SZTCD v Minister for Immigration

[2014] FCCA 2467

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2467

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision to refuse to grant applicants Protection (Class XA) visas – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 474(2)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

First Applicant: SZTCD

Second Applicant: SZTCE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1667 of 2013

Judgment of: Judge Lloyd-Jones

Hearing date: 13 October 2014

Delivered at: Sydney

Delivered on: 28 October 2014

REPRESENTATION

The Applicants: The First Applicant appeared by telephone link with the assistance of a Fijian interpreter.

Solicitor for the First Respondent: Ms A Wong of DLA Piper

The Second Respondents: The Second Respondent filed a submitting notice.

ORDERS

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

2. The application filed on 22 July 2013 be dismissed.

3. The applicants pay the first respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1667 of 2013

SZTCD

First Applicant

SZTCE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in this Court on 24 July 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1213811, a decision of Tribunal Member S. Kamand dated 27 June 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) (at the time of the application to this Court the Minister for Immigration, Multicultural Affairs and Citizenship) to refuse to grant the applicants Protection (Class XA) visas.

2. The solicitors for the Minister filed on 25 September 2013, pursuant to the orders of Judge Barnes made on 11 September 2013, a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and has been marked Exhibit “A”.  

3. The applicants were granted leave on 20 August 2013 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which they sought to rely, however, elected not to do so.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. The applicants are a married couple from Fiji.  The claims to fear harm in Fiji are only advanced by the first-named applicant (the “first applicant”).  The second applicant's claim for eligibility for a Protection visa is based only on her being the first applicant's spouse.

3. The applicants applied for a Protection (Class XA) visa on 3 May 2012 (CB 1).  The first applicant's claims were set out in a statement accompanying the application (CB 35). The application was refused by a delegate of the Minister on 23 August 2012 (CB 118).

4. The applicant applied to the Tribunal for review of the original decision on 10 September 2012 (CB 137).

5. The applicant gave oral evidence before the Tribunal on 14 June 2013 (CB 182).

6. The Tribunal made its decision affirming the delegate’s decision not to grant the applicants Protection visas on 20 June 2013 (CB 210).

The First Applicant’s Claims

1. The first applicant's claims were set out in the statement accompanying the application (CB 35) and at the protection visa interview on 27 July 2012.  The first applicant:

   a)Does not support the current military led Fijian government and is a supporter of the Soqosoqo Duavata ni Lewenivanua party (SDL);

   b)Feared harm at the hands of the military as they have already physically harmed him on one prior occasion.  He feared that he will be targeted for future abuse;

   c)Has his home near the road at the end of the Tubarua to Sigatoka bus route.  Sometimes passengers stranded on their journey in the night were provided hospitality by the applicant.  The applicant was intimated, harassed and assaulted by the Fijian military when they came to his home at night looking for a person in the applicant's home;

   d)Stated that there was no protection for ordinary people in Fiji, the military do not protect people and who they suspect are a threat to them on issues such as harbouring wanted people, holding meetings or speaking out publicly against them;

   e)Claimed the military arbitrated arrest people and take them in for questioning, intimidation and torture; and

   f)Claimed that part of his farm land was washed away in the 2012 cyclone/floods which has adversely impacted his ability to subsist.

The Tribunal’s Decision

Claims regarding farm land

1. In respect of the first applicants' claim regarding the farm land, the Tribunal accepted that a large portion of the first applicants' farm land was destroyed in flooding in early 2012, adversely impacting the applicants' income.  However, the Tribunal considered that the evidence before it indicated that the first applicants' son continued to farm what was left of the land as well as the small piece of land close by.

2. The Tribunal accepted that the first applicant wished to continue supporting his children and their education. However, the Tribunal did not consider the difficulties or the inability to meet those costs to amount to a threat to the applicants' capacity to subsist; denial of access to basic services where the denial threatened their capacity to subsist; denial of capacity to earn a livelihood of any kind where the denial threatened their capacity to subsist as contemplated by ss.91R(2)(d), (e) or (f) of the Migration Act (CB 213 at [15]).

Claim of past harm by the military

1. The Tribunal accepted that, in relation to the claimed incident in August 2011, the applicants had been woken up by the military at around 11 pm and asked to wait outside while the military searched their house for "Vuote".  The Tribunal accepted that when the military could not find "Vuote" they came outside and beat the first applicant, causing him to require and seek medical assistance (CB 214 at [18]).

2. While the Tribunal accepted that the August 2011 incident occurred, the Tribunal was also satisfied that no adverse approaches had been made to either applicants or their family members by the military or any other person or entity in the almost two years which had transpired since (CB 214 at [21]).

Other claims

1. The Tribunal set out the first applicant's claim to be a strong supporter of the SDL at CB 215 [22]. While it accepted that the first applicant supported the SDL and had joined the Fiji Australia Indigenous Community Association, the Tribunal considered that the first applicant's involvement in the SDL and any party in Australia had been very minor. The Tribunal held that his evidence did not reveal him to have any particular political opinions he had expressed it he past, or that he would wish to express in the future (CB 215 at [25]).

2. The Tribunal considered Mr Susesewa's letter (CB 180-181) which stated that anyone who left Fiji and lodged an application for asylum is considered an enemy of the military regime (CB 216 at [27]).

3. On the evidence before it, the Tribunal found that, in the unlikely event that the applicants were suspected by the Fijian authorities of having sought asylum in Australia, they may face monitoring and/or intimidation (CB 216 at [29]).

4. However, the Tribunal was not satisfied that the applicants would face a real chance of serious harm even if there were suspected of having sought asylum in Australia.  The Tribunal was further not satisfied that either applicant would be imputed to be a political opponent of the regime for having sought asylum such that they would have a profile giving rise to a real chance of serious harm in connection with such political opinion, actual or imputed (CB 216 at [29]).

5. The Tribunal was not satisfied that the first applicant had publicly expressed opposition to or criticised the Fijian military regime in a way which characterises his as a political opponent of the regime, or that he had or will have a profile giving rise to a real chance of serious harm for reason of any actual or imputed political opinion in the reasonably foreseeable future (CB 217 at [30]).

6. Based on all the evidence before it, the Tribunal was not satisfied that either applicant faced a real chance of persecution involving serious harm for any of the reasons claimed or arising on the evidence (CB 217 at [31]).

7. The Tribunal was not satisfied that the applicants would suffer significant harm as set out in section 36(2)(aa) of the Act (CB 218 at [37]). 

Current Proceedings

1. The application before this Court pleads the following two grounds:

   1.  Is affected by an error of law.

   2.  Failed to take into account relevant considerations.

Applicants’ Submissions

1. At the hearing, the first applicant appeared by telephone link from Queensland.  A Fijian interpreter was present in the Court in Sydney to assist the first applicant.  The first applicant indicated he had not prepared any affidavit evidence, amended application or written submissions in support of his claim.  He also indicated the Minister’s written submissions had been translated to him.

2. The first applicant, when invited to make oral submissions, proceeded to inform the Court about his current circumstances, including where he was living and his work arrangements.  The first applicant was then informed that the purposes of the application before the Court for hearing were to review the decision of the Tribunal in order to ascertain whether there had been an error of law.

3. The first applicant then went on to re-state his claims for protection which had been put before the Tribunal.  This included statements relating to the Fijian Government, the SDL, the use of the applicants’ house as a refuge, his membership of the Seventh Day Adventist Church, his fear of being assaulted, tortured or killed in Fiji, the floods in Fiji that damaged their property in Fiji, and soldiers coming to the applicants’ home in 2011.

4. The Court undertook to explain to the applicant that it is not able to look at the merits of his protection claims, but can only review the Tribunal’s Decision to ascertain if an error of law has occurred.  The first applicant was referred to the two pleaded grounds in their application and asked if he had submissions to make in support of them, however, did not do so.

Minister’s Submissions

1. The Minister argues that without particulars the grounds of review in the application fail to raise an arguable case of jurisdictional error on the part of the Tribunal. 

2. The applicant was invited to, and attended, the hearing before the Tribunal at which all aspects of his claims were discussed, pursuant to s.425 of the Migration Act.

3. The Tribunal put its concerns to the applicant at the hearing, and discussed with the applicant the content of the country information upon which it ultimately relied, even though country information is expressly excluded from the operation of s.424A pursuant to s.424A(3)(a).

4. The Tribunal considered all of the applicant's claims, including claims regarding farm land (see CB 212-231 at [13]-[16]), past harm at the hands of the military (see CB 214 at [17]-[21]) and “other claims” (see CB 215 at [22]-[31]).  The Tribunal’s findings were open to it on the material before it and for the reasons it gave.  Accordingly, any argument that the Tribunal failed to consider a claim cannot be made out.

5. The Tribunal considered the applicants’ submitted evidence at CB 215 [24] and CB 216 [27].  It is contended that the Tribunal did not fail to take into account any mandatory relevant consideration: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

6. The Minister contends that there being no jurisdictional error established on the part of the Tribunal, the decision of the Tribunal is a privative clause decision within the meaning of s.474(2) of the Act and is not amenable to judicial review by this Court.

7. At the hearing Ms Wong, who was appearing for the Minister, indicated the applicant’s explanation of his current situation is not relevant to the proceedings currently before the Court.  Further, she indicated the first applicant at the hearing repeated his claims for a Protection visa, which seeks to cavil with the findings of the Tribunal. 

Consideration

1. I appreciate the difficulties often faced by self-represented litigants before this Court, particularly when they speak limited or no English.  The majority of the applicant’s oral submissions at the hearing either restated his substantive claims made in support of his Protection visa application or addressed his and his wife’s current circumstances and the activities they were undertaking.  It was explained to the applicant that the function of this Court is to review the decision of the Tribunal to ascertain if there has been any errors of law in its decision, not to grant the applicants visas or enter into a re-hearing of the merits of their Protection claims.

2. I turn to the two pleaded grounds of review in the application.

3. The first ground of review alleges there has been an error of law, presumably on the part of the Tribunal, however, does not particularise the claim in any further detail.  The applicant, when asked at the hearing if he had any submissions in support of this ground, declined to make any comment pertaining to it.  Accordingly, this ground, in its current unparticularised form, cannot be sustained and should be dismissed.

4. The second ground of review alleges the Tribunal failed to take into account relevant considerations.  Again the first applicant declined to make any further submissions in respect of this ground at the hearing, despite being afforded the opportunity to do so.

5. Due to the failure of the applicant to in any way address this claim, assessing whether there has been a failure on the part of the Tribunal to address a mandatory consideration.  I accept that the Minister’s submissions in respect of this ground, noted above at [28]-[33], accurately address this claim.  I have also undertaken a fair reading of the Court Book and Decision Record and am unable to locate any failure on the part of the Tribunal to take into account a mandatory consideration.

6. The Tribunal considered all of the applicant’s claims at [13]-[31] of the Decision Record (CB 212-215), and its findings were open to it on the material before it.  It also had regard to the applicant’s evidence (see Decision Record at [24], [27]).  As stated by the Minister, the applicants were also validly invited to a hearing which they attended, where the Tribunal put its concerns to the applicants, allowed the applicants to make submissions and discussed country information with them.

7. In Peko-Wallsend (supra) his Honour Mason J stated at 39:

   The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …

8. I am satisfied the Tribunal’s findings were open to it on the material before it and there was no failure to take into account any mandatory or relevant considerations.

9. I now turn to the oral submissions made by the first applicant at the hearing.  These submissions either have no relation to the current proceedings before the court, being an application seeking judicial review of a decision of the Tribunal, or propound the applicants’ substantive protection claims and seek to engage the Court in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 280-282.

10. On a fair reading of the Court Book and Decision Record no error of law on the part of the Tribunal is apparent.  Both grounds of the application do not raise any identifiable error on the part of the Tribunal.  Consequently, the application must fail and should be dismissed with costs awarded to the Minister.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 28 October 2014