SZMBJ v Minister for Immigration & Anor - [2008] FMCA 976

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 976

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether Tribunal properly applied the relevant law – whether natural justice extended to the applicant – whether 'due procedure' – merits review not function of judicial review.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 425, 474

Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61
SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62
SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63
SZBYR v Minister for Immigration & Citizenship (2007) HCA 26
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1998) 197 CLR 510
Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported)

Applicant:

SZMBJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 649 of 2008

Judgment of:

Orchiston FM

Hearing date:

24 June 2008

Date of Last Submission:

24 June 2008

Delivered at:

Sydney

Delivered on:

21 July 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 18 March 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $2,200 payable within two (2) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 649 of 2008

SZMBJ

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 27 September 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

The applicant was born on 1 January 1980. He claims to be a national of India and of Hindu faith.
The applicant arrived in Australia on 20 April 2007 on an Indian passport issued in his own name.
The applicant lodged an application for a protection visa on 30 April 2007.
On 19 May 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (Court Book (CB) 39-47) (see Legislative framework).
On 20 June 2007 the applicant 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 4 July 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 13 August 2007 to give oral evidence and present arguments. The applicant attended and gave evidence at the hearing.

Claims and Evidence (CB 67-70)

In his original protection visa application, the applicant claimed that he did not have any political and civil freedom in India and that he suffered from poverty and starvation as a consequence of being a Rajasthani farmer.
At the Tribunal hearing the applicant claimed, in addition to the matters referred to in his original application, that:
·before coming to Australia he had lived in Didwana in Rajasthan, India
·he came to Australia with the Rajasthan Indoor Cricket Federation after his father had paid 700,000 rupees to have him included in the tour
·he had married a girl three years before but he had been cheated as she was not the girl he was supposed to have married. He had been pressured by the girl’s family and by society to live with her and was very distressed by this which led to him being admitted to hospital for a month
·his brothers-in-law threatened his life and he was told that he should leave the country to save his life
·he could not seek the protection of the police because they would say that his family made up the story because they wanted the wife's family to pay a dowry
·he would fear for his life if he were to return to India as he had cheated his wife’s family
·his family found it hard to survive because they were very poor.

The Tribunal’s findings and reasons (CB 70-71)

The Tribunal concluded that:
·the claimed problems stemming from the applicant’s marriage did not relate to one of the five Convention-related reasons required by s.91R(1)(a) of the Act:
There is nothing in the material before me to suggest that any problems he fears are for reasons of his race, religion, nationality, membership of a particular social group or political opinion (CB 70).
·there was no material before the Tribunal to suggest that "farmers from Rajasthan" were treated any differently from any other members of Indian society for reasons of belonging to that social group:
there is nothing to suggest that the problems [the applicant] mentioned - poverty and starvation - are the result of ‘farmers from Rajasthan’ being persecuted for reasons of their membership of this particular social group. Indeed, there is nothing in the material before me to suggest that ‘farmers from Rajasthan’ are treated differently from other members of Indian society for reasons of their membership of that particular social group. I am unable to be satisfied on the material before me that, as required by paragraph 91R(1)(a) of the Act, one or more of the five Convention reasons is the essential and significant reason for the problems - poverty and starvation - which the applicant claimed he was suffering as a farmer from Rajasthan (CB 70).
·the independent country information suggested that the applicant had civil and political freedom in India; and that:
I do not accept that, if the applicant returns to India now or in the reasonably foreseeable future, there is a real chance that he will be denied, or prevented from exercising, his civil and political rights in such a way, or to such an extent, as to amount to persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act (CB 71).
For these reasons, the Tribunal:
[was] not satisfied that the applicant [had] a well-founded fear of being persecuted for a Convention reason if he returns to India now or in the reasonably foreseeable future. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (CB 71).

The proceedings before this Court

The applicant filed the application in this Court on 18 March 2008 setting out 3 grounds of review of the Tribunal’s decision.
The applicant appeared in person before this Court on 24 June 2008 with the assistance of a Hindi interpreter. Ms Anniwell 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 Refugee Review Tribunal denied proper application of law to the applicant.
Without the provision of particulars in support of this ground, it is not possible to identify how the applicant says the Tribunal has denied him “proper application of law”.
The Tribunal clearly complied with its statutory obligation under s.414 of the Act in reviewing the delegate’s decision on the basis that a valid application had been made by the applicant under s.412 of the Act (CB 65).
I consider that a fair reading of the Tribunal decision record demonstrates that it carefully considered the requirements of s.65 of the Act in reaching its decision in this case. The Tribunal specifically referred, (at the forefront of its setting out of the Relevant Law (CB 65-67), to the relevance of this provision that a decision maker must be satisfied that the prescribed criteria for the visa have been satisfied. It then proceeded to refer to the criteria relevant in the context of the grant or refusal of a protection visa, (including s.36(2)(a) of the Act, to which it again expressly referred at the end of its decision (CB 71)), in stating that the applicant does not satisfy the criterion for the grant of a protection visa. I thus detect no error of law on this basis.
There is also nothing to suggest that the Tribunal wrongly applied the law to the facts in regard to “serious harm” and “systematic and discriminatory conduct” pursuant to ss.91R(1)(b) and (c) of the Act. In this regard the Tribunal set out the correct law under the Relevant Law (CB 66), and having assessed all the evidence and material in this case, reached the following relevant conclusions, open to it, on these matters:
the applicant did not suggest that the failure of the police to protect him was due to any systematic discriminatory implementation of the law for a Convention reason (CB 70) …
I do not accept that, if the applicant returns to India now or in the reasonably foreseeable future, there is a real chance that he will be denied, or prevented from exercising, his civil and political rights in such a way, or to such an extent, as to amount to persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act (CB 71).
Otherwise, I rely on my reasoning under Grounds 2 and 3 below in regard to the application of the relevant law concerning the statutory obligations on a Tribunal to accord procedural fairness to an applicant.
I therefore consider that there is nothing on the face of the Tribunal decision record which derogates from the Tribunal having undertaken its task in accordance with its statutory duty, nor that there was any constructive failure on its part to exercise jurisdiction.
Accordingly, Ground 1 of the application is not made out.

Grounds 2 and 3 of the application

Ground 2 of the application states that:
The Refugee Review Tribunal denied natural justice to the applicant.
Ground 3 of the application states that:
The Refugee Review Tribunal did not follow due procedure.
I consider that these grounds may be conveniently considered together since they raise similar issues.
The applicant has not provided any particulars to indicate how he says the Tribunal has denied him natural justice nor how it has failed to “follow due procedure".
The applicant is not entitled to common law natural justice: s.422B of the Act. Rather, the Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].
Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the delegate's decision.
I am satisfied that the 4 July 2007 invitation sent by the Tribunal to the applicant to attend the hearing (CB 54-55) complied with the statutory requirements contained in ss.425(1) and 425A of the Act and Reg.4.35D of the Migration Regulations 1994 (Cth) (the Regulations) in that it:
·contained an invitation to the applicant to appear before it to give evidence (s.425)
·provided notice of the specified day, time and place of the hearing
·was given to the applicant by one of the means specified in s.441A of the Act (namely, registered prepaid post)
·provided a period of time to the applicant, which was at least the prescribed period of 14 days: Reg.4.35D of the Regulations
·contained a statement giving effect to s.426A (regarding the options available to the Tribunal if the applicant failed to appear before it).
I thus detect no procedural irregularity or procedural unfairness on this basis.
The applicant attended the Tribunal hearing and gave evidence. The applicant has not provided the Court with the transcript of the Tribunal hearing. I consider, however, that a fair reading of the Tribunal decision demonstrates that the Tribunal complied with its statutory obligations at the hearing pursuant to s.425(1) of the Act by identifying for the applicant the determinative or critical issues upon which the decision was likely to turn, and gave the applicant sufficient opportunity to give evidence and make submissions concerning those determinative issues before it reached its conclusions: SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [33]–[48].
Beyond this, s.425(1) does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given or otherwise disclose its mental processes and subjective appraisals. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. As observed by the High Court in SZBEL at [47]-[48] in this regard:
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 …
…as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
“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 …”
I thus detect no breach of s. 425(1) of the Act in this case.
Section 424A(1) of the Act requires the Tribunal to give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and to invite the applicant to comment on or respond to that information. Subsection 424A(3) sets out various exemptions from this requirement.
In this case, the Tribunal did not send a s.424A letter to the applicant. I accept that the obligation arising under s.424A was not enlivened in the present case. The Tribunal based its decision on information which clearly fell within the statutory exemptions to s.424A(1), being information that the applicant himself gave for the purpose of the application for review: s.424A(3)(b), and independent country information: s.424A(3)(a) (which the Tribunal put to the applicant at the hearing (CB 69), and to which it referred in its Findings and Reasons (CB 71).
It is also clear that a proper construction of the word “information” in the context of s.424A and hence what information must be given to an applicant for comment under s.424(A)(1), does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review… The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
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.
This statement reflects the well-established case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].

Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24].
Accordingly, I detect no breach of s.425(1) or s.424A of the Act in this case. I am therefore 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.
Overall, 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 detailed and closely 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 closely noted the applicant's responses. The Tribunal further had regard to independent country evidence; and 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 the Tribunal provided well-articulated and detailed 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, Grounds 2 and 3 of the application are 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 fifty (50) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 21 July 2008