SZSGH v Minister of Immigration

[2013] FCCA 797

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSGH v MINISTER OF IMMIGRATION & ANOR [2013] FCCA 797

Catchwords:
MIGRATION – Review of decision of RRT – where applicant not born in or ever been to his country of origin.

Legislation:
Migration Act 1958 (Cth), ss.36(2A), 91R(1)(c), 422B

Minister for Immigration & Anor v Jia Legeng (2001) 205 CLR 507
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102

Applicant: SZSGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2729 of 2012

Judgment of: Judge Raphael

Hearing date: 4 July 2013

Date of Last Submission: 4 July 2013

Delivered at: Sydney

Delivered on: 4 July 2013

REPRESENTATION

For the Applicant: In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,600.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2729 of 2012

SZSGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of Chad, was born in Jeddah, Saudi Arabia approximately 30 years ago.  He has lived there all his life with his family.  He claims that he has never been to Chad.  On 15 June 2012 he applied to the Department of Immigration for a protection (Class XA) visa which the Minister, through his delegate, refused on 31 July 2012.  The applicant applied for a review of that decision from the Refugee Review Tribunal which considered pre-hearing submissions and conducted two hearings attended by the applicant and his advisor.  On 25 October 2012 the Tribunal determined to affirm the decision not to grant the applicant a protection visa. 

2. The Tribunal first considered whether the applicant was a person whose claim should be considered in the context of Chad or Saudi Arabia or both.  It came to the conclusion, for the reasons given, that there was a strong possibility that the applicant may not be allowed to return to Saudi Arabia as he had left the country utilising a false Saudi Arabian passport and, therefore, his application should be considered on the basis that the country to which he would be returned was Chad.  The Tribunal acknowledged that the applicant had probably never been to Chad and had little knowledge of the country.  He had claimed that he was a member of the Gorane Tribe and that, as this was a tribe in opposition to that from which the current president came, he will be in danger should he return.  As the Tribunal expressed at [CB 194]:

   “[99]The applicant’s claims of protection against Chad fall into 4 broad, overlapping categories:

   (a) The poor, social, economic, security and other conditions that prevail in that country.

   (b) His Gorane ethnicity, which he highlighted in the latter part of the first hearing.

   (c) His prospects as a ‘returnee’ (or first-time arrival) in Chad), particularly taking into account: (1) Saudi Arabia is his place of birth and residency (with potential imputed  political opinion); (2) his particular circumstances as a young person who has never lived there before and who has no network or contacts; and (3) the problems that other groups of IDPs or attorneys from other countries have experienced in the competition for services and assistance; and

   (d) The applicant has recently claimed that Chadian authorities in Jeddah are aware of his illegal departure from Saudi Arabia and a consular official has warned his father that they now suspect him of being involved in oppositional activities.” 

3. The Tribunal accepted that the applicant had a genuine concern about returning to Chad which it described as “a country he had never visited and had received mainly negative impressions on”.  The Tribunal acknowledged that there was ample material that indicated Chad’s poverty and underdevelopment, its political instability and history of conflict but it noted that, given the applicant’s family’s residence and continuing residence in Saudi Arabia, they would be able to support him and, possibly, alleviate many of these problems and then stated:

   “[102]It is well-established, however, that such general conditions do not invoke Australia’s protection obligations under s.36(2)(a) of the Act, and they do not of themselves involve ‘systematic and discriminatory conduct’, as required by s.91R(1)(c) of the Migration Act. [CB 195]

4. The Tribunal then moved on to consider the matters that it had adumbrated at [99] as the applicant’s claims, utilising independent country information in questioning the applicant and considering his answers.  The Tribunal concluded that, although racial discrimination occurred throughout Chadian society, it could not find any information that indicated that the wrong ethnicity by itself established a real chance of persecution. 

5. In regards to the claim that the applicant had as a returnee or new arrival it discussed his fears with the applicant and his advisor and concluded that it could not be satisfied that the examples put up by them constituted persecution within the meaning of the Migration Act 1958 (Cth)[1] or involves systematic and discriminatory conduct as required by s.91R(1)(c) of the Act. It could not find any evidence that the Chadian authorities would target Chadian nationals who had lived or been born abroad, including in Saudi Arabia. It did not accept that the challenges facing the applicant upon relocation to Chad would give rise to a real chance of persecution for a convention reason.

   [1] “Act”

6. The Tribunal considered at some length the applicant’s most serious claim that the Chadian Consul in Jeddah had made it plain to his family that he considered that the applicant was a person who might return to Chad who opposed the current political regime in Chad.  This was a subject of the second hearing before the Tribunal when the applicant made a claim that letters had been sent to his father requiring the father to attend the embassy to discuss his leaving the country.  The Tribunal considered these matters in some detail between [CB 198 -  199] and concluded:

   “[110]The above concerns, taken together, cause the Tribunal to doubt the genuineness of the Chadian letter.  However, even if it were to accept that it may be genuine, the Tribunal does not accept on the available material that it was an invitation for his father to attend a meeting at the Consulate in which an official signalled, for the first time, the Chadian authorities’ adverse interest in him [the applicant], as a potential dissident.” 

   The Tribunal found that the applicant had fabricated his claim in order to establish an adverse profile with the Chadian authorities.  The Tribunal concluded:

   “[112]The Tribunal has considered these overlapping claims, and their cumulative effect.  It finds that the applicant is a Saudi-born and resident Chadian who has never lived in Chad, is a Gorane, and a young person who has tried to migrate to other countries to find a better life.  It does not accept that the Chadian authorities have any adverse interest in him now, or in the future, or that there is a real chance of them imputing to him any adverse political opinion for the reason of these, or any other factors.  The Tribunal accepts that the applicant’s entry into Chad could present him with various challenges, but does not accept that these give rise to a real chance of persecution for any Convention reason.”  [CB-200]

7. The Tribunal then turned to consider complementary protection and found that the difficult living conditions in Chad that it anticipated the applicant might encounter would not involve significant harm as defined in s.36(2A) of the Act.

   “[114]This is because, amongst other things, the Tribunal does not accept that he ‘will be arbitrarily deprived of his life’, that the ‘death penalty will be carried out’, or that the general living conditions in Chad involve any intention to inflict harm on the applicant, as required in the definition of ‘torture’, ‘cruel or inhuman treatment or punishment’, or ‘degrading treatment and punishment’.  [CB 200]

8. On 23 November 2012 the applicant filed an application in this Court seeking review of the decision of the Refugee Review Tribunal.  The application had three grounds.  The first was:

   “1.Migration Act was not observed properly, and the RRT member was not acting in good faith in decision-making process.”

   This ground has not been particularised and to the extent that it argues that the Tribunal did not act in good faith this is a serious allegation that must be firmly and distinctly made and clearly proven;  Minister for Immigration & Anor v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.

   As Mr Alderton says in his helpful written submissions:

   “[31]It is a rare case in which the Court will find that a decision-maker has breached the natural justice hearing rule by exhibiting bias or bad faith based simply upon the decision-maker’s reasons;  SBBS v Minister for Immigration [2002] FCAFC 361.”

9. I am satisfied from my consideration of the decision record, that the Tribunal gave the applicant’s case a full and detailed consideration, and no inference of bias or prejudgment can be drawn from the mere fact of the adverse finding;  VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]. This ground cannot succeed.

10. The second ground was:

    “2.The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in the Constitution.”

    This ground was clearly provided to the applicant by some ‘friend’ who, in all likelihood, like the applicant, did not understand the meaning of the words. It is quite clear to me that the decision did relate to the subject matter of the legislation and did not exceed the limits set out in the Constitution on the basis of the decision record. There being no particulars it is not appropriate for the Court to make any further comment.

11. The third ground was:

    “3.    The RRT deprived me of natural justice.”

    The natural justice hearing rule, as it applies to the Tribunal hearings, has been set out in s.422B of the Act. The applicant has not provided any particulars of how the Tribunal may have breached the requirement of that rule as set out in Part 7 of the Act. Given that the applicant was provided with the opportunity to appear before the Tribunal on two occasions, he did appear with his migration agent, and was able to respond to questions put to him by the Tribunal on the matters that were of concern to it and was able to give evidence and present arguments as to his cause, I am of the opinion that there is no merit in this claim.

12. The applicant appeared before me today.  Understandably he was not entirely clear about the functions of the court which were explained to him as only being a review of the manner in which the Tribunal reached its decision as opposed to a review of the decision itself, which would have been a merits review that is impermissible.  It was therefore not possible for the court to take into account his doubtless genuine views as to the lack of safety that existed in Chad or the difficulties that he would encounter should he return.  The applicant’s position vis a vie Saudi Arabia is not entirely clear. His family has recently been granted the right to remain in that country and it may well be that, with appropriate efforts made on his behalf, he could return to the bosom of his family in that country and reconsider his wish to seek a better life elsewhere. 

13. The application is dismissed.  The applicant is to pay the first respondent’s costs which I assess in the sum of $4,600.00. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  11 July 2013