SZMEZ v Minister for Immigration
[2008] FMCA 1097
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1097 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate refusing to grant a protection visa to the applicant – applicant is a citizen of South Africa claiming fear of persecution for reasons of his Indian race – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 414, 425, 474(2) |
| Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 SZLHA v Minister for Immigration & Citizenship [2008] FCA 782 SZLHM v Minister for Immigration & Citizenship (1990) 170 CLR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Director of Animal and Plant Quarantine v Australian Pork Limited (2005) 146 FCR 368 SZATV v Minister for Immigration & Citizenship (2007) 237 ALR 634; [2007] HCA 40 SZFDV v Minister for Immigration & Citizenship (2007) 237 ALR 660; [2007] HCA 41 Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 |
| Applicant: | SZMEZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1080 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 July 2008 |
| Date of Last Submission: | 25 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1080 of 2008
| SZMEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant, who is a citizen of South Africa, applies to the Court for review of a decision of the Refugee Review Tribunal.
In a decision handed down on 4th April 2008 the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant now seeks orders in the nature of certiorari, prohibition and mandamus in respect of that decision. He also seeks an order for costs.
The applicant claims that the Tribunal has fallen into error in four ways which can be summarised briefly as:
i)Failing to accord procedural fairness;
ii)Acting in a manifestly unreasonable manner;
iii)Failing to take into account the totality of the evidence in considering the reasonableness of relocation within South Africa; and
iv)Failing to consider that the applicant was a member of a particular racial group; that is particularly persons of Indian ethnicity.
Background to this matter is that the applicant was born in India.
He travelled to South Africa in 1992 to assist his uncle. Some time after that he acquired South African citizenship. Tragically, his uncle was murdered and the untimely death of the uncle had a devastating effect on the business, which had to close. The applicant obtained other employment but after a period of time claimed that he was very badly treated by his employer to the extent that the applicant left the employment. However, he claims that he was threatened by people acting at the instigation of his former employer and when he went to the police to seek protection they declined to assist him.
The applicant left South Africa and arrived in Australia on
8th September 2007. On 19th October in that year he applied for a protection visa. He sought refugee status and in a statement attached to his application set out the claims which I have briefly summarised.
A delegate of the Minister considered his application and made this comment:
The applicant makes no reference to fearing harm as a result of his ethnicity, nationality, religion or political opinion. There is nothing in the application to suggest that anything other than a dispute over employment and wages is the essential and significant reason for the harm feared.[1]
[1] See Court book page 35.
The delegate considered the question of the applicant's membership of a particular social group but found that whilst it would be possible to construct a social group of which the applicant might be a member, it would not be possible to attribute his membership of that social group as being the essential and significant cause of the harm feared. Without defining membership of the group by virtue of the serious harm feared; the delegate made it clear that refugee case law in this country indicated that that was not a legitimate approach and referred to the High Court decision of Applicant A v Minister for Immigration & Ethnic Affairs;[2] particularly the judgment of Dawson and McHugh JJ. The delegate found that the harm feared was not feared for a Convention reason and refused the application for a visa on 29th October 2007
[2] (1997) 190 CLR 225
The applicant then applied to the Refugee Review Tribunal for review of that decision. The application was received at the Sydney registry of the Tribunal on 30th November 2007. The applicant did not provide any other documentary evidence to the Tribunal when he submitted his application.
The Tribunal wrote to the applicant on 21st December 2007 inviting him to attend the hearing of the Tribunal on 5th February 2008.
The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Hindi language. He produced his passport to the Tribunal.
The Tribunal signed its decision on 12th March 2008 and handed the decision down on 4th April affirming the decision not to grant the applicant a protection (Class XA) visa. In its decision the Tribunal set out the applicant's claims and evidence quoting from the applicant's statement attached to his protection visa and setting out in some detail a summary of the applicant's oral evidence to the Tribunal. The account of the applicant's evidence to the Tribunal can be found at pages 67 through to 72 of the Court book.
The Tribunal accepted that the applicant was a citizen of South Africa and that was the country against which his claim to be owed protection should be assessed. The Tribunal however was somewhat sceptical of the applicant's claim to be a person to whom Australia has protection obligations and said:
The Tribunal believes that the applicant has substantially misrepresented his concerns in this regard over time and that even now a reliable picture of the applicant's situation has not been provided.[3]
[3] See Court book page 72.
The Tribunal took the view that the evidence provided by the applicant did not disclose that any harm would be directed at him for any reason contemplated in the Refugee's Convention. The Tribunal went on to say:
The interest of his former employer in harming the applicant does not appear on the evidence to arise from any characteristic contemplated by the Refugees Convention. While the applicant has most recently sought to submit that the interest arose from his Indian ethnicity, this does not make sense in terms of the employer's claimed conduct. In the Tribunal's view, it is not plausible that an employer would provide the applicant with employment which was initially well paid if he believed that employment in South Africa was only for blacks. Furthermore, the Tribunal does not believe that the employer would then have people threaten the applicant on this basis and force his departure from South Africa. In respect of the employer, it is the Tribunal's view, that any interest he has in harming the applicant arises from their dispute over unpaid wages and this does not fall within the terms of the Refugees Convention.[4]
[4] See Court book pages 72 and 73.
The Tribunal considered the applicant's claim that police in South Africa had failed to investigate his complaints because of his race or Indian ethnicity. The Tribunal however took the view that the available evidence did not support that conclusion. The Tribunal noted that the police did investigate the murder of his uncle and continued the investigation over the period. Whilst the Tribunal accepted that there may exist corruption in the South African Police Service, it did not believe that in the past the police had failed to provide the applicant with appropriate protection or assistance or that they would do so on return.
The Tribunal considered the chance of the applicant coming to harm at the hands of his former employer on return to South Africa to be remote and expressed the view that the actions of the former employer indicated that he did not in fact have any genuine intention to seriously harm the applicant and there was only a remote possibility that he would do so on return.
The Tribunal then considered whether it would be reasonable for the applicant to move within South Africa to reduce any threat from the former employer. The Tribunal, it may be said, had not been satisfied that the applicant had shown a well-founded fear of persecution for a Convention reason and made this finding - to use the words of counsel for the Minister as an alternative finding. What the Tribunal said was:
Even if it could be found that there was some threat to the applicant from his former employer and that no appropriate protection could be obtained from police arising from the applicant's race, in the Tribunal's view that fear of harm would not extend throughout South Africa. The applicant is able to move within South Africa and in the Tribunal's view this would reduce any threat.[5]
[5] See Court book pages 73 and 74.
The Tribunal expressed the view that the applicant would be free to move elsewhere in South Africa and would have reasonable prospects of successful settlement there to avoid any real chance of being harmed by the former employer.
The Tribunal then went on to consider a claim by the applicant that he was specifically threatened on account of his race or his ethnicity.
The Tribunal described that in these terms:
To those claims dealt with above, the applicant added during the hearing before the Tribunal the claim that he was specifically threatened on account of his race or ethnicity. He claims that this occurred through those assisting his former employer, but also in the context of his employment with his uncle and even directed at himself and his former employer between 2004 and February 2007. In the Tribunal's view, these claims are not genuine and do not reflect the applicant's past experiences. In particular, it is notable that when asked about the fact that these claims were not made at an earlier stage the applicant referred to the fact that he was unaware of the grounds specified in the Refugees Convention when making his earlier claims. In the Tribunal's view, these additional claims about specifically motivated racial attack have been put forward by the applicant to assist his case and do not in fact reflect his fears on return to South Africa.[6]
[6] See Court book page 74.
The Tribunal did not believe there was a real chance that the applicant would come to serious harm on account of his race if he were to return to South Africa whilst acknowledging there was some tension between black South Africans and foreigners reported in some areas.
In short; the Tribunal took the view that there was not a real chance that the applicant would suffer serious harm by reason of his race, religion, nationality, membership of a particular social group or political opinion if he were to return to South Africa. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant has commenced proceedings in this Court by means of an application and an affidavit in support filed on 22nd April 2008. The Minister had filed a response on 23rd May opposing the application and in particular claimed that the application invites the Court to undertake a review of the merits of the Tribunal decision and that to engage in fact finding about the merits of the applicant's case is no part of the function of the Court, referring to Minister for Immigration & Ethnic Affairs v Wu Shan Liang[7] and NAHI v Minister for Immigration & Multicultural Affairs.[8]
[7] (1996) 185 CLR 259 at [272]
[8] [2004] FCAFC 10
The Minister filed a written outline of submissions on 10th July 2008 and the following day, 11th July, the applicant filed an affidavit which is more correctly an outline of submissions and I have treated it in that way. The applicant has attended Court and has made some oral submissions.
The applicant, as I said, relies on four grounds. First; he claims that the tribunal failed to accord procedural fairness because of its failure to carry out its role in an inquisitorial manner and submitted that the tribunal in some way failed to review the decision as required by s.414 of the Migration Act. The particulars of the ground refer to the tribunal's rejection of the applicant's additional claim to have been specifically threatened on account of his race or ethnicity, which I have previously read onto the record at page 74. The Tribunal of course took the view that that was a claim of recent invention designed specifically to assess his refugee claim.
His second ground claimed that the Tribunal acted in a manifestly unreasonable manner towards the applicant when dealing with his claims because of the Tribunal's failure to consider the claims in accordance with the criteria in Article 1A(2) of the 1951 United Nations Convention relating to the status of refugees. That referred to the Tribunal's dismissal of the applicant's claims that there was a chance that he would be harmed by his former employer and in particular dismissed the claim that there were daily threats made for a period of six months as entirely implausible. The particulars also refer to the Tribunal's view that the evidence did not support the conclusion that the police in South Africa failed to investigate the applicant's complaints by reason of his race or Indian ethnicity.
The second ground claims that the Tribunal acted in a manifestly unreasonable way when dealing with the claims and by ignoring the aspect of persecution or serious harm in terms of s.91R of the Act. This is claimed to be a breach of a statutory obligation amounting to a jurisdictional error.
The third ground claims that the Tribunal did not take into account the totality of the evidence in considering the reasonableness of relocation. In looking at the issue of relocation the Tribunal did not look at the whole of the applicant's circumstances and the practical realities faced by the applicant were he required to relocate within South Africa away from Johannesburg.
The fourth ground claims the Tribunal's decision involved jurisdictional error affecting the decision in that it failed to consider that the applicant was a member of a particular race, group; that is persons of Indian race, that effective state protection was not available to persons in that group.
The applicant's written submissions in the form of an affidavit assert that the Tribunal should have found that his fear of harm came because of his race, colour and ethnicity, takes exception to the Tribunal's finding that it did not accept that police in South Africa would not afford the applicant appropriate protection. It takes issue with the Tribunal's claim that racial motivated attacks were between black South Africans and those from neighbouring or nearby African countries seeking refuge in that country, taken from independent country information. The submissions claim the Tribunal was wrong to state that his fear of harm would not extend throughout South Africa.
He claimed:
I am not black South African, my ethnicity is Indian, wherever I will go and live in South Africa I cannot mix within the society. My fear of harm exists everywhere in South Africa.
The submissions do not assist the applicant's claim greatly in that they largely challenge the Tribunal's factual findings and make factual assertions themselves. I did indicate to the applicant at the commencement of the hearing that the function of the Court conducting judicial review was to ascertain whether the Tribunal had fallen into jurisdictional error and it was not the function of the Court to re-hear matters on the facts.
This of course is a well established proposition and has been re-stated in various appeals from this Court such as SZHCJ v Minister for Immigration & Multicultural Affairs,[9] SZLHA v Minister for Immigration & Citizenship[10] and SZLHM v Minister for Immigration & Citizenship[11], where Flick J referred specifically to a decision of the High Court in Attorney General New South Wales v Quin[12], particularly the decision of Brennan J at [35] and [36].
[9] [2007] FCA 205 at [3]
[10] [2008] FCA 782 at [5]
[11] [2008] FCA 754 at [9]
[12] (1990) 170 CLR 1
Looking therefore at the grounds as they allege jurisdictional error; the applicant in ground one complains a denial of procedural fairness.
The applicant told the Court that he felt that the Tribunal did not listen to him and did not give him a fair judgment. The fact that the Tribunal does not give an applicant a judgment or decision of the type that the applicant requires does not establish unfairness and particularly does not establish a lack of procedural fairness. It is clear that the Tribunal complied with its obligations under s.425 of the Migration Act by inviting the applicant to attend a hearing. The invitation was dated
21st December 2007and the hearing was set for 5th February 2008. More than sufficient time was allowed for the applicant to attend the hearing and indeed he did attend where he was provided with the services of a qualified interpreter in the Hindi language.
The applicant complained that the tribunal did not listen to him; but as was pointed out by Mr Reilly of counsel who appeared for the Minister, the Tribunal hearing record, which is set out on page 51 of the Court book, shows that hearing commenced at 11:07 am and appears to have ended at 1:15 pm. The Tribunal in its decision record set out in considerable detail an account of the applicant's oral evidence. It is difficult to see how the Tribunal can be said not to have listened to the applicant. There is no evidence of any failure to comply with s.414 of the Migration Act.
The second ground claims that the Tribunal acted in a manifestly unreasonable manner. Whilst there is no specific reference to what is known as Wednesbury Unreasonableness per se, it is clear that this type of manifest unreasonableness has been contemplated. The applicant told the Court that the Tribunal was manifestly unreasonable because it did not accept his claims. The applicant may well feel that a Tribunal that did not accept his claims and indeed did not believe some of his evidence, had acted in a manifestly unreasonable way but the applicant's belief does not establish a manner objectively.
The Tribunal set out why it did not accept the applicant's claims.
The Tribunal did not accept substantial parts of the applicant's evidence and took the view that he had substantially misrepresented his concerns. The Tribunal clearly took the view that the applicant's original concern; being a dispute with his employer, was not a Convention related dispute, which I might point out was the point that the delegate made in deciding against the applicant. There is no suggestion that the applicant suffered from any lack of procedural fairness from an SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 point of view.
The Tribunal considered the applicant's claim of being specifically threatened on account of race or ethnicity but took the view that those claims were not genuine and expressed a degree of scepticism at why those claims had been made for the first time before the Tribunal.
The Tribunal also took the view that even if the applicant did fear harm from his employer that that harm was localised and would well have dissipated over time and the Tribunal, even on an alternative basis, considered the question of relocation.
As to a decision being manifestly unreasonable; counsel for the Minister has submitted that a very stringent test is applied, especially when directed to fact finding rather than the exercise of discretion. The Court has been referred to the decision of Director of Animal and Plant Quarantine v Australian Pork Limited.[13] This was a decision of the Full Court of the Federal Court with Heerey, Branson and Lander JJ and the joint judgment of Heerey and Lander JJ in a case which concerned actions to be taken in respect of a disease known as post-weaning multi-systemic wasting syndrome known as PMWS. Their Honours considered the question of unreasonableness, at [63] their Honours said:
However, APL had to show that the ultimate decision was not just unreasonable, but so unreasonable that no other similarly qualified decision maker would have made it. That test necessarily allows for some degree of unreasonableness even if error in reasoning is disclosed a conclusion of Wednesbury Unreasonableness requires a major step further.
Again, at [65] their Honours said:
It seems therefore that it is inherently more difficult to impugn a decision on the ground of Wednesbury Unreasonableness when the decision involves fact finding rather than the exercise of a discretion.
[13] (2005) 146 FCR 368 at [63]-[66] and again at [103]
Branson J agreed with their Honours in her judgment at [103].
The fact is; the applicant has not shown that the Tribunal decision was manifestly unreasonable or even unreasonable at all. The second ground must fail.
The applicant's third ground relates to a claim of the Tribunal not examining the totality of his circumstances when considering relocation. The first point to be made is that the Tribunal did not have to consider relocation at all. Whilst the Tribunal did consider the question of relocation; this was clearly an alternative finding.
The tribunal did not refer to the "what if I am wrong test" set out in Rajalingam and in my view the making of an alternative finding on the question of relocation in the circumstances of this case does not indicate any lack of confidence by the Tribunal in its primary finding; namely that the applicant did not have a well-founded fear of persecution for a Convention reason.
The applicant claims that he could not relocate from Johannesburg but appears not to have raised any specific objection to that apart from some uncertainty about being able to obtain employment elsewhere in South Africa and expressing a view that the former employer and his cronies would find him and persecute him anywhere, which the Tribunal did not accept.
I am referred to the recent decisions of the High Court of Australia in SZATV v Minister for Immigration & Citizenship[14] and a decision handed down on the same day SZFDV v Minister for Immigration & Citizenship[15] where the High Court again considered the reasonableness of relocation and the practicability of relocation. In my view, the tribunal did not misconstrue the requirements of a relocation finding even though there was no necessity to make such a finding at all (see Sabaratnasingam v Minister for Immigration & Multicultural Affairs).[16] It follows that the applicant's third ground fails.
[14] (2007) 237 ALR 634; [2007] HCA 40
[15] (2007) 237 ALR 660; [2007] HCA 41
[16] [2000] FCA 261 at [13]
The applicant's fourth ground claims that the Tribunal decision involved jurisdictional error affecting the decision and that it failed to consider that the applicant was a member of a particular race group; that is, persons of the Indian race, and that effective state protection was not available to persons in this group. The Tribunal did consider that claim. The Tribunal considered that at page 74 of the Court book. The Tribunal said:
To those claims dealt with above, the applicant added during the hearing before the Tribunal the claim that he was specifically threatened on account of his race or ethnicity. He claims that this occurred through those assisting his former employer, but also in the context of his employment with his uncle and even directed at himself and his former employer between 2004 and February 2007.[17]
[17] See Court book page 74.
The Tribunal did not accept that claim which is different from not considering it. The Tribunal also considered the applicant's claim that the police failed to investigate his complaints for reasons of his race or ethnicity. This was done at page 73 of the Court book where the Tribunal said:
The applicant has also claimed that police in South Africa failed to investigate matters affecting him by reason of his race or ethnicity, being Indian. He claims that in respect of his uncle's murder the police didn't undertake appropriate inquiries and that in respect of threats made against him they took the side of black South Africans.[18]
The Tribunal then went on to consider that claim but rejected it.
[18] See Court book page 73.
The applicant's four grounds have not been made out. They do not show jurisdictional error. The applicant is not legally represented in these proceedings and I have considered his claim bearing that in mind.
There is no discernible jurisdictional error that I can observe in the decision. It follows that the tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Private clause decisions are final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any Court and are not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.[19] It follows that the application must be dismissed.[19] See s.474(1).
There is an application for costs on behalf of the first respondent Minister in the sum of $4,500.00. The applicant has been unsuccessful in his claim and it is appropriate that a successful party who is legally represented should be the recipient of a costs order. The amount of $4,500.00 which is sought is unexceptionable; being within the scale provided by the Federal Magistrates Court Rules. The applicant however says that he does not have the money to meet those costs and I see no reason to disbelieve that. Unfortunately, impecuniosity is not of itself a ground for not making an order for costs. It is a matter to take into account when allowing time to pay. I propose to order that the applicant is to pay the first respondent's costs fixed in the sum of $4,500.00 but I will allow six months to pay.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 July 2008
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