SZMDG v Minister for Immigration

[2008] FMCA 1075

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1075

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether applicant’s claims properly and adequately considered – ‘Wednesbury unreasonableness’ – merits review not function of judicial review.

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

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
Attorney General for the State of NSW v Quin (1990) 170 CLR 1

Applicant: SZMDG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 892 of 2008

Judgment of: Orchiston FM

Hearing date: 22 July 2008

Date of Last Submission: 22 July 2008

Delivered at: Sydney

Delivered on: 1 August 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 14 April 2008 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,200 payable within three (3) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 892 of 2008

SZMDG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. 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 18 March 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

1. The applicant was born on 3 February 1974.  He claims to be a national of Indonesia, of Sunda ethnicity, and of Muslim faith.

2. The applicant arrived in Australia on 14 August 2007 on an Indonesian passport issued in his own name.

3. The applicant lodged an application for a protection visa on 28 September 2007 on the basis that he had been harassed for bribes by corrupt Indonesian Customs officials who were in league with the police.

4. On 15 November 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 (see Legislative framework).

5. On 14 December 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

1. 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.

2. 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).

3. Australia has protection obligations to a refugee on Australian territory.

4. 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.

5. 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

1. On 25 January 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 26 February 2007 to give oral evidence and present arguments.  The applicant did not attend on that occasion.

Claims and Evidence (Court Book (CB) 64-65)

1. The Tribunal summarised the applicant’s claims in his protection visa application, as follows:

   ·    He was a retailer and wholesaler in his home town, importing raw material from overseas. It is normal in Indonesia to have to bribe Customs officers, otherwise they take too long to clear. He never obtained proper clearance papers from Customs.

   ·    There was a reshuffle of personnel in the local Customs Department nine months previously.  The new officers audited his clearance papers and discovered they were not in order. They tried to ‘negotiate’ a price with him to overlook this and threatened to close down his business and jail him if he did not give them what they were asking for.  They kept coming to his shop to create disturbances and intimidate him until he had  a nervous breakdown.  He could do nothing as he did not have the money and his business was in a bad situation.  His relatives advised him to flee to Australia and seek protection.

   ·    If he returns to Indonesia his life will be endangered and his business ruined at the hands of the local Customs authorities.

   ·    The police and the Customs authorities have ganged up together.  There is no point in complaining to the police as this would increase the threat to his life.

The Tribunal’s findings and reasons (CB 65-67)

1. The Tribunal made the following findings, including that:

   ·there was “insufficient information” on which it could be satisfied that the applicant would face a real chance of serious harm if he returned to Indonesia.

   ·his claims concerning his experiences in Indonesia were “minimal, extremely vague and unsubstantiated from any external source”, and that they amounted to no more than “the simple assertion that un-named Customs officers [had] tried to extort money from him, and that they [had] created disturbances in his shop and engaged in intimidating behaviour”.

   ·the applicant offered “no information” regarding basic issues such as when the extortion attempts began, who and how many people were involved, how they came to target him and why they should so far as threatening to kill him simply because he refused their approaches.

   ·the applicant claimed the police were in league with the Customs officers yet he offered “no information” about any assistance he may have sought from other authorities in Indonesia nor any steps he took before deciding to flee from Indonesia.

   ·the incidents claimed by the applicant could reasonably have been expected to be “important and memorable ones for him”, had they occurred, and that it would not have been “unreasonable to expect him to be able to describe such incidents in some detail”, which had not been done.

   ·the written material before it did not provide “a sufficient basis for the Tribunal to be satisfied that the Applicant was ever subjected to harm by a group of Customs officers in Indonesia or that he [had] ever been subjected to any other form of harm there”.  

   ·on the information before it, it could not be satisfied  that:

   §there was a real chance that the applicant would face future harm in Indonesia;

   §he had a well-founded fear of harm for a Convention reason should he return to Indonesia now or in the reasonably foreseeable future;

   §he was a refugee.

The proceedings before this Court

1. The applicant filed the application in this Court on 14 April 2008 setting out 3 grounds of review of the Tribunal’s decision. 

2. The applicant appeared in person before this Court on 22 July 2008 with the assistance of an Indonesian interpreter.  Mr May appeared for the first respondent.

3. 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.  The applicant did not seek to make any submissions to the Court in this regard.

Grounds of application

Ground 1 of the application

1. Ground 1 of the application states that:

   The Tribunal failed to address the full claims of my application for a protection visa, thus, the Tribunal made an error in law.

2. The applicant has provided no particulars as to how he says the Tribunal failed to address his “full claims” and thereby made an error of law.

3. The applicant’s “full claims” were set out in his original protection visa application.  They were not added to by the applicant in his application for review by the Tribunal.  Nor did the applicant attend the Tribunal hearing.

4. In making its decision, the Tribunal had regard to the Departmental and Tribunal files related to the applicant.  It also had regard to the material referred to in the delegate’s decision (CB 64).

5. I accept that the Tribunal set out an accurate and comprehensive summary of the applicant’s written substantive claims (at CB 64-65), which were effectively in the same terms as those provided in his original protection visa application (at CB 19-22), and as summarised in the delegate’s decision (at CB 42-43; and 45).

6. I consider that the Tribunal’s findings in regard to these claims were open to it on the material before it and that there is no error of law thereby disclosed.  Merely because the applicant disagrees with the Tribunal’s findings 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].

7. In conclusion, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the applicant's claims and then made findings based on all the material before it.

8. I consider that, as stated above, its findings of fact, were open to it on the material before it; that it provided well articulated and 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.

9. Accordingly, Ground 1 of the application is rejected.

Ground 2 of the application

1. Ground 2 of the application is:

   It is not reasonable for the Tribunal to make the finding that I do not have a well-founded fear of harm for a Convention reason should I return to Indonesia.

2. The applicant has provided no particulars to identify how he says the Tribunal’s finding, that he did not have a well-founded fear of harm for a Convention reason, was “not reasonable”.   I accept the submission by the first respondent in this regard that the Tribunal did not make a positive finding in these terms.  Rather the Tribunal stated (at CB 66) that:

   The Tribunal is not able to be satisfied that the Applicant has a well-founded fear of harm for a Convention reason should he return to Indonesia now or in the reasonably foreseeable future and is not satisfied  that he is a refugee.

3. I further accept the submission by the first respondent that:

   The RRT’s assessment that the evidence before it was insufficient to allow it to reach that state [of satisfaction] was based on a rational consideration of the level of detail provided.

4. To the extent to which the applicant is asserting that “Wednesbury unreasonableness" applies in this case, I do not consider that the factual conclusions reached by the Tribunal were so unreasonable and so unfair that no reasonable person could have made them.  As stated by the High Court in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:

   Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power.

   The High Court further observed, at 35, that:

   Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.

5. As stated above, I consider that the Tribunal made clear and well reasoned findings in reaching its conclusion that the applicant did not have a well-founded fear of harm for a Convention reason and was thus not a person to whom Australia had protection obligations. I do not consider therefore that this is a case where "Wednesbury unreasonableness" can be demonstrated.

6. In conclusion, the applicant is effectively seeking to challenge the Tribunal’s factual findings and to invite the Court to undertake impermissible merits review, which is not the function of this Court.

7. Accordingly, Ground 2 of the application is rejected.

Ground 3 of the application

1. Ground 3 of the application is:

   The Tribunal did not adequately consider that the relevant information in relation to my claims for my protection visa.

2. The applicant has provided no particulars to identify how he says the Tribunal failed to adequately consider “the relevant information in relation to [his] claims”.

3. This ground effectively traverses the same matters dealt with under ground 1 above.  I rely on my reasoning therein in the present context.  I am therefore satisfied that the Tribunal adequately considered all relevant information available to it in determining the applicant’s claims.

4. Accordingly, Ground 3 of the application is rejected.

Conclusion

1. 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.

2. The application before this Court is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  1 August 2008