SZTMD v Minister for Immigration
[2014] FCCA 1523
•14 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1523 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | SZTMD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2706 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Piper |
INTERLOCUTORY ORDERS
The application as amended on 14 July 2014 is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2706 of 2013
| SZTMD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 8 October 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Burundi. The following statement of background facts relating to the applicant’s claims for protection and the Tribunal’s decision on them is derived from the Minister’s outline of submissions.
The applicant is a male citizen of Burundi. The applicant applied for a protection visa on 27 October 2011.[1] In short, the applicant claimed he was a member of the CNDD-FDD political party and president of the Imbonerakure (a paramilitary organisation) in his district. He claimed that he would be considered a traitor to the party because he refused to participate in certain acts of violence and intimidation required of him.[2]
[1] Court Book (CB) 2
[2] CB 40
A delegate of the Minister refused the applicant's visa application on 21 May 2012.[3] The applicant sought review by application to the Tribunal lodged on 4 June 2012.[4] The applicant attended a hearing of the Tribunal on 15 February 2013,[5] at which determinative issues were traversed. By decision dated 8 October 2013 the Tribunal affirmed the decision under review refusing to grant the applicant a protection visa.[6]
[3] CB 107
[4] CB 130
[5] CB 153
[6] CB 178
The Tribunal’s reasons
The Tribunal accepted that the applicant joined the CNDD-FDD but not that he was president of the Imbonerakure,[7] and accordingly rejected his consequent claims concerning requests made of him.[8] Having regard to its findings of fact the Tribunal did not accept that the applicant was owed complementary protection.
[7] at [59]-[60], CB 191-192
[8] at [67], CB 193
The present application
These proceedings began with a show cause application filed on 1 November 2013. The applicant now relies upon an amended application filed in court today by leave. There are three grounds in that application:
The decision of the [T]ribunal was affected by jurisdictional error in that:
1. The Tribunal Member was affected by reasonable apprehension of bias.
a. He did not bring an open mind and had seemingly a decision made before.
2. The [T]ribunal did not accept that I was the president of IMBONERAKURE and this finding was arbitrary and unreasonable because there was no evidence which supported this finding.
3. The member has failed to recognize the massacre event that took place on 18/09/2011, which was mentioned in my submissions (see paragraph 46) as a standalone reason for the dangers of my opposition to the CNDD-FDD.
I have before me as evidence the court book filed on 3 December 2013. I also received the applicant’s affidavit filed on 1 November 2013 with his original show cause application. I received as a submission the applicant’s affidavit filed on 22 April 2014. The applicant also relied upon written submissions prepared by his former solicitors and filed 9 May 2014. The Minister relies upon his written submissions filed on 1 May 2014. Those were augmented by brief oral submissions made by the Minister’s solicitor today.
It must be said at the outset that the applicant’s claims for protection required a considered response. The political situation in Burundi and the ethnic tensions which have long been associated with political divisions in that country are not well known or well understood here. Further, the applicant was at a disadvantage in these proceedings in that he commenced the proceedings on his own and although he was represented by solicitors at an earlier stage of this case, those solicitors have withdrawn from the record.
At the commencement of today’s hearing, the applicant sought an adjournment. I rejected that application on the basis that I granted an adjournment on 12 May 2014 on the application of his then solicitors so that he might obtain counsel’s advice. Having heard the applicant’s arguments in support of a further adjournment, I formed the view that no useful purpose would be served by it.
However, I attempted to take account of the applicant’s disadvantage as a litigant in person. That necessitated a lengthy examination of the Tribunal decision and the documents upon which the applicant relies in the consideration of his grounds of review.
The applicant’s reasons for disagreeing with the Tribunal’s decision are extensive and in some ways subtle. The applicant’s affidavit filed on 22 April 2014 is detailed in directing attention to arguments against the outcome he achieved in the Tribunal. However, the applicant has struggled to raise the debate in this Court above a dispute over the merits of the Tribunal decision.
The applicant first contends that the decision of the Tribunal was affected by a reasonable apprehension of bias. He contends that a fair-minded observer would apprehend that the Tribunal did not bring an open mind to the issue before it. The applicant, in particular, focused on [60] of the Tribunal’s reasons:[9]
I do not accept that [the applicant] became president of the Imbonerakure in his district of Bujumbura, Rohero 2, in January 2010. At the hearing before me he tried to give the impression that the Imbonerakure was engaged in good works (see paragraph 7 above) and in their submission dated 27 February 2013 his representatives suggested that at the time when he had joined he had had no indication that the culture of the Imbonerakure would turn dangerous and anti-social apart from some violent behaviour towards some FNL youth in Kanyosha in Bujumbura in 2009. However, as I put to [the applicant] in the course of the hearing before me, the independent evidence – for example the Human Rights Watch report to which his representatives themselves referred – indicates that the Imbonerakure was always a quasi-military organisation used by the CNDD-FDD to intimidate and harass the political opposition.[10]
[9] CB 191-192
[10] Human Rights Watch, “You Will Not have Peace While You Are Living”: The Escalation of Political Violence in Burundi, May 2012, page 18.
The applicant considers that this is indicative of a closed mind. He also emphasised, correctly, that the assessment made by the Tribunal was a subjective one.
However, there is no reason to believe that the exchange the Tribunal recites at [7] of its reasons is not an accurate one:[11]
At the hearing before me [the applicant] said that he wanted to differentiate between what was happening at the moment where some people involved in the Imbonerakure worked as sort of paramilitaries and what had happened when he had been involved. He said that the official activities had involved trying to find new members for the party. He said that they had been like the pillars of the party and they had helped to organise meetings. He said that they would be in charge of maintaining the cohesion of the membership and they would also participate in community activities every Saturday: they might help with roadwork or with cleaning the roads.
[11] CB 180
That paragraph formed the logical foundation for the Tribunal’s conclusion. Beyond that the Tribunal considered that the applicant, having on his own account been unreliable to the CNDD-FDD, would not be entrusted with the sensitive role of presidency of the Imbonerakure. There is in my view no substance to Ground 1.
Secondly, the applicant asserts that the Tribunal’s finding that he was not the president of the Imbonerakure was arbitrary and unreasonable and based on no evidence. The applicant addressed me at length on that issue in his oral submissions. I accept that a different Tribunal member might hypothetically have reached a different conclusion on that issue. All that establishes, however, is that this is an issue upon which reasonable minds might differ. It does not mean that the Tribunal’s finding was arbitrary and unreasonable.
The evidence upon which the Tribunal’s finding is based is explained by the Tribunal in its reasons and is drawn from the applicant’s own claims. The second ground does not, in my view, point to an arguable case of jurisdictional error.
The applicant took me in argument to the documents appearing at pages 65 to 70 in the court book. He referred to those in support of Ground 2, however those documents, while they support the applicant’s involvement with the CNDD-FDD, do not support the applicant’s involvement with the Imbonerakure. As was pointed out by the Minister’s solicitor in her submissions, that is in itself plain from [47] of the applicant’s statement of claims.[12]
[12] CB 45
Ground 3 in the amended application was raised for the first time today. I accept from the court book that in his original statement of claims at [60][13], the applicant referred to a massacre occurring on 18 September 2011. The applicant did not claim that he was directly involved in the massacre, rather he claimed that he was involved in the CNDD-FDD response to it. The claim in these proceedings is that the Tribunal overlooked that claim. That is not supported by the Tribunal decision.
[13] CB 47
First, the claim is referred to in the Tribunal’s decision at [39].[14] Secondly, the Tribunal records that the claim was discussed with the applicant at the hearing.[15]The Tribunal dealt with the claim in particular at [65] of its decision.[16] The conclusion at [69][17] flowed logically from the Tribunal’s reasoning. Accordingly, there is in my view no substance to Ground 3.
[14] CB 187
[15] See [46]-[48] at CB 189
[16] CB 193
[17] CB 193-194
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant queried how the amount sought was arrived at and I sought to explain the application of the scale to him.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 July 2014
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