SZMXW v Minister for Immigration
[2009] FMCA 875
•11 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMXW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 875 |
| MIGRATION – Application to review decision of Refugee Review Tribunal. |
| Migration Act 1958, ss.424A, 430(1) Convention Relating to the Status of Refugees 1951, Article 1A (2) Protocol Relating to the Status of Refugees 1967 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 AZAAR v Minister for Immigration & Citizenship & Refugee Review Tribunal [2009] FCA 912 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; (2001) 178 ALR 421; (2001) 75 ALJR 679 Minister for Immigration & Citizenship v SZKTI [2009] HCA 30 Minister for Immigration & Citizenship v SZLFX [2009] HCA 31 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; (2000) 74 ALJR 405 R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 S157/2002 v Commonwealth (2003) 211 CLR 476 SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668 Waterford v Commonweath (1987) 163 CLR 54; (1987) 71 ALR 673; (1987) 61 ALJR 350 |
| First Applicant: | SZMXW |
| Second Applicant: | SZMXX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2955 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 6 May 2009 |
| Date of Last Submission: | 6 May 2009 |
| Delivered at: | Canberra |
| Delivered on: | 11 September 2009 |
REPRESENTATION
| Counsel for the Applicants: | Applicants in person |
| Advocate for the First and Second Respondents: | Mr Chand |
| Solicitors for the First and Second Respondents | Clayton Utz |
ORDERS
That the Application filed 13 November 2008 is dismissed.
That the Applicants pay the First Respondent’s costs either as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
SYG 2955 of 2008
| SZMXW & ANOR |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
Respondents
REASONS FOR JUDGMENT
A. Introduction and Background
The applicants in these proceedings are both citizens of Malaysia. They contend that they are from different castes (Tamil and Hindu). They are married to each other. They contend that precisely because they are from different castes and because they are married to each other they are under threat of death from one or more members of the wife’s family.
On 30th June 2008, a delegate of the First Respondent refused to grant a protection visa to the applicants.[1] The delegate found that the First Applicant did not have a well founded fear of persecution within the meaning of the definition of ‘refugee’ under the Convention Relating to the Status of Refugees (1951), as amended by the Protocol Relating to the Status of Refugees (1967).
[1] Although not formally admitted, I accept the records produced in the Court Book produced by the solicitors for the First Respondent. There was no objection by either of the Respondents to any of the documents contained the Court Book. The decision by the delegate (Mr McGrath) is set out in the Court Book at pp. 49 – 61.
The delegate’s decision was appealed to the Refugee Review Tribunal (the Second Respondent in the current proceedings). On 23rd October 2008, the Tribunal handed down its decision, which affirmed the delegate’s decision not to grant a protection visa to both the First and Second Applicants.[2]
[2] The Tribunal’s Decision is set out in the Court Book at pp.102 – 117.
By an Application filed 13th November 2008, the grounds and decision of the Tribunals decision were sought by the Applicants to be reviewed by this Court.
B. Grounds of Review
According to their written submissions that were filed on 29th January 2009, the Applicants state the following as the grounds of review for challenging the decision of the Tribunal.[3]
[3] Sometimes the Applicants referred to themselves in the plural; at other times, there was reference only to the Applicant Wife. For current purposes, unless otherwise required, I will refer to “the Applicants.”
The first challenge that is mounted relates to the Tribunal’s decision being “induced or affected by actual bias.” By way of particulars the Applicants contend: “on the evidence as a whole, the findings of the Tribunal member as to the following matters demonstrated actual bias.”
Somewhat compendiously, the Applicants contend that the Tribunal rejected their claims “without considering [my] oral evidence in relation to major issues.” As a further particular, the Applicants contend that the Tribunal did not treat the challenge to the delegate’s decision appropriately under section 424A of the Migration Act 1958. The Applicants also contend that a statement provided by them was not submitted either at all or appropriately before the Tribunal.
The second ground of review or challenge, as stated by the Applicants, is that the Tribunal did not use “the country information as specific” but rather, it would seem, more general information gathered by the Tribunal. The Applicants further contend in this regard that the Tribunal “used all information for matter of reasoning and evaluation of my case.” The Applicants continue in their written submissions stating that the Tribunal was preoccupied and did not have a “fresh look”.
The third ground of review is in effect that the Tribunal applied the wrong test in determining the outcome in the challenge to the delegate’s decision. There appears to be a number of aspects to this ground of challenge. For example, the Applicants contend that the Tribunal placed too high a standard of proof on the Applicants and did not give them the “benefit of the doubt.” The Applicants also contend that the Tribunal “left out individual elements of the Applicants’ claim, and tested whether they individually amounted to persecution rather than look at the claim as a whole.”
The Applicants therefore contend in their fourth and fifth grounds that the decision of the Refugee Review Tribunal was “effected [sic] by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the Applicants claims.” It is contended by the Applicants that the “Tribunal did not consider the Second Applicant, who had been under immense pressure from her family members, because of her relationship with different caste.”
The sixth ground of complaint is that the Tribunal “denied the Applicant procedural fairness by reaching adverse conclusion that her claims were implausible, being conclusion that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters.”
The seventh and final ground of complaint of the Applicants is that the Tribunal failed to note that the Applicants satisfied the definition of “refugee as defined in Article 1A (2) of the Convention.”
C. First Respondent’s Submissions
The First Respondent submitted as follows by way of reply to the contentions listed above.
The Tribunal reviewed the applicable law in unobjectionable terms. The First Respondent contended that the treatment of the First Applicant’s claims and evidence, as well as its findings and the reasons of the Tribunal, are not only unobjectionable but are accurate and without legal flaw.
The First Respondent noted that the Tribunal accepted that the First Applicant is a Malaysian citizen. As well, it was noted that the Tribunal’s reason for affirming the delegate’s decision was the finding, by the Tribunal, that the First Applicant was not a credible witness. Her evidence was inconsistent and was considered implausible. Such a finding led the Tribunal to conclude that the First Applicant’s relationship with her Husband was not opposed by their respective families. As such the Tribunal held that it could not accept the First Applicant’s contention that she had been “abducted, beaten, bitten or tracked down in Kuala Lumpur.” The Tribunal also did not accept that the First Applicant’s family will be a threat to her or to her husband if they were to return to Malaysia.[4]
[4] These findings are set out in the Tribunal’s reasons, in the Court Book at p.114.
The First Respondent also noted that the Tribunal found that even if there was some opposition to the marital relationship between the Applicants, there was adequate state protection provided by the Malaysian authorities. Indeed, the Tribunal went on to find that it was satisfied that the Malaysian authorities were willing and able to provide protection to the Applicants that will be sufficient to remove any real basis for their fear of harm in Malaysia. Accordingly, the Tribunal concluded that there was no well founded fear of harm by the First Applicant and indeed both Applicants in Malaysia. There was not a well founded fear of Convention-related persecution.
After noting formally the two grounds of review for which the Applicants contend,[5] the First Respondent contended that the Applicants will only be entitled to the relief sought if they can demonstrate jurisdictional error on the part of the Tribunal. For this proposition they cite the High Court decision S157/2002 v Commonwealth.[6]
[5] The formal grounds as noted earlier in these Reasons are (a) “that the Tribunal exceeded its jurisdiction in making its decision to affirm the First Respondent’s decision; (b) the Tribunal constructively failed to exercise its jurisdiction in arriving at its decision.”
[6] (2003) 211 CLR 476 at [76].
First ground of appeal: this ground of appeal relates to a contention that, in reaching its decision, it “demonstrated actual bias.” In this regard I need only note, amongst other judicial considerations of what does and does not constitute ‘actual bias,’ the High Court decision in Minister for Immigration and Multicultural Affairs v Jia Legeng.[7]
[7] (2001) 205 CLR 507.
It is sufficient to note the following from the judgment of Hayne J in Jia Legeng, at [185] – [187]:
Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:
… preconceived opinions — though it is unfortunate that a judge should have any — do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.[8] [emphasis added]
[8] R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at 639 per Charles J.
Allegations of apprehended bias through prejudgment are often dealt with similarly.
In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an “expert” tribunal assumes that this will be done. Conferring power on a minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.
In SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs, von Doussa J said, at [36]:[9]
Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. "The question is not whether a decision maker's mind is blank; it is whether it is open to persuasion": Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
[9] [2002] FCA 668.
No evidence, nor anything else, was provided by the Applicants that could remotely indicate that there was bias of any kind by the Tribunal in arriving at its decision. Accordingly, this contention must be rejected.
Second ground of appeal: The contention raised here is in essence that the Tribunal rejected the claims by the Applicants and did so without considering the “oral evidence”, ostensibly in the form of a statement provided to the Tribunal by the Applicants.
As with the first ground of complaint, the Applicants simply assert their contention without providing any evidence, or any genuine basis, upon which their claim could properly be founded or established. It is clear on the face of the record that the Tribunal considered at some length each and every ground that was raised by the Applicants. The Applicants’ contention of the Tribunal’s failure to consider the “oral evidence” must be rejected.
Third ground of appeal: This ground relates to a contention by the Applicants that the Tribunal did not adequately consider the Applicants’ evidence in relation to the “country information” in considering the Applicant’s claims. Two things may be stated in response. First, the process of enquiry conducted by the Tribunal is more inquisitorial than adversarial.
In Abebe v Commonwealth of Australia,[10] at [187], Gummow and Hayne JJ described the function of the Tribunal in the following way: "The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out."
[10] (1999) 197 CLR 510.
That is what happened in the current proceedings. After making inquiry, the Tribunal made findings of fact. It is those facts that are under challenge by the Applicants. The challenges can and must be limited only to questions of law.
The Tribunal is entitled to undertake what enquiries it considers appropriate in securing any relevant information. Secondly, on the face of the record of its decision, the Tribunal appropriately took account of relevant “country information.”
A third observation may be made. It can reliably be stated that this ground of appeal effectively seeks a review of the merits of the Tribunal’s decision. That course is not open to the Applicants. This Court is confined to considering whether or not there has been a jurisdictional error. This Court cannot engage in a review of the merits of the decision of the Tribunal. Merits review is not open in this Court. As Brennan J said in Waterford v Commonwealth:[11]
…a finding on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law.
[11] (1987) 163 CLR 54 at [14].
Fourth ground of appeal: The substance of this challenge seems to relate to the Tribunal allegedly placing too high an onus of proof on the Applicants in establishing their claims that they were persecuted in Malaysia, or that they genuinely risked being persecuted in that country. In essence it would appear that this ground is a reformulated challenge that the Tribunal improperly considered the evidence before it. On that basis, again it is a claim which seeks to have this Court review the merits of the decision of the Tribunal. This Court cannot do so. Moreover, there is nothing on the record on the matters put before the Tribunal, or its consideration of them, which would otherwise suggest that any improper or inappropriate test or burden of proof was applied. Accordingly, this ground of complaint must also fail.
Fifth ground of appeal: The contention here is that the “Tribunal did not consider the applicant, who had been under immense pressure from her family members because of her relationship with [a person from a different] caste.” Again, on the face of the record, it is clear that the Tribunal considered, at considerable length, the claim by the Applicants regarding the alleged threats to either or both of them, and as with other grounds of complaint, no evidence is provided that could be used to challenge the Tribunal’s decision. This ground must fail.
Sixth ground of appeal: The contention in this regard is that the Tribunal “denied the Applicant procedural fairness by reaching adverse conclusions that her claims were implausible.” The Applicants further contend that the conclusions reached by the Tribunal were not open to it on the evidence before it, and that the Tribunal reached its conclusions without giving the Applicants the option to be heard in relation to these matters.
Again, these are simply assertions without any evidence to support them. It is clear on the face of the Tribunal’s reasons, as well as the rest of the record before the Court, that there was no denial of procedural fairness to the Applicants, nor is there any evidence that the Applicants were denied any aspect of procedural fairness with the Tribunal arriving at the conclusion it did. This ground of complaint must fail. Moreover, as I have already noted, the Tribunal made it clear that amongst other grounds upon which it arrived at the decision it did was the finding that the First Applicant’s evidence was inconsistent and implausible, and otherwise that she was not a credible witness.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, McHugh J said, at [67]:
…the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.[12]
[12] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
His Honour’s comments apply directly to the facts and findings of the Tribunal in this case.
Seventh ground of appeal: The complaint here is that the Tribunal made findings adverse to the Applicants in relation to one or both of them satisfying the definition of refugee under the Convention.
Again it is clear that the Tribunal considered at some length the formal requirements of the definition of “refugee” under the Convention and found that the Applicants did not meet the requirements set out there. Moreover, as the Tribunal also found, even if there was any relevant threat (which the Tribunal rejected in any event) the Applicants would be able to avail themselves of appropriate state protection in Malaysia. Accordingly, this ground cannot succeed.
D. Legal Principles
A number of recent decisions have neatly summarised the relevant law in relation to appeals of this kind. Firstly, in AZAAR v Minister for Immigration & Citizenship & Refugee Review Tribunal,[13] Finn J at [5] – [10] set out what his Honour described as the “legal setting” for such appeals. Apart from formally being bound by his Honour’s comments, respectfully I adopt them. I set them out below:
[13] [2009] FCA 912.
There has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; Horvath v Secretary of State for the Home Department [2001] 1 AC 489; see also SZAIX v Minister for Immigration (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities.
(i) It is the obligation of a State to provide an adequate or reasonable armoury of laws and other mechanisms capable of providing international standards of protection: Respondent S152/2003 at [27]; Horvath, at 510; against the perpetration of violence on its citizens: Respondent S152/2003, at [26].
(ii) Those standards cannot provide an “absolute guarantee” of protection: Hovath, at 510; the measures taken to protect the lives and safety of citizens must be “reasonable”: Respondents S152/2003; but they cannot be expected to protect against “individual and random” incidents of harm: at [119].
(iii) There must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence: Respondents S152/2003 at [21]; Hovatt, at 511; and this may necessitate examining how State agents act at a “local level” regardless of the State’s “leaders’ good intention”: see SZAIX at [37].
(iv) If the State or its agents condone, approve, tolerate: Khawar, [31]; or are indifferent to: Respondents S152/2003 at [119]; the criminal conduct concerned, or are unwilling or unable to afford protection: Horvath at 510–511; Khawar, at [29] —
… then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents]: Khawar, at [31].
(v) Proof merely of maladministration, incompetence or ineptitude of State agents would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2) of the Refugee Convention: Khawar at [26].
Secondly, and even more recently, in two related decisions the High Court has considered the application of s424A, and related provisions, and more generally the statutory framework of appeals of the kind currently before this Court.[14]
[14] Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; Minister for Immigration & Citizenship v SZLFX [2009] HCA 31.
E. Conclusion
In the light of the principles set out in the Federal Court decision in AZAAR, the two very recent decisions by the High Court, and the other authorities to which I have referred, no legal principle has been established, or evidence provided, by the Applicants in this appeal that would warrant the decision of the Tribunal to be overturned. Accordingly, the challenge to the Tribunal’s decision must fail.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 11 September 2009
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