s decision and reasons

1. 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”). 

2. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal accepted that the applicant was mistreated by his girlfriend’s family and rejected by his own, however, it found that the applicant’s difficulties in India had no Convention nexus; and

   b)the Tribunal was satisfied by the applicant’s evidence that the applicant’s relationship with his girlfriend was now over and thus formed the view that the applicant was no longer a person of interest to the people he claimed to fear.

3. Nonetheless, the Tribunal was satisfied that the applicant has access to state protection in India of a level which was both reasonable and consistent with international standards, noting that according to independent country information, citizens of India have access to protection by the state, even if the perpetrator is an underworld figure.

Proceedings in this Court

1. The grounds of the application were pleaded as follows:

   1. Serious harm (1).

   2. Economic hardship (2).

   3. Physical harassment (3).

2. In his affidavit sworn 20 June 2007, the applicant also said that:

   a)the Tribunal did not act in good faith in making the decision on his case; and

   b)the Tribunal’s decision was not reasonable.

3. At the hearing today the applicant further submitted that:

   a)the Tribunal had not looked at his case properly; and

   b)had reached a wrong decision.

Grounds raised in the application

1. Dealing firstly with the matters raised in the application, none of those grounds disclose an issue from which jurisdictional error might be concluded. They invite the Court to undertake a review of the merits of the applicant’s claim to be entitled to a protection visa. The Court is not empowered to do that. These are proceedings for judicial review and the Court’s role is to determine whether there has been something in the Tribunal’s conduct of its review or the expression of its decision which amounts to jurisdictional error. That is to say, it is concerned with the fairness of the Tribunal’s processes, not with the fairness of the Tribunal’s decision.

2. Different considerations might apply if the findings of the Tribunal were not open to it because there was no evidence to support those findings. However, that is not the case here. In this case the Tribunal’s factual findings were open to it on the material before it and no jurisdictional error has been demonstrated in connection with those findings. Consequently, the grounds pleaded in the application do not disclose jurisdictional error on the part of the Tribunal.

Grounds raised in the affidavit

1. Turning to the matters raised by the applicant’s affidavit, the first alleges that the Tribunal did not act in good faith. This is a serious allegation which must be proved clearly. The Full Court of the Federal Court summarised the principles applicable to a determination of whether the decision under review constitutes a bona fide attempt to exercise the power of review vested in the Tribunal in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. The following principles articulated by their Honours are relevant to these proceedings:

   ·an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;

   ·the presence or absence of honesty will often be crucial;

   ·the circumstances in which the Court will find an administrative decision-maker has not acted in good faith are rare and extreme, especially when all that the applicant relies upon are the written reasons for the decision under review;

   ·mere error or irrationality does not of itself demonstrate lack of good faith;

   ·bad faith is not to be found simply because of poor decision-making; and

   ·errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.

2. Here the only evidence on which a finding on this allegation might be made is the Tribunal’s decision record. It does not reveal any suggestion that the Tribunal did not make a bona fide attempt to exercise its powers. This is not a case where the Tribunal embarked on its review with a mind fixed on rejecting the claim. Rather, its decision record reveals that it considered the evidence which was before it and reached a conclusion which was logically open to it.

3. As to the second ground raised by the applicant’s affidavit, an allegation that a decision is not reasonable may suggest little more than a strong disagreement with it. If so, then it is an invitation to undertake a review of the merits of the application made to the Tribunal, which for the reasons already given in relation to the grounds pleaded in the application, does not ground a finding of jurisdictional error.

4. If the allegation is really that the decision is illogical or irrational, then it cannot be made out on the facts. The Tribunal’s decision reveals itself to be clear, cogent and logical and no jurisdictional error is demonstrated on this basis.

5. Should there be some suggestion that this ground raises concepts of unreasonableness in a sense discussed in  Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, such considerations are not relevant in these proceedings. Wednesbury unreasonableness applies to discretionary decisions. Here the Tribunal had no discretion in its decision once it concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. Sections 65 and 66 of the Act make this clear as does the decision of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.

6. Consequently, jurisdictional error on the part of the Tribunal has not been demonstrated by the matters raised by the applicant in his affidavit.

Grounds raised in submissions

1. Turning to the matters raised by the applicant in submissions today, the first of these was an allegation that the Tribunal had not properly considered his case. The Tribunal’s decision record sets out the allegations which the applicant made in support of his claim for a protection visa. It deals with those claims

   a)first, by finding that whatever difficulties the applicant had had in India had no Convention nexus;

   b)secondly, by noting that the cause of the difficulties had passed because the applicant’s relationship with his girlfriend in India had ended; and

   c)thirdly, by finding that in any event the applicant had access to adequate state protection. 

   Consequently, on the facts, it can be seen that the Tribunal understood the applicant’s claim and gave it appropriate consideration.

2. The second matter raised by the applicant today in submissions was that the Tribunal reached the wrong decision. This allegation is no more than an invitation to revisit the merits of the application which was before the Tribunal. For the reasons already expressed, the Court cannot do this and this allegation does not justify a finding of jurisdictional error on the part of the Tribunal.

Conclusion

1. Jurisdictional error on the part of the Tribunal not having been demonstrated, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  13 December 2007