SZLUQ v Minister for Immigration
[2009] FMCA 1047
•26 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1047 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in the Philippines – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.65 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZIAI [2009] HCA 39 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SCAA v Minister for Immigration [2002] FCA 668 |
| Applicant: | SZLUQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1828 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 26 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1828 of 2009
| SZLUQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 3 July 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from the Philippines and made claims of political persecution. Background facts relating to the applicant’s protection visa claims and the Tribunal decision on them are summarised in the Minister’s written submissions filed on 21 October 2009. I adopt as background, with minor amendments, paragraphs 5 to 7 of those written submissions:
The applicant, a citizen of the Philippines, claims to fear persecution for reason of his political opinion. The applicant claimed that Sonia Torres-Aquino (Aquino), the Mayor of his village and a part-owner of the company which employed him, and/or her associates, sought to harm him due to his political work for Aquino's rival, Alfred Corona (Corona), in the 2004 mayoral elections. In 2006, the applicant claimed he agreed to be Corona's political campaigner for elections to be held in 2007. Because of this, on two occasions in November 2006, armed men went to his house looking for him. The applicant's father reported the incidents to the police. As a result, the applicant feared his family would be harmed. He claimed the authorities would not protect him because of their contacts with Aquino.
In brief, the Tribunal accepted the applicant's history with regard to his place of residence and his employment and also the power and influence of the Aquino family. The Tribunal also accepted the applicant's family was known to Corona and that the applicant's father was formerly a councillor and politically aligned with Corona. The Tribunal further accepted that the applicant might have supported Corona.[1]
However, the Tribunal did not accept the applicant was a witness of truth and considered the evidence he gave to be vague, incongruous or muddled and inconsistent.[2] The Tribunal found the evidence of the witness, Corona, was convincing on issues regarding his campaign and political practices, but otherwise found him unreliable in relation to evidence relating to the applicant.[3] The Tribunal gave no weight to the content of "blotter" reports which had been provided as evidence the applicant's family had sought police protection, as the descriptions in them of the applicant's role in Corona's campaign and his activities in those reports were inconsistent with evidence given by the applicant. The Tribunal also took into account its adverse view of the applicant's credibility.[4]
[1] Relevant Documents (RD) 189
[2] See for example, RD 190 at [224]
[3] See RD 192 at [234]
[4] RD 193 [242]-[245]
I note that two earlier decisions by the Tribunal in relation to the decision of the Minister’s delegate were quashed by orders of this Court and the Tribunal had regard to the earlier Tribunal proceedings.
These proceedings began with a show cause application filed on 31 July 2009. The applicant continues to rely upon that application. The application sets out four grounds which I incorporate in this judgment:
1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant was not witness of truth, being conclusion that was not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
4. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
5. The [Tribunal] has failed to investigate applicant claims, specially the grounds of persecution, in Philippines. Therefore, the Tribunal decision dated 6 July 2009 was [affected] by actual bias constituting judicial error.
The application is supported by a short affidavit. I accepted paragraphs 1 and 2 of the affidavit as evidence and treated paragraph 3 as a submission. I also have before me as evidence the book of relevant documents filed on 2 September 2009.
I invited oral submissions from the applicant today in support of his application. He said that he based his case on the evidence of his Tribunal witness, Mr Corona. As noted above, Mr Corona had been a candidate for election to the office of Mayor in the applicant’s town and had initially won the election, although there was a subsequent dispute and Mr Corona’s opponent was declared the victor. The applicant’s claim to have a well‑founded fear of persecution centred upon threats of harm said to have been made to him in his capacity as a worker in Mr Corona’s campaign. The Tribunal took evidence from Mr Corona on two occasions during a course of the Tribunal hearing. The applicant was present when the evidence was taken from Mr Corona and he had the opportunity to comment on it and on the Tribunal’s concerns about it. There is a strong impression gained from a reading of the Tribunal’s account of Mr Corona’s evidence that Mr Corona is a colourful political figure in the Philippines whose unprompted evidence did not support the applicant’s claims.
However, Mr Corona evidently knows the applicant through his father, who was a councillor and political colleague on the same council as Mr Corona, and when prompted, Mr Corona showed a capacity to vary his evidence to attempt to lend the applicant’s claims some support. This lead to the Tribunal drawing adverse credibility conclusions, not only about the applicant, but also about Mr Corona. In my view, those adverse conclusions were open to the Tribunal on the material before it. The applicant made no other submissions in support of his application.
The applicant had had the opportunity to read the Minister’s written submissions dealing with the grounds in his application. I note also that the applicant has had the benefit of advice from Mr Mark Campbell of counsel under the Minister’s panel advice scheme, following an interview at which the applicant was assisted by a Tagalog interpreter. I agree with the submissions made on behalf of the Minister in relation to the grounds of review and adopt for the purposes of this judgment, with necessary amendments, paragraphs 8 through to 14 of those submissions:
Grounds of the Application
Ground 1 - The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant was not a witness of truth, being conclusion (sic) that was not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
The Tribunal's procedural fairness obligations are confined to compliance with the requirements of Division 4 of Part 7 of the Migration Act 1958 (Cth) (the Act). As the evidence before this Court discloses, the applicant attended a hearing before the Tribunal on 23 March 2009 and 2 April 2009.[5] The Tribunal also gave the applicant's witness an opportunity to be heard.[6] The Tribunal's findings were based upon the evidence given to it by the applicant and his witness. The findings then made were open to the Tribunal for the reasons given.
[5] RD 172 at [58]
[6] RD 172-173 at [61]-[72]
As the applicant has not provided any particulars in support of this ground, without more, it cannot be sustained.
Ground 2 - The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the requirements of the Migration Act.
The Tribunal's decision was made clearly in compliance with its obligations under the Migration Act. It was properly seized of jurisdiction; it referred to the provisions of the Act pursuant to which the decision it was reviewing had been made and it conducted that review in accordance with the provisions of Division 4 of Part 7 of that Act. This ground cannot be sustained.
Ground 3 - The Tribunal's decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
As pointed out by Gleeson CJ in Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5]:
... to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
If the applicant is inviting this Court to review the evidence before the Tribunal, it is well established that this is a course of action which the Court cannot engage in (Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272).
Ground 4: The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
This ground is misconceived and cannot be sustained. The Tribunal was obliged to consider whether the applicant's claims satisfied the Convention definition and, it is submitted, that it did so by addressing whether it was satisfied as to the claims made and taking into account the evidence put forward by the applicant. Having rejected those claims, there were no further issues to be considered or addressed by the Tribunal. It is for the applicant to satisfy the Tribunal that the relevant criteria required for being a refugee are met (Abebe v Commonwealth (1999) 197 CLR 510 at 576). If the Tribunal is not so satisfied, s.65(1) of the Act makes clear that the Tribunal must affirm the decision under review.
Ground 5: The RRT has failed to investigate applicant claims, specially the grounds of persecution in Philippines. Therefore the Tribunal decision ... was effected by actual bias constituting judicial error.
There is no general obligation on a Tribunal to investigate an applicant's claims (Minister for Immigration v SGLB (2004) 207 ALR 12 at [43])[7]. Further the applicant's claim of actual bias is unsupported by evidence or particulars and, as such, is not sustainable (SCAA v Minister for Immigration [2002] FCA 668 at [38]).
[7] confirmed in Minister for Immigration v SZIAI [2009] HCA 39
In my view, the applicant has failed to advance any arguable case of jurisdictional error by the Tribunal. Neither is any arguable case of error apparent to me from my own reading of the material.
I conclude that the application should be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
Costs should follow the event in this case. The Minister seeks an order for costs in accordance with the court scale in the sum of $2,935. The Minister’s solicitor and own client costs exceed $4,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 November 2009
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