SZSUJ v Minister for Immigration

[2013] FCCA 2369

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUJ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2369

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425,476

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Minister for Immigration & Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425)
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant: SZSUJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 916 of 2013

Judgment of: Judge Nicholls

Hearing date: 23 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Sydney

Delivered on: 23 October 2013

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms K Hehir

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to read "The Minister for Immigration and Border Protection”.

2. The application made on 2 May 2013 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 916 of 2013

SZSUJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 2 May 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. I have before me a bundle of relevant documents filed by the Minister in these proceedings (the Court Book, “CB”), from which the following background can be ascertained

2. The applicant claimed to be a citizen of the Solomon Islands (CB 7). He arrived in Australia on 25 March 2011 as the holder of a “visitor visa” (CB 7). He was detained by immigration officials on 26 November 2012 as a person who had overstayed the time within which he was permitted to remain in Australia (CB 75).

3. With the assistance of a registered migration agent, the applicant applied for a protection visa on 29 January 2013 (CB 1 to CB 68, including attachments). The applicant’s claims to protection were set out in a Statutory Declaration made on 16 January 2013 (CB 2 to CB 4). The applicant claimed protection on the basis of his “Maletan” ethnicity (CB 3.1). He claimed he was from Guadalcanal Island and he feared mistreatment from the people of Guadalcanal Island who wanted to remove Maletans from that island (CB 3.5).

4. The delegate refused the application on 21 February 2013 (CB 70 to CB 84). While he accepted that there had been tensions about land disputes in the past on Guadalcanal Island, these were historical and there was no evidence that the applicant had been involved (CB 82).

Before the Tribunal

1. The applicant applied for review to the Tribunal on 26 February 2013 (CB 85 to CB 91). He continued to be represented (CB 89). He attended a hearing before the Tribunal on 25 March 2013. The applicant’s representative was present at the hearing (CB 103). The only account of the hearing before the Court is the Tribunal’s own account.

2. The applicant was unable to provide the Tribunal with any evidence as to recent ethnic based harm in the Solomon Islands. The only incident he mentioned was that his parents’ car was stolen in 1998. The Tribunal reported that “the applicant referred very vaguely to historic tribal disputes over land but without referring to himself” ([19] – [20] at CB 110).

3. The Tribunal’s key findings were ([23] at CB 110 to [25] at CB 111):

   “[23] In light of the country information and given that the applicant has not experienced ethnic based harm in the past and has no profile that might give rise to such harm on his return to Solomon Islands I am not satisfied that there exists a real chance that the applicant would face serious harm by reason of his ethnicity on his return to Solomon Islands in the reasonably foreseeable future.

   [24] The applicant has not made any other claims for protection. In these circumstances I find that the applicant does not have a well-founded fear of persecution for a Convention reason on his return to Solomon Islands.

   [25] In respect to ‘complementary protection’ I find [that there] does not exist substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to a receiving country that there would be a real risk of the applicant suffering significant harm.”

Before the Court

1. The application to the Court is in the following terms:

   “1. THERE ARE SOME JURISDICTIONAL ERRORS IN R.R.T.

   2. THE MEMBER DID NOT ASSESS MY COMPLEMENTARY PROTECTION ACCORDING TO THE LAW.

   3. THE R.R.T DEPROVED ME OF NATURAL JUSTICE.

   4. THE IMMIGRATION ACT WAS NOT OBSERVED PROPERLY AND THE R.R.T. MEMBER WAS NOT ACTING IN GOOD FAITH IN DECISION MAKING PROCESS.

   5. THE DECISION DOES NOT RELATE TO THE SUBJECT MATTER OF THE LEGISLATION AND THE DECISION EXCEEDS THE LIMIT SET OUT IN THE CONSTITUTION.”

   [Errors in the original]

2. At the hearing the applicant appeared in person. Ms K Hehir appeared for the first respondent.

3. I note that, while some attempts had been made to obtain the assistance of an interpreter in Pidgin English and, in particular, Pidgin English as it is spoken in the Solomon Islands, those attempts were unsuccessful. I have asked Ms K Hehir to pursue with the TIS organisation, regarding the failure of the organisation to provide an interpreter after one had been booked with them.

4. In any event, I separately satisfied myself that the applicant was able to proceed with the hearing which was conducted in English. The applicant told the Court that he was prepared to continue with the hearing and I am otherwise satisfied, given the exchanges that I had with the applicant, that he understood what was being said and, indeed, was quite responsive to what was said. I should also note that the applicant has had the benefit of legal advice from a lawyer on the panel of the Refugee Review Tribunal Legal Advice Scheme. The applicant confirmed that he met with a lawyer on 19 June 2013, and was provided with written advice.

5. I also understood from the applicant that the grounds of his application had been drafted by another person in the Villawood Immigration Detention Centre. The applicant was unable to explain the grounds any further. It is quite clear that those grounds lack any detail or particularity. The difficulty for the applicant, as I sought to explain to him today and which he said that he understood, is that the power of the Court is limited to the question of whether the Tribunal’s decision was affected by a legal error.

6. I sought to explain to the applicant the difference between a decision that was the “right decision” or the “correct decision” and a decision that was lawful. Further, I sought to explain to the applicant that the question for the Court was whether some legal mistake, or as the applicant has put in his application, “jurisdictional error”, is evident in the Tribunal’s decision. The applicant’s grounds do not reveal any such error. Nor can I otherwise see any error in what the Tribunal has done.

Ground One

1. Ground one asserts jurisdictional error. No particulars are provided. The applicant was unable to further assist the Court today.

2. In any event, no jurisdictional error is apparent. The applicant was invited to a hearing before the Tribunal. It was an invitation given pursuant to s.425 of the Act. No evidence has been presented by the applicant as to what occurred at the hearing. The Tribunal’s own account reports that it raised the issues of land disputes and ethnic tensions with the applicant.

3. The procedural fairness obligations, as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592, were satisfied. The issues that disposed of the review were aired and discussed at the hearing before the Tribunal. I also note that, in any event, the applicant would have been on notice of these issues as a result of the delegate’s decision record.

4. The Tribunal based its decision on the applicant’s evidence, written claims and country information. All are, variously, excepted from the obligation in s.424A(1) of the Act by s.424A(3) of the Act. The Tribunal made findings reasonably open to it on what was before it. There is no jurisdictional error apparent on what is before the Court.

Ground Two

1. Ground two asserts that the Tribunal did not assess the complementary protection claims according to the law. The applicant was, again, unable to explain this ground.

2. In any event, no such error is apparent. First, the Tribunal set out the differences in the relevant tests applicable to the criteria at s.36(2)(a) and s.36(2)(aa) of the Act in unexceptional terms (see [4] at CB 108 to [14] at CB 109).

3. Second, the applicant did not present any separate claims under the complementary protection criterion. The factual basis for his claims was common to both the Refugees Convention and complementary protection (see CB 2 to CB 3). Once the factual basis for the risk of significant harm was found to be lacking, then the Tribunal’s brief expression at [25] (at CB 111) was adequate to deal with the claim under s.36(2)(aa) of the Act.

Ground Three

1. Ground three asserts a denial of natural justice. Again, no particulars are provided. As set out above (at [17] to [18]), no such error is apparent.

Ground 4

1. Ground four asserts that the Act was not “observed”, and that the Tribunal member was not acting in good faith in making the decision.

2. In relation to the first complaint, again no particulars are provided. No such failure is apparent.

3. The second complaint is, of course, a serious matter to raise against an administrative decision maker. An allegation of bias must be distinctly made and clearly proven (Minister for Immigration & Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). It cannot be said that either requirement has been satisfied here. As mentioned above, the applicant has not filed any further evidence before the Court. Further, the only evidence of what occurred at the hearing is in the Tribunal’s record itself, and it is a rare case where bias can be made out on that record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

4. Therefore, there is no evidence before the Court to indicate the absence of good faith, let alone sustain any such charge.

Ground Five

1. The fifth ground, with respect to the applicant, or whoever drafted the ground on his behalf, is plainly formulaic. The applicant was unable to explain how it related to his case. Plainly, the Tribunal conducted the review according to the manner set out in the Act. The reference to the “limit” in the Australian Constitution being exceeded remains, in the circumstances, unexplained.

Conclusion

1. No jurisdictional error is apparent in any of the grounds before the Court. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014