SZQET v Minister for Immigration

[2011] FMCA 707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQET v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 707

MIGRATION – Review of decision of the Refugee Review Tribunal – whether there was a breach of procedural fairness – request for impermissible merits review – applicant not entitled to free legal advice – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425, 425A, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth) reg.4.35D

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18
SZFDV v Minister for Immigration & Citizenship [2007] HCA 41; (2007) 233 CLR 51
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461

Applicant: SZQET

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 834 of 2011

Judgment of: Nicholls FM

Hearing date: 9 September 2011

Date of Last Submission: 9 September 2011

Delivered at: Sydney

Delivered on: 14 September 2011

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr M Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 29 April 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 834 of 2011

SZQET

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 29 April 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 April 2011, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of India. He arrived in Australia on 14 September 2010 and applied for a protection visa on 11 October 2010 (see Court Book – “CB” – CB 1 to CB 24).

Claims to Protection

1. The applicant’s claims to protection were initially set out in a written statement attached to his protection visa application (CB 25 to CB 28). He claimed to fear persecutory harm on the Convention ground of religion.

2. He claimed to be a Christian living in the capital of the state of Kerala, and to have engaged in preaching and evangelical activities amongst Muslims and Hindus in his area. The applicant claimed to have received threats as a result.

3. The catalyst for leaving his home was said to be that on 11 October 2009 he was involved in a motor vehicle accident in which a Muslim man was killed. This man was said to be the leader of a banned “Muslim terrorist group” (the National Development Front – “NDF”). As a result, the applicant claimed that he became the target of threats and was “seriously attacked” by members of the NDF, which resulted in his hospitalisation for an extended period.

4. The applicant claimed that he moved to another city, and was forced to continually move house to avoid further harm.

The Delegate

1. The applicant attended an interview, by telephone, with the delegate on 17 December 2010 (CB 37 to CB 38), where he gave oral evidence in support of his claims (see the delegate’s decision record at CB 46.6 to CB 47.6).

2. The delegate accepted that the applicant had been involved in a car accident that caused the death of a local Muslim leader, and had been attacked because of this. However the delegate also found that he could access adequate State protection or, in the alternative, relocate to avoid harm in the future. In these circumstances, the fear of persecution was held not to be well-founded, and the application for a protection visa was therefore refused (CB 48 to CB 49).

The Tribunal

1. The applicant applied for review to the Tribunal on 14 January 2011 (CB 50 to CB 53). The applicant ultimately appeared at a hearing before the Tribunal on 31 March 2011 (CB 59).

2. The only account before the Court of what occurred at the hearing is that contained in the Tribunal’s decision record ([32] at CB 74 to [52] at CB 77).

3. At the hearing, the applicant claimed for the first time that he had been charged by police over the incident and the death of the Muslim leader. He now claimed to have been on bail when he left India, that a summons had been issued for him, and that he would be arrested if he returned. The applicant provided a number of documents in support of these claims, including a police report (CB 62 to CB 68 and [33] at CB 75).

4. The Tribunal accepted that the applicant was a Christian and had been involved in a motor accident which resulted in the death of a motorcyclist and severe injuries to a passenger on the motorcycle ([55] at CB 78). The Tribunal however found that the applicant’s version of the events involving the accident to be unconvincing. It preferred the version contained in a police report which the applicant had given to the Tribunal. That report placed fault for the accident with the applicant’s driving negligence ([56] at CB 78). On this basis, the Tribunal found that charges were laid against the applicant by police following an investigation. Further, that the applicant had left India while on bail and would be arrested if he returned ([57] to [58] at CB 78).

5. The Tribunal found that such treatment would be levelled at the applicant for reason of his absconding while on bail, and his

   
   

   non-appearance at Court. The Tribunal found that the charges were not motivated by reason of religion or that the authorities were motivated to harm or mistreat him for reason of his religion or any other Convention ground ([58] at CB 78).

6. In relation to the applicant’s claim to fear harm from the deceased man’s associates, friends or family members, the Tribunal accepted that he had been attacked after the incident. Further, that some of the associates may have had links with the NDF, and that the applicant’s religious activities may have played a significant role in their attitudes and actions against him ([59] at CB 79).

7. The Tribunal found this amounted to serious harm for the purposes of s.91R(1), and that his religion was an essential and significant reason for the harm suffered. The Tribunal found that his fear was

   
   

   well-founded in the Convention sense if he were to return to his home locality ([59] at CB 79). However, the Tribunal found that it was reasonable for the applicant to safely relocate to a different part of India ([60] at CB 79). The Tribunal reminded itself of the test it said it had to apply, and gave its reasons for this finding ([61] to [65] at CB 79 to CB 80).

Before the Court

1. The application before the Court is in the following bare terms:

   “1. The decision made by RRT is Jurisdictional error

   2. Breach of Natural Justice

   3. Will be filed later”

2. The applicant appeared in person before the Court. He was assisted by an interpreter in the Malayalam language. Mr M Alderton appeared for the first respondent. Written submissions were filed by the Minister. Despite opportunity given to him by orders made at the first Court date, the applicant has filed nothing in support of his application. The Court had before it the Court Book, the Minister’s response, written submissions and “RE-1”, being a letter from the Minister’s solicitors to a lawyer on the panel of the “RRT Legal Advice Scheme”, sent to him in cover of a copy of the Court Book.

3. The applicant was unable to assist further as to any legal error in the Tribunal’s decision. His submissions to the Court were:

   1)He did not have time to file further material in these proceedings. This material was said to be another medical certificate in relation to his injuries.

   2)He asked if he could remove his shirt to show the Court his scars.

   3)He claimed that he did not speak to any lawyer on the panel of the Court’s “RRT Legal Advice Scheme”.

   4)He took issue with the Tribunal’s preference for the police report of the motor vehicle incident over his own evidence. He submitted that there was only one witness to the accident, yet the police report made reference to “16 people”.

   5)He could not relocate within India because he could not live there, and it was safer in Australia.

Consideration

1. As I sought to explain to the applicant at the hearing, the first two items above do not assist him in showing legal error on the part of the Tribunal. While it can be appreciated that an unrepresented applicant may have difficulty in grasping the concepts of judicial review of administrative decision-making and jurisdictional error, it remains that both these items are no more than attempts to attack the merits of the Tribunal’s factual findings. As such they seek impermissible merits review and cannot be entertained by this Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568 (“Wu Shan Liang”)).

2. As I also sought to explain to the applicant, the Tribunal’s findings were reasonably open to it on what was before it, and it gave reasons for its findings. While a different Tribunal member, or even the Court, may have come to a different conclusion, this does not assist the applicant in showing legal error on the part of the Tribunal.

3. In response to the Court’s enquiry as to any steps he had taken to understand the nature of the current proceedings, the applicant stated that he did not speak to any panel lawyer. He claimed that he had not been invited to attend with any lawyer.

4. Documents on the Court file reveal that the Court’s Registry had assigned a lawyer for this purpose. The first respondent’s solicitors had sent a copy of the Court Book to him (see “RE-1”). Further, the panel lawyer wrote to the applicant inviting him to attend a conference. Copies of the letter were sent to both the applicant’s residential and his postal address as he had advised to the Court at the first Court date.

5. The applicant subsequently told the Court that he thought he may have received the letters, but was expecting a telephone call. This statement remained unexplained.

6. The applicant did not seek any adjournment of the hearing to enable him to receive any legal advice. In any event, it is the case there is no entitlement to seek legal advice in the circumstances (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 per Gyles J at [4]), particularly as the applicant had already been given a reasonable opportunity in this regard.

7. The applicant’s complaint that the Tribunal preferred the police account of the accident over his own, again is a challenge to the Tribunal’s factual findings. This is simply a matter of evaluation of the evidence before it by the Tribunal and the assignation of weight to this evidence which is a matter for the Tribunal (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560). The evaluation of material before it leading to factual findings which are reasonably open to it on what is before it is an exercise, in the absence of anything to the contrary, within jurisdiction.

8. Without further particulars, ground one is meaningless. It is not for this Court to make out the applicant’s case for him. While some leeway can be given to an unrepresented applicant, the nature of these adversarial proceedings does not allow the Court to advocate on behalf of one of the parties.

9. In any event, the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. The applicant had the opportunity to obtain advice as to how to provide particularity or substance to this complaint. That he chose not to take action on receipt of the lawyer’s letter does not now assist him.

10. Ground three merely promises the filing of material “later”.

    
    

    The applicant has had a reasonable opportunity to do so. The Tribunal’s decision was made on 4 April 2011. The application to the Court was made on 29 April 2011. At the first Court date on 18 May 2011 the Court put the applicant on notice as to the deficiency in the grounds as pleaded, and in particular drew his attention to the opportunity, in relation to “will be filed later”, to file an amended application with particulars.

11. In any event, if what the applicant was referring to at that time was the filing of material in the nature of further medical certificates, this would not have assisted him for the reasons already referred to above.

12. Ground two merely asserts a breach of natural justice. The applicant does not say how this occurred. The Minister submits that this is a case to which s.422B of the Act applies, restricting the Tribunal’s natural justice (or procedural fairness) obligations to what is contained in the relevant statutory code (Div.4 of Pt.7 of the Act) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 at [59] - [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]).

13. Some care must be taken with such exhaustive legislative statements in light of Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204. In the current case, Div.4 can be said to be the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that Division (see also Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1 per Buchanan J at [39]).

14. In this regard I agree with the Minister that the Tribunal complied with its procedural fairness obligations pursuant to s.425. The applicant was invited to and attended a hearing before the Tribunal. The invitation complied with relevant statutory and regulatory requirements (s.425, s.425A, s.441A, s.441C and reg.4.35D of the Migration Regulations 1994 (Cth)) and included a statement to the effect of s.426A.

15. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. This account reveals that the issue that determined the review was that the applicant could reasonably and safely relocate to another part of India to avoid persecutory harm in his home locality.

16. On the evidence before the Court, this issue was squarely raised with the applicant at the hearing ([52] at CB 77). In any event, this was an issue that arose from the delegate’s decision, and the applicant could have assumed that it would remain an issue on review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592).

17. The test for relocation is whether it is reasonable and practicable for an applicant, in the circumstances relevant to that applicant, to relocate to another part of the country of claimed persecution (SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24], SZFDV v Minister for Immigration & Citizenship [2007] HCA 41; (2007) 233 CLR 51). As a Full Federal Court said: “…[t]he answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994] FCA 1253; 52 FCR 437 at 442 – 443, especially at 443C – D” (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124])).

18. In the current case, the framework before the Tribunal set by the applicant, that is his reported objections to relocation, was that those he feared: “… would exact revenge even if it’s many years after the incident has occurred” ([52] at CB 77). The Tribunal dealt with this objection in its analysis ([63] at CB 79). Further, it also had regard to other relevant aspects of the applicant’s circumstances (see at [62] to [64] at CB 79 to CB 80).

19. The applicant’s complaint before the Court that he could not safely live in India does not rise above a challenge to the Tribunal’s factual findings. It again seeks impermissible merits review (Wu Shan Liang).

20. With regard to s.424A(1), no breach of the Tribunal’s obligation is evident here. The “information”, as that term is understood in light of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”), that the Tribunal considered would be the reason for affirming the delegate’s decision was variously information given in writing by the applicant in support of his application for a protection visa, and information he gave to the Tribunal for the purposes of the review.

21. As such, both sets of information are exempt from the operation of s.424A(1) by virtue of s.424A(3)(ba) and (b) respectively. What the Tribunal made of the applicant’s evidence is not “information” for the purposes of s.424A(1) (SZBYR at [17] – [18])

22. No breach of the code in Div.4 is otherwise apparent.

23. For the sake of completeness, I note that no breach of procedural fairness principles at common law is evident in the current circumstances. The applicant knew the case against him and was given the opportunity to respond.

24. I should just note that at [58] of its decision record, the Tribunal reasoned: “… there was no evidence before the Tribunal to suggest that charges against the applicant are religiously motivated or that the authorities will harm or mistreat him for the reason of his religion or any other convention reason.” (At CB 78.) There was of course the applicant’s own evidence in this regard. I considered whether this may have caused the Tribunal to misunderstand the nature of the claims made, and whether this lead it to fail to deal with an integer of the applicant’s claims.

25. Ultimately I agree with Mr Alderton that, when read fairly and in context, what the Tribunal meant was that there was no evidence independent of the applicant’s own evidence to support that aspect of the claims. Lay Tribunals plainly do not necessarily bring a lawyer’s mind to these matters. This seems to be another example as to why such administrative decisions need to be read fairly, such that a proper reflection of what is in a lay Tribunal member’s mind can be properly understood (see SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 per Branson J at [10]).

Conclusion

1. For the applicant to succeed the Court would need to discern jurisdictional error, at least, in the Tribunal decision. As no such error is apparent, the application is to be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  14 September 2011