SZNVD v Minister for Immigration

[2009] FMCA 1162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNVD v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1162

MIGRATION – Refusal of a protection visa – applicant claiming political persecution in Cameroon – applicant’s claims not accepted in part – no jurisdictional error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

NAKF v Minister for Immigration (2003) 130 FCR 210

Applicant: SZNVD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1912 of 2009

Judgment of: Driver FM

Hearing date: 24 November 2009

Delivered at: Sydney

Delivered on: 24 November 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1912 of 2009

SZNVD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 15 July 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Cameroon and had made claims of political persecution.  Background relating to the applicant’s protection visa claims and the Tribunal decision on them is summarised in the Minister’s written submissions filed on 18 November 2009.  I incorporate in this judgment as background, with minor amendments, paragraph 2 through to paragraph 6 of those written submissions:

   The applicant is a citizen of Cameroon who arrived in Australia ostensibly for the purpose of taking part in World Youth Day. On 31 July 2008 he lodged an application for a protection visa. He claimed that he was at risk of harm because of his involvement with the Social Democratic Front (SDF) and his support for the Southern Cameroon National Council (SCNC). On 23 October 2008 a delegate of the Minister refused to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision.

   The applicant attended two hearings before the Tribunal, the first on 22 December 2008 and the second on 2 July 2009. The Tribunal made its decision on 15 July 2009.

   Tribunal’s decision

   The Tribunal accepted that the applicant sympathised with and had voted for the SDF but that this alone was insufficient to ground a well‑founded fear of persecution. It rejected the applicant’s claims that he was a member or active supporter of that party. It also rejected his claim to have been a supporter of the SCNC. For those reasons, the Tribunal did not accept that the applicant had ever been harmed by the authorities for reasons of political opinion.

   The Tribunal found that the applicant would continue to vote for the SDF but that he had no genuine interest in being active in politics in Cameroon and so would not refrain from involvement out of fear of persecution. It went on to consider whether there were any “sur place” basis for fear of persecution. First, it accepted that the applicant had been involved with the Cameroon Association of Australia and that this involvement was not for the purpose of strengthening his claim to be a refugee. However, the Tribunal found that it did not give rise to any risk of harm in Cameroon. Similarly, it considered whether the applicant might face harm as a returned asylum seeker, but rejected that possibility on the basis of country information.

   For all of these reasons the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations and affirmed the delegate’s decision.

2. These proceedings began with a show cause application filed on 11 August 2009.  The applicant continues to rely on that application.  There are six grounds in the application:

   1. I believe the member was careless in assessing my personality and my evidence.

   2. The member has made incorrect statement about my political party and my university studies.

   3. My state of health during the second interview was not taken into consideration.

   4. The member refused to speak with my witnesses during the second interview.

   5. The interpreter misunderstood my statements and translated them incorrectly.

   6. Because the member was in a hurry I was not able to complete my evidence during the first interview.

3. The grounds are not particularised.  The applicant also relies upon an affidavit filed with his application.  I accepted that affidavit as a submission.  The applicant disputes the correctness of the Tribunal decision. 

4. The only evidence I have before me is the court book filed on 28 October 2009. 

5. I gave directions in this matter on 19 October 2009.  The applicant attended with the assistance of a French interpreter.  Among other things, I gave the applicant the opportunity to file and serve additional affidavit evidence, including a transcript of the Tribunal hearing.  The applicant has not taken up that opportunity.  On 20 November 2009 my associate received a letter from the applicant dated 16 November 2009.  In the letter the applicant sought an adjournment of today’s hearing on the basis that he had submitted new evidence to the Tribunal and was awaiting a reply.  I instructed my associate to respond to the letter on 20 November 2009 to explain to the applicant that his application to this Court was to review the decision of the Tribunal and, pending the outcome of that application, the Tribunal had no jurisdiction to deal with any additional evidence.  I declined the request for an adjournment. 

6. The applicant attended today’s hearing with the assistance of a French interpreter.  He told me that he had submitted newspaper articles to the Tribunal which identified him by name and referred to harm that he had suffered because of his political opinions.  I suggested to him that he may wish to submit that evidence to the Minister’s Department.

7. The applicant took the opportunity at today’s hearing to make oral submissions.  He asserts, as he does in his application, that his medical conditions were not taken into account and he is concerned at the Tribunal’s manner of dealing with a key aspect of his evidence concerning his membership with the SDF.  He asserts procedural unfairness.  He also asserts that there were irregularities in interpretation at the second Tribunal hearing, and that the second hearing was an inadequate hearing opportunity because the member was in a hurry and refused to take evidence from the applicant’s witnesses.  These matters were dealt with in the Minister’s written submissions, which were augmented orally today.

8. First, the applicant asserts carelessness on the part of the Tribunal in assessing his personality and evidence.  As noted in the Minister’s submissions, the Tribunal’s decision was a lengthy one.  At paragraph 9 of the Minister’s submissions, counsel deals with the possibility of an argument based on bad faith.  I agree with that submission and adopt it for the purposes of this judgment:

   However, even if [there had been carelessness], that would not amount to jurisdictional error. The only conceivable basis for the argument would be that it may amount to bad faith. However, in NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210 Gyles J reviewed the authorities in that respect and stated:

   [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples.

9. In any event, on my reading of the Tribunal’s decision, the Tribunal has conscientiously sought to deal with the applicant’s claims and has done so comprehensively.  I reject the contention that the Tribunal was in any sense careless.

10. The second ground is that the Tribunal made an incorrect finding or findings about the applicant’s political membership and his university studies.  This was a key aspect of the applicant’s claims and the Tribunal’s view about it was significant to the outcome.  The Minister’s submissions deal with this issue in paragraph 11:

    The Tribunal made factual findings about the applicant’s political involvement ([court book]CB  214 [218], [219]; 215 [225]; 216 [231]; 217 [237], [238]; 218 [240]; 221 [255], [257], [258], [259]) and university studies (CB 221 [256]). The applicant does not say which of these findings was wrong. In any event, it does not matter because they were findings of fact and, even if wrong, did not affect the jurisdiction of the Tribunal.

11. In his oral submissions, the applicant expressed his concern about the Tribunal’s rejection of his claim of membership of the SDF based on a membership card.  However, the approach of the Tribunal in relation to that issue was logical and reasonably based on the information before the Tribunal.  The applicant had asserted membership of the SDF following the commencement of his university studies.  His difficulty, however, was that he produced a party membership card that appeared on its face to be evidence of party membership from an earlier time.  The applicant was also unfamiliar with the details on the card concerning his party membership at a local level.  Further, the signature on the card which purported to be his was different from the applicant’s signature on other documents.  Having considered the written and oral evidence, the Tribunal found at paragraph 246 of its reasons (CB 219) that the purported SDF membership card was not genuine.  In my view, the Tribunal’s conclusion was open to it on the material before it and there is no basis for the Court to interfere. 

12. Thirdly, the applicant contends that at the second Tribunal hearing, his state of health was not taken into consideration.  As the Minister’s submissions point out at paragraph 12, this is not supported by the record of the Tribunal hearing, as reflected in its reasons.  I agree with that submission and adopt it for the purposes of this judgment:

    Again, the premise of this ground cannot be accepted. The Tribunal expressly referred to the applicant’s health and the possibility that it may have impacted upon his memory and generally upon his ability to give evidence: CB 213.

13. The Tribunal accepted that the applicant is an epileptic.  The Tribunal was aware of a psychological report suggesting that the applicant might have difficulty giving evidence.  The Tribunal accepted that the applicant had suffered harm in South Africa.  However, the Tribunal reasoned that the applicant’s psychological problems had not prevented him from giving cogent evidence in relation to details of his claims that the Tribunal was minded to accept.  The Tribunal was not persuaded that difficulties in the applicant’s evidence about other details which it did not accept could be explained on the basis of the psychological report, or more generally his state of health.  In his oral submissions, the applicant asserted that at the second Tribunal hearing his evidence was affected by medication prescribed by his psychiatrist.  He said he took that medication daily.  However, he was not able to tell me what the medication was.  In any event, there is no medical evidence, either before me or the Tribunal, to indicate that the applicant’s capacity to give evidence was affected by medication.  I reject the third ground. 

14. In his fourth ground, the applicant asserts, in effect, that the second hearing was unfair because the member refused to speak to his witnesses.  I accept the Minister’s submission that there was no written request for the Tribunal to take evidence from anyone other than the applicant.  Further, there is nothing in the record of the Tribunal hearing that there was any oral request.  I reject the contention that there was any refusal by the Tribunal to receive evidence from a witness.

15. The fifth ground asserts interpretation problems.  The manner in which the ground is expressed could relate to a problem of interpreting written documents or oral evidence.  In his oral submissions, the applicant asserted that after listening to the Tribunal hearing sound recording, he discovered discrepancies in interpretation.  When I put to him that that assessment would require expertise in both the French and English languages, he said that it was his friends who had listened to the sound recording and discovered the discrepancies.  As I pointed out to him, however, he has produced no evidence of any discrepancies.  In his submissions, the applicant suggested that the discrepancies related to the issue of the dates on his party membership card.  However, the card spoke for itself.  I do not accept that the Tribunal’s decision on the issue of the applicant’s party membership was affected by any difficulty in interpretation. 

16. The final ground suggests procedural unfairness on the basis that the member was in a hurry and the applicant was unable to complete his evidence during the first hearing.  In his oral submissions, the applicant asserted that the problem occurred at the second hearing.  There is no explanation as to why there was a second hearing.  As was pointed out by counsel for the Minister, a hearing of approximately three hours took place shortly before Christmas in 2008.  The court book records, on pages 159 and 160, that the applicant’s representative enquired of the Tribunal on 26 May 2009 when a decision would be made.  There is no suggestion that any further hearing opportunity was sought by or on behalf of the applicant.  It appears from the case note (CB 160) that the decision to have a second hearing was the presiding member’s.  That second hearing was a hearing of approximately two hours.

17. There is nothing in the available evidence of what occurred at either hearing to support the proposition that the hearing opportunity was an inadequate one. The applicant had the opportunity to submit material to the Tribunal over an extended period. He exercised that opportunity both before and after the first Tribunal hearing, and indeed after the second Tribunal hearing. All of the material he submitted was taken into account by the Tribunal. In my view, the Tribunal met its obligation to provide a fair hearing opportunity pursuant to s.425 of the Migration Act 1958 (Cth).

18. Because the applicant is self-represented, I have considered myself whether there are any other issues in this case that might support an argument of jurisdictional error.  I can find none.  I conclude that the Tribunal decision is free from jurisdictional error and is thus a privative clause decision.

19. I will order that the application is dismissed.

20. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $6,600.  Scale costs would be $5,865.  The applicant did not wish to be heard on costs.  I am not persuaded that the Court should depart from the Court scale in this instance.  The only reason to do so is based on the length and complexity of the Tribunal decision.  Tribunal decisions vary considerably in their length and complexity.  The Court scale was fixed to deal with migration applications that fall within the ordinary class of case.  I do not think that this case falls outside the parameters of the scale.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  1 December 2009