SZRDR v Minister for Immigration

[2012] FMCA 714

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRDR & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 714

MIGRATION – Review of decision of Refugee Review Tribunal – whether irrelevant consideration taken into account – whether Tribunal imposed burden of proof upon applicant – whether failure to take into account relevant considerations – whether finding made on basis of no evidence – whether Tribunal required to investigate applicant’s claim – whether failure to review decision – whether Tribunal fell into jurisdictional error – where bridging visa condition did not entitle applicant to work – whether court has jurisdiction for review of decision to impose condition – where no proper application made for review – whether court can review decision.

Migration Act 1958 (Cth), ss.65, 424A
Federal Magistrates Court Act 1999, ss.10, 18

Ejueyitsi v Minister for Immigration & Anor [2006] FCA 328
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Anor v SZIAI [2009] HCA 39

First Applicant: SZRDR

Second Applicant: SZRDS

Third Applicant: SZRDT

Fourth Applicant: SZRDU

Fifth Applicant: SZRDV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 318 of 2012

Judgment of: Raphael FM

Hearing date: 9 August 2012

Date of Last Submission: 9 August 2012

Delivered at: Sydney

Delivered on: 9 August 2012

REPRESENTATION

Counsel for the Applicants: Mr H Ford

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. First and Second Applicants pay the First Respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 318 of 2012

SZRDR

First Applicant

SZRDS

Second applicant

SZRDT

Third Applicant

SZRDU

Fourth Applicant

SZRDV

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The First Applicant is a citizen of Zimbabwe who arrived in Australia on 13 February 2009 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 30 March 2011.  On 19 August 2011 the delegate of the Minister refused to grant a protection visa.  The visa application included the First Applicant’s wife and several members of his family but those applications were prepared utilising form D which is an application for a member of a family unit who does not have their own claim to be a refugee.

2. On 6 September 2011 the applicant applied for a review of the delegate’s decision from the Refugee Review Tribunal[1]. On 1 November 2011 the Tribunal wrote to the First Applicant a letter requesting certain information and for comment to which the First Applicant responded through his migration agent. The Tribunal interviewed the First Applicant and after the hearing wrote to him again pursuant to s.424A of the Migration Act 1958 (Cth)[2] on 13 December 2011.  That letter was not responded to.  On 9 January 2012 the Tribunal determined to affirm the decision not to grant the protection visa and handed that decision down on 10 January. 

   [1] “RRT”

   [2] “Act”

3. The grounds upon which the First Applicant claimed to be a person to whom Australia owed protection obligations arose out of his life in Zimbabwe.  The First Applicant claimed that he was a member of the MDC and was opposed to the ZANU PF party that controlled the country.  The First Applicant told that in 2008, prior to the first round of elections, he and his wife were required to attend a ZANU PF meeting and to chant slogans praising the ZANU PF and to denounce the MDC.  He stated that he did not attend the rally and his house was fire bombed.  The First Applicant also made a number of other claims concerning his situation in Zimbabwe.  He told that he had been employed by the National Railways of Zimbabwe, but the medical aid provided by the company had been stopped because Rail Med, the provider, had run out of funds.  He stated that medical assistance was provided to people who supported ZANU PF but not MDC supporters.

4. The First Applicant also stated that his wife had applied for a training course at Belvedere Teacher Training College but was advised that a prerequisite for admission for her to go to the college was to go to a training camp and complete her national service obligations.  The First Applicant told that his wife refused to go to that camp because the cadets were known for unleashing terror on innocent civilians.  The First Applicant claimed that he would be in danger should he return to the country after coming to Australia because he would be imputed with an anti-government political opinion. 

5. The Tribunal questioned the First Applicant upon his statement.  It asked him when he first joined the MDC and he told that he had joined it in 1991 and that in 1992 to 1993 he had been heavily involved in the party.  He told that there were problems in 2004 when efforts were made to identify all MDC supporters but the most hardship that he suffered was in 2008: 

   “[52]He said that in 2008 his home was attacked.  He said that he refused to attend a ZANU PF meeting and his home was fire bombed.  He said that he was identified and it was well known that he was an MDC supporter.  He said that on another occasion ZANU PF wanted him and others to come to a television studio to broadcast support for the ZANU PF and to denounce MDC.  [CB 249].

6. The First Applicant also was questioned about his claim that during food shortages he could not get any food:

   “[57]The Tribunal asked if he was referring to the free food that was provided by aid organisations.  He indicated that he was referring to the food from organisations. [CB 249]

7. The Tribunal took up with the First Applicant, pursuant to s.424AA information that it considered adverse. The Tribunal reminded the First Applicant that he had told the department interview that he had joined the MDC in 1998, however at the hearing he had told the Tribunal that he joined in 1991 to 1992. The First Applicant elected to respond immediately to this information although he had been given the opportunity provided by s.424AA to ask for an adjournment or confer with his representative. He told the Tribunal that he did not become heavily involved until 1998. He was a member in 1991 but things happened at different stages.

8. One of the matters that concerned the Tribunal was the fact that although he claimed to be a prominent member of the MDC, he had provided no confirmation of that membership to the delegate.  The First Applicant provided a letter to the Tribunal purporting to come from the Department of Legal Affairs at the MDC and dated 22 August 2011.  The letter was signed by Mr T.I. Biti, a secretary general of the organisation and stated that:

   “Mr Applicant is a victim of torture, harassment and death threats by state agents for his participation in party activities, he ran away from Zimbabwe in 2009 for the safety of his life.  

   His life and that of his family may not be safe if they come back home because of his political record.  We also have full knowledge that he is on the CIO wanted list.”  [CB 191]

9. The Tribunal was concerned as to the genuineness of this letter and requested Post to make inquiries on its behalf. This was done and information was returned to the Tribunal that Mr Biti advised that the letter was not genuine and should be disregarded. The facts of this communication were advised to the First Applicant in the s.424A letter sent on 13 December 2011. The letter also contains some independent country information that was not strictly required to be given to the First Applicant in relation to his claims concerning humanitarian food aid, access to health care and access to education. The letter was not responded, to as I have said.

10. In its findings and reasons, commencing at [87] [CB 257] the Tribunal referred to the s.424A letter and the letter purportedly from Mr Biti saying at [97]:

    [97]The Tribunal finds that the applicant is not a witness of credit.  The Tribunal finds that the applicant is not a member of the MDC-T.  The Tribunal does not accept the applicant’s claims that he is at risk of harm, torture, harassment, or being killed due to his membership and activities as a well known and active member of MDC-T.  The Tribunal does not accept that he was harassed, threatened and denied promotion or that his house was fire bombed because of his membership of MDC.  It follows that the Tribunal does not accept the applicant has a well founded fear due to his inability to chant ZANU PF slogans or because he failed to attend a rally. [CB 259]

11. The Tribunal then went on to consider other claims made by the First Applicant, in particular, the submission that he would be persecuted because he was not a supporter of ZANU PF.  The Tribunal considered independent country information in relation to the provision of medical services and food and came to the conclusion that the First Applicant would be able to access health care as he had done in the past if he remained in Zimbabwe and did not accept that a person living as the First Applicant did in an urban area would be subject to discrimination generally in relation to the provision of food or other services.

12. In regard to the First Applicant’s wife’s claim it said:

    “[99]The applicant claimed his wife refused to go to Border Gezi Training Camp to complete her national service obligations.  His wife was successful in obtaining a student visa and exit documents to study overseas.  There is nothing before the Tribunal to indicate that her refusal has resulted in any discrimination or hardship to the applicant or his family members.  At the hearing the applicant confirmed that no claims were made by his family members.  He confirmed that the claims related only to his claims of persecution.  The Tribunal finds that the applicant is not at risk of harm from his wife refusing to go to Border Gezi Training Camp.  [CB 259-260].

13. The Tribunal also dealt with some claims made by the First Applicant concerning his entry and exit from the airport in Bulawayo.  It did not accept that upon his return he would be the subject of persecution because he had gone to a western country:

    [101]The Tribunal does not accept that the applicant will be in danger due to his having spent some time on a dependent student visa in a western country.  The Tribunal prefers the independent country information outlined above and finds that the applicant will not be in danger if he were to return to Zimbabwe.  [CB 260]

14. Finally, the Tribunal found:

    “[102]Having regard to all the claimed incidents and claims reported by the applicant, singularly and cumulatively, and based on the evidence currently before it, including the applicant’s response to the first s424A letter and the membership card he produced at the hearing the Tribunal is not satisfied that all the statutory elements of the grant of a protection visa had been made out. Again, based on the evidence currently before it, the Tribunal is not satisfied that the applicant suffered past persecution or that he faces a real chance of being persecuted now or in the reasonably foreseeable future if he returns to Zimbabwe in relation to his membership of MDC-T or to an alleged or imputed political opinion or membership of a particular social group.” [CB 261]

15. On 10 February 2012 the First Applicant sought review of the Tribunal’s decision from this court.  On 19 April 2012 an amended application was filed.  This document contains 12 pages.  It was prepared by a solicitor.  The court appreciates that there may be differing opinions as to how a proper form of application in relation to this type of case should be prepared but it does take the view that the application should restrict itself to the questions of law that are in issue and not contain argumentative discursions upon the facts.  This is regrettably what appears to have happened in relation to this application.

16. Because of the length of the application and because of its nature I do not intend to set it out in detail but I will deal with each of the headed grounds in turn.  The first is:

Taking into account an irrelevant consideration.  Imposition of a burden of proof on the Applicant 

1. The First Applicant purports to accept that s.65 of the Act requires a decision maker to be satisfied that the criterion for the grant of a visa has been made out. He then goes on to remind the court that in Ejueyitsi v Minister for Immigration & Anor [2006] FCA 328 the court made it clear that there is no burden of proof imposed upon an applicant. This much the court accepts. However, the court also accepts that it is up to the First Applicant to satisfy a Tribunal of his claims Abebe v Commonwealth (1999) 197 CLR 510 and that it is clear from the way in which the Tribunal decision has been written that it concerned itself solely with the matter of satisfaction and did not, to my mind, require the First Applicant to jump the hurdle of a burden of proof.

2. The grounds of application state in part:

   “In order to establish the credibility of the applicant, the Tribunal will usually engage in a rather tortuous process whereby it conducts a Spanish style inquisition of the applicant and ask the applicant a myriad of irrelevant questions about the applicant’s past.  What school the applicant attended.  What suburb the applicant lived in. The name of the applicant’s parents or work partners.  The Tribunal will engage in a war or attrition in the hope of wearing down the applicant into making an inconsistent statement.  As soon as this applicant makes an inconsistent statement, the Tribunal then throws the baby out with the bath water and concludes that all of the applicant’s claims are concocted and therefore the application is rejected.”

3. This type of argumentative and unproven allegation against the Tribunal is not to be expected from a solicitor of the Supreme Court or even from a member of MARA.  It does not help the court.  It does not help the First Applicant.  It does not help the writer.  There is no suggestion in this case that any of those questions were asked or that the answers to any of those questions caused the Tribunal to come to the conclusions which it did.  It seems to me quite clear from the face of the Tribunal decision that the most substantial ground for the Tribunal’s view of the First Applicant’s lack of credibility was the faked or forged letter from the MDC.  There is no merit in the first ground.

4. The second ground was:

Failure to take account of relevant considerations 

1. Reference is made to [88] of the Tribunal decision. That paragraph is in the following form:

   “The applicant provided a large volume of general information from Zimbabwe.  None of the information was directly relevant to the applicant.  The applicant and representative at the hearing confirmed that the information was for general background and did not directly relate to the applicant.  The Tribunal has considered this information along with the Independent Country Information provided to it when it conducted its own enquiries.” 

   The ground then goes on to say:

   “What is implicit from the tone of paragraph 88 is that the Tribunal is clearly stating that it does not believe that all of these things that have been claimed by the applicant could have actually happened.  The tone of this paragraph on the whole decision is to adopt an overly dismissive approach to the applicant’s claims.”

2. I do not accept this.  I do not see why it is necessary for this court to take the matter further.  The words of the paragraph are clear and so far as I can read them they make no comment whatsoever on the claims.  They are a rehearsal of them. 

3. The third claim is:

Failure to take account of a relevant consideration

1. The ground refers to [89] of the Tribunal’s decision which notes that the First Applicant had provided a large volume of general information about Zimbabwe to it and that the Tribunal had considered the information along with other independent country information available to it.  The complaint about this paragraph is said to be that the fact the country information was not directly relevant to the First Applicant does not mean that it was not relevant.  So much I accept.  But the Tribunal does not say that it was not relevant.  The suggestion that the Tribunal rejected the claims because it thought the information was general information is not made out.  There is no suggestion that this was done.  The general information provided by the First Applicant was considered.  There is no merit in this ground.

2. The fourth ground is:

Taking into account of an irrelevant consideration.  No evidence

1. This ground commences with a repeat of the allegations about irrelevant questions being asked by the Tribunal and then goes on to say that the Tribunal’s finding of apparently inconsistent evidence concerning the First Applicant’s membership of MDC was the main reason why the application was refused.  A reading of the Tribunal’s decision as a whole makes it clear that this was one of the grounds upon which the Tribunal found that the First Applicant lacked credibility.  But the most serious ground was, as I have said, the forged document.  The balance of this ground is taken up with what the First Applicant says he has stated to the Tribunal and is argumentative about the Tribunal discussions with him.  This type of complaint is indicative of seeking merits review the court cannot give.  If there really is no evidence, the court accepts that would certainly point to a jurisdictional error, then it is up to the First Applicant to establish it before the court.  One of the ways that he would do so would be to provide the court with a transcript of the hearing.  That has not been done.  In the absence of evidence that there is no evidence, the court cannot assist.

2. The next ground is also headed:

No evidence

1. It refers to [92] of the Tribunal decision where the Tribunal points out that the First Applicant said that he was a member of the MDC in 1991 and 1992 but the MDC had not been formed until 2000.  Once again the First Applicant cavils with what the Tribunal reports as him having said to it.  The court accepts that from time to time Tribunals do misreport what was said to them and that from time to time the misreporting is so relevant to the decision that the court would find that the Tribunal fell into jurisdictional error.  But in each case the court has to be satisfied there was a misreporting, and the only way that could have been done was for the court to be provided with a transcript.  Again, that has not happened.  However, in my view, this is only one of the reasons why the Tribunal did not believe the First Applicant the most serious of which being his provision of a forged document.

2. The sixth ground is headed:

Taking account of an irrelevant consideration.”

1. This commences with the following paragraph:

   “Throughout the Tribunal decision, the Tribunal has expressed the opinion that because there was an apparent inconsistency in the applicant’s claims about his membership of the MDC party, therefore, all of the other claims which were made by the applicant are also concocted.  As soon as the Tribunal discovered that there had been an apparent problem with the applicant’s membership with the MDC, the Tribunal just rejected all of the other applicant’s claims.”

2. The Tribunal would have been entitled to act in the manner described.  It could be said that the provision of a forged document poisoned the well of all the First Applicant’s evidence: Re Minister for Immigration and Multicultural Affairs ; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, but this is not what happened. A reading of the Tribunal decision makes it clear that each and every one of the First Applicant’s claims was considered by the Tribunal on its merits and that includes the claim made by the First Applicant that it was not so much membership of the MDC rather, non-membership of ZANU PF that caused persons to be persecuted in Zimbabwe.

1. The ground as contained in the document that I have before me purports to give evidence from the lawyer acting for the First Applicant about contacts he had concerning the membership document.  Such evidence is totally inappropriate in an application and has not been put in admissible form.  The ground concludes:

   “The Tribunal did not investigate the rest of the applicant’s claims because the Tribunal chose to adopt the lazy/slapdash method of dealing with the claims of the applicant.  It is easy for the Tribunal to just reject the applicant’s claims because of the fact that there is a perceived inconsistency in one matter.  In this way, the Tribunal can just put together a poorly-researched decision and expect the applicant just to accept it.”

   This type of comment is neither a ground of application nor is appropriate from a solicitor of the Supreme Court.  It does no benefit to the First Applicant’s case.  It is embarrassing.

2. The seventh ground is:

No evidence 

1. This ground refers to [98] of the Tribunal’s decision, which deals with the question of food availability to non ZANU PF members.  It starts with another pejorative paragraph and then proceeds:

   “Apart from the fact that the country information which was relied upon by the Tribunal is wrong, the Tribunal has made the rather startling statement at paragraph 98 that ‘The applicant has been able to provide food and care for his family.’  The Tribunal has no evidence whatsoever to base this finding.”

2. It is not enough to remark that the country information relied upon by a Tribunal is wrong. If an attempt is being made to claim a jurisdictional error for this, then that must be established. The country information utilised by the Tribunal was made clear to the First Applicant in the s.424A letter to which the First Applicant did not respond. The Tribunal’s comments are taken directly from that information. The Tribunal is entitled to have regard to independent country information, and the weight of that information is a matter for the Tribunal itself. It is not for this court to interfere with the weight given.

3. The Tribunal had the applicant’s own evidence that he had provided food and care for his family.  His complaints about food shortages being limited to shortages of food from food aid organisations.

4. The ground continues with a complaint concerning the Tribunal’s views about the First Applicant’s claims concerning medical treatment available.  Again, this was the subject of independent country information that was put to the First Applicant and not responded to.

5. The seventh ground is:

Taking account of an irrelevant consideration

1. This commences with the words:

   “The Tribunal has indicated that the applicant has agreed that the denial of food was in relation to food aid.  The applicant did not say this.”

   The Tribunal has reported that that is what the First Applicant said.  If the First Applicant denies that is what he said he must produce a transcript.  He has not done so.  The complaint goes on that the Tribunal has not properly investigated the claim.  The responsibility of the Tribunal to investigate was considered by the High Court in Minister for Immigration & Anor v SZIAI [2009] HCA 39. At [25] their Honours stated:

   “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdictional error.  It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”

2. That is the extent of the duty to inquire.  It is not, as the First Applicant claims, a duty to ask him questions about particular matters.  The ground continues with the following:

   “The Tribunal has also referred to a statement of the applicant’s wife that she will not be required to attend a Border Gezi camp upon her return.  The applicant however never said this.  The Tribunal has in other matters denied the fact that Border Gezi camps exist or for that matter that women were required to attend the camps.”

   The same problem arises here if the First Applicant wishes to deny what the Tribunal claims was said at hearing.

3. The eighth ground is:

Detention at the airport – taking into account of an irrelevant consideration

1. This commences with the following:

   “Whether the applicant is going to be detained at the airport or not has nothing to do with whether the applicant was the subject of political persecution.  The discussion about airport security is an irrelevant consideration.  The applicant could have been a highly politically active individual yet been able to leave the country freely.”

   The ground continues in this vein.  It is clearly argumentative and seeks merits review.  The First Applicant made a claim that:

   “As a well-known MDC activist who had been out of the country for two years, the chances are very high that I will be arrested, tortured or killed as soon as I set foot on Zimbabwean soil.”

2. This is very much a claim that, if accepted, would entitle the First Applicant to a protection visa.  It was for this reason that the Tribunal considered it and made its views about the claim known as it did at [101] [CB 260].  The arguments raised in the balance of the ground about what the Tribunal “seems to think” are arguments that should have been put to the Tribunal.  They are not arguments with which this court can really deal.

3. On 3 August 2012 the First Applicant filed some written submissions with this court.  Those written submissions follow the same form as the amended application.  They do not, with respect to Mr Ford, add anything that would, to my mind, indicate that the Tribunal had fallen into jurisdictional error in the manner in which it reached its decision in this case.

4. At the commencement of the hearing Mr Ford asked that the court in its written decision explain why it had declined to send the matter to mediation. He says that the matter of mediation was discussed at the directions hearing. Whilst I cannot recall that discussion I do not propose to cavil with the suggestion that I said I would not send the matter to mediation because I do not believe that I would have done. This type of proceeding is not a proceeding for which mediation is designed. It is a request for judicial review of a decision of an administrative Tribunal. The court cannot substitute its views for those of the Tribunal. The only thing the court can do is to send the matter back to the Tribunal for re-hearing. The court cannot grant a visa. The court cannot recommend to the Minister that he grants a visa. Visas may only be granted according to s.65 of the Act when the Minister is satisfied of certain facts. The provision of mediation within this context is very unlikely to produce the result that the First Applicant seeks, it will only add to expense.

5. The First Applicant also raised another question.  It will appear that when he was given his bridging visa it had on it a condition that he was not entitled to work.  The First Applicant seeks from this court review of that decision and says that it invokes the jurisdiction of this court under ss.10 and 18 of the Federal Magistrates Court Act 1999 because it is associated jurisdiction.  In fact, a decision to impose conditions upon the grant of a visa is within the jurisdiction of this court but it can only be challenged by filing a proper application.  It is not a piece of associated jurisdiction.

6. In this case the relief sought by the First Applicant has not been identified and the court cannot just embark upon a review of a decision of this type without a proper application being filed and the respondent having the opportunity to respond to it.  In any event, the best that the court could do would be to refer the matter back for decision according to law and there is no indication of why the decision was unlawful, unless I take into account the scandalous suggestion made by Mr Ford that it was deliberately done in order to prevent the First Applicant from funding this review application.

7. Because of the nature of the First Applicant’s application and submissions and the submissions made to me orally by Mr Ford, it may be that in these reasons I have not covered absolutely everything which he raised.  This is not intentional but I have had regard to the written submissions of the first respondent which are found in the file.  To the extent that these may cover such a matter, I would say that I am in agreement with them.  They are thoroughly constructed and deal as well as possible with what I have already expressed as being the rather unsatisfactory submissions made on behalf of the First Applicant.

8. I dismiss the application.  I order that the First and Second Applicants pay the First Respondent’s costs assessed in the sum of $6,471.00.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  17 August 2012