SZLXN v Minister for Immigration
[2008] FMCA 1142
•22 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1142 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.424A and s.425 of the Act – merits review not function of judicial review – natural justice – procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 425, 474 |
| SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 |
| First Applicant: | SZLNX |
| Second Applicant: | SZLNO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 167 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 11 August 2008 |
| Date of Last Submission: | 11 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 22 January 2008 is dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $3,900 payable within three (3) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 167 of 2008
| SZLXN |
First Applicant
| SZLXO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 3 January 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant Protection (Class XA) visas to the applicants.
Background
The first named applicant was born on 10 November 1969. For convenience, the first applicant will be referred to as “the applicant” in these proceedings.
The second named applicant was born on 5 February 1973 and is the wife of the applicant.
The applicants claim to be nationals of India, of Nayi Gujarati ethnicity, and of Hindu faith.
The applicants arrived in Australia on 1 May 2007 on Indian passports issued in their own names.
The applicants lodged an application for protection visas on 24 May 2007 on the basis that the applicant claimed he would be persecuted by his former business partners and their criminal associates if he returned to India.
He claimed that he had been actively involved with the Bhartija Party (BJP) and also Vishwa Hindu Parishad for 6 years in which time he gave responsibility for his business to his partners. He claimed that one of them incurred debts and creditors began asked him to repay the monies. After police came to his home, one of his partners was arrested and gaoled for car theft. From then on, the applicant claimed that he had received death threats, had had both his legs injured, and that members of the LTT (Liberation of Tamil Tiger) had attacked him and his family and fired on his house. He claimed that he did not have effective protection from the Indian authorities as the police were friends with his former business partners.
On 20 August 2007 the delegate refused to grant the applicants’ protection visas on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 11 September 2007 the applicants applied to the Tribunal for review of the delegate’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular 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.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 9 October 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 20 November 2007 to give oral evidence and present arguments.
The applicant appeared before the Tribunal on that occasion and indicated that his wife was relying on his claims.
The applicant’s claims and evidence (Court Book (CB) 119-121)
I accept that the first respondent accurately summarises the applicant's claims and evidence as follows:
The applicant claimed that he was actively involved in the Bhartiya Janta Party (BJP) and also Vishwa Hindu Parishad and ran a business. He claimed that his business partners were using his business for illegal purposes and that he took money to account for the business losses as a result. He claimed that after his business partner, Imtiaz threatened to kill him, he told the police but they did nothing.
The applicant claimed that police came to his house to arrest him because of the illegal activity of his business partner Nilesh. The applicant claimed to confess about Nilesh's activity to the police and consequently he was arrested. The applicant claimed that he received death threats from both of his business partners. He claims that they attacked him and his family.
The Tribunal’s findings and reasons (CB 121–122)
The Tribunal was not satisfied that the applicant's circumstances brought him within the definition of a refugee, nor that “one or more of the five Convention reasons is the essential and significant reason for the persecution” feared by him. It found that there was no suggestion that the applicant had been singled out for one or more of the five Convention reasons. Rather, that his evidence was that he was being pursued because he owed money to various people and that there was no suggestion that the authorities had failed to protect him for one or more of the five Convention reasons.
The Tribunal was therefore not satisfied on the evidence before it that there was a real chance the applicant would be persecuted for one or more of the five Convention reasons if he were to return to India now or in the foreseeable future. Accordingly, the Tribunal was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he returned to India and hence was not a person to whom Australia has protection obligations under the Convention.
The proceedings before this Court
The applicants filed the application in this Court on 22 January 2008 setting out 3 grounds of review of the Tribunal’s decision.
The applicant appeared before this Court in person and on behalf of the second named applicant on 11 August 2008, with the assistance of a Gujarati interpreter. Ms McDonald appeared for the first respondent.
The applicant was invited to say anything he wished to in support of the grounds of review, and generally, after each ground was translated for him.
Grounds of application
Ground 1 of the application
Ground 1 of the application states:
That the Tribunal’s decision was in breach of s.424A(1) of the Migration Act 1958 (Cth)
Particulars:
The Tribunal did not disclose the information in accordance with s424A(1).
The applicant has not provided proper particulars to identify what “information” he alleges falls within s.424A(1) of the Act which he says the Tribunal failed to disclose to him.
I do not consider that the Tribunal’s statutory obligations under s.424A(1) of the Act are enlivened in this case. The Tribunal’s decision turned upon its finding that the applicant’s claimed fear of persecution was not Convention based, but rather related to his evidence that he owed monies to various people arising from his business activities.
In these circumstances, where the applicant himself provided the relevant information to the Tribunal “for the purpose of the application for review”, it was under no statutory duty to provide clear particulars of his evidence to him in writing, since it clearly fell within the statutory exception: s.424A(3)(b).
I thus detect no breach of s.424A of the Act in this case and am satisfied that the applicant was accorded procedural fairness in compliance with the statutory regime.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 of the application states that:
The Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.
The applicant has not provided any particulars as to how he says the Tribunal “made error of law and lack procedural fairness”. I accept the submission by the first respondent that this ground remains “a bald assertion of a lack of procedural fairness”.
The applicant was not entitled to common law procedural fairness in this case: s.422B of the Act. To the extent that ground 2 asserts that the Tribunal failed to provide procedural fairness by not providing the applicant with a s.424A letter, this has already been dealt with under ground 1 above.
I am also satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act. At the hearing, the Tribunal identified and put to the applicant the determinative issues in this case, in particular whether his fear of being persecuted by his partners came within one of the five Convention reasons, and gave him the opportunity to give evidence and make submissions thereon in accordance with the principles in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [33]–[48].
In this regard, the Tribunal decision specifically states that:
The applicant agreed that his problems did not arise because of his involvement with the BJP. His problems arose because of his business dealings with his partners … He stated that they wanted to harm him …
[The Tribunal] mentioned to the applicant that his fear of being persecuted by his partners did not come within any one of the five Convention reasons. The applicant stated that he understood the difficulty with his application. [The Tribunal] explained to the applicant that this meant that he would not be entitled to a protection visa because he did not come within the definition of a refugee.
The applicant stated that he was badly beaten and he had a bandage on one leg. [The Tribunal] mentioned to the applicant that the Tribunal has to be satisfied that the harm suffered or feared is for one of the five Convention reasons. The applicant stated that when he and his wife left India they were hoping they could work and repay their debts.
The applicant did not wish to add anything further in relation to his application (CB 121).
The above passage clearly demonstrates that the applicant was given sufficient opportunity by the Tribunal to present his case. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals in reaching its decision.
In any event, the applicant was already on notice from the delegate’s decision that the issue of a Convention nexus to his claims was a critical issue in his case. In this regard, the delegate found that:
There is no evidence that the persecution the applicant fears is for a Convention reason. His former business partners and their criminal associates seek to harm him purely out of a desire to silence him against further accusations against them and to avenge them for information the applicant gave the police which incriminated them and interfered with their criminal practices.
I find that a Convention ground is not the essential and significant reason for the harm feared as outlined in … the Migration Act.
… I have found that the harm feared has no basis in the Convention … (CB 82).
The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision. As relevantly stated in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome … It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
Merely because the applicant disagrees with the Tribunal’s findings of fact does not amount to an error of law. It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
In conclusion, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a properly reasoned analysis of, the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and noted the applicant's responses. The Tribunal then made findings based on all the evidence and material before it.
I consider that the Tribunal’s findings of fact were open to it on the evidence and material before it; that it provided sufficient reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, Ground 2 of the application is rejected.
Ground 3 of the application
Ground 3 of the application states:
That the Tribunal made denial of natural justice. Because the Tribunal was wrong in concluding that the applicant's claims were not Convention related.
To the extent to which this ground asserts a denial of natural justice, Part 7 Division 4 provides an exhaustive code of the requirements of the natural justice hearing rule in this regard: s.422B. I therefore adopt my reasoning under grounds 1 and 2 above in the present context and am therefore satisfied that it was open to the Tribunal to find that there was no Convention nexus in the persecution alleged by the applicant based on his evidence that the harm suffered arose from his dealings with his business partners.
Otherwise, to the extent that the applicant seeks that the Court engage in impermissible merits review, as stated above, this is not the function of this Court.
Accordingly, Ground 3 of the application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 22 August 2008
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