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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZDKS v Minister for Immigration [2004] FMCA 705 (29 October 2004)

SZDKS v Minister for Immigration [2004] FMCA 705 (29 October 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKS v MINISTER FOR IMMIGRATION
[2004] FMCA 705




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.36, 474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (1998) 80 FCR 543

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant:
SZDKS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1182 of 2004




Delivered on:


29 October 2004




Delivered at:


Sydney




Hearing date:


14 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr T Reilly




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in an amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1182 of 2004

SZDKS



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 3 March 2004 affirming a decision of a delegate of the Minister made on 14 August 2003 to refuse to grant the applicant a protection visa.

2. The applicant, who claims to be a citizen of Fiji, arrived in Australia on 4 July 2003. On 9 July 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act").

The history

3. The applicant is a divorced Hindu Indo-Fijian born on 20 May 1968 and was a teacher in Fiji. The applicant has a mother and various relatives in Fiji and two brothers in Australia. In his statement the applicant declared that he had completed Diplomas in Engineering & Telecommunications and had a Bachelor of Education Degree. The applicant had previously been in Australia on four separate occasions with the last three visits being made in April and December 2002 and in July 2003.

4. The applicant is seeking a protection visa based upon his fear of Moslems killing him because he is a Hindu who fell in love with a Moslem woman and later married her. The applicant claims that he faces persecution on account of his religion, that the Fijian authorities are influenced against him by the Moslems and they are unwilling to give him adequate state protection. As a Hindu it was not possible for the applicant to marry in accordance with Moslem rites and no Hindu priest would officiate.

5. At the Tribunal hearing the applicant claimed he was prepared to become a Christian if his wife would have done also in order to avoid the need to marry in either a Hindu or Moslem ceremony. Agreement could not be reached on this course so the couple was married in a civil ceremony on 2 December 1995.

6. The applicant immediately came under pressure to convert to Islam. This pressure was instigated by his sister-in-law who had already informed his wife's parents that he had agreed to convert after marriage. A daughter of the marriage was born on 27 November 1998 which, the applicant claimed, lead to increased pressure on him to become a Moslem. The applicant's in-laws stated that a Hindu could not be a husband and father to a Moslem wife and daughter. This lead to the wife moving into the parent's home and their refusal to allow the applicant to enter their home unless he agreed to convert to Islam. The applicant responded by threatening to divorce unless his wife returned to their house with their daughter. The applicant was threatened by his sister-in-law who is a secretary of the Moslem Women's Wing of the Moslem League and associated with various Moslem extremists, who, the applicant claimed, were capable of killing people.

7. The applicant's sister-in-law insisted that he sign an agreement stating that he would become a Moslem before marriage and that after the ceremony unforeseen problems had prevented him from doing so. If the applicant was prepared to sign the statement, his wife would grant him a divorce. The applicant refused to participate in this arrangement.

8. The applicant was attacked in his home by a Moslem mob on 18 April 2002. He was beaten and his personal affects and furniture were damaged during the attack. The applicant lodged a complaint with the police. He named his sister-in-law as the person responsible for initiating the attack. The police questioned both the applicant's wife and sister-in-law regarding the attack and both sides were warned by the police not to have contact while the divorce proceedings were before the Court. No further action was taken by the police.

9. The applicant visited Australia in April and May of 2002 and on his return he was publicly insulted by the wife's family. He became aware that a gang of Moslems were looking for him so he went into hiding with friends. The divorce proceedings were concluded on 15 November 2002 and he received a favourable judgment on 30 November 2002. His daughter was to be in the custody of his wife but no compensation was to be paid to his former wife. He was again assaulted by a group of Moslems on 8 December 2002 but was able to escape when a crowd was attracted by the incident. He again filed a complaint with the police but no action was taken. The applicant believes the incident was orchestrated by his sister-in-law and that she was able to exert influence to have the police investigations quashed.

10. The applicant made a second brief visit to Australia at the end of 2002 and returned to Fiji on 20 January 2003. He was again approached by his sister-in-law with a request to convert to Islam and remarry his former wife so that they could live as a family. In addition, as part of a deal, he was offered a job in the Gulf. The applicant indicated that he needed time in order to make such a decision.

11. On 23 March 2003 whilst standing near his school, the applicant was kidnapped by the same group who had previously assaulted him. He claimed he was locked up and tortured in an effort to get him to change his religion. On 30 March 2003 the applicant managed to escape and reported the incident to police. The police arrested him on an unrelated issue concerning a complaint that he had threatened the life of both his former wife and his sister-in-law. Friends of the applicant arranged bail and while on release he fled to Australia arriving on 4 July 2003. The applicant made his application for a protection visa shortly after.

The delegate of the Minister's decision and reasoning

12. The delegate of the Minister on 8 August 2003 advised the applicant that his application for a protection visa was refused as he did not meet the criteria.

13. The delegate gave the following reasons for the dismissal of the application:

a) The harm experienced by the applicant ranged from verbal threats and insults to physical assault, kidnapping and torture. The applicant described his situation as one in which he had been systematically targeted by his ex-wife's family members and others because he refused to convert to Islam. The delegate found that harm or mistreatment claimed by the applicant involved serious harm and systematic and discriminatory conduct.

b) The delegate accepted that there may have been basic religious differences that could not be resolved between the applicant and his ex-wife and her family. The delegate also accepted that there may have been some measures of assault directed towards the applicant by the members of the ex-wife's family. The absence of any evidence in relation to the claimed assault, (e.g. police reports, medical certificates, hospital reports) led the delegate to infer that the violence that had occurred was not serious. In relation to the third assault against the applicant (the kidnapping) in March 2003 that was reported to the police, the applicant's claims were that, not only did the police take no action on his behalf, but arrested him telling him they had been searching for him for having threatened the lives of his ex-wife and her sister. The applicant claimed he was released after his friends arranged bail for him.

c) The applicant did not, however, particularise any aspect of his alleged arrest. The applicant provided evidence that after his claimed arrest on 30 March 2003 and subsequent release on bail, he departed Fiji on 4 July 2003 without interference from the authorities, and without being questioned by the authorities. This is despite his claims that (false) charges were pending against him for a serious criminal matter. The delegate did not consider it likely that the Fijian authorities would permit a person who had been charged with a criminal offence to depart the country only five days after those alleged charges. The delegate acknowledged that if he was wrong in the assessment of this issue, whether false or not, this criminal matter could be dealt with by the Fijian judicial system given the right the applicant holds under the Fijian Constitution as a Fijian citizen.

For these reasons the delegate found that the applicant's fear of Convention based persecution was not well founded and led to the formal rejection of the application.

The Tribunal's decision and reasoning

14. On 14 August 2003 the applicant applied to the Tribunal for a review of the decision of the Minister's delegate. The Tribunal had before it the Departmental files which included the protection visa application and the delegate's decision record. The Tribunal also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources.

15. On 15 October 2003 the Tribunal wrote to the applicant indicating that on the material it had before it, the Tribunal was unable to make a decision in the applicant's favour and invited the applicant to attend a hearing on Tuesday, 25 November 2003 to give oral evidence and present arguments in support of his claim. That invitation was accepted and the applicant gave oral evidence on the scheduled date.

16. When giving evidence, the applicant stated that when he was approached by police on the first occasion he was advised by a Moslem officer to solve his domestic problems peacefully. The applicant also detailed another assault which occurred on 8 December 2002 and provided further evidence in relation to the details of the attack when he was kidnapped and his ultimate escape after seven days of captivity. Details of his dealings with the police were given.

17. The applicant stated that he cannot expect protection from the police because of corruption. He believed that they did not register his complaint because they were influenced by Moslems. The applicant claimed that one week before his departure from Fiji he enquired about the report of his assault and was told that no report had been filed. Since the Tribunal asked the applicant whether he was aware that there were a number of agencies in Fiji to which he could have taken his complaint against the police for further investigation. The applicant advised the Tribunal he was unaware of these agencies.

18. The findings and reasons of the Tribunal were as follows:

a) The Tribunal accepted the broad thrust of the applicant's claim that he had had an ongoing dispute with his former wife's family over his refusal to convert to Islam and that he had been subjected to acts of harassment on three occasions which included both some physical and verbal violence and on one occasion the destruction of his property by a group of Moslems associated with his former wife's sister.

b) The Tribunal accepted that the applicant was attacked and his property damaged on 18 April 2002, 8 December 2002 and was kidnapped and held hostage for seven days commencing on 23 March 2003.

c) However, the Tribunal did not accept that these events caused the applicant to have a subjective fear of persecution causing him to flee to Australia.

The application for review of the Tribunal's decision

19. An application for a review of the Tribunal's decision under s.39B of the Judiciary Act 1903 was filed on 21 April 2004. An amended application was filed on 24 September 2004 and contained the following grounds:

1. The Tribunal failed to identify the critical issue of conversion apostasy. The Tribunal did not take into consideration the fact that the applicant was a man of Hindu faith who had fallen (sic) love with a Moslem girl and married her not according to Moslem rites. There was therefore insufficient appreciation of a subjective fear of persecution for a Convention reason.

2. At the hearing the applicant was denied the opportunity to explain why it was that the Applicant believed that the harm arose as a result of his membership of a particular race and religion. And a full appreciation of cross cultural religious sensitivities and values. This denial of opportunity was a failure to provide natural justice. The Tribunal only focussed on a "Convention" based reason - which is an alien concept to the Applicant.

3. The Tribunal failed to give sufficient importance to conversion and apostasy the (sic) but instead took into account irrelevant matters when making a decision.


Particulars:
4. The Tribunal used critical adverse information obtained after the delegate's decision which was neither provided to the Applicant before the hearing nor put to the applicant during the hearing - MUIN.

5. The Tribunal misapplied the test or alternatively misinformed the Applicant about the test.

6. The Tribunal member's reasoning of the kind that could be labelled irrational or so illogical as to indicate a failure to perform the review function at all. See: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicant S20/2002 [2003] HCA 30.

7. The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, and, therefore the Tribunal failed to exercise its jurisdiction.

8. The RRT erred in failing to consider all claims and issues put forward by the applicant.

The law

20. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

21. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

22. The applicant did not file written submissions prior to the hearing. The applicant appeared at the hearing with the assistance of a Hindi interpreter however declined the invitation to make any further oral submissions in support of his case.

23. The respondent was represented by Mr T Reilly of Counsel who filed written submissions on 14 October 2004. The main issues raised in those submissions were:

* While the Tribunal accepted the Applicant's claims to have experienced some harassment in 2002, it noted that the Applicant had not sought protection despite visiting Australia twice during this period, and found that he did not have a genuine fear of persecution on account of these events: RD 83.4. The Tribunal did not accept the Applicant's claims to have been kidnapped in 2003, noting their implausibility in several respects: RD 83.6-84.4. Nor did the Tribunal accept that the Applicant cannot receive state protection in Fiji, noting the absence of any evidence to support his claims that the police support Moslems against Hindus. The Tribunal noted that the Applicant had not sought to pursue options available to him to access protection: RD 84-85.

* It is apparent that the Applicant was unsuccessful because of the view the Tribunal took of the facts, both in its rejection of some of the Applicant's claims and its conclusion that he could access effective protection in Fiji. The Tribunal's conclusions were open for the reasons it gives, including the country information it cites. It is unlikely that a State party is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality: Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J. As in MIMA v Respondents S152/2003 (2004) 205 ALR 487 at [29], the Tribunal's conclusions must be understood as a finding that the country information did not justify a conclusion that the Fijian government would not or could not provide citizens in the position of the Applicant with a level of protection that they were entitled to expect according to international standards.

* The Application does not properly particularise any error in the Tribunal's decision, and appears to seek merits review. However the Court cannot review the merits of the Tribunal's decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. An unparticularised allegation of denial of natural justice is made, but such ground is not available as s422B of the Migration Act 1958 (the Act) applies to this case.

Conclusion

24. The applicant in these proceedings was representing himself with the assistance of a Hindi interpreter but made no oral or written submissions in support of his application. The amended application was vague and unparticularised and appears to have been copied from some other precedent which is unrelated to the matter currently before this Court. Under ground 3 there is a subheading for `Particulars' but no particulars were contained in the amended application.

25. Where an applicant is self represented I must consider whether any arguable case based on the available material could be made out: Yo Han Chung v University of Sydney & Ors. In order to make that assessment I will consider each of the grounds set out in the application.

26. The first of these grounds was that the Tribunal failed to identify the critical issues of conversion and apostasy. The applicant claimed that he was under pressure to abandon the principles of his religious faith and beliefs because as a Hindu he had married a Moslem girl outside of the Moslem rites and consequently was being placed under pressure by her parents and relatives to convert to their faith.

27. The Tribunal in its findings and reasons accepted the applicant's claim that he had an ongoing dispute with his former wife's family over his refusal to convert to Islam and that on a number of occasions he had been subjected to both physical and verbal violence. However, the Tribunal found that there was an inconsistency in the applicant's claim that he had visited Australia on two occasions but had not sought any protection during these visits. On both occasions the applicant returned to Fiji.

28. Although the applicant complained to the local police who he claimed took no action, the applicant failed to pursue the matter with higher authorities. While the Tribunal acknowledged that it had seen claims of bias in the Fijian Police Force against Indo-Fijians, it had seen no reference in country reports which suggested they were partial to supporting Moslems against Hindus as claimed by the applicant. Even in sensitive cases such as marriage break down.

29. The Tribunal referred to the material it had before it in the International Religious Freedom Report of 2003 released by the Bureau of Democracy, Human Rights and Labour, which detailed the religious composition of the Fijian population and the interaction between each of those groups.

30. In the second ground the applicant claimed he was denied the opportunity to explain why it was that he believed that the harm arose as a result of his membership of a particular race and religion. The applicant gave oral evidence to the Tribunal on 25 November 2003. Neither the sound recording nor the transcript of the Tribunal hearing were tendered as evidence to this Court. It is noted that the applicant did participate in the RRT Legal Advice Scheme (NSW) and under that Scheme, as well as on the information sheets supplied to the applicant by the Court Registry at the time of the first hearing date, reference is made to the tapes of the Tribunal hearing. Despite this there were no tapes tendered at the hearing to support the contention that the Tribunal had denied the applicant the opportunity to present his material.

31. The Tribunal decision contained a reference to issues that were discussed with the applicant during the hearing on 25 November 2003 when he gave oral evidence. Much of the evidence that is contained in the decision is directly focussed on the circumstances of his religion, his marriage and his dispute with the wife's family concerning the religious differences between the parties. The applicant claims that because there was a lack of emphasis on the religious sensitivity and values between the parties that he had been denied natural justice and that the Tribunal only focussed on Convention based reasons.

32. The powers of the delegate of the Minister and the Tribunal are contained in the Act. The criteria for the issuing of a protection visa is set out in s.36 of the Act and in particular the relevant subsections are:

(2) A criteria for a protection visa is that the applicant for a visa is:

(a) a non citizen in Australia to whom the Minister is satisfied Australia has a protection obligation under the Refugees Convention as amended by the Refugee Protocol;

(3) Australia is taken not to have protection obligations to a non citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporary or permanently and however that might arose or is expected, any country apart from Australia, including countries of which the non citizen is a national.

(4) However, if a non citizen has a well found fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, 36(3) does not apply in relation to that country.

As the decision to grant a protection visa is subject to Convention based reasons all evaluation must be carried out within the framework. The statutory framework is set out by the Full Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) at [44].

33. The applicant claimed under Ground 3 that the Tribunal failed to give sufficient importance to conversion apostasy. In the Tribunal decision under Findings and Reasons, the Tribunal accepted all of the applicant's claims in relation to the ongoing dispute with his former wife's family over his refusal to convert to Islam. What the Tribunal could not accept was the applicant's failure to seek protection during his two visits to Australia prior to his final trip when he sought a protection visa. This failure to seek protection whilst in Australia during these trips and the applicant's inconsistent details of his kidnapping upon his return to Fiji in the view of the Tribunal lacked credibility. There was no further attempt to particularise his claim and although there is a heading inserted in the grounds, it remains blank.

34. The claim in Ground 4 that the Tribunal used critical adverse information obtained after the delegate's decision which was neither provided to the applicant before the hearing or put to the applicant during the hearing, is not identified or particularised. The Tribunal's decision makes reference to Country Information Report No. 273/02 dated 14 August 2002 and details the options open to a Indo-Fijian citizen who may wish to make a complaint against a police officer where an officer has behaved inappropriately. This was put to the applicant who indicated that he was unaware of his rights to take this action. This could not be interpreted as being adverse to the applicant. The other Report referred to in the Tribunal's decision is the International Religious Freedom Report of 2003 which gives the breakdown of the percentages of the various religious groups within Fiji. There is no decision drawn from that material that could be categorised as being adverse to the applicant.

35. In the absence of any particularisation in the context of which the reference to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal ("Muin") is made, I have to assume that the applicant is referring to the statement made by Kirby J at [192] where His Honour set out the main issues that the Court had to consider in the Muin case. I assume, in particular, the applicant is referring to the issue of procedural fairness - adverse material issue where His Honour stated:

(3) Whether, in relying upon new material adverse to the plaintiff relating to the country situation in Indonesia, without first disclosing those materials for rebutting evidence and submissions, the Tribunal was, in Mr Muin's case, in breach of the rules of natural justice (procedural fairness on that ground).

36. In the Tribunal's findings and reasons they refer to a DFAT Report No. 273/02 which outlines the avenues available to Fijian citizens to make complaints against police officers. That information was put to the applicant during the interview with the Tribunal where he stated that he was unaware of his rights to approach the various organisations that could handle the complaint against police officers. The Tribunal made reference to the decision of Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah. The only other Report referred to in the decision was that relating to the religious composition of the population of Fiji. The procedures adopted by the Tribunal in relation to these Reports do not fall within the ambit of procedures that occurred within Muin.

37. The applicant's claim in Ground 6 was that the Tribunal member's reasoning was irrational and illogical. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 His Honour Gleeson CJ stated at [5]:

"As was pointed out in Minister for Immigration v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence."

His Honour further found at [9] that it was necessary for the applicant to "identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged". See also the joint reasons of McHugh and Gummow JJ at [34]-[36].

In the present case the applicant did not disclose in his application any particulars supporting this ground. The Tribunal member's reasoning has not been shown to have been irrational or illogical as the applicant contends and does not indicate a failure by the member to perform the review function.

38. Grounds 7 and 8 of the applicant asserted that the Tribunal failed to consider all the materials before it and did not provided adequate reasons. There is no particularisation or identification by the applicant as to material provided to the Tribunal but not considered or placed within their Report. The reasons that the Tribunal declined to find in the applicant's favour was due to his lack of credit on a number of issues. There is no evidence or submissions made which would suggest that material exists or was available that would have influenced the Tribunal in its assessment of credit. The decision was not predicated on a single incident but as a result of the view formed on a range of issues that the applicant had placed in his original application and supporting material and the responses given during the interview before the Tribunal. Both of these grounds are unsupported by evidence and cannot be sustained.

39. No jurisdictional error has been disclosed. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. The decision clearly relates to the subject matter of the Act and relates to the powers conferred on the Tribunal. I find that the decision of the Tribunal is a privative clause having regard to the decision of the High Court S157/2002. In the circumstances, I dismiss the application.

40. I am satisfied that an order for costs should be made in the circumstances of this matter. I order the applicant pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 29 October 2004
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