SZRNX v Minister for Immigration & Anor

[2012] FMCA 1242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1242

MIGRATION – Review of decision of Refugee Review Tribunal – where Tribunal made finding about applicant’s past – whether Tribunal’s finding constituted finding that applicant was a refugee – whether Tribunal failed to exercise jurisdiction – whether Tribunal failed to understand the proper definition of a refugee – whether procedures of Migration Act 1958 not complied with – whether Tribunal failed to consider case under the complementary protection regime – whether Tribunal fell into jurisdictional error.

PRACTICE AND PROCEDURE – Adjournment – where applicant claimed he may have found pro bono legal assistance – whether to adjourn.

Migration Act 1958, (Cth) ss.36(2)(aa), (b), 420, 425

SZMKK v Minister for Immigration and Citizenship and Another (2010) 114 ALD 634
Minister for Immigration & Anor v SZMOK  (2009) 257 ALR 427
Minister for Immigration & Anor v Li [2012] 238 ALD 238
Minister for Immigration & Anor v Yusuf  [2001] 206 CLR 323
Minister for Immigration & Anor v MZYYL [2012] FCAFC 147

Applicant: SZRNX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1273 of 2012

Judgment of: Raphael FM

Hearing date: 18 December 2012

Date of Last Submission: 18 December 2012

Delivered at: Sydney

Delivered on: 18 December 2012

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr H Bevan

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1273 of 2012

SZRNX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Fiji.  He arrived in Australia as the holder of a visitor’s visa on 11 July 2008.  This visa expired on 11 October 2008 and he remained in Australia thereafter.  On 29 February 2012 the applicant filed an application for a protection (Class XA) visa.  A delegate of the Minister refused to grant that visa on 23 March 2012.  The applicant applied for a review of that decision from the Refugee Review Tribunal.  On 23 April 2012 the Tribunal wrote to the applicant pointing out the delay in his applying for the protection visa indicating that it was relevant because it may cause the Tribunal to find that the delay in his application for a protection visa might indicate that he did not have a genuine fear of persecution in Fiji. 

2. The Tribunal indicated that the information was also relevant because it might cause the Tribunal to find that he had not been truthful in his claims.  The applicant was given an opportunity to respond to that letter in writing, which he did through his migration agents, suggesting that the matter would be explained at the hearing before the Tribunal.  That took place on 14 May 2012.  On 23 May 2012 the Tribunal determined to affirm the decision not to grant the applicant a protection visa.

3. The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations were based upon the convention reason of political opinion.  The applicant told that he was a member of the SDL and had worked for that organisation during the 2006 general elections.  He also claimed that he had been assaulted by an army officer at Christmas 2006 and was detained in January 2007.  These claims are referred to by the Tribunal at [73] and [74] [CB 206-207]:

   “[73]The Tribunal accepts that prior to 2006 and during the 2006 elections the applicant had been a supporter of the SDL.  The Tribunal accepts that he had participated in the 2006 elections by helping to give out pamphlets and materials and make arrangements for various meetings.  The Tribunal accepts that the applicant resided in the village which was seen as being supportive of the SDL and the Tribunal also accepts that the applicant has helped, and was known to have helped, his father-in-law during the 2006 elections.  The Tribunal found the applicant’s evidence on these matters to have been truthful.  The applicant also described with considerable detail and persuasiveness the circumstances of his detention in 2006 and the Tribunal accepts that the applicant was detained for two days and mistreated.  The Tribunal is also prepared to accept that the applicant’s business licence was not renewed around 2006, possibly because of his connection (whether actual or imputed) with the SDL and his involvement in the 2006 elections.  The Tribunal accepts these claims. 

   [74]The Tribunal also accepts that the applicant assaulted an army officer around Christmas 2006.  The Tribunal accepts that as a result, he was again detained in January 2007 and held for a few hours and mistreated.  However, in the Tribunal’s view, that occurred because the applicant hit the army officer and not for any other reason.  This is because the applicant was released after the first detention and no attempt had been made to detain or harm him again until his assault of the army officer and it is only such assault that the applicant was again approached and detained.  …The Tribunal finds that it is the applicant’s assault on the army officer, and not his political views, the location of his residence or any other factors, that were the reason for the second detention.  The Tribunal finds that any harm arising from the assault on the army officer was not, and would not be, essentially and significantly, for a Convention reason.” 

4. The applicant made further claims as to his reasons for believing that he had a well founded fear of persecution should he return to Fiji.  In particular he was concerned that if he returned to Fiji he would be imprisoned.  One of the reasons for this was that the applicant was known to have been associated with his father in law, a gentleman who appears to have obtained residence in this country.  The Tribunal comprehensively rejected these claims.  It did not accept that the army officer had been searching for the applicant and wished to harm and kill him. 

   “[75]The Tribunal considers it significant that the applicant made no reference to this claim at any time previously, despite providing a detailed statutory declaration with his initial application and having ample opportunity to provide further evidence to the Department and also to the Tribunal.   [CB 207]

5. The Tribunal noted that the applicant had remained in Fiji for some considerable time after he was released in January 2007 without coming into any harm, either from the army officer or otherwise. 

   “[79]The Tribunal is supported in this view by the fact that the applicant had not left Fiji for a year and a half after his second detention.  His detention occurred in January 2007 and he had not left Fiji until July 2008. The Tribunal is of the view that if the applicant was genuinely fearful for his safety, if he genuinely believed he would be physically mistreated or even killed, he would have made some effort to leave the country earlier.  The fact that the applicant remained in the country for a year and a half before taking steps to leave the country and that in that period he made no attempt to find money to leave, suggests that the applicant did not have a fear of persecution in that period and was untruthful in his claim that he was in hiding and that the military or the officer were looking for him.”[CB 208]

6. In regard to the claims concerning the applicant’s father-in-law, the Tribunal said:

   “[81]The applicant informed the Tribunal that while in detention, a fellow inmate found out about his connection with his father in law and informed his relatives in Fiji, who are members of the army or the police.  The applicant claims that for that reason he would be questioned upon return to Fiji and because of his association with his father in law and their activities in Australia, he may be harmed.  The Tribunal does not accept these claims.  The Tribunal notes that this claim was raised for the first time in the course of the hearing.  While the applicant claimed previously he was fearful of being harmed because of his association with his father in law, the applicant made no mention of the fact that another detainee at VIDC was aware of his connection with his father in law and had disclosed that information to the military authorities in Fiji.”  [CB 208-209]  

7. The Tribunal considered whether the applicant would engage in political activity should he return to Fiji and concluded at [85] [CB 210] that he would not.  It considered the evidence that the applicant had provided from his father in law and his partner and certain documents.  These matters did not assist the Tribunal to come to a view contrary to that already expressed that after 2007 the applicant had no well founded fear of persecution. 

8. The Tribunal was aware of its obligation to consider the applicant’s case in the light of the complementary protection regime under s.36(2)(aa) of the Migration Act 1958, (Cth)[1]:

   “[92]The Tribunal has also considered the applicant’s claims against the complementary protection regime.  The Tribunal has found that the applicant would not be of any adverse interest to the authorities or the military upon return to Fiji.  The Tribunal rejected the applicant’s claims that he would not be able to find employment and support himself.  Overall the Tribunal is not satisfied by the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there’s a real risk that he will suffer significant harm.  The Tribunal is not satisfied that the applicant meets the criteria in 36(2)(aa).  [CB  212]

   [1] “Act”

9. On 8 June 2012 the applicant filed an application with this court seeking judicial review of the Tribunal’s decision.  There were six grounds contained in that application.  Mr Bevan, who appears on behalf of the Minister, submits, rightly in my view, that grounds 1, 2 and 5 should essentially be taken together.  These grounds proceed on the basis that the finding of the Tribunal in relation to what occurred in 2006 constituted an acceptance that the applicant was a refugee.  Therefore, it failed to exercise jurisdiction when it made a determination that he was not such.  The Tribunal’s task in these matters is to consider whether the applicant has a well founded fear of persecution should he return to Fiji now or in the foreseeable future.

10. Whilst what occurred in the past is an important pointer to what might occur in the future it does not determine the answer to that question.  The fact that a person may have suffered in the past does not mean he will necessarily suffer in the future.  This court has seen many cases that have come before the Tribunal where the Tribunal has accepted that the applicant has suffered in the past but for reasons explained in the Tribunal’s decision it is not satisfied that those things will happen again.  This is one of those cases.  The Tribunal has given reasons as to why it came to that conclusion.  The Tribunal’s duty is to make a decision upon the facts and provided that that decision is based upon available evidence it is not amenable to review by this court.  I have extracted, in these reasons, the Tribunal’s thinking about this very matter and it is clear to me that the Tribunal’s conclusion was based upon evidence that it was able to accept.  That the applicant disagrees with the Tribunal is not a ground of jurisdictional error.

11. Ground 3 claims that the Tribunal failed to understand the proper definition of a refugee.  In this case, as in most, the Tribunal sets out at the commencement of its decision record the definition of refugee based upon the law contained in the Act and relevant cases.  It has long been held that even though this extraction may be boilerplate and found in every decision record it does not mean that the Tribunal was unaware of these matters nor that it did not apply the law as they have stated: SZMKK v Minister for Immigration and Citizenship and Another (2010) 114 ALD 634.

12. The applicant, here, makes much of the requirement that the Tribunal looks to both the subjective and objective state of mind and what he describes as the objective facts relating to the conditions in his country of nationality.  I am satisfied, from my reading of the Tribunal’s decision, that that is exactly what the Tribunal did.  In the end the Tribunal must decide whether or not that was an objective ground for the fear and for the reasons already considered, it did not.  The Tribunal quoted from and considered evidence of independent country information concerning the situation in Fiji and in my view came to its conclusion based upon the available evidence.  This ground cannot succeed.

13. Ground 4 states:

    “The procedures that were required to be observed by the Migration Act and Regulations in connection with the making of the decision were not observed in breach of sections 420, 425 and 430 of the Act.”

    This generic complaint is not particularised.

    However, it is well to note that in regard to the reference to s.420 the High Court has held that this section is exhortative and not mandatory; Minister for Immigration & Anor v SZMOK (2009) 257 ALR 427; Minister for Immigration & Anor v Li [2012] 238 ALD 238 at [28]. Neither will a failure to comply with s.430, in itself, give rise to jurisdictional error, although it may be evidence of such an error; Minister for Immigration & Anor v Yusuf [2001] 206 CLR 323.

14. It should be clear from the comments already made in regard to the Tribunal’s decision that I have no reason to believe that it did not comply with the provisions of s.425 of the Act.  This ground must likewise fail.

15. Ground 6 is in the following form:

    “The Tribunal made findings at 92 contrary to the regime and provisions and in breach of section 36(2) the complimentary [sic] protection visa regime.”

    Again there are no real particulars of this complaint but it is clear that the Tribunal understood the requirement to consider the case under the complementary protection regime and did so.  The Tribunal had found that the applicant would not face any form of persecution should he return to Fiji and did not accept that the army officer would continue looking for him or would harm him should he return.  So there was no basis upon which there was a need to consider the matter under the provisions of s.36(2)(b); Minister for Immigration & Anor v MZYYL [2012] FCAFC 147 at [39-40]. For these reasons this ground is also unavailable to the applicant.

16. When the case commenced the applicant appeared before me with the assistance of an interpreter.  He provided me with a document dated 17 December 2012 indicating that he had attempted to obtain legal assistance in relation to his claim but was unable to do so unless he could provide the lawyers with funds.  He had, he said, found a firm of lawyers in South Australia who had indicated that they might be prepared to undertake his case pro bono and he asked for an adjournment.  I informed the applicant that I was not prepared to grant an adjournment and I would only have been prepared to do so had I received some form of document from the lawyers indicating not only that they might be prepared to act for the applicant but also the basis upon which they believed that this court should review the decision.  The applicant made reference to some of these things but not in the context of the lawyers and the things that he made reference to were matters that were contained in his original application.

17. The applicant also produced to me a letter purported to be from a police station in Fiji which indicated that he would be placed in prison should he return.  This is an interesting letter to have received from a police station but more importantly it post dated the Tribunal’s decision.  I have explained to the applicant that the powers of this court relate only to the decision before it and not to what may have happened subsequently.  The applicant has certain rights available to him upon which he can take legal advice in regard to these ex post facto occurrences.

18. It will be clear from the above that I have been unable to find any grounds upon which a successful review of this decision can be made.  The application is dismissed.  The applicant must pay the first respondent’s costs which I assess in the sum of $6,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  10 January 2013