SZLHG v Minister for Immigration and Citizenship
[2008] FCA 937
•21 May 2008
FEDERAL COURT OF AUSTRALIA
SZLHG v Minister for Immigration and Citizenship [2008] FCA 937
SZLHG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 380 OF 2008
GRAHAM J
21 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 380 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLHG
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
21 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent Minister’s costs fixed in the sum of $3,800.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 380 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLHG
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
21 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Applications for Protection Visas
Decisions upon the grant or refusal of visas are made in the first instance by the Minister, his or her powers usually being exercised by one or other of the delegates of the Minister for the purposes of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
Applications for review of the Minister’s delegate’s decision or decisions may be made in accordance with s 412 of the Act, where the decision was, as here, to refuse to grant a protection visa.
Section 65 of the Act relevantly provides,
‘65(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; …
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.’
The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) of the Act refers, is to be found in s 36(2) of the Act which relevantly, for present purposes, provided:
‘36(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …
…’
The reference to the ‘Refugees Convention’ is to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the reference to the ‘Refugees Protocol’ is to the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Hereafter, I will refer to the Refugees Convention as amended by the Refugees Protocol as ‘the Refugees Convention’. Article 1A(2) of the Refugees Convention relevantly provided:
A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(2) … owing to 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.
The definition of ‘refugee’ is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside his or her country of nationality. The reference then made in the text to ‘protection’ is to ‘external’ protection by the country of nationality, for example, by the provision of diplomatic or consular protection and not to the provision of ‘internal’ protection provided inside the country of nationality from which the refugee has departed (see per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (‘Khawar’) at [62]) which was cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 (‘SZATV’) at [16].
The definition of refugee presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality ‘owing to’ fear of persecution for reasons of membership of a particular social group or one or other of the reasons mentioned in the Refugees Convention which is well founded, both in an objective and a subjective sense (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379).
The second condition is met if the person who satisfies the first condition is unable to avail himself or herself ‘of the protection of’ the country of his nationality. This includes persons who find themselves outside the country of his or her nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection.
The second condition is also satisfied by a person who meets the requirement of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (see per McHugh and Gummow JJ in Khawar at [61] which was cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16].
In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Gleeson CJ, Hayne and Heydon JJ said in relation to the definition of refugee in the Refugees Convention at [19]:
‘19 The immediate context is that of a putative refugee, who is outside the country of his nationality and who is unable or, owing to fear of persecution, unwilling to avail himself of the protection of that country. As explained in Khawar, we accept that the term “protection” there refers to the diplomatic or consular protection extended abroad by a country to its nationals. …’
(Footnotes omitted)
See also SZATV at [17] where the above passage was cited with approval by Gummow, Hayne and Crennan JJ.
The Tribunal’s Role
Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradicter of the case being advanced by an applicant. A Tribunal member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.
The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); ex parte applicant S154/2002 (2003) 201 ALR 437 at [57] – [58]).
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Gray, Cooper and Selway JJ said at [36]:
‘36 It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.’
Subject to s 425(2) of the Act, s 425 requires the Tribunal to extend an invitation to an applicant to appear before it to give evidence and present arguments relating to the issues in relation to the decision under review. In relation to matters of procedural fairness at a Tribunal hearing, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]-[48]:
‘47 … It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where…there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48 Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369],
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment.’
The Present Appeal
The appellant was born in Mangalakudi, India, on 17 April 1967. It would appear that he travelled to Malaysia, Thailand and Singapore in the period from about 27 October 2006 to about 9 January 2007, before travelling to Australia from Singapore arriving on 5 February 2007. Part of his case is that his Indian passport was taken from his home by the LTTE (Tamil Tigers). He says that he undertook his travel, at least to Australia, on a fraudulent Malaysian passport. On 20 March 2007 he applied for a Protection (Class XA) visa. On 11 April 2007 the Minister’s delegate decided that the application for a protection visa should be refused. On 1 May 2007 the appellant applied to the Refugee Review Tribunal for review of the Minister’s delegate’s decision. On 24 May 2007 an invitation was extended to the appellant to appear at a hearing before the Tribunal on 19 July 2007. That invitation included the following:
‘The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.
This letter is an invitation to the applicant listed above, to appear before the Tribunal to give oral evidence and present arguments.’
Before the hearing took place, the appellant wrote a letter to the presiding member of the Tribunal on 9 July 2007 which recorded the claims which had been made in his statement to the department, in summary form, and then contained further material under the heading ‘My Submission Now To The RRT’. It is apparent that the hearing before the Tribunal lasted for a little over two hours. No transcript of the proceedings of the Tribunal is before the Court, nor was it before the Federal Magistrates Court of Australia from which the current appeal has been brought.
On 26 July 2007 the Tribunal decided that the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa should be affirmed. That decision was handed down on 16 August 2007. On 11 September 2007 the appellant filed an Application in the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. On 21 December 2007 an Amended Application for judicial review was filed. That Amended Application came before the Federal Magistrates Court of Australia constituted by Nicholls FM on 6 March 2008 who proceeded to decide on that day that the application made on 11 September 2007 and amended on 21 December 2007 should be dismissed. His Honour ordered that the appellant pay the respondent Minister’s costs fixed in the amount of $5,000.00.
On 19 March 2008 the appellant filed a Notice of Appeal in this Court. That Notice of Appeal contained three grounds of appeal as follows:
‘1.The Refugee Review Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act:
Particulars:
A.The Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act by making the following comment that:
i)the Tribunal is unpersuaded by the applicant’s claims particularly when set against the background of the country information which indicated that the LTTE is a relatively sophisticated and extensive organisation.
2.The Refugee Review Tribunal made the decision in bad faith:
Particulars:
A.The Tribunal made the decision in bad faith by making the following comment that:
i)the Tribunal has come to the conclusion that the applicant is not credible in respect of key aspects of his claims for protection.
3. The decision of the Refugee Review Tribunal is contradictory itself:
Particulars:
A. The decision of the Tribunal is contradictory itself (sic) that:
(i)On the one hand the Tribunal accepts the country information which indicates that historically Tamils in the state of Tamil Nadu have been sympathetic to and supporter of the LTTE in Srilanka; and
(ii)On the other hand the Tribunal says that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason on his return to India.’
I would observe that it is not readily apparent from the appellant’s application for a Protection (Class XA) visa, or from the letter sent by the appellant to the Tribunal on 9 July 2007, or from the evidence as given at the Tribunal hearing insofar as it is summarised in the decision of the Tribunal under the heading ‘Claims as stated at the hearing’, as to the reason which, if the appellant did have a well founded fear of persecution, would bring him within the definition of ‘refugee’ in the Refugees Convention. The appellant has helpfully filed a three-page typed document dated 15 May 2008, which is headed ‘Appellant’s Outline of Submission’. He has also addressed the Court orally in respect of the grounds of appeal set out above.
Dealing firstly with his oral submissions, I should indicate that I invited him to address the question of ‘bad faith’ first which, as I understood it, was included as a means of asserting bias or apprehended bias on the part of the Tribunal. In elaborating his submissions, the appellant seemed to rely on no more than his assertion that the Tribunal had accepted that the LTTE was present in India. Whilst he originally said that nobody supported the LTTE, he qualified this and indicated that individuals support the LTTE, but not the government. The appellant continued by saying that he told the Tribunal all the problems that he had, but the Tribunal didn’t believe him. He was unable to direct the Court’s attention to any matter which could possibly support a claim of bias or apprehended bias on the part of the Tribunal.
He was conscious of the fact that when invited to the Tribunal, the Tribunal had indicated that on the information contained in his application alone, the Tribunal was unable to decide his application for review favourably to him. He was conscious of the fact that his letter to the Tribunal of 9 July 2007 was before the Tribunal and taken into account. Indeed, it was set out verbatim in the reasons for decision of the Tribunal. The appellant accepts that he was invited to comment on matters which were of concern to the Tribunal, and he confirmed, as recorded in the reasons of the Tribunal, his assertion that a fundamental reason why the LTTE wished to harm him was because he had not provided them with ball bearings, and because he was not at their beck and call, and that he did not provide them with assistance and did not obey them.
The reference to ball bearings needs to be addressed in the following context. As recorded in the reasons of the Tribunal, the appellant claimed at the Tribunal hearing that his father, who ran a jewellery shop, had assisted the LTTE from about the year 2000 by providing medications for use by the LTTE. This assistance apparently came to an end in 2004 when the appellant’s father suffered a stroke and became unable to further help the LTTE.
The appellant said that the LTTE approached him to provide support to them. In his application for a Protection (Class XA) visa the appellant had been invited to give details of all his past employment. He indicated that from 2001 to 2006 he had served as a chef in a restaurant. At the Tribunal hearing he apparently explained that when his father became disabled he took over responsibility for the running of the jewellery shop as well as continuing to serve as a chef at a hotel. He explained that, in the circumstances, he had little time to assist the LTTE.
The Minister’s delegate, in recording the appellant’s claim for protection, had stated ‘The Tigers wanted the applicant to supply ball bearings for their weapon making’. The appellant affirmed that this was the significance of the requests or demands made on him as a chef helping out with the operation of his father’s jewellery shop had been made.
According to the Tribunal:
‘[The appellant] stated it was not really the issue of ball bearings that meant that the LTTE wished to pursue him but it was because he had refused to act as their servant that they wished to pursue him and that they were targeting him.’
It is apparent that during the course of the hearing the Tribunal shared with the appellant serious reservations which it had about his claims. Country information had indicated to the Tribunal that the LTTE ran a sophisticated international fund raising campaign and that Tamils in the state of Tamil Nadu in India had been sympathetic to and supporters of the LTTE in Sri Lanka. In its reasons for decision the Tribunal said:
‘The Tribunal has come to the conclusion that the applicant is not credible in respect of key aspects of his claims for protection.’
Other claims which had been made by the appellant related to the LTTE attending at his home and seizing his passport and the LTTE taking an adverse view of him when he was living overseas in mid-2007 and one of their number was arrested in circumstances where the suggestion was that the appellant had provided adverse information to the authorities in India in relation to the LTTE member. Given that in mid-2007 he had been living abroad for approximately eight months the Tribunal considered this suggestion to be somewhat implausible.
The Tribunal concluded that the appellant was not in genuine fear of persecution, nor was there a real chance of persecution on his return to India. The Tribunal did not accept that following his father’s illness the appellant was compelled by the LTTE to provide them with ball bearings and to act as an agent for them and that on his refusal to do so they threatened him, abducted him and confiscated his passport. The Tribunal had found the evidence of the appellant at the hearing to be unconvincing and found that aspects of his claims were implausible. The Tribunal found it implausible that the LTTE would coerce a chef by profession, who helped in his father’s jewellery shop, to acquire ball bearings for the LTTE for use in making weapons. The Tribunal had regard to country information suggesting that the LTTE was a fairly sophisticated terrorist organisation which bought and sold weapons internationally and used drug routes.
The Tribunal did not accept that the appellant had encounters with LTTE operatives in India. The Tribunal considered it implausible that the LTTE would consider the appellant to have been instrumental in the arrest of the LTTE member in mid-2007. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason on his return to India.
In passing, I would observe that neither the Tribunal nor the learned Federal Magistrate addressed what might be the relevant Convention reason had there been a finding of well-founded fear of persecution. It does not seem to me that the appellant could have been found to be a refugee within the meaning of the Refugees Convention given that he appeared not to espouse any political opinion and did not appear to have been approached by LTTE members because of his race, religion, nationality or membership of a particular social group.
Be that as it may, the Tribunal was not satisfied that the criterion for a Protection (Class XA) visa prescribed by s 36(2) of the Act had been satisfied. In the foregoing circumstances, the Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa.
I am unable to discern any bias, apprehend bias, or bad faith on the part of the Tribunal from the material which is before the Court. Ground 2 fails.
Whilst grounds 1 and 3 were addressed separately by the appellant in his oral submissions, they appear to me to have some similarity or at least overlap. The substance of what the appellant said orally was a repetition of what had been said earlier in respect of ground 2, namely, that the Tribunal did not believe anything that the appellant said. He says that he told the truth and the Tribunal didn’t believe him.
The decision does not demonstrate that the Tribunal did not believe anything that the appellant said. A number of findings were made which accorded with the case which the appellant advanced. However, critically, the Tribunal did not accept the claims made by the appellant that he had been persecuted or that he feared that he would be persecuted were he to return to India.
He concluded his oral submissions to the Court by saying ‘I would request some mercy to be shown to me’.
I have not specifically referred thus far to the appellant’s outline of submissions which on the second page bears the heading ‘Written Legal Submission’. It is unnecessary to record in these reasons the matters that are set out in that document. Suffice it to say that it does not carry the matter any further.
It is not the function of the Federal Magistrates Court of Australia or of this Court to provide a person such as the appellant with a rehearing on the merits. The opportunity for the Court to intervene requires jurisdictional error on the part of the Tribunal to be demonstrated. No such error has been adverted to by the appellant nor is any such error apparent to me from my reading of the record.
In the circumstances, the appeal should be dismissed with costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 19 June 2008
The Appellant appeared in person. Counsel for the First Respondent: J S Mitchell Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent filed a submitting appearance.
Date of Hearing: 21 May 2008 Date of Judgment: 21 May 2008