SZTRD v Minister for Immigration

[2014] FCCA 1225

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1225

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it denied the applicant procedural fairness, disappointed her legitimate expectations and was denied the opportunity to consider certain material because the applicant’s then-representatives failed to provide it to the Tribunal.

Legislation:

Migration Act 1958, ss.36, 422B, 424AA, 424A, 425, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012) 246 CLR 636
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Attorney-General (NSW) vQuin (1990) 170 CLR 1
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189

Applicant: SZTRD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3125 of 2013

Judgment of: Judge Cameron

Hearing date: 3 June 2014

Date of Last Submission: 3 June 2014

Delivered at: Sydney

Delivered on: 3 June 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr P. Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3125 of 2013

SZTRD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Kenya who last arrived in Australia on 29 January 2007.  On 18 July 2013 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in Kenya because of a property dispute and because she had been framed for murder.  On 15 October 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Tribunal in its decision.  As summarised by the Tribunal, the applicant relevantly claimed that:

   a)she had three brothers who lived in Kenya and two sisters living in Australia.  She had worked for one of her brothers in his swimming pool business in Kenya;

   b)she first arrived in Australia in 1998 and met a man who is an Australian citizen.  They returned to Kenya together in 2004 and married there in December 2004.  She and her husband separated two months after their wedding;

   c)when they moved to Kenya her husband had arranged for a container containing a tractor, motorcycles and other farm and garage equipment to be shipped there.  After their separation her husband stayed with another man and the container of equipment was removed to a particular company’s compound; 

   d)after meeting the man he stayed with and two other men, one of whom was the managing director of the company in whose compound the shipping container was kept and the other a lawyer, her husband changed.  He took all her personal belongings, denied her access to her property and was violent towards her.  She reported him to the police and he was issued with a notice requiring him to attend the police station but when he did so he was protected by his managing director friend, his lawyer friend, a magistrate and the son of a former vice president of Kenya;

   e)in April 2005 she made an application to the Kenyan High Court for the return of her property.  In August 2005 her husband returned to live with her but on 6 August 2005 he returned to Australia.  After he left she was successful in gaining orders from the Kenyan High Court for the return of some of her property and the shipping container.  However, one of the motorcycles was missing because her husband’s friend, the lawyer, had taken it as repayment of a debt her husband owed him;

   f)after she recovered the property, her husband’s friend, the managing director, threatened her life and threatened to have her gaoled because she had gone to the police.  Her husband also told her to be careful because his friend had threatened her life.  She had not stayed in one place because she had been afraid;

   g)in 2006 she was arrested on suspicion of committing a robbery and was also accused of resisting arrest, assaulting the police and having a concealed weapon.  She was detained for six days and beaten before being released without charge.  After her release the managing director telephoned her and said he was not done with her;

   h)her husband had told her to sell everything and travel to Australia.  Her provisional spouse visa was granted in July 2006 and, although she had flights booked for 23 November and 28 December 2006, she only travelled to Australia in January 2007 because she had wanted to remain in Kenya while the container was still there and had not wanted to return to her husband’s violence;

   i)after she returned to Australia she only lived with her husband for five days.  After their separation she became homeless but had also lived with her sister.  She and her husband divorced in December 2008;

   j)her husband had threatened to kill her and had stalked her in 2011 and 2012.  She had not reported him to the police because she had been exhausted and burnt out and had feared that because he had had power over the police in Kenya, he would have power in his own country too.  She had also been drinking at that time;

   k)she had been planning to return to Kenya but early in 2013 she received a telephone call from a Kenyan woman living in Queensland named Mary who told her that the managing director and others had killed a prominent female lawyer in Uganda in July 2005 using motorcycles registered in her (the applicant’s) name in Kenya.  Her husband had driven the motorcycle while a South African man riding with him had shot the lawyer.  Mary told her that the case was still open and that if she returned to Kenya she would be in danger or gaoled for a long time.  She did not know how Mary had obtained the information about the murder;

   l)she knew the murdered female lawyer’s husband, who was a doctor in Australia.  In 2007 her husband had told her that the lawyer’s husband had been the one who had had his wife killed.  She then said that on one occasion when she had still been in Kenya, her husband had telephoned her and told her not to go into the city because there were people looking for her who were going to kill someone and frame her for it;

   m)in 2012, before Mary telephoned her, she had read a report about the murder and noted that the dates matched those in her own case in 2005.  She went to the police in Australia and asked them to investigate if the two matters were linked but they told her they could not because it was outside their jurisdiction.  The applicant provided an “event number” for the report she had made to the police.  Following an investigation, the New South Wales Police advised the Minister’s department that the number related to a report which had been made in relation to an alleged break and enter.  The applicant later said that she had gone to the police to report a break-in;

   n)she feared that if she returned to Kenya she would be tortured or killed by the men linked to her husband.  They had threatened to kill her because she had gone to the police in relation to the shipping container and because motorcycles registered in her name had been used in a murder.  She also feared that she would be gaoled by the Kenyan authorities because her husband’s contacts were involved in syndicates or “rackets” with the authorities.  Her husband had also told her that she owed him money for bringing her to Australia;

   o)the police in Kenya had told her that the managing director belonged to a racket or syndicate and that was part of the reason she feared returning to Kenya; and

   p)if she returned to Kenya she would also be stigmatised because of her divorced status, her age and her lack of family.  She would have nowhere to go and had been in a “vicious cycle” of homelessness since she had stopped living with her former husband in 2005.  She would not be able to live with her brothers because they had their own families.

2. During the departmental interview and Tribunal hearing the applicant’s representative also submitted that there was a real risk that the applicant would suffer harm in Kenya because she had information which she could provide to the police which could lead to the arrest and imprisonment of a number of people who were members of criminal gangs and who had been involved in the murder of the prominent female lawyer.

3. In its summary of the applicant’s claims, the Tribunal referred to a decision of the High Court of Uganda concerning the prosecution of the murdered lawyer’s husband and others for her murder.  It noted that the prosecution case was that on 11 July 2005 a close friend of the female lawyer’s husband had driven an army private and a “backup hit man” to the scene of the crime and that the police had recovered fake number plates used to disguise the actual number plates of the car used in the murder.  Although a Ugandan media report stated that the assailants escaped on a motorcycle and an Australian media report suggested that witnesses said that the assailants had escaped on a motorcycle, the Ugandan High Court judgment did not suggest that and recorded that there were no eyewitnesses to the murder.  A media report also stated that the Ugandan High Court had found the co-accused not guilty and that the matter had last been before the Court of Appeal in November 2009 when the state was given one last chance to pursue an appeal against the trial judgment.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found that there was nothing to suggest that the applicant’s former husband or any of the other people she had named were involved in the death of the female lawyer.  Whilst accepting that some of the media reports suggested that the people involved had escaped on a motorcycle, the Tribunal noted that the judgment of the Ugandan High Court did not suggest that motorcycles had been used.  Rather the prosecution’s case had been that one of the accused had driven the killer and a “backup hit man” to the scene of the crime and that the police had recovered the fake number plates they had used;

   b)the Tribunal noted that, viewed objectively, the coincidence in the dates mentioned by the applicant amounted to nothing more than the fact that the female lawyer had been murdered in Uganda in July 2005 at a time when the applicant and her former husband were in Kenya.  The Tribunal did not accept on the evidence before it that the applicant’s former husband or the other people she had named had been involved in the lawyer’s murder or that motorcycles in the applicant’s name had been used in the murder.  It did not accept that the applicant’s former husband had telephoned her to tell her not to go into the city because there were people looking for her who planned to frame her for a murder or that any of the people mentioned by the applicant had tried to frame her for the murder of the female lawyer;

   c)the Tribunal did not accept on the evidence before it that there was a real chance that if the applicant returned to Kenya she would be gaoled or killed either because she had been framed for murder or because she was in a position to provide the police with information about it.  It did not accept that the applicant had information which could lead to the arrest and imprisonment of the people involved in the murder, noting that the only information which she had was what she had been told by Mary.  The Tribunal noted that the applicant had said that she did not even know how Mary had come by that information;

   d)whilst accepting that the applicant had had a dispute with her former husband and the managing director about the contents of the shipping container, the Tribunal noted that the applicant had been successful in obtaining court orders for the return of the goods in September 2005.  It therefore did not accept that the managing director had threatened her because of the dispute or that her former husband had told her that her life was in danger because of the managing director’s threats.  Although accepting that the applicant had been arrested as a robbery suspect in 2006, that she had been accused of resisting arrest, assaulting police and having a concealed weapon and that she had been detained for six days and beaten, the Tribunal did not accept that there was any objective basis for believing that the managing director had had any connection to those events;

   e)the Tribunal found that the fact that the applicant had been granted a visa to travel to Australia on 4 July 2006, and had flights booked on earlier days, but had not left Kenya until 26 January 2007 suggested that she had not in fact feared for her life or safety in Kenya.  It noted the applicant’s explanation for the delay, that she had not wanted to experience domestic violence again, but found that the evidence did not support her claim that she had experienced domestic violence at the hands of her former husband.  The Tribunal noted that the applicant had not reported the threats made against her by her former husband to the police and did not accept her explanation that she had thought that her former husband had power in Australia as he had had in Kenya.  In that connection the Tribunal noted that the applicant had two sisters in Australia who would have understood the differences in the Australian and Kenyan systems and also that her going to the police to report a break and enter made it difficult to accept that she would not have gone to the police if her former husband had threatened her as she claimed;

   f)the Tribunal accepted that people like the applicant’s former husband’s friends, the managing director and the lawyer, had influential friends but it did not accept that that fact supported a conclusion that they were involved in rackets or syndicates or that there was an objective basis for the applicant’s claimed fears for her life or safety if she returned to Kenya; and

   g)the Tribunal did not accept that the applicant would be destitute or homeless if she returned to Kenya or that there was a real chance that she would be persecuted because she was divorced or because of her age.  It noted that the applicant had family in Kenya and that while she might not wish to live with her brothers, she had been employed in her brother’s swimming pool business in Kenya in the past and had also been employed in Australia.  The Tribunal accepted that the applicant had suffered from anxiety and stress and that she had had a problem with alcohol in the past but it did not accept that there was a real chance that she would be persecuted for those reasons if she returned to Kenya.

2. The Tribunal noted that it had considered material which the applicant had provided to it about her mental capacity and found that she had been able to respond to its questions appropriately and to address the issues raised with her.  The Tribunal considered that she had been able to participate effectively in its hearing.

Proceedings in this Court

1. In her application commencing these proceedings the applicant alleged:

   1.The whole case.

   2.The Tribunal on 09 December 2013 in the exercise of its statutory powers in reviewing my claims and application for Refugee status under Migration Act 1958 failed in its duty to accord me procedural fairness and denied me natural justice.

   3.The Tribunal departed from my legitimate expectation founded on the Convention and Australia’s International Obligations under the International Covenant on Civil and Political Rights (ICCPR) and its second Optional Protocol aiming at the abolition of the death penalty and the Covenant against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT).

   4.The Tribunal’s decision is Vitiated by Jurisdictional error.

Grounds 1 and 4

1. The first and the fourth grounds of the application are unparticularised allegations of general error on the part of the Tribunal which do not point to any particular error.  Perhaps the fourth ground of the application might be considered to be some form of conclusory ground referring back to grounds two and three which are more specific, but, whatever the case, neither the first nor the fourth ground provides a basis upon which the Tribunal’s decision might be set aside. 

Ground 2

1. The allegation that the Tribunal denied the applicant procedural fairness or natural justice must be seen in light of s.422B of the Act, which codifies the natural justice hearing rule in the provisions found in div.4 of pt.7 of the Act. As the applicant has not suggested that the Tribunal was biased, the Court has not been called upon to consider the other aspects of the law concerning natural justice or procedural fairness. As far as the provisions of div.4 of pt.7 of the Act are concerned, the ones which are relevant to this case are ss.424A and 425.

2. Section 424A relevantly provides:

   424A          Information and invitation given in writing by Tribunal

   (1)     Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   …

   (2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)     This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c) that is non‑disclosable information.

1. From paras.27 to 40 of its reasons the Tribunal summarised its discussion with the applicant of those matters which it put to her pursuant to ss.424A and 424AA of the Act. Section 424AA permits the Tribunal to notify orally the information which s.424A(1) requires be provided to an applicant. That summary indicates that the Tribunal did comply with its obligations under s.424A and arguably went further than was required because some of the matters raised, ostensibly pursuant to s.424A, were really matters to which s.425 applied. In any event, I am not of the view that any breach of s.424A is made out.

2. Section 425(1) of the Act provides:

   425   Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

3. The Tribunal invited the applicant to a hearing which she attended. It also put to her issues which arose out of the decision under review, although the applicant was essentially unsuccessful in all the issues which she raised before the delegate and so the Tribunal’s s.425 obligations were, accordingly, quite limited. But the summary at paras.27 to 40 of the Tribunal decision indicates that it put its concerns to the applicant and gave her an opportunity to respond.

4. A third issue which arose in relation to s.425 was the ability of the applicant to participate in the Tribunal hearing in a meaningful way. At paras.3 to 7 of its reasons the Tribunal considered the applicant’s mental state and concluded that she had been able to participate effectively in its hearing. The applicant did not suggest anything to the contrary during the course of the hearing of this application and I am not persuaded that any breach of s.425 has been demonstrated by reason of the psychological problems which the applicant had at or about the time of the Tribunal hearing.

Ground 3

1. The allegation that the Tribunal failed to satisfy the applicant’s legitimate expectation appears to imply that the applicant was legitimately entitled to expect something more of the Tribunal than the discharge of its statutory obligations to her.  As was said in Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012) 246 CLR 636 at 658 [65]:

   … the phrase “legitimate expectation” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded.

2. As was said by McHugh and Gummow JJ in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, at 27-28 [82], citing the statement of Brennan J in Attorney-General (NSW) vQuin (1990) 170 CLR 1 at 39, the notion of legitimate expectation may usefully focus on the content of natural justice in a particular case but, if natural justice does not condition the exercise of a particular power, the notion of legitimate expectation can have no role to play.

3. What the applicant was legitimately entitled to expect in this case was that the Tribunal would apply the law and, in particular, the procedures set out in div.4 of pt.7 of the Act. I find that it did do so.

4. As a side point, it would appear from the third ground of the application that the applicant believes that some legitimate expectation arose in relation to Australia’s international obligations. To the extent that this is so, those obligations have been incorporated into Australian domestic law by s.36 of the Act. I am of the view that the Tribunal properly understood its obligations under s.36 and applied that section as it should have.

New ground raised at hearing

1. At the hearing of this application the applicant suggested that a lever arch binder of documents, which became exhibit 1, was material which should have been provided by her migration advisers to the Tribunal but which, through their breach of duty to her, was not produced to the Tribunal and thus not taken into account by it.  The applicant’s account of the Tribunal hearing was not particularly clear but the conclusion that I draw from the evidence that she gave was that, in fact, any discussion that she had on the day of the Tribunal hearing about the documents in question was a discussion she had with her migration agent during an adjournment of the Tribunal hearing and, thus, that the Tribunal member was not aware of the content of that conversation unless otherwise advised by the applicant or her migration agent.  It was plain from the applicant’s evidence that neither she nor her migration agent told the Tribunal of the existence of those documents or of a desire to place them before it. 

2. At the conclusion of the Tribunal hearing, as its decision records, the applicant was provided an opportunity to put further information before the Tribunal, at least in relation to the informant, Mary.  The applicant said, and I accept, that she was unable to make contact with Mary and to provide additional information concerning what she had said.  So much appears to be confirmed by the copy of the letter from the applicant’s migration agents to the Tribunal, reproduced at page 160 of the Court Book, which was exhibit A.  Although that letter refers to their inability to obtain further evidence from Mary, it says nothing about the binder of further documents which the applicant believes should have been before the Tribunal. 

3. The conclusion to which I have come in relation to this particular allegation is that, although the applicant believed that the documents should have been before the Tribunal and had a discussion about them with her migration agent, the Tribunal was never alerted to the existence of the documents and thus there was no failure on its part to consider a request by the applicant for the production of those documents, or for additional time to provide them, and thus that no breach of s.425 of the Act has been shown on that account.

4. However, the Tribunal’s decision could be vitiated if the failure to provide the documents, unbeknownst to it, was motivated by some fraudulent intent on the part of the applicant’s migration agents: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189. At the hearing of this application the applicant flagged pages from exhibit 1 which she said that she had wished to place before the Tribunal. I have looked at those documents and have not identified anything in them to suggest that the applicant’s migration agents wished to conceal those documents from the Tribunal. I am not of the view that the migration agent’s failure to produce the documents to the Tribunal was anything more than negligence, if that.

Applicant’s ability to participate at court hearing

1. Finally, one of the documents in the binder which is exhibit 1 was a psychologist’s report concerning the applicant which was produced by the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors and is dated 2 February 2014.  I have read that report but nothing in it suggests to me that the applicant suffers from a psychological condition which has inhibited her in the presentation of her case in these proceedings.  Moreover, I was impressed by her articulateness and her ability to put her views forward, albeit that she is not legally trained and that her arguments were not structured in the way which a legal practitioner would have structured them.  I do not believe there is any reason to think that the applicant was prevented from putting her case before the Court in the course of these proceedings.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  17 June 2014