Sutera v MIMA [1998] FCA 575

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - judicial review of decision of Refugee Review Tribunal - objection to competency - whether application showed any reasonable cause of action arising under the grounds of review in the Migration Act Migration Act 1958 s 476(1) Francesco Sutera v Minister for Immigration and Multicultural Affairs QG 180 of 1997 Kiefel J Brisbane 27 May 1998

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 180 of 1997

ON APPEAL FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

BETWEEN: FRANCESCO SUTERA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): KIEFEL J

DATE OF ORDER: 27 MAY 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The applicant's application filed on 18 November 1997 be dismissed. 2. The applicant pay the respondent's costs of the application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 180 of 1997

ON APPEAL FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

BETWEEN: FRANCESCO SUTERA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): KIEFEL J

DATE: 27 MAY 1998

PLACE: BRISBANE

REASONS FOR JUDGMENT On 27 May 1998 I heard the Minister's Notice of Objection to Competency with respect to Mr Sutera's application filed on 18 November 1997 and ordered that Mr Sutera's application be dismissed with costs. I advised the parties that I would provide short written reasons for those decisions. Mr Sutera sought review of the decision of the Refugee Review Tribunal of 20 June 1997 which affirmed the primary decision not to grant a protection visa to him. The Tribunal determined that Mr Sutera did not have the status of a refugee to whom obligations under the relevant Convention were owed. Mr Sutera is a citizen of Italy, holding a passport of that country. He arrived in Australia in April 1997 on a short stay visa and applied shortly thereafter for a protection visa. He had spent some years prior to coming to Australia living and working in Germany. In the application form Mr Sutera stated that he left Germany and did not want to go back because "if I remain in Europe, I feel like I'm a dead man". In response to the following question in the form "What do you fear may happen to you if you go back to that country?" Mr Sutera replied "I don't like Europe, I just don't want to go back". He stated that he did not however think anyone would harm or mistreat him. Before the Refugee Review Tribunal he made mention of problems with employment in Germany, to which country however he wished to return if he was unsuccessful in his application to stay in Australia. He apparently had no relatives or friends in Italy and made no claims about that country at that time. He made reference to having problems with "electricity" and the transcript of that hearing reveals that it was to do with some electronic probing machinery and that this may have been connected with an injury caused to his left hand. The possibility that what Mr Sutera spoke of was connected with shock treatment was adverted to by the Tribunal but not clarified. I should add here reference to two matters. I have referred to the transcript of the hearing before the Tribunal, as does the respondent in its material, because it was thought that Mr Sutera was alleging that he was not fairly treated in proceedings before the Tribunal. I deal with this at the conclusion of these reasons. The second matter relates to his language difficulties. Mr Sutera speaks some English and understands it perhaps rather better. His difficulty with expression however indicated to me the need to have an interpreter present in Court. Even so, I concede some difficulty to following what he was attempting to put forward. This was not entirely based upon his difficulty with language. Mr Sutera had greater difficulty with writing and reading English. Since the filing of his application in this Court steps have been taken to ensure his understanding of the contents of orders. He was also permitted to file an affidavit in the Italian language, which was then translated, although it appears that the translator had difficulty with it. The application by Mr Sutera to this Court provides, as grounds for it, that he believes there was discrimination against him personally. It does not appear that this relates to the proceedings before the Tribunal but rather to the fact that he was permitted to remain in Australia. The application discloses no ground for review as referred to in s 476(1) Migration Act 1958. Mr Belcher, who appeared for the respondent, accepted that an incompetent application might be cured by amendment of its grounds, but submitted that there was nothing in the material or arising from the submissions made by Mr Sutera which disclosed a permitted ground of review. The affidavit filed, and translated as far as possible, and in particular in the paragraphs entitled 36 to 39, did not make clear what Mr Sutera sought to rely upon as relevant to his status as a refugee. My enquiries of him were to no avail. Although there is reference to "heavy tortures" and also to death, these references were not connected with specific events. Aided by the context of his original application, it seems to me that the notions of death of which he speaks were references to some feelings he has about remaining in Europe, but it cannot be put much higher. In discussion before me Mr Sutera referred to the actions of the Italian Consulate or Embassy in Germany which were, he seemed to say, connected with his institutionalisation for psychiatric treatment, and it may be that at this time he received electric shock therapy. That is the only allegation made against any country. It does not seem to add anything to the matters which were before the Refugee Review Tribunal, if it were the case that he had been unable to explain his position to him. There is also a reference to Mr Sutera's religion. This is not put in such a way that it could be ascribed to conduct against him by a country. Drawing as much as one possibly can from the information provided by Mr Sutera, Mr Sutera has not shown that he is a person to whom Australia's obligations of protection under the Convention relating to the Status of Refugees and the Refugees Protocol extend, and that he is a refugee as defined by Article 1A(2) of the Convention as amended. I can detect no error of law in the Tribunal's reasons and no ground for review of it. Section 476 Migration Act 1958 also provides that actual bias on the part of a decision maker may be relied upon as a ground for review. I do not think that Mr Sutera's complaints go anywhere near such an allegation. At best I can understand, he appears to have thought that a member of the Tribunal had some adverse view about German people. Even in the way it was referred to by Mr Sutera it could not amount to actual bias. In any event review of the transcript did not disclose any indication of such an attitude. What it did show was the conduct of a polite and fair hearing. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel