FEDERAL COURT OF AUSTRALIA SZHIZ v Minister for Immigration and Citizenship [2007] FCA 1877 SZHIZ, SZHJA, SZHJB AND SZHJC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1834 OF 2007 EDMONDS J 30 NOVEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1834 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHIZ First Appellant SZHJA Second Appellant SZHJB Third Appellant SZHJC Fourth Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EDMONDS J DATE OF ORDER: 30 NOVEMBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1834 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHIZ First Appellant SZHJA Second Appellant SZHJB Third Appellant SZHJC Fourth Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EDMONDS J DATE: 30 NOVEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 This is an appeal from the Federal Magistrates Court (Nicholls FM) (SZHIZ & Ors v Minister for Immigration and Citizenship [2007] FMCA 1382) dismissing an application for judicial review of a decision of the second respondent (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellants protection visas. 2 The appellants had sought review of an earlier decision of the Tribunal and on 4 February 2005 the Federal Magistrates Court ordered, by consent, that the decision be quashed and the matter be remitted to the Tribunal to be determined according to law. It was from the second Tribunal decision that the application for judicial review came before his Honour below. BACKGROUND 3 The appellants are a husband, his wife and two sons. They are citizens of Peru. The appellants arrived in Australia on 16 October 2001. On 20 November 2001, the appellants lodged applications for protection visas with the Department of Immigration and Citizenship. On 24 January 2002 a delegate of the Minister refused to grant the appellant husband a protection visa. On 4 March 2002, the appellants applied for review of that decision to the Tribunal. THE APPELLANTS' CLAIMS 4 The appellant wife and appellant sons depend on the claims of the appellant husband (the appellant). The appellant claimed to have a well-founded fear of persecution on the basis of his belonging to a particular social group and because of his political opinion. He claimed to fear harm at the hands of the "Shining Path", a Maoist revolutionary organisation, based on his position in the company that employed him and on his ideological position within the community. He said relocation was not an option because nowhere in Peru was safe. 5 The original application for protection visas was supported by a four page type-written statement from the appellant. Prior to the first Tribunal hearing, the appellant gave the Tribunal a further statement in support of his claims which in substance restated his earlier claims and added additional points. All of the claims that were a part of his original visa application therefore also formed part of the application for review to the Tribunal. 6 The statement made to the Tribunal for the purposes of the review of the delegate's decision described how the appellant had been approached by members of the Shining Path terrorist movement in 1991. Those individuals had demanded money by way of a "revolutionary contribution" from him, which he refused to pay. He said that he had been targeted because he had a position of responsibility within the firm for which he worked. He said he was accused of being part of the "enterprise exploiting system" against the working class. 7 The appellant said that in August 1991, members of the group tried to set hishouse on fire and got away with his motor vehicle, which he reported to the police whoconducted "the appropriate investigations" and offered personal guarantees. He said that he started to receive continuous telephone threats and notes left under his door after that which went on for almost two years. He said that there was then a period of tranquility and for some years he was not harassed or threatened. He said that he reached the conclusion that as the government had brought the terrorist threat partly under control he would be left alone. 8 The next mention of claimed troubles with the Shining Path was in relation to events said to have taken place nine years later. The appellant claimed that the terrorist movement had resurged, probably due to political turmoil in Peru, and that towards the end of 2000 he received threats once again seeking money and assistance in the propagation of ideological propaganda because of his leading position at work and also because of his involvement in the trade union. He said that once again he refused to cooperate and claimed that in December 2000 he received serious threats which he reported to the authorities.­ 9 The appellant claimed that in March 2001, as he was leaving work at about 7.15 pm, he was approached by individuals who bashed him and accused him of being an enemy of the working class, of co-operating with the exploiting class and not making contributions to their cause. He said he was given parcels containing flyers and propaganda and told to distribute it amongst workers in the general public. ­ 10 The appellant further said that on 31 May 2001, while on the way to visit a relative and accompanied by his wife and younger son, they were approached by four men and two women who threw him against a wall and threatened him for not having distributed the material that he had been given and said he was going to be punished. He said that only by chance a police car came into sight and these people went away. He said the death threats continued regularly and on 15 July 2001, terrorists destroyed their motor vehicles. He said all these incidents were reported to the police and enclosed documentation to that effect. 11 The appellant claimed that becauseof his leading position in the firm, his "social sensitiveness" and his ideological position within the community, expressing an open and total rejection of the violent actions of the terrorist group, he became atargetfor Shining Path. The assertion that he was "targeted" or a "target" was repeated several times. That is, he made his position within the firm that employed him, his political profile and his openly asserted stance against the Shining Path as the reasons why he was singled out for persecution. He offered no other reason for that claimed fear of persecution, save that he later tied this to being targeted because of the sacking of workers by his employer over a 12 year period. 12 The appellant said this open and clear threat filled him with fear, that efforts by the government to solve the problem had not been "completely successful" and that these groups had been killing individuals, both civilians and public officials, in an indiscriminatory manner and that no one was safe when targeted. The appellant described discussing the situation with his wife and, in substance, said that in the absence of a guarantee of safety which could not be provided, they decided to leave. He also said relocation was not a realistic option because, in effect, nowhere in Peru was safe. 13 The second Tribunal set out in some detail the evidence given at the 2 August 2005 hearing. Of most significance in this, in light of the application for review and now this appeal, is the fact that at the Tribunal hearing the appellant said that he had nothing to do with the decision to sack some 350 workers, and that this took place over a 12 year period from 1989 to 2001, which straddled the time in which he experienced no apparent difficulties from 1992 to the end of 2000. 14 The second Tribunal also set out the substance of a post-hearing submission made on behalf of the appellant which addressed the issues of a particular social group, state protection, fear of persecution and the claimed essential or significant reason for that fear of persecution, being the targeting of the appellant by reason of the sacking of the workers. THE TRIBUNAL'S DECISION 15 The Tribunal did not accept a lot of the appellant's evidence as credible. It accepted as plausible that the appellant, as a middle manager at a factory, feared harm from the Shining Path in the early 1990s. It also accepted his evidence that he was able to avail himself of effective state protection in relation to the unrest at that period of time. However, the Tribunal did not accept that the appellant was subject to ongoing adverse interest from Shining Path between December 2000 and July 2001 primarily for the following reasons: (1) The Tribunal did not accept as plausible the appellant's claimed reasons as to why members of Shining Path would target him. (2) The Tribunal did not accept as credible that in the months immediately prior to his arrival in Australia with his family on a tourist visa that the appellant experienced a surge of threats and intimidation from Shining Path by reason of his managerial responsibilities. (3) The Tribunal considered the appellant's oral evidence in respect of his claimed encounters with Shining Path during the period December 2000 and July 2001 to be ambiguous and stilted; to be more akin to a description of criminal gang activity than activity of armed terrorists. (4) In addition, the Tribunal considered the appellant's manner of dealing with their claimed threats to be incongruent. 16 Taken together, the points outlined above led the Tribunal to reject the appellant's claim that he was targeted by Shining Path or any other group for a Convention reason in the six months prior to his arrival in Australia. Nor did the Tribunal accept that the appellant or his family faced harm from Shining Path on their return to Peru. The Tribunal accepted on the basis of the country information provided by the adviser that pockets of Shining Path continued to operate in Peru and that Shining Path continued to engage in terrorist activities. Whilst the Tribunal could not rule out the possibility that the appellant may at some future time be caught up in such activities, it considered that such an occurrence would be a random event and a remote possibility. In conclusion, the Tribunal was not satisfied that there was a real chance of the appellant being persecuted for a Convention reason on return to Peru in the reasonably foreseeable future. In the circumstances, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution under the Convention. THE FEDERAL MAGISTRATES COURT 17 The appellant applied to the Federal Magistrates Court for judicial review of the second Tribunal decision. Three grounds were put forward: 1. The Tribunal failed to carry out its statutory duty to review the decision. This was particularised in the following way: a. (i) The appellant's claims were based on his fear because of the belief by Shining Path guerrillas that he was a manager responsible for the sacking of workers. (ii) The Tribunal dismissed this claim because "… the Applicant stated that he had no particular political associations nor had he made any public statements or expressed any particular views that would give rise to him being imputed with a particular ideology" and "… he was not a director or senior manager in the company but rather a floor supervisor". (iii) In so dismissing the appellant's claims, the Tribunal failed to consider whether the belief of Shining Path guerrillas was sufficient to establish a well-founded fear of persecution. b. The Tribunal found that the threats of Shining Path guerrillas had been carried out in the past but did not go on to consider whether later similar threats would lead to a well-founded fear given the appellant's earlier experience. 2. The Tribunal applied the wrong test. a. A "balance of probability" test, which is not a proper application of the "real chance" test, in finding "… that the Applicant's description of his claimed encounters with Shining Path in the street were more akin to a description of criminal gang activity rather than activity of armed terrorists". b. The Tribunal failed to consider whether there was effective state protection from the harm which it accepted the appellant suffered. 3. The Tribunal failed to take into account relevant considerations, particularised as follows: a. The Tribunal failed to take account of the fact that the Applicants lodged their application for a protection visa a short time after their arrival in Australia. b. (i) The Tribunal dismissed the police reports provided by the appellants. "The Applicant did not seek to raise with the Tribunal these police reports and the Tribunal does not place weight on these documents in light of the Applicant's own evidence that the police are corrupt and that police reports are obtained on the payment of money". (ii) Such a finding ignores the possibility that, notwithstanding any payment, of which there was no evidence, in respect of the reports in question, the reports may still be an accurate record of events that took place. 18 It is convenient to analyse how his Honour below dealt with these grounds of review in the context of considering the grounds of appeal to this Court. THE APPEAL IN THIS COURT 19 The notice of appeal filed on 10 September 2007 raises three grounds. First, that the Tribunal failed to consider all the integers of the appellant's claims. This is particularised in terms of review ground 1(a). Second, that the Tribunal applied the wrong test. This is particularised in terms of review grounds 2(a) and 2(b). Third, that the Tribunal failed to take account of relevant considerations. This is particularised in terms of review ground 3(a). 20 Dealing with each in turn: Appeal ground 1 (review ground 1(a) 21 This ground was dealt with by his Honour at [9] to [20] of his reasons. No error is apparent in his Honour's reasoning in finding that the appellant's claim, as he put it forward, was considered, assessed and rejected by the Tribunal. 22 The only error asserted on the part of his Honouris in the appellants' submissions at paragraph 17. It is unclear what is being alleged. His Honour at [22] was addressing review ground 1(b), which is not the subject of this appeal. Neither the Tribunal nor his Honour was saying that the threats alleged to have been made in the early 1990s were not made. The point being made was that the appellant obtained effective protection in relation to those threats and there was a substantial period afterwards during which the appellant did not claim to have any fears of persecution. Appeal ground 2(a) (review ground 2(a) 23 This ground was dealt with by his Honour at [24] to [31]. Again no error is apparent in his Honour's reasoning in finding that there was no application of a balance of probabilities test rather than the appropriate real chance test. The appellant's approach relied on considering the phrase "more akin" and the paragraph in which it appeared in isolation from the rest of the Tribunal's decision, and thus out of context, in order to create, artificially, the appearance of error. As the High Court pointed out in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.3 "… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". Appeal ground 2(b) (perhaps review ground 2(b) 24 This ground was dealt with by his Honour at[32] to [35]. Again no error is apparent in his Honour's reasoning in finding that, in light of the Tribunal's clear rejection of the appellant's claims to have been required to distribute leaflets by the Shining Path, there was no circumstance requiring consideration of whether effective state protection was available. Once the claim which might have given rise to consideration of the issue of state protection was rejected, that issue became "logically irrelevant": see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 545 [85]. 25 Paragraph 19 of the appellants' submissions simply restates the unsuccessful argument advanced below. Paragraph 20 summarises the conclusion reached by his Honour, and suggests an alternative conclusion, but does not in terms allege, let alone establish, error. Appeal ground 3 (review ground 3(b) 26 This ground was dealt with by his Honour at [36] to [47]. Again no error is apparent in his Honour's reasoning in concluding that it was for the Tribunal to assess the police reports put forward by the appellant in support of his case and to decide whether or not to take them into account as sought by him ([46]). Indeed, that was the very role of the Tribunal in conducting a merits review of the delegate's decision. In truth the appellant's approach amounts to little more than a thinly disguised attempt to have this Court engage in an impermissible second round of merits review. 27 The appellants' submissions on this point at paragraphs 21 – 22 are simply wrong in suggesting that not giving weight to evidence constitutes failing to take account of it. Attribution of weight to evidence is part of the process of taking it into account. CONCLUSION 28 The appeal must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 30 November 2007 Solicitor for the Appellant: Mr R C Turner Parish Patience Counsel for the First Respondent: Mr R J Bromwich Solicitor for the First Respondent: Clayton Utz Date of Hearing: 21 November 2007 Date of Judgment: 30 November 2007