AZABZ v Minister for Immigration

[2013] FMCA 208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZABZ v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 208

MIGRATION – Judicial review of decision of Refugee Review Tribunal – application dismissed.

Migration Act 1958 (Cth) ss.425A, 426A, 441A & 441C
Migration Regulations 1994 (Cth) r.4.35D

NAST v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF (2003) (2005) FCAFC 73

Applicant: AZABZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 100 of 2012

Judgment of: Simpson FM

Hearing date: 25 February 2013

Date of Last Submission: 25 February 2013

Delivered at: Adelaide

Delivered on: 25 February 2013 – ex tempore

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms Johnson

Solicitors for the Respondents: Crown Solicitors Office

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s cost fixed in the sum of FOUR THOUSAND, FOUR HUNDRED DOLLARS ($4,400).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 100 of 2012

AZABZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. The applicant is not fluent in English.  He has had the benefit of an interpreter throughout today’s hearing. 

2. I have before me an application for judicial review.  The matter came before Registrar Christie on 21 June 2012.  Registrar Christie ordered that the applicant have leave to file an amended application by 19 July.  He did not do so.  Registrar Christie made an order that the applicant be permitted to file any further material.  He did not file any further material.  Registrar Christie ordered that the applicant file and serve an outline of submissions.  He did not do so.

3. Registrar Christie ordered that the first respondent file and serve an outline of submissions.  The respondent filed an outline of submissions.  The submissions were provided to the applicant prior to the date of hearing.  The applicant has told me through his interpreter that the respondent’s submissions were read to him. 

4. I have found the submissions put on behalf of the respondent helpful.  In giving these reasons, I rely heavily on the submissions.  I also have, of course, considered the material in the court book.

5. The application concerns a decision by the Refugee Review Tribunal (“the Tribunal”) made on 20 April 2012.  On that day the Tribunal affirmed a decision of a Delegate of the first respondent dated 9 February 2012.  The decision of the Delegate was to refuse to grant the applicant a protection visa. 

6. The applicant is a citizen of Cambodia.  The applicant first arrived in Australia on 13 March 2011.  He departed from Australia on 7 May 2011.  The applicant returned to Australia on 11 October 2011.  He applied for a protection visa on 6 December 2011.  The applicant’s written claims for refugee status were contained in a one and a half page typed statement accompanying his visa application.

7. The applicant claimed in his statement that his family’s business had been targeted and blackmailed by gangs in Cambodia.  On one occasion, the applicant was stopped on the street by somebody he calls a “strong man”.  He says that the “strong man” took all of his money and valuables before beating him until he was nearly dead. 

8. The applicant says in his statement that he joined a protest against the government.  He says that he was urging the government to take control of the gang society.  The applicant says that he was arrested for illegal protesting.  He says that he was imprisoned for three months and tortured.  He says that after he was released he was again threatened by gang members. 

9. On 16 January 2012 a delegate of the Minister invited the applicant to attend an interview.  The interview was scheduled for 9 February 2012.  The applicant failed to respond to the invitation or to attend the interview.

10. On 9 February 2012 a delegate of the Minister refused to grant the applicant a protection visa.  It was refused because of the limited information provided, and, given that he did not attend the interview, the delegate found that the applicant’s claims were not substantiated.  On 12 March 2012 the applicant lodged an application for review of the Tribunal’s decision.

11. On 23 March 2012 the Tribunal wrote to the applicant. The Tribunal invited him to attend a hearing on 19 April 2012. The invitation sent on 23 March 2012 properly complied with the applicable legislative requirements. It was addressed correctly to the applicant’s nominated address in his application. The invitation invited the applicant to appear before it to give evidence as required by s.425(1) of the Act. It provided notice of the specified day, time and place of the hearing as required by s.425A(1) of the Act. It was given to the applicant by one of the means specified in s.441A namely, by registered post which is contemplated by s.441A(4). It provided a period of time to the applicant exceeding the prescribed period of 14 days notice as required by reg. 4.35D of the Migration Regulations 1994. (‘Notification’ is taken to have been received seven working days after the date of the document, as required by s.441C(4) of the Act. So, the applicant is taken to have received notification on 3 April 2012). It was dispatched within three working days of the date of the letter as is required by s.441A(4)(a). It contained a statement about the effect of s.426A of the Act (namely, the options available to the Tribunal if the applicant failed to appear before it) as required by s.425A(4) of the Act. As such, the applicant was clearly put on notice by the hearing invitation that the Tribunal was unable to make a favourable decision on the basis of the information before it and that if he did not attend the hearing the Tribunal might make a decision without further notice.

12. The Tribunal noted that the applicant had been invited to attend a hearing on 19 April 2012 but that he did not respond to the invitation.  The applicant did not attend the hearing.  In those circumstances, the tribunal was specifically empowered by s.426A(1) to proceed to determine the review without taking any further action, to enable the applicant to appear before it.  The Tribunal found that the applicant had not provided any details in relation to a number of his claims.  The Tribunal found that it was unable to explore further and test the applicant’s written claims.  On the limited material before it, the Tribunal was not satisfied that the applicant had suffered any convention related harm, or that he faced a real chance of harm if he returned to Cambodia.

13. In the absence of a positive finding of satisfaction, the visa application clearly had to be rejected.  [The authorities for that proposition are NAST v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 208 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF (2003) (2005) FCAFC 73]. The Tribunal also found on the limited material before it that it did not have substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, that there was a risk that he would suffer significant harm.

14. The grounds of review that the applicant relied upon are as follows:

    (a)The second respondent ignored relevant consideration in making the decision;

    (b)The second respondent has not adequately taken into consideration the applicant’s claim; and

    (c)There has been a constructive failure by the second respondent to exercise jurisdiction.

15. No particulars have been provided by the applicant.  The only information that the applicant gave either the Delegate or the Tribunal was the one and a half page typed document that is to be found at page 29 of the court book that I have already referred to.  Those claims were considered by the Tribunal.  The applicant declined the opportunities offered to him to attend an interview with the delegate or an interview with the Tribunal.

16. Having considered all of the submissions that have been put, I am inclined to agree with the submission put by the respondent that no jurisdictional error is demonstrated in the Tribunal’s approach nor in its findings because the facts advanced by the applicant did not cause it to be satisfied as to the applicable visa criteria.  The Tribunal was not required to accept the applicant’s claims at face value.  The weight to be given to the applicant’s claims was a matter for the Tribunal to assess as part of its fact finding function.

17. The application for judicial review fails as the applicant has failed to establish any jurisdictional error on the part of the Tribunal.  In those circumstances, the application ought to be dismissed.

18. I make the orders to be found at the beginning of these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Simpson FM

Date:  25 February 2013