SZLZT v Minister for Immigration
[2008] FMCA 879
•13 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 879 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no failure to complete exercise of jurisdiction – no breach of Act’s natural justice hearing rule provisions – merits review not available on judicial review. |
| Migration Act 1958, ss.91R, 422B, 424, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLZT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 421 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 June 2008 |
| Date of Last Submission: | 13 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 421 of 2008
| SZLZT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Serbia where he claims he was a member of the Socialist Party of Serbia (“SPS”) and was labelled “one of Milosevic’s people.” He alleges that this led to a denial of opportunities in work and education.
The applicant claims to fear persecution in Serbia because of his political opinion.
On arriving in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
6 August 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.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task 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.
For the reasons which follow, application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pp.13 – 21 of the Tribunal’s decision (Relevant Documents (“RD”) 70 – 78). Relevantly, they are in summary:
Protection visa application
In a statement attached to his protection visa application, the applicant claimed that:
a)he enjoys the freedom of speech and the free market economy in Australia;
b)due to his political views, he fears persecution were he to return to Serbia; and
c)due to the economic situation in Belgrade, because of the civil war from 1991 to 1995 and what he described as the war against the USA in 1999, he does not think he would have a future if he were to return as he would not be able to achieve financial security for his family. He would find it hard to survive and feed his family.
In his response to an invitation from the Tribunal to provide further information in support of the application, the applicant claimed:
I am [a] SPS (Socialist Party of Serbia) supporter and I feel very insecure living in Serbia. I’ve been labelled as one of Milosevic’s people and I had been denied opportunities for advancement at work, and opportunities to further my education, which would increase my earning potential. If I express my political preferences publicly, it is taken against my whole family being exposed to ridicule and inappropriate jokes. There is no prosperity for me and my family and my childrens[’] future is grim and that there is nothing, as I father, could do to change our situation. (RD 73)
Tribunal hearing
At the Tribunal hearing the applicant made the following additional claims:
a)he could not remember when he had become a member of the SPS;
b)he did not know when the SPS had been formed;
c)he left Serbia because he was a member of the SPS, which meant he could not prosper in his life or in the firm where he worked and did not receive benefits and increased pay like everyone else;
d)he had been involved with “no political activities” and was only attending meetings, which were just conversations, every two weeks or so;
e)his vehicle had been interfered with outside his home in 2004 or 2005 as a result of his being a member of the SPS and he knew this was the reason for the damage as other more expensive cars in the neighbourhood were not touched;
f)he was afraid of what could happen to his children because he was a member of the SPS;
g)he thought that someone from the existing government might try to harm or mistreat him in Serbia;
h)he had suffered provocations early in the morning when he was going to work, he was called names such as “communist” and other words which were said in an abusive way by some people with alcohol problems; and
i)the crime and corruption in Serbia annoys and upsets him.
The Tribunal’s decision and reasons
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”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant lacked a basic knowledge of the SPS. Although he was aware that it had been in government in the 1990s, he did not know when it was formed, which two parties merged to form it, or when he joined the party;
b)the Tribunal was not satisfied that this lack of knowledge of the SPS was caused by memory deterioration as claimed by the applicant;
c)by his own evidence the applicant did not take an active interest in politics;
d)the Tribunal was not satisfied that the applicant would express his political preferences publicly, and in any event, the ridicule and inappropriate jokes that his family might be exposed to as a result would not reach the threshold of what amounts to serious harm under s.91R of the Act;
e)the Tribunal did not accept the following claims of persecution which the applicant claimed were as a result of his membership of the SPS:
i)he was labelled “one of Milosevic’s people”;
ii)he was not promoted in his job and was therefore denied opportunities for advancement;
iii)he was denied opportunities for education which would have increased his earning potential;
iv)his vehicle was damaged several years ago; and
v)people affected by alcohol had ridiculed and verbally abused him on his way to work in the early morning;
f)he expressed his fear of future events in terms of ignorance of what would happen and it was that lack of knowledge which was his fear; and
g)the applicant’s general anticipated fear of return to Serbia did not amount to serious harm, nor did his concern and insecurity arising from Serbia’s poor economic situation result from systematic and discriminatory conduct directed against him either as an individual or as a member of a particular group.
Proceedings in this Court
The applicant filed in Court today an amended application which raises a number of matters which are not necessarily clearly articulated or laid out in that document. It might also be said that he raised a further issue in his oral submissions today. I will deal as well as I can with the matters which the applicant has raised, in the order in which they appear to be presented.
Failure to complete exercise of jurisdiction
The first ground pleaded in the amended application is that the Tribunal failed to complete the exercise of its jurisdiction. Generally in relation to this ground it can be observed that the Tribunal did undertake its review by considering the material which was in the departmental file and by taking evidence and hearing arguments from the applicant at its hearing. By weighing and considering these matters, it reached a decision.
In general terms therefore, it can be seen that the Tribunal did exercise its jurisdiction and completed that exercise adequately.
However, it appears that this allegation is particularised in the passages which appear after the second numbered paragraph of the application. On that basis I will deal with those particulars as if they were particulars of the first asserted ground of review.
The first of those particulars is expressed as follows:
(a)The Tribunal rejected my claim on the basis that the court papers were not presented to it in support of my claim which led the Tribunal to conclude that failure to be an adverse credibility finding limiting the meaning of s.424 in contravention of Article 1A(2) of the Convention thus the Tribunal declaring that the credibility factor lies in providing the material evidences in support.
It is not immediately apparent what that particular seeks to say. However, it might be best addressed by dealing with the various elements which are contained within it. The first of the elements is that the Tribunal rejected the applicant’s claim on the basis that court papers were not presented. This element appears to bear no reference to the application which was before the Tribunal, as no reference is made to any court papers at any point of the applicant’s claim.
The next element makes reference to s.424 of the Act, but there is no apparent breach of that section by the way the Tribunal conducted its inquiry. Section 424 gives the Tribunal power to seek information, and if it does so it must have regard to that information in making its decision on the review. The Tribunal’s query to the applicant, which is reproduced at RD 41 – 42, was one which s.424 gave the Tribunal the power to make, and the Tribunal’s decision record discloses that it did consider the applicant’s response. Consequently, no breach of that section is disclosed.
The third element of the first particular relates to credibility. In this regard it should be noted that although the Tribunal was not convinced that the events referred to earlier in these reasons at [10(e)] actually occurred, that apparent negative credibility finding was not the basis upon which the Tribunal reached its decision. As already observed, the Tribunal concluded that the applicant’s fear arose out of his lack of knowledge which did not amount to serious harm, nor did the poor economic situation in Serbia amount to persecution.
Consequently, although it might be concluded that the Tribunal did impliedly make a negative finding as to the applicant’s credibility, this was not in fact the basis upon which the Tribunal grounded its decision.
The next particular is expressed in the following terms:
(b)The RRT failed to satisfy itself upon whether the applicants had a well founded fear of persecution based upon probative material or logical grounds.
The basis of the Tribunal’s decision was that it was not satisfied on the evidence presented that the applicant had a well founded fear of persecution for a Convention reason. This was a logical, reasonable conclusion to reach given the evidence before it, being evidence from the applicant himself and independent country information which the Tribunal had identified and accessed. The Tribunal set out the evidence and its reasoning and the conclusion it reached does not disclose jurisdictional error, even were a want of logic a proper basis on which the Tribunal’s decision might be set aside.
The next particular is expressed in the following terms:
(c)The situation of political activities was not taken into account and I was mislead by someone when I applied for a protection visa application and I feel that I need to reconsider my situation.
It might possibly be that this particular is not a particular of the first allegation in the application but is in fact a particular of the immediately preceding particular in the application. Whatever the case, the political activities of the applicant and the political environment in Serbia were both considered by the Tribunal. To that extent the issue of politics raised by this particular is not made out.
The next element of this particular relates to the content of the applicant’s protection visa application form. Although it is apparent that there were errors in the visa application, and that these were discussed by the Tribunal with the applicant at the Tribunal hearing, the differences between what the applicant said in his protection visa application and the evidence that he gave at the Tribunal hearing did not form a basis of the Tribunal’s decision.
A consideration of the Tribunal’s decision record discloses that it reached its conclusion based on the evidence which the applicant gave to it at its hearing and the independent country information already referred to. Consequently, this particular discloses no jurisdictional error on the part of the Tribunal.
Overall no element of the first pleaded ground of the application, or the particulars which appear to relate to it, discloses jurisdictional error on the part of the Tribunal.
Breach of rules of natural justice
The second pleaded ground in the application is expressed in the following terms:
(2)That the decision led to the omission of principles of natural justice while making a decision.
Ground two precedes the particulars already referred to but, as already noted, those particulars do not appear to bear any relationship to this allegation. For instance, although the natural justice hearing rule is codified in s.422B of the Act, with the exception of the reference to s.424 which has already been referred to, the particularised matters do not appear to relate to any natural justice hearing rule issue.
Turning to whether the natural justice hearing rules have been breached, the principal provisions found in div.4 of Pt.7 of the Act are ss.424A and 425. As the information relied upon by the Tribunal in reaching its decision was information given by the applicant at the Tribunal hearing and independent country information, the exclusions found in s.424A(3) apply with the result that no s.424A(1) obligation arose.
As to s.425, the Tribunal invited the applicant to the Tribunal hearing and he attended. The Tribunal’s decision record also discloses that the issues arising in relation to the decision under review were clearly put to the applicant during the course of the Tribunal hearing and thus no breach of s.425 is disclosed.
Other than s.424 to which reference has already been made, no other sections found in div.4 of Pt.7 of the Act have been referred to by the applicant and it is not apparent that any of them has been breached by the Tribunal in the conduct of this review.
As a result, the second pleaded ground does not disclose a basis upon which the Tribunal’s decision may be set aside.
Failure to deal with all of the applicant’s claims
The next ground appearing in the amended application appears to be a particular, and is expressed in the following terms:
The RRT failed to make findings on all the applicant’s claims [which is then particularised as] the RRT may freshly refer to or reconsider the material placed before it by the applicants including those statutory declarations and other court material evidences.
The Tribunal did deal with the applicant’s claims as they were contained in the written documents which he submitted to it, and as already noted there was no “other court material” which was referred to at any time during the course of this review.
With the exception of “statutory declarations” and “other court material”, the applicant has not identified what things have not been considered by the Tribunal, and in particular has not identified what claims he said he made which the Tribunal failed to consider. A review of the Tribunal’s decision record leads to the conclusion that the Tribunal did not omit to consider any of the applicant’s claims. Rather, it thoroughly considered the matters which were before it and reached a conclusion based on that consideration.
As a consequence, to the extent that these matters are a separate ground of review, they do not disclose a basis upon which the Tribunal’s decision should be set aside.
Merits review
The final paragraph under the “particulars” heading in the amended application is expressed in the following terms:
In light of unfavorable [sic] and hostile situation, I fear for the safety of my life.
This appears to be a separate ground of review alleging that the Tribunal reached an incorrect conclusion. If so, it seeks merits review which this Court is not empowered to undertake.
Incorrect information in visa application
Finally, the applicant in his submissions today spoke of material in his protection visa application form being incorrect. Although this was addressed by the Minister in his submissions as if it were a separate ground, I think it can be properly considered to be a submission in support of the matter already considered in these reasons relating to incorrect information being contained in the visa application form.
For the reasons already expressed, jurisdictional error is not disclosed on this account.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 June 2008
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