AZABZ v Minister for Immigration and Citizenship

[2013] FCA 1402

FEDERAL COURT OF AUSTRALIA

AZABZ v Minister for Immigration and Citizenship [2013] FCA 1402

Citation:	AZABZ v Minister for Immigration and Citizenship [2013] FCA 1402
Appeal from:	AZABZ v MIC & Anor [2013] FMCA 208
Parties:	AZABZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):	SAD 54 of 2013
Judge(s):	GREENWOOD J
Date of judgment:	20 December 2013
Catchwords:	MIGRATION – consideration of an appeal from a decision of the Federal Magistrates Court of Australia dismissing an application for the issue of the constitutional writs in relation to a review decision of the Refugee Review Tribunal
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 65(1), 422B, 425(1), 425A(1), 441A(4), 441C(4) Migration Regulations 1994 (Cth), Reg 4.35A
Cases cited:	AZABZ v MIC & Anor [2013] FMCA 208 - cited
Date of hearing:	15 May 2013
Date of last submissions:	15 May 2013
Place:	Brisbane via video-link to Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	17
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondents:	Nicola Johnson, Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 54 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AZABZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	20 DECEMBER 2013
WHERE MADE:	BRISBANE VIA VIDEO-LINK TO ADELAIDE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the costs of the first respondent of and incidental to the appeal.   

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 54 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AZABZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE:	20 DECEMBER 2013
PLACE:	BRISBANE VIA VIDEO-LINK TO ADELAIDE

REASONS FOR JUDGMENT

1. These proceedings are concerned with an appeal from the Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia) by which the primary Judge dismissed an application for the issue of the constitutional writs in the exercise of judicial supervisory review on grounds of contended jurisdictional error under s 75(v) of the Constitution of a decision of the Refugee Review Tribunal (the “Tribunal”). The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Citizenship that the Minister’s delegate could not be satisfied that the applicant appellant was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol for the purposes of s 36(2)(a) and s 65(1) of the Migration Act 1958 (Cth) (the “Act”): AZABZ v MIC & Anor [2013] FMCA 208.

2. The Tribunal in undertaking its statutory review function, had before it the Department’s file relating to the appellant’s application for a protection visa under the Act. The Tribunal also had regard to the material referred to in the delegate’s decision and other material mentioned in its reasons for the decision it reached that it could not be satisfied that the appellant is a person to whom Australia has protection obligations under the Act.

3. At para 30 of its decision, the Tribunal finds that the appellant is a national of Cambodia.  The Tribunal assessed the appellant’s claims on the footing that Cambodia is his country of nationality.  According to his protection visa, the appellant was born in Phnom Penh, Cambodia on 5 September 1982. 

4. One of the complicating circumstances for the Tribunal in assessing the claims made by the appellant is that although he was invited by the Minister’s delegate by letter dated 16 January 2012 to attend an interview with the delegate on Thursday, 9 February 2012, the appellant failed to attend that interview or contact the Department in relation to the interview.  Accordingly, the Tribunal did not have the benefit of any elaboration or investigation by the delegate of the claims made by the appellant.  A further complication for the Tribunal in analysing the merits of the appellant’s claims in seeking to discharge its review function is this.  On 23 March 2012, the Tribunal wrote to the appellant and invited him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his review.  The nominated date for the interview was 19 April 2012 at 3.30pm at the nominated location.  The letter made it plain that the appellant ought to contact the Tribunal immediately if unable to attend a hearing on that date.  The letter also made it plain that if the appellant failed to attend the scheduled hearing the Tribunal might make a decision in relation to the application for review without taking any further action to enable the appellant to appear before the Tribunal. 

5. The appeal record contains an RRT hearing record which is marked “No Show”. The Tribunal’s reasons note that no response was received to its letter of 23 March 2012 and the appellant did not appear before the Tribunal on the day at the time and place nominated for the hearing (para 27). Also at para 27 of its reasons, the Tribunal notes that in those circumstances, the Tribunal elected to act under s 426A of the Act and proceeded to reach a decision on the review without taking any further action to enable the appellant to appear before it.

6. Accordingly, the appellant failed to take advantage of any opportunity to expand upon his claims before either the delegate or, more importantly, the Tribunal which was conducting a merits review of the matter in discharge of its core function. 

7. The appellant lodged a two page statement with his protection visa application. 

8. The essential facts going to the contended well‑founded fear of persecution for a Convention reason were these.  The appellant’s father conducted a business in the “wood industry” in Cambodia which was successful.  His father became blackmailed by the “local gang society” which forced his father to give them money against the background of threats to his family and the business.  The appellant and his father sought help from the Cambodian government and the Cambodian police but the nature of the “gang society” was such that the government and its authorities could do little to protect the appellant and his father.  On one occasion at night when walking back to his business office, the appellant was attacked and beaten until he was “nearly dead”.  This caused the appellant to engage in protest action against the Cambodian government and he was illegally arrested for protesting.  He was tortured in prison and released after three months.  He was further threatened and the Cambodian government ordered him not to protest any further.  These events caused the appellant to want to leave Cambodia and his father organised the necessary funds to obtain a passport for the appellant and a visitor visa to Australia. 

9. These were the contentions put to the delegate and the contentions which the Tribunal was required to address. 

10. At para 29 of its reasons, the Tribunal observes that the relevant facts of each individual case must be supplied to the Tribunal by the applicant for review, in as much detail as is necessary to enable the examiner to form a view about the relevant facts and determine whether the relevant state of satisfaction can be reached for the purposes of s 36(2)(a) and s 65 of the Act . As to the factual contentions, described above, reflected in the appellant’s statement attached to his protection visa application, the Tribunal notes at para 31 that the appellant has not provided any details to the Tribunal concerning when the events occurred or the circumstances in which those events occurred. The Tribunal also notes that the appellant failed to provide the Tribunal with any details of whether protection was sought from Cambodian authorities and what might have happened as a result of any request, or the details of any request. The Tribunal also notes at para 31 that the appellant failed to provide any details regarding the contended assault and the contended bashing. Further, the appellant failed to provide any detail of the circumstances in which he was arrested, tortured in prison and then released three months later. In the result, the Tribunal reached these findings:

    32.The Tribunal has been unable to explore further and test the veracity of the applicant’s written claims, and it is not satisfied on the material before it that the applicant has suffered serious harm in Cambodia in the past.  Nor is the Tribunal satisfied on the information before it that the applicant will suffer serious harm for a Convention reason if he returns to Cambodia in the reasonably foreseeable future.  The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention. 

    33.The Tribunal has also considered whether the applicant meets the complementary protection criterion.  As noted above, the Tribunal has been unable to explore further and test the veracity of the applicant’s claims and on the information, it does not have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm:  s 36(2)(aa). 

11. Accordingly, the Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and thus the criterion in s 36(2)(a) was not met. Further, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa).

12. The appellant then sought judicial review before the Federal Magistrates Court of Australia seeking the issue of the constitution writs.  The grounds of jurisdictional error on the part of the Tribunal were that the Tribunal “ignored relevant consideration in making the decision”; the Tribunal “has not adequately taken into consideration the applicant’s claim”; and, the Tribunal had constructively “failed to exercise its jurisdiction”. 

13. No content of those grounds was identified.  At [15], the primary Judge notes that no particulars of those grounds had been provided.  The primary Judge rightly decided that the appellant had failed to demonstrate any basis of jurisdictional error on the part of the Tribunal’s decision‑making. 

14. The appellant filed a notice of appeal in this Court on 18 March 2013 in which the appellant contends that the primary Judge fell into error because the primary Judge “failed to consider [that the Tribunal] acted in breach of the rules of procedural fairness”; the Tribunal “ignored relevant considerations in making the decision”; and the Tribunal “engaged in a constructive failure to exercise its jurisdiction”.  Again, no content has been given of these formulaic grounds of appeal.  Plainly, no error is demonstrated in the conclusion reached by the primary Judge at [15] and [16] that no jurisdictional error on the part of the Tribunal had been demonstrated. 

15. Ground 1 of the appeal before this Court concerning the contended failure on the part of the Tribunal to act in accordance with the rules of procedural fairness was not a ground of jurisdictional error raised or argued before the primary Judge. It is too late to raise that matter now but in any event, I have considered the material and there is no basis upon which it can be said that the Tribunal denied the appellant procedural fairness. The Tribunal invited the appellant to appear before it and present evidence and arguments. The appellant elected not to attend. Section 422B of the Act provides that Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which Division 4 deals. The appellant was entitled to the review mechanism provided for by Part 7 of the Act. The material demonstrates that the Tribunal invited the appellant to appear before it and give evidence as required by s 425(1) of the Act. The notice complied with s 425A(1) of the Act and was given to the appellant by registered post in accordance with the requirements of s 441A(4). The notice gave notification of the hearing in compliance with the time frames required by the Migration Regulations 1994 (Cth) (see Reg 4.35D and s 441C(4) of the Act). The dispatch of the notice met the requirements of s 441A(4)(a) and contained a statement of the options available to the Tribunal in the event that the appellant failed to appear before it (see s 426A and s 425A(4) of the Act).

16. It follows that there is no substance in the contention that the Tribunal failed to accord the appellant procedural fairness in the conduct of the review.  Grounds 2 and 3 of the appeal have no content to them.  The appellant has failed to identify the “relevant considerations” said to have been ignored by the Tribunal in reaching its decision and nor has the appellant identified the content of the constructive failure of the Tribunal to exercise its jurisdiction. 

17. The appeal must be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:       20 December 2013