SZORX v Minister for Immigration
[2011] FMCA 110
•23 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZORX v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 110 |
| MIGRATION – Review of RRT decision – applicant a citizen of PNG – Tribunal accepted that there was a real chance of serious harm due to ethnicity of the applicant but considered that it was reasonable to expect him to relocate – where Tribunal also took account of the applicant’s delay in filing his PVA – where some of the applicant’s claims amounted to mere disagreement with Tribunal’s findings – whether Tribunal erred by failing to consider claims in accordance with the Convention or by failing to request more information from the applicant – hearing by videolink with telephone interpreter. |
| Migration Act 1958, ss.91R, 414 |
| Minister v RespondentsS152/2003 VCAK of 2002 v Minister for Immigration [2004] FCA 549 WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 Chan v Minister for Immigration (1989) 169 CLR 379 Applicant A v Minister for Immigration (1997) 190 CLR 225 Minister for Immigration v Ibrahim (2000) 204 CLR 1 |
| Applicant: | SZORX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2280 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 February 2011 |
| Date of Last Submission: | 23 February 2011 |
| Delivered at: | Sydney via videolink to Griffith |
| Delivered on: | 23 February 2011 |
REPRESENTATION
| For the Applicant: | In person via videolink from Griffith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2280 of 2010
| SZORX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Papua New Guinea who arrived in Australia on 5 October 2007. On 18 March 2010 the applicant applied for a protection (Class XA) visa. On 24 June 2010 a delegate of the Minister refused to grant the applicant the visa and on 30 June 2010 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant was given a hearing before the Tribunal and also wrote to it by way of a letter dated 5 August 2010 [CB 72-73] with some additional information [CB 74-75]. On 31 August 2010 the Tribunal determined to affirm the decision not to grant the protection visa and handed that decision down on 1 September 2010.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was the Convention ground of ethnicity. He told, and the Tribunal accepted, that he was a member of the Kumdi Kundka and Akilka tribes. He told that there was tribal warfare between the Kimbin Rami tribe and the Kumbu Maip tribe which has been going on in his home area in the West Highlands Province for some 10 years. At one stage during the course of this fighting the Kimbin Rami tribe had destroyed the Kumbu Maip’s land and their village, so that this latter tribe sought refuge from the Kumdi Kundka tribe to which the applicant belonged. This tribe lived in a neighbouring village and took in and sheltered the Kumbu Maip tribe. The result of this act of charity was that the Kimbin Rami tribe commenced tribal warfare against the applicant’s tribe during the course of which the applicant’s father and two brothers were killed. There was, not unexpectedly, some retaliation for these actions. Eventually, the applicant moved his mother to a neighbouring tribe where he indicated she was safe but himself moved to Port Moresby.
The applicant explained to the Tribunal that he had been educated to level 12 in a boarding school. When he went to Port Moresby he was able to sustain himself and lived there for over two years before coming to Australia. The applicant first said that he had difficulties earning a living in Port Moresby and was required to move around a lot. But under questioning from the Tribunal he agreed that, in fact, this was not the case and that he did not have problems finding work in Port Moresby given his education and that he was considered one of the “big men” of his tribe because of his educational achievements. The Tribunal found, from independent country information that was confirmed by the applicant, that “big men” were not generally pursued in furtherance of tribal warfare because they had uses in the big cities.
The Tribunal discussed with the applicant his concerns about returning to PNG on the basis of his relocation to Port Moresby or to Lae. The applicant indicated that he did not believe he would be safe in either town and that he would be sought out by the Kimbin Rami in either of those places. The Tribunal pointed to independent country information which indicated that this would not be the case and that it was very rare for tribal warfare to extend into the towns and equally rare for it to extend to persons of his education. The Tribunal accepted that, had the applicant been a person of lesser education and lesser employability, the situation would be different.
In its findings and reasons, the Tribunal first dealt with the applicant’s credibility. At [53] [CB 94] it set out a number of inconsistencies that it had found in his evidence. But at [55] the Tribunal said:
“Despite the Tribunal’s concerns with some aspects of the applicant’s claims and evidence, the Tribunal, when weighing the claims up against the available country information and other available evidence, accepts there is a real chance of serious harm due to the ethnicity of the applicant in the Highlands. The Tribunal finds that the serious harm is due to systematic and discriminatory conduct in his local area for a Convention reason being his ethnicity.”
This finding would normally be enough to guarantee the applicant a favourable decision. But the Tribunal was then required to turn to the possibility that the applicant could relocate and discussed this question in the balance of its decision. The Tribunal found that the applicant had police clearance from the PNG Police and was not of any interest to the authorities and also found that, whilst the police could not provide individual protection, it did monitor the situation in towns so that it could intervene where necessary including making arrests in the case of instances of tribal altercations. But it noted at [60] [CB 96]:
“Country information tells us that there has only been one incidence where tribal conflict extended to Port Moresby and in that instance the police moved quickly to stop the unrest.”
The Tribunal quoted from the decision of the Minister v RespondentsS152/2003 where Gleeson CJ, Hayne and Heydon JJ observed that:
“No country can guarantee that its citizens will, at all times, and in all circumstances, be safe from violence.”
The Tribunal found that the police force in all the circumstances had provided a reasonable level of protection in cities and that the applicant would not be denied protection. The Tribunal also noted that the applicant was young, resilient and educated and that he had lived and studied and worked in Port Moresby and was able, during that time, to save enough money to travel to Australia. He was a single man with no dependants. The Tribunal found that it was reasonable to expect the applicant to relocate from the Highlands to Port Moresby, or to Lae, should he return to Papua New Guinea.
At [68] [CB 97] the Tribunal came to an additional ground for finding that the applicant was not a person to whom protection obligations were owed. It said:
“The applicant arrived in Australia in October 2007. He did not put in an application for a Protection Visa until March 2010. The applicant states that he did not do so because he thought he would be returned to Papua New Guinea. The Tribunal is of the view that the applicant was aware that he did not have a sound claim for protection. The Tribunal finds that the delay in seeking protection indicates that he does not have a well founded fear of persecution.”
In other words, the Tribunal considered that the applicant failed the basic test for protection but that also it was reasonable to expect him to relocate to a place that the Tribunal considered, on the basis of the independent country information, to be safe for him or at least as safe as was required by the authorities.
On 21 October 2010 the applicant filed with this Court an application for review of the Tribunal’s decision. The first ground of the application was:
“The Tribunal failed to accord procedural fairness to the applicant because of its failure to carry out its role in an inquisitorial manner when it made a contrary finding that …”
There is no particularisation of the alleged failure. There is merely set out a number of findings with which the applicant clearly does not agree. But the disagreement itself does not constitute evidence of jurisdictional error. The applicant has not said that the findings were not available on the evidence which might have constituted such an error, if that was true, or given any other reason for the findings being such. The next particular of the alleged procedural fairness was:
“The weight it gave to the claims of the applicant because of the applicant’s inconsistencies in his earlier and later evidence when it said …”
The quotations then set out to deal with the finding of inconsistencies to which I have already referred. The fact is, however, that, as I have already pointed out, the Tribunal did not hold these inconsistencies against the applicant and accepted the truth of his story.
There is then what appears to be a separate, but unnumbered ground:
“The applicant submits that the Tribunal erred in not assessing the applicant’s claim to the manner that was required as mandatory under section 414 of the Migration Act, thus giving arise to a breach of a statutory provision in the Act, which amounts to jurisdictional error made by the Tribunal.”
Section 414 Migration Act 1958 (the “Act”) is in the following form:
“(1)Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).”
It can be seen immediately that s.414 does not provide any mandatory requirements of the manner in which the Tribunal shall review its decision. These are expressed elsewhere in the Act but are not referred to in this application and I do not propose to debate them. This ground cannot be sustained.
The ground numbered 2 states:
“The Tribunal acted in a manifestly unreasonable manner towards the applicant when dealing with the Applicant’s claims because of its failure to consider the claims in accordance with the criteria in Article 1(A)(2) of the 1951 UN Convention relating to Status of Refugees due to the following conclusions.”
This ground fails for two reasons. Firstly, the Tribunal’s duty is to consider claims, not in accordance with the UN Convention, but in accordance with the Migration Act and in particular those parts of the Act which deal with the way in which parts of the Convention are to be interpreted in Australian law. Secondly, the argument was about the merits of the Tribunal’s decision and not about the manner in which it was reached. All of the extracts from the Tribunal’s decision, which form the particulars of this claim, are findings of fact by the Tribunal relating to the applicant’s claims. There is no indication of why they might not be right. This ground must fail for those reasons.
There is then a further submission which I will take to be an additional ground. It is in this form:
“The applicant submits that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution or serious harm in terms of Sec. 91R of the Act in order to be satisfied whether the applicant has a well founded fear of serious harm or a modicum of a “real chance”. Hence the Tribunal’s failure to observe this obligation amounted to a breach of the Statutory Obligation, thus amounting to a jurisdictional error committed by the Tribunal.”
The difficulty I have with this claim is that the Tribunal actually found that the applicant did suffer serious harm within s.91R of the Convention. On the other hand it did not find that he had a well founded fear of serious harm should he return to his country. It did that on the basis, open to it, that the applicant had not made his application for protection until some two years after he had arrived in the country. This ground must also fail.
The final ground, marked number 3, was:
“The Tribunal fell into jurisdictional error in failing to request more information regarding the Applicant’s fears of the payback killings and the chance of serious harm arising out of longstanding tribal grudges.”
As Ms Rayment points out in her helpful written submissions, there is now settled authority that the Tribunal has no general obligation to investigate nor any duty to consider utilising such permissive strategy powers as it may have to investigate; VCAK of 2002 v Minister for Immigration [2004] FCA 549 at [27]; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [21], [24]-[25]. This ground cannot be sustained.
On 21 January 2011 the applicant filed some submissions with this Court. The first three paragraphs provide certain facts about the applicant and his claims; the fourth paragraph details those parts of the claims which the Tribunal accepted.
The next part of the submissions are headed Contentions of Law and then three cases alleged to refer to s.91R of the Act are mentioned, the first is Chan v Minister for Immigration (1989) 169 CLR 379; the second is Applicant A v Minister for Immigration (1997) 190 CLR 225 and the third is Minister for Immigration v Ibrahim (2000) 204 CLR 1. True it is that all three cases discuss the meaning of persecution. But as I have noted the Tribunal was prepared to accept that the applicant had, indeed, suffered persecution in the events that occurred in his home village by the loss of his father and his two brothers and, presumably, by effectively being chased out of that area. And so the only argument which the applicant could raise is that he disagreed with the finding by the Tribunal that he would not suffer such persecution or serious harm should he return and relocate to Port Moresby or Lae. That constitutes a dispute about the merits, which is one in respect of which this Court cannot intervene. The Tribunal gave reasons as to why it did not consider that the applicant would suffer persecution should he return to Port Moresby or Lae and those reasons appear to me to be based upon the available country information and the evidence which the applicant gave himself as to the fact that he had been in Port Moresby for two years without incident.
The submissions then go on to make reference to s.414 of the Act and the comments which I have previously made continue to apply. It is then submitted that the Tribunal did not accord procedural fairness because of the weight with which it gave to the applicant’s inconsistencies and, as I have said, these did not in the end constitute any part of the Tribunal’s finding that the applicant was not entitled to protection.
The applicant appeared before me today by video link with the helpful assistance of a Pidgin interpreter through the telephone. Whilst this method of communication is not as good as a face to face hearing, I am satisfied that the applicant was able to express himself as fully as he wished and that his submissions were interpreted to me and those of Ms Rayment were interpreted to him in an acceptable fashion. The applicant told me that he did not believe that the decision was fair and that the Tribunal had not looked at the problems which he had at home, in particular, the Tribunal had been wrong to make a finding that it was safe for him to return to Port Moresby. I am quite satisfied that the applicant genuinely believes this but it is not a matter with which this Court can concern itself, it is a complaint about the merits of the Tribunal’s decision and is not an indicator of a jurisdictional error.
Having considered the application as a whole and having read the decision of the Tribunal and the other matters contained in the green book, I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it reached its decision in this case.
I dismiss the application and order that the Applicant must pay the First Respondent’s costs assessed in the sum of $4,300.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 25 February 2011
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