SZLJV v Minister for Immigration
[2008] FMCA 833
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 833 |
| MIGRATION – Review of Refugee Tribunal decision – no breach of s.424A – no denial of procedural fairness – no misapplication of the law on the part of the Tribunal – no evidence of bias – no apprehension of bias – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 422B, 425, 425A, 426Division 4 of Part 7 Migration Regulations 1994 (Cth), reg.4.35D Federal Magistrates Court Rules 2001 (Cth), r.44.12 |
| SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | SZLJV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2989 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 March 2008 |
| Date of Last Submission: | 14 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 27 September 2007, and amended on 11 January 2008, is dismissed.
The applicants pay the first respondent’s costs set in the amount $3,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2989 of 2007
| SZLJV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
1.This is an application made on 27 September 2007, and amended on 11 January 2008, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 24 August 2007, and handed down on 13 September 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicants.
Background
2.The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following background may be discerned.
3.The applicants are husband and wife, and arrived in Australia on 22 March 2007, and applied for protection visas on 27 April 2007 (CB 1 to CB 31). Only the applicant husband made claims to be a refugee. The applicant wife applied for a protection visa as a member of his family unit.
Applicant’s claims to protection
4.The applicant husband’s (“the applicant”) claims to be a refugee were set out in a statement attached to his protection visa application (CB 32 to CB 34). The applicant claimed to have worked as an accountant in India in “a private firm”, involved in the wholesale dealing of a “oil seeds”. He claimed that he sold goods to a person who was a “Muslim customer”, and delivered these goods prior to payment, but based on a promise that the goods would be paid for. Despite repeated requests by the applicant, no payment for the goods was made. Finally, the “Muslim merchant” became angry, and he and his men assaulted the applicant. The applicant claimed that he had previously borrowed money to reimburse his employer, but he nonetheless subsequently lost his employment. While he assured his “friends” that he would repay them the money that he had borrowed, “they advised me to leave the country for the sake of my life”.
5.The application for protection visas was refused by the delegate on 19 May 2007 (CB 35 to CB 41). The delegate’s decision turned on the finding that the harm feared by the applicant did not have any Convention nexus (CB 40.10 to CB 41.1):
“I find that the harm which the applicant claims to fear on return to India, is not for any of the five Convention reasons; and … I find that even if the harm, which the applicant claims to fear on return to India, is for a Convention reason, not to be well founded.”
The Tribunal
6.The applicants sought review by the Tribunal on 8 June 2007 (CB 42 to CB 45). Both applicants were invited to attend a hearing before the Tribunal scheduled for 22 August 2007 (CB 46 to CB 47). However, only the applicant appeared at the hearing, the applicant wife was “not present” (CB 48).
7.The Tribunal’s decision record is reproduced at CB 67 to CB 74. The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 70.10 to CB 72.10). After taking evidence from the applicant which essentially repeated the claims set out in the statement attached to the protection visa application, the Tribunal told the applicant (CB 72.5):
“The Tribunal put to the applicant that the Tribunal was not convinced from the applicant’s description of events that lead him to leave India that his circumstances as thus described fell within the ambit of the Refugee Convention. The Tribunal put to the applicant that he seemed to be saying that he feared harm from criminal elements associated with the Muslim trader in respect to monies owing to him. The applicant stated that he was in fear for his life and his life was at risk and he felt that he was sufficient for him to be a refugee.”
(Errors in original)
8.Then further at CB 72.9:
“The Tribunal reiterated its concerns as to whether the applicant’s claims fell within the ambit of the Refugee Convention. The applicant stated that he could perhaps obtain for the Tribunal a copy of the relevant bill. The Tribunal repeated to the applicant that the Tribunal is struggling to see how his business transactions of themselves even if accepted amounted to persecution of the applicant for a Convention reason.”
9.The Tribunal understood the applicant’s claims to be that a Muslim trader, and criminal elements associated with him, would attempt to harm the applicant if he were to return to India. It noted that the applicant claimed that they had assaulted him, and threatened him, prior to his departure from India. It also understood that the reason that the applicant was claiming that these persons wished to harm him was that he had demanded payment of monies owing to him from a “business deal” that he entered into with the trader.
10.The Tribunal’s relevant finding was (CB 73.4):
"As discussed with the applicant at the hearing the Tribunal is unable to discern any Convention nexus in respect to the applicant’s claimed past experiences and his claimed fear of harm on his return to India.”
11.The Tribunal further noted that while the applicant had referred to the trader as “a Muslim trader”, and that he was a Hindu, the Tribunal could not find, apart from the reference to the trader being a Muslim, any other indication that “the business difficulties with the trader related to or stemmed from religion” (CB 73.7).
12.Further, the Tribunal noted that the applicant had indicated at the hearing that he had not at any time attempted to avail himself of protection from the authorities in India, and therefore concluded: “There was not suggestion from the applicant that his failure to avail himself of state protection from the harm he fears was for a Convention reason” (errors in original) (CB 73.8).
13.In all, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Refugees Convention reason if he were to return to India, and therefore found that Australia did not owe protection obligations to the applicant. As no specific Convention claims were made on behalf of the applicant wife, the Tribunal, therefore, could not be satisfied that the applicant wife, in the circumstances, could meet the criterion set out relevantly in s.36(2)(b) of the Act, and therefore she too could not be granted a protection visa.
Hearing before the Court
14.At the final hearing of this matter before the Court, the applicant appeared in person, and was assisted by an interpreter in the Gujarati language. The applicant wife did not appear. The applicant explained that that she had consented to his representing her at the hearing. Ms N Johnson appeared on behalf of the first respondent.
The Application
15.The grounds in the originating application to the Court assert error on the part of the Tribunal on the following bases:
1)A breach of s.424A of the Act.
2)Error of law and a lack of procedural fairness.
3)A denial of natural justice because the Tribunal was said to have failed to provide the applicant further time to produce “other evidences”.
16.In an amended application, the applicants assert as the grounds of review:
1)That with reference to s.91R, the Tribunal wrongly applied the law to the facts.
2)A breach of s.424A.
3)As best as ground three can be understood, it appears to take issue with what was said to be the Tribunal’s finding that the applicant could relocate to other parts of India, and did not apply the correct test in this regard.
Applicant’s Submissions
17.The applicants have also filed written submissions: “Applicants (sic: Applicants’) Outline of Submissions on 44.12 application”.
18.At the hearing before the Court, when asked to address the Court, the applicant submitted that “I don’t know anything”. Despite attempting to assist the applicant in understanding the relevant task for the Court, the applicant’s submission was that his life was at risk in India, and that he could not return, and that there were “lots of problems going on between Hindus and Muslims”.
19.At the first Court date in this matter on 17 October 2007, the applicant appeared in person, and was assisted by an interpreter in the Gujarati language. At that time orders were made which included:
“A show cause hearing pursuant to Rule 44.12 Federal Magistrates Court Rules 2001 is hereby dispensed with.”
20.In light of this, the Court sought an explanation from the applicant as to why his written submissions were directed to a “44.12 application”, and argued that the Court should set his matter down for final hearing. Attempts to explain to the applicant that he indeed had been given the opportunity of a final hearing, did not appear to register with the applicant, who stated that the documents that he had put before the Court were drafted by “a friend of a friend” whom he said was not “a lawyer”.
21.I should just note that the matters asserted, particularly at paragraphs [11] to [16] in the written submissions, directed to the issue that the applicants have “an arguable case”, have regularly been seen by this Court in similar terms. In any event, to the extent that this document seeks to argue that the Court should provide the applicants with the opportunity of a final hearing, such an opportunity plainly has been provided.
Ground One – Breach of s.424A of the Act
22.Ground one in the originating application, and the second part of ground one, and ground two in the amended application, assert that the Tribunal breached its obligations pursuant to s.424A(1) of the Act. The application asserts that there was “certain adverse information” which the Tribunal used to affirm the decision under review, and that this should have been disclosed to the applicants pursuant to s.424A(1) of the Act. No particulars are provided as to what this information might be.
23.On any plain reading of the material before the Court, I cannot see that the Tribunal breached its obligations pursuant to s.424A(1) of the Act. The applicant gave evidence to the Tribunal at a hearing, which essentially repeated his claims set out in his statement attached to his protection visa application. The evidence given by the applicant at the hearing, even if s.424A(1) was said to be enlivened, plainly falls within the exception contained in s.424A(3)(b) (that is, information provided by the applicant for the purposes of the review) thus relieving the Tribunal of any obligation to write to the applicants, putting any such information to them for comment.
24.I cannot see that s.424A(1) is enlivened in any other way. The Tribunal’s thought processes, what it made of the applicant’s evidence, is not “information” for the purposes of s.424A(1). (See, in particular, SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [17]-[18].)
25.This ground does not succeed.
Ground Two – Error of Law and Denial of Procedural Fairness
26.Ground two in the originating application asserts, without any particularity whatsoever, that the Tribunal made an error of law and asserts a lack of procedural fairness.
27.This is a case to which s.422B of the Act applies making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (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]).
28.In this regard, relevantly, I note that no breach of s.424A occurred, and further, bearing in mind the obligations set out in s.425, both applicants were invited to a hearing before the Tribunal. There is nothing before the Court to show that the Tribunal failed to comply with its relevant statutory obligations (ss.425, 425A, 426 and reg.4.35D the Migration Regulations 1994 (Cth) (“the Regulations”).
29.Only the applicant husband chose to attend, and he was given the opportunity of giving his evidence. Following the delegate’s decision, the applicants could have been left in no doubt that the issue relevant to the disposition of their application before the delegate was that the claims did not reveal the necessary Convention nexus such that Australia’s protection obligations would be engaged.
30.The Tribunal’s account of what occurred at the hearing before it is not challenged by any evidence brought to the contrary by the applicants. For example, despite opportunity provided at the first Court date (see order four), the applicants have not provided any transcript of the Tribunal hearing. On the only account available, therefore, to the Court, it is quite clear that the Tribunal raised with the applicant the determinative issue in the applicants’ case. That is, that the claims put forward lacked the necessary Convention nexus. The applicant husband was given the opportunity at the hearing to address this issue.
31.In terms, therefore, of procedural fairness, and the Tribunal’s obligations pursuant to s.425 (bearing in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] and [44]), I cannot see that the applicants were denied a fair hearing before the Tribunal (noting the absence whatsoever of any other complaint about any other aspect of the hearing before the Tribunal).
32.Without anything further in relation to the general complaint of error of law, ground two in the originating application is not made out.
Ground Three – In the Application
33.Ground three asserts a denial of natural justice because the Tribunal failed to provide further time to the applicant to produce “other evidences before the Tribunal”. None of the documents that the applicant has put before the Court explain what this other evidence” may be, nor did the applicant assist at the hearing before the Court.
34.I note from the Tribunal’s account of what occurred at the hearing (CB 72.9) that when the Tribunal “reiterated its concerns as to whether the applicant’s claims fell within the ambit of the Refugee Convention”, the applicant: “stated that he could perhaps obtain for the Tribunal a copy of the relevant bill”.
35.If this is what ground three seeks to refer to, then I cannot see error on the part of the Tribunal. As the Tribunal told the applicant (CB 72.10):
“The Tribunal repeated to the applicant that the Tribunal is struggling to see how his business transactions of themselves even if accepted amounted to persecution of the applicant for a Convention reason.”
36.Even if the Tribunal, therefore, had provided the applicant with an opportunity to obtain “the relevant bill” (which in context is plainly understood to be “the final bill” (see CB 32.6) that was given by the applicant to the Muslim customer in relation to the transaction that he conducted with him), the provision of a copy of this “bill” to the Tribunal would not have assisted the applicant’s claim, given that the Tribunal did not reject the applicant’s claim to have engaged in this transaction. Nor indeed did it reject the claim to have provided the “bill” to the Muslim customer.
37.Importantly, the Tribunal did not reject the applicant’s claim to have conducted this transaction. Simply, the Tribunal found that even if the business transaction were to be accepted, the transaction and its consequences did not amount “to persecution of the applicant for a Convention reason” (CB 72.10). This complaint, therefore, does not succeed.
38.More generally, I also note that the applicant was put on notice by the Tribunal’s letter of invitation to the hearing (CB 46 to CB 47) which provided the opportunity for the applicant to return and submit “any new documents” by a particular date. I note further that the application for review itself (at CB 44.9) provides:
“You should provide with this application any information, documents or submissions that you want the Tribunal to consider in support of your application, or send them to us as soon as possible …”
39.In all, therefore, I cannot see that this ground can assist the applicants.
Ground Four – Wrong Application of the Law to the Facts
40.Ground one of the amended application also asserts that the Tribunal wrongly applied the law to the facts. The amended application appears to assert that the Tribunal should have found that the harm that the applicant had suffered was serious harm for the purposes of s.91R of the Act.
41.This again, as submitted by Ms Johnson at the hearing before the Court, misconceives the basis for the Tribunal’s decision. The applicant was not successful before the Tribunal, not because the Tribunal was not satisfied that he had suffered harm serious enough to amount to persecution, or harm as a result of systematic and discriminatory conduct, but the applicant’s application was simply unsuccessful because the claimed fear of harm was not for a Convention reason.
42.To the extent that ground one in the amended application makes reference to the applicant being a member of a particular social group, and “his political opinion”, there is nothing in the applicant’s claim, either in his statement attached to his protection application, or his evidence to the Tribunal, that would give rise to an obligation on the part of the Tribunal to consider whether the applicant was a member of any particular social group. Nor is there anything in the applicant’s claims to show, or indicate, that he feared harm because of his political opinion. This ground also does not succeed.
Ground Five – Jurisdictional Error
43.Ground three in the amended application can only charitably be described as confused. It asserts that the “Tribunal has importantly dealt with”, and then goes on to note the applicant’s claims being based on religion and his membership of a particular religion or social group. But despite saying that the Tribunal dealt with these aspects, it then asserts that the decision involved jurisdictional error.
44.The Tribunal did deal with the applicant’s claims as put by the applicant himself. Simply, it noted that the business transaction, and the claimed consequences, did not reveal any Convention nexus. This was a finding that was plainly open to the Tribunal to make on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ). I cannot discern jurisdictional error in this regard.
45.Further, in relation to the applicant’s reference to the trader as a “Muslim”, and his status as a “Hindu”, the Tribunal squarely addressed this issue in its analysis (CB 73.7), and found that the applicant had not provided any other indication that the business difficulties with the trader related to, or stemmed from, religion. This again was open to the Tribunal to find on what was before it.
46.As to the reference in ground three in the amended application to “membership of a social group”, this again fails for the reasons already set out above. That is, there is nothing in the applicant’s claims to give rise to the Tribunal being required to consider whether the applicant was a member of a particular social group, or not.
47.The second part of ground three in the amended application asserts that the Tribunal did not consider the issue of relocation according to the relevant principles. Again, this misunderstands what occurred, and is misconceived, because the Tribunal plainly did not consider the issue of relocation at all. This is because it was not required to. Having found no Convention nexus in the applicant’s claims, the Tribunal found that there was no well-founded fear of persecution for a Convention reason if he were to return to India. In these circumstances, the Tribunal was not required to make any finding as to whether the applicant could reasonably and safely relocate to another part of India. This ground also does not succeed.
Further Grounds Arising from Submissions
48.To the extent that the applicants’ written submissions, although directed to the issue of this Court granting the applicants a final hearing, purport to raise new grounds of review, I also considered whether anything in that document could assist the applicants.
49.At paragraph [9] of this document, the submissions allege jurisdictional error on the part of the Tribunal in that it was said it failed to assess the applicant’s fear of harm, and misapplied the law. For the reasons already referred to above, this complaint (without any further particularity) does not succeed.
50.At paragraph [10], and generally what is set out in the dot-points at paragraph [15] (to the extent that sense can be made from most of what is set out there), the applicant asserts bias on the part of the Tribunal. This appears to be said to be because the Tribunal misunderstood the applicant’s evidence, and arbitrarily rejected individual parts of the evidence, and on that basis dismissed the totality of it.
51.This again, misconceives the Tribunal’s decision. The Tribunal did not reject the applicant’s evidence, let alone reject it without “any factual basis underpinning the rejection”. This was not a case involving any adverse finding as to the applicant’s credibility. Simply, based on the evidence of the applicant, the Tribunal could find no Convention nexus in respect to the applicant’s claimed past experiences, and his fear of harm on his return to India. The applicant’s claims, and the creditworthiness of those claims, were not at issue. The basis for the applicants’ complaints of bias as expressed in the written submissions therefore is not made out.
52.The allegation of bias carries with it a heavy onus. It must be clearly put, and requires evidence to support it (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 (“Jia”)). It is a rare circumstance that bias can be made out with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J).
53.In any event, with reference to relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Jia, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102), I cannot see that bias on the part of the Tribunal can be made out. This complaint, therefore, does not succeed.
54.At paragraph [11], the submissions complain that the Tribunal failed to properly consider relevant material. That paragraph appears to relate to what is set out in paragraphs [12], [13] and [14]. That is, that the Tribunal made a “simple and broad rejection of all of the applicants (sic: applicant’s) evidence that he has or had any social profile in India”, and that the rejection of the applicant’s evidence was “based upon findings of credit, which in turn were based on conclusions of fact, upon which there was no proper basis”.
55.The Tribunal did not make any adverse findings as to the applicant’s credit. As already stated above, the Tribunal’s decision turned on its view (even accepting the applicant’s evidence) that his evidence of his claims to fear harm did not reveal a Convention nexus. This was plainly discussed with the applicant at the hearing. The “friend of a friend” who drafted this document for the applicant appears to deliberately ignore this central and determinative issue in the Tribunal’s analysis.
56.Further, to the extent that the complaint is that the Tribunal rejected that the applicant had “any social profile in India”. This again is misconceived. It is not clear what is meant by the reference to “social profile”. If this is meant to be a reference to “particular social group”, then, for the reasons already referred to above, such a complaint simply does not succeed as it has no relevance to the applicant’s claims as put before the Tribunal.
57.The first dot-point at paragraph [15] of the submissions is, at best, garbled and confused:
“The Tribunal made a finding of fact as to the effect of the applicants evidence which was contrary to his evidence. The applicant But that he had been involved in the business period and was this is a matter. If this argument is ultimately made out, this will clearly give rise to a jurisdictional error by the Tribunal, as it proceeded upon a false basis when making its findings, giving rise to a misapplication of the ball.”
(Errors in original)
58.If this is an attempt to assert that the Tribunal made findings involving a lack of credit given to the applicant’s evidence, then this, for reasons already stated above, does not succeed. The Tribunal did not reject the applicant’s evidence.
59.If what is meant, however, is that given the applicant’s evidence, the Tribunal should have found that the applicant had a well-founded fear of persecution for a Convention reason, then this complaint also does not succeed. It was plainly open to the Tribunal, on what was before it, to find that the applicant’s evidence, that is, his claims, did not reveal a Convention nexus.
Conclusion
60.I cannot discern jurisdictional error as it is said to arise from any of the complaints put in the applicants’ originating application, the amended application or the written submissions, nor otherwise. For the applicants to succeed the Court would need to, at least, find jurisdictional error on the part of the Tribunal. This application is therefore dismissed.
Postscript
61.I also take the opportunity to record my concerns regarding the activities of what can only be described as the ubiquitous, “friends of friends”, one of whom appears to have been involved in this case. Persons in the community who, for whatever reason, even if they are motivated by a compassionate willingness to assist applicants before the Court, do not assist applicants by putting before the Court grounds of complaint which are misconceived. Nor do they assist by putting submissions before the Court which, even if it is only in part, can best be described as garbled or nonsensical and, as in this case, often bearing little or no resemblance to the issues arising before the Tribunal, or before the Court.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 27 June 2008
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