SZQNI v Minister for Immigration
[2011] FMCA 917
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQNI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 917 |
| MIGRATION – Review of Refugee Review Tribunal Decision – Refusal of a Protection (Class XA) visa – No reviewable error – Application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym SZQNI. |
| Migration Act 1958 (Cth), ss.36(2)(a), 91X, 414, 424A Citizenship Act of 1955 (India) |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Aronson M, Dwyer B & Groves M, Judicial Review of Administrative Action, 4th ed, Lawbook Co, 2009 |
| Applicant: | SZQNI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1759 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Applicant: | The Applicant was represented by her litigation guardian (mother) with assistance of an interpreter in the Malayalam and English languages |
| Solicitors for the Respondents: | Ms L. Weston of Minter Ellison |
ORDERS
The Application filed on 11 August 2011 is dismissed.
The Applicant’s litigation guardian (her mother) is to pay the first respondent’s costs and disbursements of, and incidental to, the Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1759 of 2011
| SZQNI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 13 September 2011 the solicitors for the first respondent were required to file and serve a folder of material which was to be indexed, labelled and paginated containing all documents that may be relevant to the hearing. This order was complied with and the volume of materials that has been provided is identified as the Court Book (the “CB”). On the date of the hearing the Court Book was marked as Exhibit “A” and is the only evidence before the Court.
At the first Court date directions hearing the applicant’s litigation guardian indicated that she wished to participate in the NSW RRT Legal Advice Scheme and this information was forwarded to the Scheme’s coordinator. The Court file indicates that the litigation guardian received written advice from the adviser. The litigation guardian was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any supporting affidavit material. The litigation guardian elected not to pursue this option and relied upon the original application. The applicant was also required to file and serve in the Registry a short written outline of submissions and a list of authorities 14 days before the hearing. This order was complied with to the extent that written submissions were filed.
The Proceedings
The background material contained in the Tribunal’s decision indicates that the applicant is an infant and is represented by her mother who was appointed as her litigation guardian. An application to the Department of Immigration & Citizenship for a Protection (class XA) visa was made on the applicant’s behalf on 24 August 2010. A delegate of the Minister for Immigration & Citizenship (the “Minister”) decided to refuse to grant the visa on 18 January 2011 and notified the applicant of the decision and her review rights by letter dated 18 January 2011. The delegate refused the visa application on the basis that the delegate found that the applicant was not a person to whom Australia has protection obligations to under the Refugee Convention (the “Convention”).
An application to the Refugee Review Tribunal (the “Tribunal”) for review of the delegate’s decision was made on the applicant’s behalf on 10 February 2011. The Tribunal decision of Megan Dean dated 18 July 2011 RRT Case Reference No. 1101246, is the decision that is before this Court for judicial review.
The applicant was born in Australia on 17 March 2010 and has never travelled outside Australia. According to her application she does not have a passport.
The applicant’s parents lodged their own joint Protection visa application on 11 June 2008. The delegate in that matter refused to grant the visa on 21 August 2008, and the delegate’s decision was affirmed by the Tribunal (differently constituted) on 10 December 2008. The applicant parents’ application for review of the Tribunal’s decision in the Federal Magistrates Court was dismissed on 9 July 2009 (SZNCX & Anor v Minister for Immigration & Citizenship & Anor [2009] FMCA 679). An appeal from the Federal Magistrate’s decision to the Full Federal Court was also dismissed on 13 November 2009 (SZNCX v Minister for Immigration & Citizenship [2009] FCA 1315). An application to the High Court for special leave was dismissed on 20 April 2010 (SZNCX & Anor v Minister for Immigration & Citizenship & Anor [2010] HCASL 88). An application for Ministerial intervention was unsuccessful and the applicant parents were advised of the outcome of that application on 18 August 2010.
The applicant’s Protection visa application was completed and signed by her mother on the applicant’s behalf. The applicant’s mother stated that she and her husband left India due to fear of harm as a result of their caste and Christian beliefs and activities. They fear for their child because they were at risk of harm in India due to their religious beliefs and activities and believe that their child would also suffer. Their child would also have problems in India due to their caste. The applicant’s mother believes that certain Muslims and Hindus would harm their child and them if they were to return to India due to their caste and religious beliefs and activities. The applicant mother did not believe that the authorities in India would be able to protect their child and them if they were to return to India. They claim that the authorities had failed to protect them in the past.
The applicant’s mother provided a substantial statement (six pages) in support of the applicant’s Protection visa application. The applicant’s mother indicated that she believed that the experience of her husband and herself in India placed their daughter at serious risk of harm in India. The first five paragraphs of that statement record:
1. I was born in Poonthura, Trivandrum in the State of Kerala in the South of India on 3 October 1982.
2. I belong to the Other Backward Community (OBC) caste in the state of Kerala called the “Christian Other Backward Community”.
3. The majority of the people in my village are Hindus. Unlike other groups who receive welfare support from the Government, the OBC is discriminated against. The government favours its own people and does not help lower caste people or members of the OBC (Other Backwards Castes) like me.
4. I fear that if I was forced to return to India I would be at risk of being harmed because of my caste and religious beliefs which would place my daughter, [SZQNI], in danger.
5. [SZQNI] was born in Sydney, Australia on the 17 March 2010.
The balance of the statement then gives a detailed account of the applicant mother’s and her husband’s experience in India and events prior to them coming to Australia.
Tribunal Decision
On 18 July 2011 the Tribunal decided to affirm the delegate’s decision not to grant the applicant a Protection (class XA) visa (CB 182 -207). The Tribunal notified the applicant of the decision by letter dated 19 July 2011 (CB 180 – 181). The Tribunal noted that the applicant was born in Australia but found that she was not stateless, on the basis that the Citizenship Act of 1955 (India) allowed the applicant to obtain Indian nationality (CB 204 at [103] – [104]). Accordingly the applicant’s application was assessed against India as the country of reference.
The Tribunal considered the evidence and claims before it and concluded that the applicant did not have a well founded fear of persecution for a Convention-based reason in India on the basis that the applicant’s parents were not credible witnesses (CB 204 – 206 at [105]). In reaching this conclusion the Tribunal had regard to the following factors:
a)Inconsistency in the applicant’s mother’s evidence regarding her claimed attackers;
b)Inconsistency between the evidence provided by the applicant’s mother at the hearing before the Tribunal and her evidence to the differently constituted Tribunal;
c)Although it was claimed that the attack on the applicant’s father occurred before he left India, this claim was not provided in the applicant mother’s Protection visa application in which he had been included;
d)The applicant’s mother’s delay in leaving India;
e)The applicant’s mother returned to India five days after arriving in Australia.
The Tribunal accepted that the applicant’s mother is a Christian, but did not accept that she or her husband had suffered harm prior to leaving India (CB 206 at [107] – [108]). The Tribunal did not accept that the applicant’s mother would be involved in converting non-Christians in India nor that she fits the profile of “Christian evangelists and leaders” who might be subject to isolated attacks by Hindu and Muslim extremists (CB 206 at [110]). Accordingly the Tribunal did not accept that the applicant would face a real chance of persecution in India by reason of religion or as a member of her mother’s family (CB 207 at [112]).
The Tribunal noted that the applicant’s representative had indicated at the hearing that no claim was being raised by reason of the applicant’s caste (CB 206 at [111]). The Tribunal could not be satisfied that the applicant is a person to whom “Australia had protection obligations to under the Refugee Convention” and therefore concluded that she did not satisfy the criteria set out in s.36(2)(a) of the Migration Act 1958 (Cth) for a Protection (class XA) visa.
Grounds of Review
The grounds of the applicant’s application for review are:
1. The Tribunal should doubt about the credibility of the incident. It is serious jurisdictional error.
2. In accordance with section 424A of the Act RRT says that there is inconsistencies in our evidence. This statement is wrong, because, we have given evidence to support our story.
3. Mistakes in the date of oral evidence. She could not remember the date properly, because she was in a strong stress.
4. The decision maker studied the story with preoccupied decision.
In addition to the grounds set out in the application in the section for the applications headed “Final Orders sought by applicants” the applicant states that:
1. RRT committed serious jurisdictional error.
2. To seek better outcome from the Court.
3. Decision maker studied the story with a preoccupied decision.
Applicant’s Submissions
The applicant’s mother (guardian) filed written submissions as follows:
1. The applicant [SZQNI] was born in Australia on 17 march 2010. According to migration Act under section 65/1958, She was submitted application for her Protection (class XA) visa. Her parents have been refused by the Department as well as tribunal. The Courts and minister affirmed the above decisions. Because they did not get correct direction to submit the application and stories in a proper way. They have done all formalities in the way they knew. So the application was not filled in a suitable way.
The applicants parents really faced the crucial persecution in India. They have been tortured by Muslim and Hindu religious fundamentalist and faced life threatened. The mother of the applicant has faced mental torturing also.
The Hon: Member stated that , there is inconsistencies in their evidences, so the member concluded that , applicants parents are not credible witnesses. This statement is a more prejudice. The member has given pre occupied decision to this case.
2. He has done his job only for the sake of job. He did not study the real story and reality in a proper way. So he committed serious jurisdiction error through irresponsible manner. The member did not do any deep study in my life story. That’s why he did not get clear information about m serious jurisdiction error through irresponsible manner. The member did not do any deep study in my life story. That’s why he did not get any clear information about my case.
When I was in Immigration hearing I was little panic and distressed. So I could not give all the details in a clear way and my oral evidences committed so many mistakes. Because I haven’t any previous experience like this interview. My Psychological condition was not good in that time. But one thing is true , I was persecuted by my enemies back in India.
The Muslim fundamentalist , Hindu followers , and the Communist party members are the common enemy of Christians in India.
3. In my village , already riots have experiences, my Uncle died through that riots. So I experienced Strong threatened from the Fundamentalist and materialist. As a Christian I expressed my tolerance towards other religion. I did not compel anyone for conversion through my evangelization so many people came to me and the attended my bible classes. So my enemies stated to threatened me.
The member said that I am an educated person , so how I made mistake in filling my forms. This Statement is wrong. Because a Doctor cannot do the work of lawyer. Education will give some outlook of certain areas, it cannot give full knowledge of all. I haven’t previous experience in this matter So I committed so many mistakes in my applications.
3. Please understand my condition and my daughter’s situation. She born in Australia . Her name was not registered in Indian consulate for Indian Citizenship. She is eligible for Australian Citizenship. Our story and life experiences are real and we are pleading to you for your kindness and mercy towards us. If I will be considered , I would be ever thankful to your majesty.
So please understand my pathetic condition and consider my case favourably.
First Respondent’s Submissions
In accordance with the orders made at the first Court date directions hearing the solicitors representing the first respondent prepared detailed written submissions together with supporting authorities. Ms Weston, appearing for the first respondent, indicated that she relied on those submissions. In respect of the grounds of review the first respondent made the following submissions.
Ground One
The first respondent submits that to the extent the applicant seeks to challenge the factual findings of the Tribunal, that such a challenge would amount to an impermissible attempt to engage the Court in a merits review of the Tribunal’s decision. It is submitted that it is well established that findings of fact including findings of credibility are a matter for the Tribunal par excellence (Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407.
Ground Two
It is submitted that the second ground of the application principally cavils with the Tribunal’s statement, made in its letter dated 8 April 2011, that there were inconsistencies in the applicant parents’ evidence. To this extent the ground merely amounts in an attempt to engage the Court in an impermissible merits review and does not point to any arguable jurisdictional error: Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [53] – [54]; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 to 292.
The first respondent submits that to the extent the applicant is claiming that the Tribunal failed to refer to or have regard to particular evidence relied on by the applicant, it is submitted that on behalf of the Tribunal:
a)In the decision record dated 18 July 2011 the Tribunal gave a detailed account of the evidence provided on the applicant’s behalf to both the Department of Immigration & Citizenship and to the Tribunal itself, and the weight accorded to the evidence was a matter for it to determine: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (supra);
b)In any event, it is well established that the Tribunal is not bound to refer to every item of material relied upon by the applicant, nor must the Tribunal give the subset of reasons why it accepted or rejected individual pieces of evidence: Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (supra); and
c)Even overlooking an item of evidence in considering an applicant’s claim will not constitute jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZNBG (2010) 115 ALD 303.
Accordingly, it is submitted on behalf of the first respondent that the application should not succeed on the basis of the second ground of the application.
Ground Three
The first respondent submits that the third ground merely constitutes an explanation for inconsistencies in the applicant mother’s evidence and it does not point to any arguable jurisdictional error.
Additional Grounds
In the “Final orders sought by applicants” contained in the original application, the applicants have set out three further claims (see [14] above).
It is submitted on behalf of the first respondent that while none of these assertions and objectives constitute available remedies on a judicial review application the third “order” might be construed as a claim that the Tribunal’s decision was affected by bias. It is submitted that it is well established that allegations of bias, or the apprehension of bias, are serious charges to make against any decision maker which must be clearly made and distinctly proved: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425. As such, it is rare that such an allegation can be made out with reference to a decision record alone: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 per Von Dousa J at [38]. It is submitted on behalf of the first respondent that in this instance there is nothing in evidence before the Court that supports any allegation of bias.
The first respondent submits that no error is established, merely because the Tribunal had regard to the findings and reasons of the earlier constitution of the Tribunal. The Tribunal is not bound by earlier decisions or constrained by findings made in an earlier application, but it is open to it to have regard to those findings, provided that it makes a decision on the information before it at the time of that that decision in relation to the application in question: Ibrahim v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 465. It is submitted that the Tribunal made the decision on the information before it at the time of the decision in relation to the application and, as such, submits that the allegation contained within the “Final orders section of the application to the Court should not succeed as a ground of judicial review.
Consideration
The applicant is an infant child who is represented by her mother who has been appointed as her litigation guardian. The child has never been out of Australia and is essentially relying upon the experiences and claims of her parents, and their experiences in India. The guardian appears as a self-represented litigant but has had the benefit of a registered migration agent preparing the original Protection visa application. In support of that application is a six page statement prepared by the guardian which essentially recounts her personal experiences in India, together with those of her husband in an attempt to establish the grounds of their claim for protection.
Although the guardian is a self-represented litigant, the operation of the Court is not totally unfamiliar to her as she has previously appeared before this Court, the Federal Court and the High Court in her own application brought for herself and her husband. In those proceedings the couple was unsuccessful at each stage. The guardian also has the benefit of a university education which does not necessarily give her any assistance in the presentation of a legal case, but does provide her with the benefit of being able to clearly express herself both in writing and orally through and interpreter service to convey the essential elements of her claim.
I am satisfied that the Tribunal has acted in accordance with its obligation under s.414 of the Migration Act 1958 (Cth) and considered the claim made by the applicant and placed before it. The Grounds of Review identified with the application do not identify any jurisdictional error, but rather, seek the Court to undertake a merits review. A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision maker was authorised to do what he or she did under the prevailing law, not whether the decision was the best decision which could be made in the circumstances. A merits review provides a complete rehearsal of all the issues raised relevant to the application.
Mark Aronson, Bruce Dwyer and Matthew Groves, Judicial Review of Administrative Action (4th ed, 2009) at [2.05] focused on this distinction and the difficulties that can be experienced within the distinction:
His Honour [Justice Brennan] stated in Attorney General (NSW) v Quinn that judicial review often remedies administrative injustice or error, that this is an occasional consequence rather than a rationale, which is simply to enforce obedience to the law. His Honour acknowledges that occasional difficulties lie in distinction between administrative action merits and its legality, but insists that, to the extent that the distinction was feasible, the “merits of administrative action [were] … for the repository alone”. The High Court has repeatedly endorsed his Honour’s cautionary words in Quinn, emphasising a need to distinguish an administrative decision’s merits and its legalities
(citations omitted)
I agree with the submissions made by the first respondent that the first two grounds seek review of particular pieces of evidence and the basis of the decision made by the Tribunal member, seeking this Court to re-evaluate the merits of those particular issues. The third Ground appears to be an explanation given by the guardian to explain the basis of some of the matters that the Tribunal member found to be inconsistent.
The fourth Ground, although not specifically stated, raises the issue of bias. Actual bias can be said to exist where the Tribunal member had a pre-existing state of mind which disabled him or her from determining or rendering themselves unwilling to undertake any proper evaluation of the relevant materials before them which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [35] – [72]. This appears to be the complaint that the applicant is advancing.
Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration despite whatever evidence or argument matter that may be presented: Jia Legeng (supra) at [71] – [72]. A party alleging bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Jia Legeng (supra) at [69]. The existence of actual bias may be inferred from facts and circumstances, but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36]; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44].
A case of actual bias is seldom made out by reference solely to the reasons for the decision and no imprints of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3]. In the matter before this Court there are no particulars of the allegation of bias nor were there any submissions made supported by the transcript of the Tribunal hearing making any suggestion that the Tribunal member was biased.
If the alternative claim that has been brought by the applicant is that there was an apprehension of bias, then for that to exist it requires to establish that a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal & Anor; ex parte H & Anor (supra) at [27]; Livesey v NSW Bar Association (1983) 151 CLR 288 at 293 – 294. Again, this claim is being advanced in the absence of particulars or any evidence addressing the issue.
I have formed the view that the applicant is probably unaware of the significance of the claim of bias and is more likely to be expressing this view in the terms of disappointment with the outcome of the Tribunal decision. This is further supported by the total absence of any material in the applicant’s written submissions to support a claim of bias. Although these claims are commonly seen in judicial review applications, they aren’t usually a naive expression of bias in its proper legal context, but rather an expression of disappointment or disagreement with the outcome of the Tribunal proceedings.
I have independently viewed the contents of the Court Book and the Tribunal’s decision, and it is not apparent from the face of those documents that there is any jurisdictional error contained within the reasoning of the Tribunal. Consequently, the application should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 25 November 2011
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