AZAAZ v Minister for Immigration - [2010] FMCA 832

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZAAZ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 832

MIGRATION – Judicial review of Refugee Review Tribunal decision affirming decision not to grant the applicant a protection visa – applicant’s failure to attend at Tribunal hearing – application refused.

Migration Act 1958 (Cth), ss.441C, 474, 476 & 494C

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 47
Tay v Minister for Immigration & Citizenship [2010] FCAFC 23

Applicant:

AZAAZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 132 of 2010

Judgment of:

Lindsay FM

Hearing date:

5 October 2010

Date of Last Submission:

5 October 2010

Delivered at:

Adelaide

Delivered on:

5 October 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr d’Assumpcao

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application for Review filed on 31 May 2010 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to these proceedings fixed in the sum of FIVE THOUSAND DOLLARS [$5,000.00].

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 132 of 2010

AZAAZ

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act, which seeks orders in relation to a decision of the Refugee Review Tribunal of 3 May 2010. The decision is a privative clause decision in terms of s.474 of the Act, and so I would only be setting aside the decision of the Tribunal if I were satisfied that the decision had been made in excess of, or for want of, jurisdiction or, in other words, if I were satisfied that the Tribunal had fallen into jurisdictional error as that concept has been explained in many High Court cases, but perhaps never as clearly in migration cases as in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 47.
The Tribunal’s decision was to refuse the applicant’s review of a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a citizen of Indonesia who arrived in Australia in November 2009.
The applicant did not participate in the delegate’s decision-making process and did not respond to the opportunity that was provided to him to give oral evidence and present arguments before the Tribunal. An invitation to attend such a hearing was extended on 29 March 2010 for a hearing on 3 May 2010.
The applicant did not respond to that. We know from a document, which appears at page 56 of the Court book, that the applicant says that he did not attend the hearing – the applicant wrote to the Tribunal, indicating that he did not attend the hearing on 3 May because he did not receive the notification until 11 May from the post office. I am satisfied that the notification was sent to the applicant at the address given by him in his application, and I am also satisfied that the document, having been sent by registered post and to that address, was sent in compliance with s.441C of the Migration Act.
The applicant, in response to a question I put to him this morning, in which I asked him – this was before my attention had been drawn by Mr d’Assumpcao for the Minister to the letter of 14 May – I asked him why he had not attended the Tribunal hearing and he said it was because he was ill, and then when I subsequently pointed out to him the discrepancy between that explanation and the explanation of 14 May, he simply persisted in maintaining that he was ill and did not really offer me a way of understanding the apparent inconsistency between the two reasons given for the non-attendance before the Tribunal, or the non-acceptance of the invitation to give evidence and to make submissions, and there is no part of the application he has filed in this Court, that seeks an order that deal with the way in which the Tribunal dispatched the invitation to him, or the way in which he came not to attend the hearing in response to the invitation.
In those circumstances, no issue arises as to the service of the letter from the Tribunal or matters relating to the non-attendance. The matter has not reached the stage of the applicant putting before me or seeking an opportunity to rebut the provisions of s.441C, which essentially says that if the invitation is provided in a certain way, it is taken to have been received by the person.
But I am satisfied, on account of the observations made by the Full Court of the Federal Court of Australia in Tay v Minister for Immigration & Citizenship [2010] FCAFC 23, in relation to analogous provisions relating to the receipt of documents from the Minister in s.494C, that the section, in any event, does not create a rebuttable presumption in any event. But, as I say, we are very far from those issues being raised in any kind of way, either in the application or orally before me today.
The applicant also failed to file any written outline of submission – filing the outline of submission pursuant to the order Registrar Christie made at the directions hearing that he attended with his interpreter in July of this year. He is someone who, from the date of filing of his application for a protection visa, has been content to rely upon the material set out in that original application. It has not undergone any augmentation or any fine-turning since it first appeared, when he gave his answers to the pro forma questions in the document he filed in support of his application for a protection visa.
More than that, the answers that he gives to the relevant questions, which are questions 41, 42, 43, 44, and 45, are identical. They are questions that ask him why he left his country of origin – Indonesia in this case - what he feared might happen to him if he went back to the country, who he thought might harm him or mistreat him if he went there, why he thought this would go back and whether he thought the authorities of the country could or would protect him if he went back.
In answer to all of those questions he gives the same answer, and it is to say that he has been involved in student demonstrations against the central government since his first year of high school; he has a strong belief that they were partly responsible for the changed government in Indonesia; that he has decided to discontinue his study and promptly left Indonesia, as the real threat by the corrupt officer of the Indonesian Army was too apparent to ignore any longer.
He went on to make some observations about the corrupt conduct of Indonesian officers being well-known; says he was arrested for questioning by the Indonesian Army because he has attended many protest rallies. He says, in Indonesia, it is common for one to disappear once one has been questioned by the Army, and that the party that backed the former Suharto dictatorship still has, what he said, tremendous power in Indonesia which would take a long time to eradicate. He says he could not find a job after he graduated from high school, and he said it was imperative he be given political asylum.
The Tribunal dealt with the matter at paragraphs 31 to 35 of its reasons. It made the observation that, although the concept of the onus of proof was not appropriate to a administrative inquiries or decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary, to enable the examiner to establish the relevant facts and went on to say that a decision-maker is not required to make the applicant’s case for him, nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant. Those general observations, as to the nature of the review process before the Tribunal, are, in my view, correct.
Turning to the individual circumstances of this case, the Tribunal went on, in paragraph 33, to say that the applicant’s claims were lacking in detail and were general. It said it was unable to explore with him the applicant’s specific details of the student demonstrations he attended, the difficulty he faced from the Indonesian Army, and when and by whom he was arrested and questioned. It was unable to explore with him whether he sought protection from the police in Indonesia and whether it was given, and again, in my view, that represents a fair summary of the nature of the case advanced by the applicant.
He was content to make generalised assertions as to his involvement as a member of an opposition to a former government, without giving any specificity as to the dates of the demonstrations he attended, the place of demonstrations that the attended, the response of the Army, the identity of the Army unit or group or officers who he says persecuted him, and that is just one aspect of the matter that the applicant was content to leave very generalised - one example of a range of matters that the applicant was content to leave in that very generalised form, arising from his application, and in respect of which he did not want or did not take the opportunity to attend at the Tribunal to augment his very brief written submission before the delegate with any oral evidence or any submissions, The applicant has adopted the same attitude before me today. He is here; but he offers no further submission.
There is no attempt by him before me today to identify ways in which he would seek to establish that the Tribunal fell into jurisdictional error in coming to the view that it did, or that it had information of insufficient particularity and detail to be able to be satisfied that the applicant was a person to whom Australia owed obligations under the Refugees Convention. In coming to the view it did, in that regard, I am satisfied that the Tribunal did not fall into error, let alone jurisdictional error. It responded to the paucity of material put before it by the applicant in support of his application in a way that I think was almost inevitable, given the applicant’s decision not to attend at the hearing before the Tribunal.
For those reasons, the application for review filed on 31 May 2010 will be dismissed.
There is no reason, in my view, why costs should not follow the event in a case of this nature or in the facts of this case.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate:

Date: 28 October 2010