BRGAD of 2008 v Minister for Immigration - [2008] FMCA 734

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRGAD OF 2008 v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 734

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – failure to attend hearing – no reviewable error found.

Migration Act 1958 ss.65, 425, 426A

SZGFG v Minister for Immigration & Citizenship [2007] FCA 483

Applicant:

BRGAD of 2008

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 137 of 2008

Judgment of:

Jarrett FM

Hearing date:

26 May 2008

Date of Last Submission:

26 May 2008

Delivered at:

Brisbane

Delivered on:

26 May 2008

REPRESENTATION

The Applicant appearing on his own behalf with an interpreter

Counsel for the Respondents:

Mr Maycock

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application filed 7 March 2008 be dismissed.
That the applicant pay the first respondent's costs of and incidental to the application fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 137 of 2008

BRGAD of 2008

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

The applicant in these proceedings, who was found by a Refugee review Tribunal to be a citizen of the Republic of Indonesia, arrived in Australia on or about 26 August, 2007. About a month later on 20 September, 2007 he applied for a Protection (class XA) visa. That visa application was refused by a delegate of the Minister on 19 October, 2007.
On 19 November, 2007, the applicant applied to a Refugee Review Tribunal for a review of the Minister's delegate's decision. The application for review contained within its form an address for service. The address for service was stated as being 98/226 Elizabeth Street, Surry Hills, New South Wales.
Upon filing the application for review, the respondent Tribunal sent to the applicant a letter acknowledging the review application. It later sent, after having considered the application and the material lodged by the applicant, a letter dated 29 November, 2007 to the effect that after considering all of the material before it relating to the applicant’s claims, the Tribunal was unable to make a favourable decision based on that information alone. The applicant was invited to appear before the Tribunal to address its concerns. That letter was sent to the applicant's address for service. It enclosed a document entitled Response to Hearing Invitation.
The material discloses that there was no response from the applicant to that invitation. The application before the Tribunal was heard on 10 January, 2008 and the applicant did not appear at the hearing. On that day the Tribunal reached its decision pursuant to s.426A of the Act and handed the decision down on 31 January, 2008. That decision affirmed the decision of the Minister's delegate not to grant the applicant the relevant visa.
In neither the initial application for the protection visa or in the application to the Refugee Review Tribunal did the applicant nominate an authorised recipient on his behalf and at all times it seems that his address for service was 98/226 Elizabeth Street, Surry Hills, New South Wales.
The Tribunal decided that it could not set aside the delegate’s decision because it could not be satisfied, on the material before it, that the applicant was entitled to the grant of the visa. In a relatively short decision, short by reason of the circumstances in which it was decided, the Tribunal said:
10. On the basis of the applicant's passport, a certified copy of which is on the department's file, the Tribunal finds that he is a citizen of the Republic of Indonesia and assesses his claims against that country.
11. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ' well founded' or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and 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. A decision maker is not required to make the applicant's case for him or her, nor is the Tribunal required to accept unequivocally any and all the allegations made by an applicant. (Here the Tribunal quoted authority.)
12. The applicant has made a number of unsubstantiated claims in relation to being a member of the family unit in which his mother worked for the Suharto Government and his father is suspected of being one of Suharto's people, and he was beaten by police and gaoled for a month as he stated that he hated the current government. The Tribunal is unable to establish the facts of the matter. The applicant was put on notice in writing by the Tribunal that it was unable to make a decision in his favour on the basis of the material before it. The applicant did not send any further material, nor did he take the opportunity offered to him of attending a hearing and presenting his claims orally.
13. 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.
I record that the Tribunal's reasoning accurately reflects the claims made by the applicant in his protection visa application.
As Graham J of the Federal Court of Australia pointed out in SZGFG v Minister for Immigration & Citizenship [2007] FCA 483:
Proceedings before the Tribunal are inquisitorial rather than adversarial. The Tribunal member conducting an inquiry is obliged to be fair, however the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the applicant under his application for review to the Tribunal it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a 'refugee' within the meaning of the refugees convention had been made out. Section 65 of the Migration Act 1958 requires the Minister to either grant a visa or refuse a visa after considering a valid application for same. If satisfied that amongst other things, 'the other criteria prescribed by this Act or the regulations have been satisfied', the Minister is to grant the visa. If not so satisfied the Minister is to refuse to grant the visa. Section 36(2) of the Act specifies the criterion for a protection visa. The relevant criterion is that the applicant for the visa be 'a non citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the (Refugees Convention). Relevantly, the Refugees Convention provided that term 'refugee' should apply to any person who 'owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country'.
In the present case the Tribunal was unable to reach that level of satisfaction. There is nothing in the material filed in support of this application that would suggest that the Tribunal was not entitled to proceed pursuant to s.426A as it did. That process is not attended by any error.
The applicant's grounds of the application now before me can be shortly stated. They are:
1. There was no evidence or other materials to justify the making of the decision.
2. I am entitled to a protection visa.
3. I was prosecuted by the current Indonesia government because I support our previous government.
Each of the grounds of the application do not raise an alleged jurisdictional error. The grounds of the application if anything seek to re-agitate the merits of the decision now under review. That decision, in my view, was made without jurisdictional error of any kind. Indeed, in my view, without error of any kind.
The first ground of the current application perhaps highlights the difficulty for the applicant, namely that there was no evidence or other materials to justify the making of the decision. In my view there was no evidence or other materials before the Refugee Review Tribunal that would justify making a decision other than the decision that it made in the circumstances of this case.
The application must therefore stand dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Acting Associate: E Crutchfield

Date: 5 June 2008