SZNHY v Minister for Immigration
[2009] FMCA 793
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 793 |
| MIGRATION LAW – Application to review decision of Refugee Review Tribunal – alleged denial of procedural fairness by Tribunal – no error of law established – application dismissed. |
| Migration Act 1958, ss.36 (2)(a), 36(2)(b), 65(1), 425, 425(1), 429A Convention Relating to the Status of Refugees (1951) |
| Abebe v Commonwealth (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 M. Aronson, B.Dyer, M. Groves ‘Judicial Review of Administrative Action’ (4th edition) Sydney: Law Book Company 2009 |
| First Applicant: | SZNHY |
| Second Applicant: | SZNHZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 574 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 21 July 2009 |
| Date of Last Submission: | 21 July 2009 |
| Delivered at: | Canberra |
| Delivered on: | 27 August 2009 |
REPRESENTATION
| Counsel for the Applicants: | Applicants in person |
| Advocate for the First and Second Respondents: | Mr Eteuati |
| Solicitors for the First and Second Respondents | Clayton Utz |
ORDERS
The Application filed 10 March 2009 and the Amended Application filed 15 June 2009 be dismissed.
The Applicants pay the costs of the Respondents as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
SYG 574 of 2009
| SZNHY |
First Applicant
| SZNHZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
A. Introduction
The present application seeks judicial review of a decision of the Refugee Review Tribunal (RRT) that issued on 13th February 2009. That decision affirmed an earlier decision of a delegate of the Minister to refuse the grant of protection visas to the applicants in these proceedings. The decision of the delegate was dated 31st October 2008.
In Abebe v Commonwealth[1] Kirby J referred to “…some applications for judicial review…were thinly disguised attempts to procure judicial redetermination of the facts or the merits.”
[1] (1999) 197 CLR 510 at pp 587 (internal citations omitted).
In large measure, Kirby J’s observation in Abebe applies to the current matter. In saying this, I do not suggest that the Applicants’ wish and attempt to have the RRT’s decision reviewed is anything other than genuine. As with many if not most similar applications for review, the current application seems strongly motivated by the understandable desire of the Applicants to remain in Australia. This is the obverse side of Gummow and Hayne JJ’s observation in Abebe:[2]
… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
However, the reality of these proceedings is that the applicants essentially seek a review of the merits of the decision of the Refugee Review Tribunal.
[2] 197 CLR 510 pp.577-578 [191]. Part of these same observations were repeated by Kirby J in Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at p.31 [73].
Claims and Grounds of Review
I agree with the submission on behalf of the Minister that, in summary, the First Applicant claims that if he and his wife, the Second Respondent in these proceedings, were to return to India, they contend that they would suffer persecution by Sikhs for their association with the DERA–SACHA SAUDA spiritual organisation (“DSS”). It is in the light of that claim that the Application to this Court must be viewed.
The grounds of review were set out in an Amended Application that was filed on 15 June 2009. They are as follows:
i)The Tribunal failed to provide the Applicant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1).[3]
ii)The Refugee Review Tribunal denied the applicants procedural fairness by reaching adverse conclusions that applicants claim were implausible, being conclusion that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters.
iii)The applicants satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
iv)The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 13 February 2009 was effected by actual bias constituting judicial error.
[3] The following “particulars” to Ground i) are also set out in the Amended Application: `Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present (giving the word `before’ its natural English meaning, in the context of `in front of’) in the one place, in order that the Applicant [sic] may present their [sic] case; the Tribunal was not present at the hearing, because the Tribunal was in Sydney, and thus the Applicant did not `appear before’ the Tribunal.’
B. Decisional History
An application for a protection visa (Class XA) was lodged on 13th August 2008. By letter dated 31st October 2008 the Applicants were advised that it had been refused. A copy of the reasons and findings bearing the same date was provided to the Applicants. Those reasons and findings were before this Court.
The decision of the Delegate was appealed to the Refugee Review Tribunal. That application was filed on 14 November 2008. By letter dated 4 December 2008 the Applicants were invited to appear before that Tribunal. They appeared by video-link; an interpreter was present and was used during the course of the hearing before the Tribunal.
On 13th February 2009 the Tribunal delivered its decision, which affirmed the Delegate’s decision not to grant protection visas to the Applicants.
A copy of the reasons of the Delegate, dated 31st October 2008, was provided to the Court. Those reasons are set out at pages 54 - 59 in the Court Book provided by the First Respondent’s solicitors.
It should be noted, without going into any detailed history, that the main reason for the Delegate’s decision was the failure of the Applicant’s to attend any of the interviews about which they had been notified.[4]
[4] See Court Book, at pp.58 & 59.
As previously indicated, the Applicants attended a hearing before the Tribunal on 9th January 2009. They did so by video-link; they gave evidence in support of their application, and there was a Hindi interpreter present.
A copy of the “Decision Record” of the Refugee Review Tribunal, at pages 81 to 95 of the Court Book, was provided to this Court by the First Respondent’s solicitors. By way of overview, the “Statement of Decision and Reasons” proceeds in the following order: after outlining the application itself, the Tribunal deals with the relevant law including the definition of ‘refugee.’ It then considers the various claims and evidence before the Tribunal. There follows an outline of the Tribunal hearing on 9th January 2009, which is followed by the evidence given by both Applicants.
Beginning at p. 91 of the Court Book, is the Tribunal’s finding and reasons. At paragraph [71] of the reasons of the Tribunal, the following is stated:
The above matters collectively lead the Tribunal to find that the applicants are not credible witnesses and it rejects their claims that they were targeted because of their involvement with the DSS. It therefore rejects all their claims that flow from that claim, including that they were assaulted on 20 May 2007; their property was damaged; that they never returned to their home after 20 May 2007 because of a fear of persecution and that they fled India because of that fear. The Tribunal is not satisfied that the applicants were or are the targets of Sikhs in India because of their membership with of the DSS or that the police suspect the applicant husband of involvement in anti Sikh activities. The Tribunal is not satisfied that there is a real chance that the applicants would suffer serious harm for reasons of their membership with the DSS if they return to India in the reasonably foreseeable future.
In the following paragraph, [72], the Tribunal concludes:
Accordingly, the Tribunal is not satisfied that the applicants have a well founded fear of persecution for a Convention reason if they return to India.
C. Appeal to the Federal Magistrates Court
The Applicants were accompanied by a Hindi interpreter throughout the course of the short hearing before me on 21st July 2009. The First and Second Respondents were represented by Mr Eteuati.
I conducted the proceedings by taking the Applicants through the relevant sections of the Tribunal’s decision, and in particular, those sections of the reasons that deal with the evidence of the Applicants as well as the finding and other matters set out in [70] and [71] of those reasons. As well, I took the Applicants through each of the grounds of the Amended Application which they filed on 15th June 2009.
First Ground of Review: This ground states: “The Tribunal failed to provide the Applicant with an opportunity to appear before it and this failed to comply with the mandatory requirements of s.425(1) of the Migration Act.” The essential argument raised under this heading relates to the alleged denial to the Applicants of the opportunity to “appear before the Tribunal to present evidence and give arguments relating to the issues arising in relation to the decision under review.”
However, in the course of the appeal, I pointed out to the Applicants that s.429A of the Migration Act provides that “for the purposes of the review of a decision, the Tribunal may allow the appearance by the Applicant before the Tribunal, or the giving of evidence by the Applicant for any other reason to be by: (a) telephone, or (b) closed circuit television or (c) any other means of communication.” In that regard, the claim that they had been denied an opportunity to appear before the Tribunal because they had appeared only by way of video-link is met directly by the operation of s.429A of the Migration Act.
In SZJTK v Minister for Immigration and Citizenship, concerning s.429A Reeves J said, at [25]:[5]
It clearly gives the Tribunal a discretion to allow an appearance (for the purposes of a review hearing under s.425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as video conference facility, or any other means of communication (which clearly would include a video conference facility).
[5] [2008] FCA 1712.
On the face of s.429A, and in the light of Reeves J’s observations in SZJTK, in my view it is impossible for the first ground of appeal to succeed.
Second Ground of Review: The second ground of appeal contends that “the Tribunal denied the Applicants procedural fairness by reaching adverse conclusion that the Applicants’ claims were implausible – being conclusions that were obviously not open on the known material without giving the Applicants the opportunity to be heard in respect of those matters.”
This is perhaps the most direct confirmation that, among other things, the Applicants are seeking a review of the merits of the Tribunal’s decision. This ground has no basis. First, the Applicants were not denied procedural fairness before the Tribunal. They appeared before it, and there was an interpreter present. True it is that they did not have legal representation, but they did have the opportunity to present the grounds upon which they contend they should be entitled to the visas sought. Secondly, the other aspect of this ground of appeal relates to the Tribunal reaching adverse conclusions. There are a number of flaws in this part of the argument put by the Applicants.
At the outset, it is the function of both the Delegate and in turn the Tribunal to make findings of fact one way or the other. The Tribunal has done so. Next, as Mason CJ said in Australian Broadcasting Tribunal v Bond: “To expose all findings of fact, or the generality of them to judicial review would expose the steps in administrative decision-making to comprehensive review by the Courts, and thus bring about a radical change in the relationship between the executive and judicial branches of government.”[6]
[6] (1990) 170 CLR 321 at pp. 341. This statement was cited with approval by McHugh , Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at pp 344 [63].
In addition to the above comments, Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu said:[7]
Someone who disagrees strongly with someone’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are really emphatic ways of saying that the reasoning is wrong, then they have no particular legal consequence.
[7] (1999) 197 CLR 611 at p 626 [40].
In my view, the substance of the Applicant’s complaint under this ground about the Tribunal reaching adverse conclusions falls within the same general parameters of the statement just quoted from Gleeson CJ and McHugh J in Eshetu.
The Tribunal set out clearly the facts and basis upon which it arrived at the conclusions it did. Paramount among them were the inconsistencies between the evidence of the Applicants as well as the general lack of credibility of their evidence. Moreover, as Brennan J said in Waterford v Commonwealth “even if there were incorrect findings, or conclusions of fact, that, of itself, would not amount to an error of law.”[8]
[8] (1987) 163 CLR 54 at p 77.
For the above reasons, the second ground of appeal has no substance and must fail.
Third Ground of Appeal: This ground of appeal relates to a contention that the Tribunal did not consider the Convention definition in relation to what did and what did not constitute a ‘refugee’. However, as I have already noted, beginning at [6] of the Tribunal’s decision, through to [19], the Tribunal deals specifically with the definition of “refugee” under the Convention Relating to the Status of Refugees (1951) as amended by the 1967 Protocol Relating to the Status of Refugees, together with the relevant provisions of the Migration Act and in particular, ss.36(2)(a), 36(2)(b) and 65(1). Thus, on the face of the record of the Tribunal’s Statement of Decision and Reasons, it is impossible for the Applicants to contend successfully that the Tribunal did not consider the definition of what constitutes a refugee. Moreover, in paragraphs [62] and following in the Tribunal’s Statement of Reasons, there is further consideration of what does and does not constitute a “refugee” in the light of High Court authority such as Abebe v Commonwealth of Australia, to which I have already referred.
In the light of the above, the third ground of complaint raised by the Applicants cannot be sustained.
Fourth Ground of Appeal: A further ground of complaint and review raised by the Applicants relates to the alleged failure by the Tribunal to investigate the Applicants’ claim that they were persecuted in India. Curiously or not, the Tribunal did not refer to any case, such as Chan v Minister for Immigration and Ethnic Affairs, concerning what constituted a `well-founded fear of persecution.’[9]
[9] (1989) 169 CLR 379, especially the observations by Mason CJ at p.389, Gaudron J at pp.415ff., and especially the extensive discussion by McHugh J at pp.423-431.
Be that as it may, the Statement of Decision and Reasons of the Tribunal deals at length, and repeatedly, with this specific ground. It is in relation to that ground of fear of persecution that the Tribunal addresses perhaps most directly above all others in its reasons.[10] Having reached a conclusion regarding the credibility and reliability of the evidence provided by the Applicants, the Tribunal reached adverse conclusions against the Applicants and found that there was no well founded fear of persecution for a Convention reason.
[10] See the Statement of Decision and Reasons at [14] – [18], [23], [29] – [40], [43] – [45], [48] – [52], [56] – [60], [66] – [71].
In short, the Tribunal addressed the issue of fear of persecution raised by the Applicants. It did so directly. There is no basis to this ground of complaint.
Fifth Ground of Appeal: The next ground of complaint relates to a contention that in the Tribunal’s alleged failure to investigate the Applicant’s claims in relation to persecution, the Tribunal was in fact motivated and exhibited “actual bias”.
It is well known and well established that “actual bias” requires specific proof regarding the state of mind of the decision-maker. In Minister for Immigration and Multicultural Affairs v Jia Legeng, the High Court examined in detail the principles in relation to “bias.”[11]
[11] (2001) 205 CLR 507. See especially the joint judgment of Gleeson CJ & Gummow J beginning at p.513, and Hayne J at pp.561-566 especially the discussion at [183] – [187].
As summarily stated, for example, in standard texts on administrative law in the light of, and by reference to, authority such as Jia Legeng, “a Court will only find actual bias if satisfied that the decision-maker approached an issue with a closed mind. … The decision-maker must be shown to be unwilling or unable to decide the issue impartially, and not amenable to persuasion by any evidence that might be led. The Court must therefore make an adverse finding about the decision-maker in a personal sense. Such a finding will be made only with extreme caution.”[12]
[12] See, M. Aronson, B.Dyer, M. Groves ‘Judicial Review of Administrative Action’ (4th edition) Sydney: Law Book Company 2009 p.645 (internal citations omitted).
The Applicants provided no evidence whatsoever of any bias on the part of the Delegate or the Tribunal. Nor did they point to anything in the reasons and decision of the Tribunal that indicated, let alone confirmed, that bias was manifest. Accordingly, this ground of appeal must also fail.
D. Conclusion
In Minister for Immigration and Multicultural Affairs v Wang Gummow and Hayne JJ noted “the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle.”[13]
[13] (2003) 215 CLR 518 at [74].
Accepting the truth of their Honours statement, there is no indication or any evidence before this Court that there was anything other than a fair hearing of the Applicants before, and of their claims by, the Tribunal. The Tribunal considered each and every one of the claims made by the Applicants. As Brennan J said in Waterford v Commonwealth a “…finding on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law.”[14] Here the Tribunal has made a range of conclusions of fact. In my view, none of them are vitiated by an error of law. Accordingly, the amended application for review before this Court must be dismissed.
[14] (1987) 163 CLR 163 at [14].
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 27th August 2009
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