SZNNY v Minister for Immigration
[2009] FMCA 656
•13 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 656 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no failure to give applicant independent information – no breach of s. 424A – no denial of procedural fairness – Tribunal complied with the statutory requirements – Tribunal dealt with applicant’s claims – findings open to the Tribunal – impermissible merits review – level of satisfaction not reached – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 422B, 424A(3)(a), 424A(1), 425, 425A, 441A(4)(c), 426A, 430(1)(d), 65, 36(2), 91R Migration Regulations Act 1994 (Cth), reg.4.35D(b) |
| Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 |
| First Applicant: | SZNNY |
| Second Applicant: | SZNNZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1060 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 July 2009 |
| Date of Last Submission: | 6 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms A. Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 1 May 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1060 of 2009
| SZNNY |
First Applicant
| SZNNZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 1 May 2009 under the Migration Act 1958 (Cth) (“the Act”) and amended on 29 may 2009 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 April 2009 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicants.
Background
The applicants who are husband and wife are nationals of India who arrived in Australia on 15 September 2008 and applied for protection visas on 16 October 2008 (reproduced at Court Book (“CB”) CB 1 to CB 39, with annexures). On 14 January 2009, a delegate of the respondent Minister refused to grant protection visas to the applicants (CB 48 to CB 54). The applicant husband (“the applicant”) made claims to protection. The applicant wife applied as a dependent member of his family (CB 30)
On 4 February 2009 the applicant applied to the Tribunal for review (CB 55 to CB 58). The applicants were invited to attend a hearing before the Tribunal on 17 March 2009. Only the applicant attended and gave evidence (CB 75). (See also the Tribunal’s account of what occurred at the hearing reproduced in its decision record at [27] to [44] CB 85).
Claims to protection
The applicant claimed in his Statutory Declaration affirmed on
16 September 2008, which is annexed to his protection visa application that he was a professional business man who worked with a “social welfare organisation”. This organisation assisted “disadvantaged people regardless of their religious background”. The applicant claimed that local BJP “thugs” targeted him due to his welfare activities and claimed that BJP members were “against us saying that the welfare activities was politically motivated” and “we were supporting Muslims and Christians people”.
The applicant claimed to have been “approached” by a BJP leader who asked him to join the BJP. However, the applicant refused to join the party because the BJP leaders were “violent”, “corrupt” and “used religion for their political benefit”. Further, the applicant claimed that he was asked to “pay big donation” for the local member during the election. However, he was unable to pay this donation due to having a “cash flow problem”.
He claimed that a “couple of members” came to his place of business to ask workers to stop working, when the workers refused the members came back to the business the following week with firearms and “ransacked” the business. The applicant claimed to have been injured and called the police. The applicant claims to have been “so scared” that he could not walk down the road by himself and claims that “they threaten me constantly and asked me to listen them or face the consequences”.
The delegate
The applicant was interviewed by the Minister’s delegate on 13 January 2009. The delegate rejected the applicant’s factual account of what he said had occurred in India. The delegate found that his claims at the interview “differed significantly” from what was in his protection visa application. The delegate found that the applicant was unable to provide consistent claims. His account of his social welfare activities was “limited, superficial, and unconvincing”. In relation to his claims about the BJP “thugs” his responses were “unconvincing and he was silent for a very long period of time”. What the applicant told the delegate was variously described as “limited explanation”, “weak account”, “inconsistent” (CB 52).
The delegate “was not satisfied that the applicant had been engaged in social welfare activities, that he had been targeted by BJP thugs as he claimed, nor was the delegate satisfied that the applicant feared harm in India for this reason” (see CB 52.5). Further, the delegate was satisfied that the applicant could relocate to another part of India (CB 53.3).
The Tribunal hearing
The applicant appeared before the Tribunal at a hearing on 17 March 2009. The second named applicant did not attend the hearing.
The applicant was assisted by an interpreter in the Gujarati and English languages. The Tribunal’s account of what occurred at the hearing is set out in the decision record at CB 83 to CB 87.
The applicant told the Tribunal that he is a social worker to help the “needy” in his village. If they needed work done he would help them, he stated that if “they needed any help when they were sick he took them somewhere”. Further, he stated that if there was an argument “he was trying to explain to both parties to calm them down”. He claimed that in 2002 during the “Godhra incident” he provided people with “good shelter” after their houses were “burned down” and helped them escape during the “riot”.
When the Tribunal asked the applicant what organisation he worked for, he replied that he did not work with any social organisation.
The applicant told the Tribunal that because of his social work he was “targeted” by the local BJP party. He also stated that the BJP had asked him to join their party, he declined the invitation. However, the BJP party then “attacked” him financially and “often asked him for donations”.
The applicant told the Tribunal that he was attacked when “they thought it was election time” (the BJP) because he was important and very well known in “Najipur”. He stated that “they” attacked his business once and further stated that “they” warned him to join the party.
The applicant claimed that before the elections “they” came one after the other and “threatened to kill him” and that “once they won the elections they did not come”. The applicant stated that the police would not assist him without a “bribe”.
The applicant stated that the reason he left India was that “people will continue to torture him and they will harass him anywhere in India”.
The Tribunal decision
The Tribunal did not accept the applicant’s claims to be “plausible” and that he was a “witness of truth” (at [55] CB 88). The Tribunal found that the applicant should have been able to explain as a “social worker” how he “helped people” and found that the applicant’s explanation did not “ring true” (at [56] CB 88).
The Tribunal rejected the applicant’s explanations to not “ring true” and that he would he in a position “to influence the vote of any person” (at [57] CB 88).
The Tribunal found that the applicant’s evidence given to the “Department” in his protection visa application was inconsistent with what he told the Tribunal. Therefore, it rejected, the applicant’s explanation and concluded that the applicant was “creating his claims in order to obtain the visa sought” (at [58] CB 88).
The Tribunal found “the applicant is not a witness of truth” ([59] at CB 88.10), that there were reasonable measures “to protect the lives and safety” of citizens in India and noted that India had a “reasonably effective and impartial police force and judicial system” (at [62] to [66] CB 89).
The Tribunal rejected the applicant’s factual account, and the harm he said had occurred in India ([60] at CB 89.1). It did not accept that he “fled India fearing Convention related harm” ([61] at CB 89.3).
The Tribunal also considered the situation as to whether as a Hindu business man from Gujarat, the applicant would face harm if he retuned to India in the foreseeable future. The Tribunal was satisfied after considering independent information that the Gujarat authorities “arrest and charge persons responsible for attacks on other persons” (at [67] CB 90). The Tribunal was satisfied that the applicant would not suffer harm on return to India.
The Tribunal found that the applicant and his wife did not have a well-founded fear of persecution if they were to return to India ([70] at CB 90).
Application before the Court
The amended application filed on 29 May 2009 puts forward, the following four grounds:
“(1) The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in Gujarat and BJP. The Tribunal use this information (RRT decision record 8 to 10). This was against section 424A of the Migration Act.
(2) The Refugee Review Tribunal denied the Applicants procedural fairness by reaching adverse conclusions that the applicants were not a witness of truth, being conclusions that was not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters.
(3) The Tribunal member failed to consider all the material readily available and/or accessible and the Member continued an erroneous approach to the applicants claim and failed to address applicant mind to the material questions arising out of those materials.
(4) The Refugee Review Tribunal a failed to act the applicant satisfy the definition of ‘refugee’ as defined in Article 1A(2) of the Convention. To go further the Tribunal failed to see that the applicant satisfy the four key elements that are required to satisfy the Convention definition. The applicant state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protect visa.
The first element – applicant must be outside his country
The second element – the applicant must fear persecution. If the applicant return to his country his life his life would be in danger.
The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The applicants fulfil this.
The further element – the fear of persecution for a Convention must be a “well founded” fear.
The applicant fulfils all the four elements”.
[Errors in the original]
Hearing before the Court
No written submissions have been received from the applicants.
The Court has also before it the Minister’s Response, and written submissions filed on his behalf.
At the hearing the applicant appeared unrepresented. He was assisted by an interpreter in the Gujarati language. The applicant wife did not appear. Ms A. Nanson, solicitor, appeared for the first respondent.
The applicant confirmed that he would also speak for his wife and that he relied on the grounds in the amended application. He submitted he was not happy with the Tribunal’s decision. He was unable to assist the Court with any explanation or particularity in support of his grounds (he claimed at first to have drafted the application, but later said a friend assisted). He claimed that he told the Tribunal he wanted to provide documents in support of his claims but the Tribunal did not give him the opportunity. Further, that the Tribunal “assumed he had fabricated” his claims and therefore, there was, no point arguing with the Tribunal (see further below).
Considerations
Ground One
Ground one complains that the Tribunal failed to give the applicantindependent information about politics in Gujarat and the BJP prior to the hearing and therefore the Tribunal breached s.424A of the Act.
This is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [59] to [67] (“Lay Lat”), SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] (“SZCIJ”), SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48] (“SZFDE”)). Section 424A falls within the procedural code set out in Division 4 and is the exhaustive statement on the issue of the principles of procedural fairness to be applied to this ground in this case.
Section 424A imposes an obligation on the Tribunal to provide to the applicant for comment information that it considers would be the reason or a part of the reason, for affirming the decision under review. This is to be done in writing (SAAP Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [13] and [14] (“SAAP”), makes s. 424A(2A) engaged (see SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46 per Tracey and Foster JJ (“SZMCD”)).
To the extent that the applicant complains that he should have been given the information about politics in Gujarat and the BJP before the hearing, s.424A does not impose such a temporal limitation. (See SAAP at [71], [154] and [202]. See also SZBYR v Minister for Immigration and Citizenship(2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [13]. To the extent that what was said in SZBYR at [19] may suggest a position contrary to that proposition, the proposition drawn from SAAP that the “temporal effect of section 424A” was not limited to the pre-hearing stage did not determine the outcome in SZBYR.)
In any event the information the applicants say should have been put to them for comment is independent information about politics in Gujarat and the BJP.
In its decision record the Tribunal set out: “Background Independent Information” which includes information about politics in Gujarat and the BJP (see [45] CB 85 to [51] CB 86). In its reasons the Tribunal makes reference to one report dealing with the BJP and politics in Gujarat and relevantly, in India (see [63]-[64] at CB 89).
The exception set out in s.424A(3)(a) states, in effect, that non-in personam and general country information need not be put to the applicant pursuant to s.424A(1) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71] (“NAMW”), VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] to [14] (“VHAP”), and QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92 at [22] (“QAAC”)).
This provides the complete answer to the applicant’s complaint. Further, I note as the Minister submits that the use made of this information, and the weight accorded to it, is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] to [13] (“NAHI”), Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ (“NABD”), NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) at [81] to [84] (“NBKT”))
Ground Two
Ground two asserts that the Tribunal denied the applicants procedural fairness by reaching “adverse conclusions” that the applicants were not “a witness of truth” without giving the applicants the opportunity of addressing that finding.
First, to the extent that this ground refers to “applicants”, the Tribunal did not make any adverse credibility finding against the applicant wife. Both applicants were invited to a hearing (CB 61). This invitation, in itself, complied with all the relevant statutory requirements for the provision of the invitation, the giving of notice, and relevant notice periods. I have in mind ss.425, 425A, 441A(4)(c), reg.4.35D(b). There was also the statement of the matter as set out in s.426A.
In relation to the applicant wife she did not attend the hearing. But no adverse credibility finding was made in relation to her. This finding related to the applicant.
Ground two therefore, should be read as, a complaint that the Tribunal denied the applicant procedural fairness by reaching an adverse conclusion as to his credibility, a finding which is alleged was not open to the Tribunal to make.
As referred to above this is a case which falls within the matters set out in Division 4 of Part 7 of the Act (set out above in ground one).
Following the delegate’s decision it is quite clear that the determinative issue was the delegate’s rejection of the applicant’s factual account of what he said had happened in India. The delegate said amongst other things: “while I am not satisfied as to the veracity of the claims that have been made by the applicant… (CB 52.9).
On what is before the Court (the Tribunal’s unchallenged decision record) the applicant was accorded procedural fairness pursuant to
s. 425 of the Act (with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) in mind).
Even further to what arose from the delegate’s decision the Tribunal’s unchallenged account of what occurred at the hearing showed that it “sufficiently indicated” to the applicant the concerns that the Tribunal had with aspects of his evidence, leading it to find adversely on the applicant’s credibility. (SZBEL at [47]).
At the hearing the Tribunal gave the applicant the opportunity to put forward and explain the factual account of what he said had occurred, and was the relevant situation, in India. The Tribunal summarised the applicant’s claims and evidence and put this summary to him.
The applicant agreed with the summary ([37] at CB 84).
The Tribunal then proceeded to put inconsistencies in his claims to him ([38] to [41] CB 84 to CB 85) that reinforced the issue arising from the delegate’s decision, that is the veracity of his account. Further, the Tribunal “sufficiently indicated” to him that the accountability of State protection was an issue to the extent that he claimed that as a Hindu businessman from Gujarat he could not return safely ([42] to [44] at CB 85).
In context the applicant’s complaint of a denial of procedural fairness must be seen in context as a claim of a denial of procedural fairness pursuant to s. 425. For the reasons set out above, this complaint is not made out (see further below). Further, the complaint that it was not open to the Tribunal to find that the applicant was not a witness of truth cannot be sustained. The Tribunal’s findings that the applicant was not a “witness of truth” was on any plain reading of the Tribunal’s reasons open to it on what was before it. The Tribunal gave reasons for this finding ([55] to [59] at CB 88). The Tribunal did act within jurisdiction in reaching this conclusion (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)).
Ground Three:
In ground three the applicant seems to assert three complaints:
(1)The Tribunal failed to consider all the material readily available and or accessible.
(2)The Tribunal continued an erroneous approach to the applicant’s claim.
(3)Failed to address the applicant’s mind to the “material questions arising out of those materials”.
Before the Court the applicant was unable to assist with explaining or particularising of his grounds. Despite at first submitting he had drafted the amended application it became apparent he had little idea of what was asserted and finally submitted that a “friend” (not a lawyer) had “assisted” with the drafting.
At best the applicant’s explanation as to what is meant by ground three was that he had asked the Tribunal for more time to obtain and provide documents from relatives (presumably in India) to support his claim that he was employed in social work. He submitted that he was told by the Tribunal that he had been given “plenty of time” to submit documents and that he should have used the time available.
The applicant has not provided any evidence to this Court to support the claim he now makes. There is nothing in the Court Book to show that any such request was made outside of the hearing with the Tribunal. Nor is there anything on the Tribunal’s account of the hearing to support the applicant now.
It is the case that the Tribunal is required by the Act to provide a written statement that sets out its decision and amongst other things, “refers to the evidence or any other material on which the findings of fact were based” (s. 430(1)(d)). Clearly, the Tribunal is not required to provide a verbatim account or a transcript of the hearing.
The applicant has had the benefit of assistance from a “friend”. But, far more importantly, he did consult with a barrister on the panel of the Court’s Legal Advice Scheme on 10 June 2009. The applicant could have sought assistance as to how to put evidence such as a transcript of the hearing before the Court. An opportunity afforded to him, since at least the first Court date on 20 May 2009. Nor did the applicant seek such further opportunity now, or even provide any detail as to what exactly these documents were as how they may have assisted his case before the Tribunal.
In the absence of evidence this Court cannot draw inferences as to what may have occurred at the Tribunal hearing (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 (“NAOA”)). On what is before the Court this complaint is not made out.
I also note, as Ms Nanson submitted, that if these documents were “readily available and/or accessible, why the applicant could not produce the documents to the Tribunal in the time available as to the new claims the Tribunal told him. But, whatever the situation, in the absence of evidence to support his claim this complaint now cannot succeed.
It may also be that the applicant’s “friend” sought to make a wider complaint in ground three.
If the applicant also seeks to assert that the Tribunal failed to consider independent information, it is clear from the decision record (CB 85 to CB 87) that it clearly turned its mind to independent information.
The issue of independent information has been addressed in ground one.If by reference to “continued an erroneous approach the applicant may be asserting that the Tribunal did not consider the applicant’s claims or integers of his claims. Then I note that there is an obligation on the Tribunal to deal with each claim before it, and each aspect, orinteger, of a claim made by an applicant. Further, it is required to deal with the claim as a relevant consideration in the task that it has been jurisdictionally given to perform (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J, with whom Spender J agreed (“Htun”). See also NABE v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 (“NABE”) per Black CJ, French and Selway JJ, with reference to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 (“Dranichnikov”)).
The Tribunal is not required to deal with a case not stated by an applicant, or not arising from the material put before it (NABE at [49], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31] (“VQAB”), WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [44] (“WAEE”), Htun at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] (“Paul”)).
Without any further particulars provided to the Court in relation to the second “aspect” of this ground it is hard to determine what the applicant means. It could be concluded that the applicant is seeking impermissiblemerits review. This Court cannot engage in such review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
In the third aspect of this ground the applicant seems to be addressing s.425 of the Act. This has already been dealt with above.
Ground Four
Ground four complains that the Tribunal failed to consider that the applicant satisfied the definition of “refugee” as defined in Article 1A(2) and failed to consider that the applicant satisfied the four key elements of the Convention definition.
The relevant statutory scheme (s.65 and s.36(2)) of the Act provides that a protection visa must be granted if the Tribunal reaches a requisite level of satisfaction such that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. For Australian purposes, this definition must be read as qualified by s.91R of the Act.
If such a level of satisfaction is not reached, then a refusal is mandated (See SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16] (“SJSB”), NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5] (“NAST”) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”)).
The applicant is plainly aggrieved with the Tribunal’s decision and does not agree with its conclusion. Unfortunately, for the applicant, such disagreement on its own does not reveal jurisdictional error on the part of the Tribunal. The Tribunal was not able to reach the requisite level of satisfaction that the applicant met the “refugees” Convention definition.
The Tribunal’s findings and its conclusion that the applicant did not meet the definition were all open to it on what was before it.
The Tribunal gave cogent reasons in support of its findings. In the circumstances no jurisdictional error is revealed by ground four.The applicant wife did not claim that she met the Convention definition. She applied as the dependent of the applicant. (see CB 30, CB 48.10 and CB 54.3). The complaint in this ground therefore cannot be directed to her.
Before the Court, the applicant also complained, that the Tribunal “assumed” he had fabricated his claims and therefore he could see no point in arguing at the hearing.
To the extent that this may imply some criticism that the Tribunal did not bring an open mind to the proceedings leading to an allegation of bias or the apprehension of bias, I note that such allegations must be clearly made and proven (see Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 (“Jia”), SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44] (“SBBS”), Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 (“SBAN”), VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 (“VFAB”), Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)).
Beyond assertion there is nothing before the Court to sustain any such charge, let alone that it can be made in the first place. It may be that the applicant formed such a view at the hearing with the Tribunal given that the Tribunal properly brought to the applicant’s notice the difficulties that it had with what he had said. Clearly, the Tribunal had a duty to bring such matters to the applicant’s attention. It’s failure to do so would have led, for example, to a failure to provide procedural fairness.
There is, it must be said, some irony in the applicant’s complaining in the application (ground three) that the Tribunal “failed to address “his” mind to the material questions…”, yet still to complain before the Court that it did not bring an “open mind” when it attempted to do that very thing. Whatever the situation, if the applicant sought to interpret the Tribunal’s discharge of its statutory duty in the way that he did, it is a matter for him. It does not reveal bias on the part of the Tribunal.
Conclusion
For the applicant to succeed in this Court, the Court would need to, at least, discern jurisdictional error in the Tribunal’s decision. I cannot see such error. This application is dismissed.
Costs
The Minister seeks an order for costs set in the amount of $3,000.00. The applicant put to the Court that such an order should not be made because he and his wife have “no income” and do not have “regular work”.
Putting to one side that the latter statement implied at lease some, not “no”, income, I understand the applicant to say he is impecunious. Unfortunately, I do not see this as sufficient in the circumstances not to make the costs order. Nor can I see any other reason to deny the first respondent at least some of his costs. Having regard to work done by the Minister’s solicitors and noting the amount that could have been sought with reference to the relevant costs schedule to the Rules of this Court, I am of the view that $3,000.00 is a reasonable amount, and will make that order.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S.Polley
Date: 13 July 2009
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