S1750 of 2003 v Minister for Immigration - [2005] FMCA 344

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1750 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 344

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming a decision of delegate not to grant a protection visa to the applicant – applicant a citizen of Bangladesh – where applicant elected not to attend RRT hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425; 475A

Applicant:

S1750 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1599 of 2004

Judgment of:

Scarlett FM

Hearing date:

11 March 2005

Date of Last Submission:

11 March 2005

Delivered at:

Sydney

Delivered on:

11 March 2005

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Henry

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1599 of 2004

S1750 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Applicant

The application before the Court is an application for a review of a decision of the Refugee Review Tribunal that was made on

11 January 2000.
The decision of the Tribunal was that it should affirm the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of Bangladesh. He arrived in Australia on

11 June 1996. On 12 July of that year, he lodged an application for a protection visa. For some reason he withdrew that application, but he lodged a further application for a protection visa on 29 August 1997. On 12 November 1997, the delegate of the Minister refused to grant a protection visa. On 28 November, that same month, the applicant applied for a review of that decision.
The decision of the Refugee Review Tribunal is relatively short.

The Tribunal pointed out that it wrote to the applicant on 22 October 1999 advising that it had considered the papers relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to attend a hearing on 7 December 1999.
The applicant at that stage was represented by a migration agent, a firm called Continental Migration Services. I understand from the applicant that the principal of that firm is now deceased.
On 3 December 1999 the migration agent wrote to the Tribunal on the applicant's behalf. The relevant parts of the letter say this, and I quote:
However, our client has instructed us on 3 December 1999 that he wished his case to be decided on the basis of the information provided to the Tribunal previously, and he will therefore not be attending the hearing on 7 December 1999. We therefore request the Tribunal to assess our client's review application on the basis of the information our client has provided previously.
The Tribunal went ahead and considered the application on the papers. It is most unfortunate that there is an error that appeared in the Tribunal decision on page 162, the last sentence in the second last paragraph, where the decision said that the applicant also gave oral evidence to the Tribunal on 7 December 1999.
Of course, that is just wrong. It is clear that the applicant did not give oral evidence. He did not give oral evidence because he did not attend. Both the applicant and the respondent's lawyers are in agreement that the applicant did not attend the hearing, and that sentence just should not have been there. It is not surprising that the applicant and his legal adviser were somewhat confused.
As I said, the applicant is from Bangladesh. He sought a protection visa. He sought protection by claiming that he had a well-founded fear of persecution by reasons of his political activities, and provided information to the Tribunal about those things.
The short fact of the matter is that the Tribunal did not accept his evidence on the papers. The question of whether or not a person's evidence should be accepted - the question of credibility of an applicant before a Tribunal is a matter for the Tribunal. It is not a matter for the Court to substitute its own view of the facts.
The applicant has said in his original application, which was filed on 27 May 2004, that the decision of the Refugee Review Tribunal involved an error of law, being either an incorrect interpretation of applicable law, or an incorrect application of the law to the facts as found by the RRT.
The particulars that were given were these:
The applicant indicated in his written submission that he was a close associate of the Bangladesh Samastantriek Dal (JSD) under the leadership of the Bangladesh Liberation War Hero, and one of the most prominent leaders who lead the people to liberate the country from Pakistan. His name is ASM Abdur Rab. The applicant was targeted by the Jatiya Party, and the Awami League member. The Jatiya Party members and the Awami League Alliance ransacked the applicant's home and looted all equipment. A false case was lodged against the applicant.

The Tribunal member didn't understand the applicant's case and made the decision.
The point that I think should be made there is that this was very much a question of fact, and in the long run it was down to the Tribunal to make a decision of the facts. As I said, the Court does not substitute its own view of the facts for that of the decision-maker.
The applicant had sought an adjournment today. He sought the adjournment on the basis that he wished to argue further points, and that he wished a barrister, who had given him advice, to appear for him. He set out on a sheet of paper that he prepared the two points that he wished to argue.
The application was opposed by the lawyers for the respondent Minister.
I considered the matter and then I declined to grant an adjournment.

I noted that the application had been filed on 27 May 2004, and that the proceedings had already been adjourned once from 22 December until today, an adjournment of about 10 weeks. I made the comment that the applicant should have been in a position to obtain his own legal advice before today, and should have been ready.
I then refused the application for an adjournment and proceeded with the application. I indicated that the two additional grounds in the applicant's document that he said he wished to argue on the hearing that I would consider as grounds for the matter before me today, and I asked counsel for the respondent to address me on those issues.
Now, the two extra grounds are these. One:
The RRT member in his decision referred to my giving oral evidence on 7 December 1999. I do not know what this refers to.
I think that that has already been answered. It is quite clearly an error, when the document has been printed, because there is no issue about the fact that the applicant just did not attend the hearing. I will go into the reasons why he did not attend the hearing shortly.
The other ground was that the member made no findings of fact on which to base the decision. This means that the Tribunal did not comply with s.430(1)(c) of the Migration Act. And then the applicant went on to say:
I know these are technical grounds and I don't feel able to properly argue them. I want Mr Godwin to do this.
He went on to say:
I did not go to the RRT hearing on the advice of my then migration agent who has since died. I didn't understand, and relied on his advice.
The fact that the applicant did not attend the hearing has been canvassed and discussed by the decision-maker. The Tribunal referred to the letter sent to the applicant and invited him to a hearing. The Tribunal referred, at page 166, to the applicant's non-attendance, saying:
As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.
Later on on the same page the Tribunal said:
The applicant has indicated that he does not wish to give oral evidence, after he was advised that a favourable decision could not be made on the information currently before the Tribunal. The applicant's claims are general and vague and he has provided nothing in the nature of supporting materials to evidence his claims.
I should make it clear that s.425 of the Migration Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
However, the Tribunal does not have to do that, and subsection 2(a) says:
If the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it.
This means that if the Tribunal believes it can decide the application in a way that is favourable to the applicant, they do not need to have a hearing. They only need to have a hearing if on the papers the Tribunal cannot be satisfied, or is not satisfied, that they can grant the application.
Now, the applicant has told the Court that he did not attend the hearing on the advice of his then migration agent, who has now died.

I constantly see applications in this Court where applicants are given the opportunity to appear before the Tribunal, whether it is the Refugee Review Tribunal or the Migration Review Tribunal, and they choose not to attend.
I can only say that an applicant who does not attend a Tribunal hearing does himself or herself a great disservice. I do not know why migration agents would advise people not to attend a Tribunal hearing, because not attending greatly reduces the person's chances of success before the Tribunal.
It may well that there would have been questions that the Tribunal member would have liked to have asked the applicant. It may well be that there were things that were worrying the Tribunal member about which the applicant could give evidence and resolve those issues, certainly to the benefit of the applicant.
Without the applicant, the Tribunal is left with the written material. And in fact, the Tribunal member said at page 166 at about point 3 on the page:
As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.
And the Tribunal was not able to come to an answer in the applicant's favour, and formed the decision not to grant a visa.
What has been argued is that the Tribunal did not make a finding of fact on which to base the decision, which means that the Tribunal did not comply with s.430(1) of the Act. I allowed that as a ground for argument. Mr Henry has addressed me orally on that point.
Section 430(1) says:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that (a) sets out the decision of the Tribunal on the review, and (b) sets out the reasons for the decision, and (c) sets out the findings on any material questions of fact, and (d) refers to the evidence or any other material on which the findings of fact were based.
Looking at what I have before me, it seems to me that the Tribunal has complied with s.430(1)(a) by preparing a written statement setting out the decision of the Tribunal on the review. Has the Tribunal complied with paragraph (b) of the subsection by setting out the reasons for the decision?
There is a passage at pages 166 to 167 entitled: "Findings and reasons." At about point 8 on page 166, the Tribunal says :
The applicant's claims are general and vague and he has provided nothing in the nature of supporting material to evidence his claims.
The Tribunal member refers to clashes between political parties. The Tribunal member at 167 refers to serious doubt as to whether there is a case against the applicant, as he has had at least three passports issued to him by the Bangladesh authorities and was able to leave Bangladesh without difficulty.
If the applicant had attended for hearing, the Tribunal would have asked for better detail of his claims relating to the breakaway party, the JSD, which would have required him to explain why he has three different birthdays and two professions.
The Tribunal formed the view that the applicant had seriously exaggerated any claims that he has, and goes on to say these matters would have been raised with him if he had given oral evidence.
In the long run, the Tribunal was just not satisfied with the case. To my mind paragraph (b) of subsection 430(1) has been complied with, because I think the Tribunal has set out the reasons for its decision.

I am also of a view that the Tribunal, admittedly in relatively brief form, has set out the findings on the questions of fact, and I am of the view that the Tribunal, at least briefly, has referred to the evidence on which the findings of fact were based. I am satisfied that s.430(1) has been complied with.
As I have said, the Court does not review the facts which are the subject of decision by a decision-maker. It is most unfortunate that the applicant did not attend the RRT hearing and that apparently he was told by his migration agent, now deceased, that it didn't matter if he went or not. It is important for applicants to attend migration hearings. So often they can explain the one point that the Tribunal is concerned about, but where they do not attend, the Tribunal is unable to help them.
I do not have the power under the law to order a further hearing of the Refugee Review Tribunal because the applicant, for whatever reason, a reason of his own choice, did not attend the Tribunal hearing.
It follows, then, that there is no jurisdictional error. In my mind there is no reviewable error at all and I have no option but to dismiss the application.
The application will be dismissed.
This is a case where the application has not been successful and I will be making an order that the application will be dismissed.
Counsel for the respondent seeks an order for costs. As the application has been unsuccessful, the respondent would normally be entitled to a costs order and there is nothing in my view which would suggest that a costs order is not appropriate in this case.
It is the practice of the Federal Magistrates Court to order costs in a fixed sum wherever possible, and I certainly intend to do so today.

A figure of some $6700 has been suggested, taking into account the adjourned hearing of 22 December. That is over and above what I would consider comes within the range, but I accept the fact that there should be a loading or an additional amount brought about by the fact that the respondent's legal advisers were ready, willing and able to proceed on the last occasion when the applicant sought an adjournment on the basis of illness.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 23 March 2005