SZNJU v Minister for Immigration
[2009] FMCA 1114
•17 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJU v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1114 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal sought additional information – whether the Refugee Review Tribunal failed to comply with s.424 of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424(1); 424(2); 424(3); 424(3)(a); 424A; 424A(1); 424A(3)(b); 424B; 425; 474; pt.8 div.2 |
| SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693 SZNJT v Minister for Immigration & Citizenship [2009] FMCA 730 SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 Minister for Immigration and Citizenship vSZNAV [2009] FCAFC 109 Guo v Minister for Immigration and Ethnic Affairs (1997) 191 CLR 559 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZNJU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 746 of 2009 |
| Judgment of: | Emmett FM |
| Hearing dates: | 11 August & 29 October 2009 |
| Date of Last Submission: | 29 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2009 |
REPRESENTATION
| Applicant appeared own his own behalf |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Mr B. O’Brien |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 746 of 2009
| SZNJU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 March 2009 and handed down the same day.
The applicant claims to be a citizen of Pakistan and to have married without the consent of his or his wife’s parents (“the Applicant”).
The Applicant arrived in Australia on 10 April 2008, having departed legally from Lahore on a passport issued in his own name and a business visa issued on 6 March 2008.
On 21 May 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 18 August 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 9 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 6 March 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa application.
On 30 March 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’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 political opinion, is outside the country of his nationality and is unable or, owing to such fear, 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In his protection visa application the Applicant stated that he feared persecution by his wife’s family and family friends for his marriage in 2006 without their consent. The Applicant claimed that he received death threats as a result of his marriage and, on 12 July 2006, was kidnapped and severely beaten. He stated that his wife was kidnapped by her family and separated from him. The Applicant stated that, as a result, he obtained a visa for China and arrived there on 18 August 2006. The Applicant claimed he fled to Australia after seeing one of his persecutors in China in March 2008. The Applicant claimed that the police in Pakistan were unwilling to assist him when he reported the incidents and “they threatened me that they will put me behind the bars for getting married without the consent of our parents”.
The Delegate’s decision
On 18 July 2008, the Applicant attended an interview with the Delegate.
The Delegate found that the Applicant did not provide any evidence in respect of the persecution he claimed to have suffered from family members. The Delegate also found that the Applicant had provided no evidence of the existence of such a particular social group. The Delegate found that the Applicant appeared to fear persecution solely as a result of his actions in breaking with Pakistani tradition in seeking out and marrying a woman of his choosing. The Delegate found that the harm he claims to fear was motivated by revenge on the part of his wife’s family for marrying her and is of a private nature between his wife’s family and the Applicant and has no Convention nexus.
On 18 August 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
The Tribunal did not find the Applicant to do be a truthful or credible witness. The Tribunal found his evidence to be inconsistent and, when the Tribunal put to the Applicant those inconsistencies, found his responses to be unsatisfactory. The Tribunal also found that the Applicant’s evidence “shifted” and that his oral evidence was “unconvincing”. The Tribunal found the Applicant’s evidence to be “vague and inconsistent…about significant incidents he claimed had happened to him in Pakistan.”
The Tribunal comprehensively rejected the Applicant’s claims of ever having married without the consent of his family or his wife’s family and rejected the Applicant’s claims of having suffered harm for that reason. The Tribunal rejected the Applicant’s claim of having left Pakistan because he feared he would be killed and rejected the Applicant’s claim of having left China, where he spent time from August 2006 to March 2008, because he saw one of his persecutors. The Tribunal found that the Applicant had fabricated those claims in order to strengthen his claim for refugee status.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of an Urdu interpreter.
On 21 April 2009, the Applicant attended a directions hearing before a Registrar of this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Applicant was also provided with a contact list of providers of legal assistance and interpreting services, in documents headed in his own language.
This matter was originally scheduled for hearing on 11 August 2009. However, by consent, the hearing was adjourned until 29 October 2009 to allow the Applicant time to consider the issue of the construction of s.424 of the Act arising from decisions in the Federal Magistrates Court in SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693 and SZNJT v Minister for Immigration & Citizenship [2009] FMCA 730. Directions were made on 11 August 2009 giving the Applicant leave to file and serve a further amended application and any evidence upon which he intended to rely, together with submissions in support of the grounds of his application.
At the recommencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an amended application filed on 8 October 2009 as follows:
“1. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:
424A applicant must be given certain information
1. Subject to subsection (3), the Tribunal must:
a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part reason, for affirming the decision that is under review; and
b) Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and
c) Invite the applicant to comment on it.
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence and lacked credibility; therefore the Tribunal had erred by denying me procedural fairness in respect of this issues. If I would provide a submission prior to RRT decision, I believe that I would have a different decision.
2. The Tribunal failed to comply with s424 of the Migration Act 1958.
a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:
i) The invitation did not specify the way in which the additional information may be given.
ii) The invitation did not specify the period within which the information was to be given
Therefore the I submit that the Tribunal failed to analyse properly the “future harm” that I may face if I have to go back to Pakistan.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claim.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant confirmed that he had not filed any evidence or submissions in support of his application, other than the accompanying affidavit required by statute.
The Applicant told the Court that he did not know what was in his claims, nor did he understand what they meant. The Applicant said a friend of his had read the court book, being Exhibit 1R, and written the grounds for him. The Applicant said that his friend had not listened to any tapes of the hearing.
Ground 1
Ground 1 appears to assert that the Tribunal failed to comply with its obligations under s.424A of the Act in not giving to the Applicant, in writing, information about inconsistencies in his evidence and lack of credibility.
A fair reading of the Tribunal’s decision record makes clear that there was no information relied upon by the Tribunal that enlivened the obligations of s.424A(1) of the Act. The information which formed the reason for the Tribunal affirming the decision under review was the information given to it by the Applicant for the purposes of his review application. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
Otherwise, is well established that, for the purposes of s.424A(1) of the Act, information does not include 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” (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ in the majority citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal went to great lengths to put its concerns comprehensively and fully to the Applicant, including inconsistencies, to ensure that the Applicant was aware of its concerns and gave the Applicant every opportunity to comment on those concerns. In the circumstances, the Applicant was on notice of all issues that were the Tribunal’s reasons for affirming the decision under review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47] per the Court). Ultimately, the Tribunal rejected the Applicant’s evidence and was unsatisfied by the Applicant’s explanations of concerns that it put to the Applicant.
The Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings, and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
To the extent that ground 1 asserted that the Tribunal ignored its undertaking to give the Applicant an opportunity to make a written submission about inconsistencies in his evidence and the Tribunal’s concern about his lack of credibility, there is no evidence provided by the Applicant to support such an assertion. The Tribunal’s decision record does not suggest there was any such undertaking given by the Tribunal. The Tribunal noted that, when it asked the Applicant at the end of the hearing, if there was anything else he wanted to tell the Tribunal, the Applicant claimed that, although he was confused about some dates, his story was true. The Tribunal noted that the Applicant said he did not need further time to comment on or to respond to information put to him during the hearing.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 21 April 2009, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
I explained to the Applicant that there did not appear to be any mention in the Tribunal’s decision record of any such undertaking by the Tribunal and invited the Applicant to identify where it was that the Tribunal gave such an undertaking. The Applicant was unable to identify any part of the Tribunal’s decision record where such undertaking was given. Indeed, the Court then offered the Applicant an opportunity to give oral evidence about any undertaking given by the Tribunal. The Applicant declined to give further evidence and stated that his friend read the Tribunal’s decision record and had written the grounds for him and told him that such undertaking had been given. The Applicant did not continue to maintain that the Tribunal had in fact given such undertaking and stated that “his friend wrote ground 2 wrongly.”
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 appears to assert that the Tribunal failed to comply with s.424 of the Act in that the invitation given to the Applicant inviting him to come to a hearing was not given in accordance with s.424(3)(a) and s.424B of the Act.
The Applicant’s complaint in ground 2 appears to be misconceived. The Tribunal may invite a person to give additional information. Section 424(1) of the Act enables the Tribunal to get any information that it considers relevant. The Tribunal may choose to seek that information in accordance with s.424(3) and s.424B of the Act. Section 424(2) of the Act states that, without limiting s.424(1), the Tribunal may invite a person to give information orally or in writing. The procedural restrictions on the s.424 power to invite additional information does not qualify the Tribunal’s general power in s.424(1) of the Act to “get any information that it considers relevant” (Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48]).
The Full Court of the Federal Court of Australia has similarly confirmed that an invitation from the Refugee Review Tribunal to come to a hearing to give evidence and present arguments and which also invites a person to give additional information is not a formal request made pursuant to s.424(2) of the Act (Minister for Immigration and Citizenship vSZNAV [2009] FCAFC 109 at [20]-[21] per the Court (Stone, Jacobson and Jagot JJ)).
Accordingly, there was no obligation for the Tribunal to satisfy s.424(3) of the Act and s.424B of the Act in relation to the Tribunal’s invitation to the Applicant, dated 13 October 2008, to provide any further information he wished the Tribunal to consider.
Otherwise, the Applicant was invited to come to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s.425 of the Act. The Applicant appeared at the hearing before the Tribunal at which he was given an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Ground 2 also makes the bare assertion that the Tribunal failed to analyse properly the “future harm” that the Applicant would face if he went back to Pakistan. This complaint is not supported by particulars, evidence or submissions.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal comprehensively rejected the Applicant’s claims of past harm, let alone for any Convention related reason. In the circumstances, no further obligation arose on the part of the Tribunal to consider whether there was a real chance that the Applicant would suffer persecution for a Convention related reason, if he were to return to Pakistan in the reasonably foreseeable future, for the reasons alleged by the Applicant. The “real chance” test is not relevant in situations where the Tribunal has rejected all claims made by the Applicant with confidence (Guo v Minister for Immigration and Ethnic Affairs (1997) 191 CLR 559 at 575-576; Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [67]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291).
Accordingly, ground 2 is not made out.
Initiating application filed on 30 March 2009
Whilst the Applicant specifically told the Court that he no longer relied on the grounds of his initiating application, I have had regard to those grounds. For the most part the amended application is a restatement of the complaints made in the initiating application, save for the additional ground in the amended application of a breach of s.424 of the Act.
The grounds of the initiating application are as follows:
“1.The Tribunal applied the wrong test:
Particular
1. The Tribunal left out individual elements of the Applicant’s claims and tested whether they individually amounted to persecution rather than look at the claim as whole to determine whether the claim so considered amounted to persecution.
2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
3. The applicant 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.
4. The Tribunal member failed to consider all the materials readily available and/or accessible and the member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those materials.
5. The Tribunal member has failed to investigate my claims, specially the grounds of persecution in Pakistan. Therefore, the Tribunal’s decision dated 6 March 2009 was effected by actual bias constituting judicial error.
6. Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of refugee status and therefore there was a denial of Natural Justice.”
None of the grounds are supported by particulars evidence or submissions. For the reasons set out in written submissions by the First Respondent filed on 3 August 2009, and in addition to the reasons above insofar as they deal with those grounds, none of those grounds are made out. The submissions of the First Respondent in respect of each of the grounds are as follows:
“Ground 1: Application of the wrong test
12. The Applicant claims that:
“The Tribunal left out individual elements of the Applicant’s claims and tested whether they individually amounted to persecution rather than look at the claim as whole to determine whether the claim so considered amounted to persecution.”
13.The Tribunal considered each of the claims made by the Applicant and rejected them on the basis that the Applicant was not a credible witness. The Tribunal was therefore under no obligation to consider the Applicant’s claims as a whole, because the Tribunal did not accept that the Applicant had suffered any persecution as claimed.
Ground 2: Failure to provide opportunity to be heard
14. The Applicant claims that the Tribunal:
“denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.”
15.During the hearing, the Tribunal complied with its statutory obligations by:
(a) orally giving to the Applicant clear particulars of information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review, in accordance with s.424AA and s.424A of the Act (CB 158-163, and in particular CB 162-3);
(b) providing the Applicant with an opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, in accordance with s.425 of the Act (CB 158-163).
16.Pursuant to s.422B of the Act, the Tribunal had no further obligations of procedural fairness other than those stated in Part 7, Division 4 of the Act: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412 at [66]-[70]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
17. No jurisdictional error is demonstrated by this ground of review.
Ground 3: Failure to apply test
18.The Applicant claims that the Tribunal failed to consider that the Applicant satisfied the four key elements of the Convention definition as detailed on pages 2 and 3 of the Tribunal decision.
19.The Tribunal rejected each of the Applicant’s claims and therefore held that there was no real chance that the applicant would face persecution if he returned to Pakistan: CB 168 at [90]-[91]. In these circumstances, the Applicant could not satisfy the elements of the Convention definition of refugee.
20.This ground seeks merits review of the Tribunal’s decision which is unavailable in this Court.
Ground 4: Failure to consider all materials available
21.The Applicant claims that the Tribunal “failed to consider all the materials readily available and/or accessible”. This ground is unparticularised.
22.Review of the Tribunal’s decision demonstrates that the Tribunal did take into account all of the materials provided by the Applicant in support of his claims. Moreover, it is not apparent from the Tribunal’s decision that there were any materials which were readily available or accessible to the Tribunal which ought to have been taken into account, but were not. In these circumstances, the Tribunal discharged its obligations and did not fall into jurisdictional error.
Ground 5: Failure to investigate claims
23.The Applicant provides no particulars of his assertions that the Tribunal failed to investigate his claims and should have sent “further communication to substantiate my claim of refugee status”.
24.Although Part 7, Division 4 of the Act empowers the Tribunal to undertake further investigations, it was under no obligation to exercise those powers: VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27].
Ground 6: Bias
25.Review of the Court Book does not demonstrate any basis for the Applicant’s allegations of actual bias. The Tribunal carefully considered the Applicant’s claims and evidence and concluded that due to multiple inconsistencies in the Applicant’s evidence, he was not a truthful or credible witness.
26.Nor do the Tribunal’s reasons for decision give rise to any reasonable apprehension that the decision-maker might not have brought an impartial mind to bear on the decision: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. This ground of review should be rejected.
Conclusion
27.The decision of the Tribunal dated 6 March 2009 is not characterised by any jurisdictional error. The application should be dismissed with costs.”
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 17 November 2009
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