SZNWW v Minister for Immigration & Anor [2009] FMCA 1199 (14 December 2009)

Last Updated: 10 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1199

MIGRATION – Visa – Protection (Class XA) visa – citizen of Ghana claiming fear of persecution on the basis of his Abudu ethnicity and his political opinion – effective protection – relocation – credibility – merits review – no jurisdictional error. PRACTICE & PROCEDURE – Affidavit filed without leave after hearing concluded.

Migration Act 1958 (Cth), ss.36, 189, 424A, 425, 425A, 474, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; [1996] HCA 6 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant:

SZNWW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2202 of 2009

Judgment of:

Scarlett FM

Hearing date:

10 November 2009

Date of Last Submission:

10 November 2009

Delivered at:

Sydney

Delivered on:

14 December 2009

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG2202 of 2009

SZNWW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by a citizen of Ghana for review of a decision of the Refugee Review Tribunal made on 7th September 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant him a Protection (Class XA) visa.
2. The applicant has not specified what relief he seeks, but presumably he seeks orders in the way of certiorari and mandamus.

Background

3. The applicant arrived in Australia on 3rd April 2009 on a Business (Short Stay) visa. When he was interviewed at Sydney Airport on the day he arrived his visa was cancelled and he was refused immigration clearance. He was detained under s.189 of the Migration Act and taken to the Immigration Detention Centre at Villawood, New South Wales. The Department’s file note shows the following reasons for visa cancellation:
   • You have admitted at interview that you do not intend to come to Australia to attend the training for which you were granted your short stay business visa s/c 456. You were granted this visa in Nairobi to enable you to learn new farming methods to strengthen your community’s agricultural techniques in Ghana.
   • You have admitted at interview that you planned to use this visa to enter Australia to seek asylum.
   • Therefore I do not consider that you have an intention only to stay in, or visit, Australia temporarily for business purposes.[1]
4. The applicant applied for a Protection (Class XA) visa on 23rd April 2009, with the assistance of a migration agent. In a statement accompanying his application, the applicant claimed to be an Abudu by ethnicity, one of the two dominant ethnic groups in the part of Ghana where he lived. He claimed to have been a supporter of the New Patriotic Party, known as the NPP, although he was never a member. He stated that the other ethnic group, the Andani, support another political party, the National Democratic Congress, or NDC.
5. The applicant stated that he travelled to various places prior to the December 2008 elections, encouraging people to vote for the NPP. As a result, he attracted adverse attention from supporters of the other party, the NDC:
   • About a month before the December 2008 elections I was never actually the victim of any political or ethnic violence; however, I heard through people who had contacts within the NDC/Andani that they were planning to kill me. I was a target because I was a prominent member of the Abudu and the Andani knew that people listened to me.[2]
6. The applicant claimed that on 18th February 2009 NDC members and the Andani “unleashed a wave of violence” in his village, as I result of which he fled his village. His wife and children fled to Togo. Through a friend the applicant obtained a visa to travel to Australia and left Ghana. He claimed:
   • I fear that if I am returned to Ghana that the authorities and NDC supporters will seriously harm me because of my enduring support from the NPP.
   • I also fear that members of the Andani ethnic group will seriously harm me because of my status as an ethnic Abudu. The conflict between the Andani and the Abudu is a central reason for my fear of returning to Ghana.[3]
7. The applicant also claimed that in the violence on 18th February 2009 the NDC supporters burned his home and his Benz bus.
8. The applicant attended an interview with a delegate of the Minister on 15th May 2009. He was provided with the assistance of a Twi interpreter.
9. The applicant provided a number of documents to the Department in support of his claims. On 22nd May 2009 his migration agent forwarded an extract from the most recent US State Department Human Rights Report on Ghana to the Department. The Migration agent submitted that:
   • This information suggests that the authorities in Ghana are under-resourced, corrupt and inept. We submit that this information supports a conclusion that if the applicant were to return to Ghana he would not be able to access effective protection. [4]
10. The Minister’s delegate refused the application for a protection visa on 29th May 2009. The delegate accepted that the applicant was a supporter of the New Patriotic Party and that he assisted during the election campaign and may have been identified as an NPP supporter. The delegate also found plausible his claim to have been targeted by members of the NDP.
11. However, the delegate found that the harm feared by the applicant was private harm and that the government in Ghana was not behind politically and ethnically motivated attacks. The delegate stated:
    • The critical issue here is whether the applicant can avail himself of the effective protection of the authorities in his country of nationality. The applicant’s fear of persecution is well founded if the State is unable to provide adequate protection in the circumstances.[5]
12. The delegate referred to the Report from the United States Department of State submitted on the applicant’s behalf and found:
    • Whilst the report above does not portray a very flattering picture of the police in Ghana, neither does it suggest that the police in Ghana is totally unable to offer effective protection. Whilst there may be inadequacies in the provision of police services, the capability to offer effective protection is not totally held back. The existence of a functioning judiciary and an operational security and law enforcement institutions are sufficient to conclude that effective protection is available in Ghana.[6]
13. The delegate also considered that it would be open to the applicant to relocate within Ghana to avoid the persecution which he claimed. As effective protection was available to the applicant in his locality or through relocation within Ghana, the delegate found that the applicant’s fear of persecution was without basis and refused the grant of a protection visa.

Application to the Refugee Review Tribunal

14. The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 1st June 2009. He nominated his migration agent to act for him.
15. On 3rd June 2009, the Tribunal wrote to the applicant, care of his migration agent, inviting him to attend a hearing on 14th July. The hearing was rescheduled to 31st July. The applicant provided various documents to the Tribunal, being material downloaded from the Internet. He also provided some photographs.
16. On 21st July 2009 the applicant’s migration agent forwarded a four page written submission to the Tribunal.[7] The following day he forwarded to the Tribunal copies of 11 articles from the media and two letters of support for his client.[8]
17. The applicant attended the hearing on 31st July 2009. He gave evidence at the hearing, which was adjourned to 6th August 2009. He attended that hearing and gave further evidence with the assistance of a Twi interpreter.
18. After the hearing, on 7th August 2009, the Tribunal wrote to the applicant inviting him to comment on or respond to certain information by 14th August. The letter appears to have been written to comply with the provisions of s.424A of the Migration Act.
19. The applicant replied to that letter by means of a three page letter dated 12th August 2009. The following day, the applicant’s migration agent wrote to the Tribunal by fax to advise;
    • We are writing to advise the Tribunal that due to our client being very ill we have been unable to interview him to prepare a response. We request an additional 14 days to provide the Tribunal with our client’s response.[9]
20. On 17th August 2009 the Tribunal wrote to the applicant’s migration agent by fax, advising that the Tribunal had granted an extension of time until 31st August 2009 to reply to the Tribunal’s s.424A letter. The applicant wrote directly to the Tribunal by fax dated 17th August 2009, advising that he did not ask his migration agent to seek an extension of time and did not require one, as he had already sent his response.
21. On 19th August 2009 the applicant faxed to the Tribunal a “Change of Contact Details” form, advising that his address for correspondence would henceforth be himself at the Immigration Detention Centre at Villawood. The following day he sent a typed letter to the Tribunal complaining about his migration agent and advising that he had complained to the Immigration Ombudsman.

The Refugee Review Tribunal decision

22. The Tribunal made its decision on 7th September 2009, affirming the decision not to grant the applicant a Protection (Class XA) visa.
23. In the decision, the Tribunal considered;
    1. The applicant’s claims made with his application for a protection visa;
    2. The documents submitted by the applicant to the delegate;
    100. The documents submitted by the applicant to the Tribunal on 14th July 2009;
    4. The submission from the applicant’s adviser made on 22nd July 2009 and the documents provided in support;
    5. The applicant’s evidence to the Tribunal at the hearings on 31st July and 6th August 2009;
    6. The Tribunal’s s.424A letter to the applicant written on 7th August 2009;
    7. The applicant’s response to the s.424A letter dated 12th August 2009;
    8. The various items of correspondence between the Tribunal, the applicant’s migration adviser and the applicant after the hearing; and
    9. Various items of Independent country information, including;
       1. A report from the Commonwealth Observers Group about the Ghana Parliamentary and Presidential elections
          7 December 2008;
       2. An article from The Daily Guide dated 19 February 2009, provided by the applicant;[10]
       3. An article dated 7 May 2009 in The Daily Searchlight;[11]
       4. An article in The Daily Guide posted on the Modern Ghana website;[12] and
       5. An article headed ‘Houses burnt in renewed violence in Tamale’.[13]
24. In its Findings and Reasons, the Tribunal accepted that the applicant was a citizen of Ghana. It accepted that the applicant was an Abudu, and of the Islamic faith. It also accepted that there had been ongoing conflict in Ghana between the NPP and the NDD.
25. The Tribunal noted the delegate’s findings, but warned the applicant that it was not bound by those findings:
    • The Tribunal informed the applicant that even though the delegate had accepted the applicant’s claims, the Tribunal is not bound by what the delegate found and that it was the Tribunal’s responsibility to discuss with the applicant and come to its own conclusions regarding those claims. The applicant indicated that he understood.[14]
26. The Tribunal found that the applicant was not credible on some key aspects of his claims and was therefore not satisfied that he had left Ghana because of a fear of persecution. It set out a number of reasons why it did not accept the truthfulness of his claims.
27. The Tribunal was not satisfied that:
    • The applicant was living in Tamale
    • That he was an NPP supporter and campaigner
    • That he was forced to flee Ghana
    • That his wife, brothers and children fled to Togo
    • That the photographs of damaged vehicles and property provided by the applicant depicted any vehicle or property belonging to the applicant.[15]
28. The Tribunal gave no weight to statements in a letter from the “Hajj Black Panther Enterprise” which purported to corroborate the applicant’s claims, saying:
    • In light of the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that the statements in this document are true.[16]
29. The Tribunal went on to find:
    • Because the Tribunal does not accept that the applicant was a prominent Abudu and NPP supporter/campaigner, it does not accept that the applicant was or will be targeted because of his ethnicity, his religion or his political opinion. The Tribunal is not satisfied that the applicant left Ghana because of a fear of persecution for any Convention reason.[17]
30. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and did not therefore satisfy the criterion set out in s.36(2)(a) of the Migration Act for a protection visa.

Application for Judicial Review

31. The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 10th September 2009. He filed a written outline of submissions on 9th October 2009, annexing a number of documents by way of further evidence. These documents are inadmissible in evidence, not having been submitted to the Refugee Review Tribunal and appearing to relate to a claim for review of the merits of the applicant’s refugee claim.
32. The applicant filed an affidavit on 23rd October 2009, annexing a statement about the factual matters relating to his refugee claim and some further documents by way of evidence. These documents are also inadmissible for the reasons given above.
33. The applicant attended the hearing on 10th November 2009 and made oral submissions in support of his case.
34. On 30th November 2009 the applicant forwarded a further affidavit to the Court in support of his claims. As this document was forwarded without leave and after the matter had been heard it has been disregarded.
35. The applicant’s application filed on 10th September 2009 does not set out any orders sought or any grounds of review. For orders sought, the application merely states:
    • RRT refusal for protection visa application.
36. In the space in his application for the grounds of review, the applicant has written;
    • My application was refused by RRT.
37. The application will be taken to seek appropriate relief and to claim some form of jurisdictional error on the part of the Tribunal.
38. The applicant’s affidavit filed on 23rd October 2009 contains a submission in which the applicant states:
    • I am appealing to the Minister to grant me a permanent residence visa on humanitarian grounds.
39. The affidavit goes on to say;
    • I wish the Minister will consider my application and grant me to stay in Australia.
40. The Court has no power to grant a visa on humanitarian grounds and has no power to require the Minister to do so.
41. The balance of the applicant’s written submission related to factual matters concerning his refugee claims. The applicant made oral submissions to the Court that went directly to the merits of his refugee claims. He made no reference to any jurisdictional error.
42. In his oral submissions the applicant reiterated his factual claims for protection and complained about his former lawyer or migration agent.

The first respondent’s submissions

43. Counsel for the first respondent, the Minister for Immigration and Citizenship, submitted that:
    1. The applicant’s documents did not seek to identify any error on the part of the Tribunal but rather seek to advance further evidence which was not before the Tribunal in support of the merit of his claims;
    2. The applicant has not in any of his documents either asserted or identified any error on the part of the Tribunal but has sought merely to cavil with the merits of the Tribunal decision;
    100. No error is apparent on the face of the materials before the Court;
    4. The Tribunal formed an adverse view as to the applicant’s credibility, as it was entitled to do; and
    5. The Tribunal complied with its obligations by identifying its concerns and the information upon which it relied to the applicant and gave him an opportunity to respond.
44. Counsel for the Minister, Mr Reynolds, told the Court that the applicant’s allegations about his former lawyer were not supported by any evidence and did not cross the high threshold required to show that the Tribunal’s decision had been vitiated by fraud. In any event, negligent conduct on the part of the applicant’s lawyer or migration agent, if such there was, would not lead to any finding of jurisdictional error.
45. He submitted that the Tribunal decision turned on the issue of credibility and the Tribunal had not made any jurisdictional error. Thus, he submitted, the application for review should be dismissed.

Conclusions

46. The applicant has not identified any jurisdictional error on the part of the Tribunal and has relied on an attempt to obtain a reconsideration of the merits of the factual aspects of his refugee claims. It is well established that a Court conducting judicial review does not undertake merits review of the applicant’s factual claims (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[18] at [24]). In Wu Shan Liang, Kirby J said at [24];
    • Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.
47. It is clear that this decision turned on the question of the applicant’s credibility, which is a matter for the decision-maker, not the Court. The Tribunal’s finding as to the applicant’s credibility was essentially a finding as to whether the applicant should be believed in his claim, which is the function of the primary decision-maker (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[19] per McHugh J at [67]).
48. There was evidence upon which it was open to the Tribunal to make such a finding, which is, after all, a finding of fact. The Tribunal set out its reasons for making its adverse credibility finding at paragraph [78] of its decision.[20]
49. There is no error in the way the Tribunal made its findings about the applicant’s credibility.
50. Noting that the applicant was not legally represented at the hearing, the Court has independently considered whether there is any arguable case of jurisdictional error.
51. The Tribunal wrote to the applicant under the provisions of s.424A of the Migration Act on 7th August 2009. It put certain matters to him for his comment or response and asked him to reply in writing by 14th August 2009. The applicant submitted his own written reply on 12th August 2009.
52. Nevertheless, the Tribunal acceded to the applicant’s migration agent’s request to extend the time for making comments or response, and extended the time for doing so until 31st August 2009.[21] However, the applicant specifically told the Tribunal in a fax on the 17th
    August 2009 that he had not asked for the extension of time and did not want it, because he had already made his own response.[22]
53. The Tribunal considered the applicant’s response to its s.424A letter in its decision.[23] The Tribunal did not make an error by doing what the applicant asked it to do. There is no breach of s.424A of the migration Act.
54. There was no breach of s.425 of the Act. The Tribunal invited the applicant to a hearing, and in fact held the hearing over two days, 31st July and 6th August 2009. It provided the applicant with an interpreter in the Twi language. He made no complaint about the quality of the interpreting. The hearing invitations complied with the provisions of s.425A of the Act.
55. At the hearing on the 31st July the Tribunal warned the applicant that it was not bound by what the delegate had accepted at the interview on 15th May 2009 and it would come to its own conclusions about his claims. The Tribunal noted that the applicant said that he understood.[24]
56. In my view the applicant was made fully aware at the start of the hearing that everything was in issue and was given an opportunity to provide evidence and make submissions. There is no breach of s.425 of the Act in the way referred to by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[25] at [35], or at all.
57. There is no jurisdictional error. The Tribunal decision is a privative clause decision and, as such, is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)).
58. It follows that the application will be dismissed. The Court will consider any application for costs.

I certify that the preceding 58Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-eightfifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A.L. Coutman

Date: 14 December 2009

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[1] See Court Book at pages 130-131
[2] Court Book at 199
[3] Court Book at 201
[4] Court Book 240
[5] Court Book at 259
[6] Court Book 260
[7] Court Book 328-331
[8] Court Book 332
[9] Court Book 398
[10] Court Book 451 at paragraph [68]
[11] Court Book 452 at [69]
[12] Court Book 453 at [70]
[13] Court Book 454 at [71]
[14] Court Book 455 at [77]
[15] Court Book 457 at [79]
[16] ibid
[17] Court Book 457-458 at [79]
[18] (1996) 185 CLR 259; [1996] HCA 6
[19] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
[20] Court book 456-457
[21] Court Book 408
[22] Court Book 409
[23] Court Book 448-449 at [63]
[24] Court Book 440 at [30]
[25] [2006] HCA 63; (2006) 228 CLR 152; [2006] HCA 63