SYHL and Minister for Immigration and Citizenship

[2007] AATA 1605

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1605

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2480

GENERAL ADMINISTRATIVE  DIVISION		2007/2938
Re		SYHL

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP  

Respondent

DECISION

Tribunal DEPUTY PRESIDENT WALKER

Date of Decision                  13 July 2007  

Date of Written Reasons  31 July 2007

Place  Sydney

Decision For the reasons given orally at the hearing of this matter the Tribunal’s decision is that it lacks jurisdiction to hear this matter

…................[sgd].......................
  Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION –  protection visa refused – refusal was not based on character grounds or relevant articles of the Refugees Convention - Tribunal lacks jurisdiction to hear this matter.

relevant act/s:

Migration Act 1958: s 424A

Administrative Appeals Tribunal Act 1975: s 25

Refugees Convention: articles 1D, 1E, 1F, 32, 33

REASONS FOR DECISION

31 July  2007 Professor GD Walker, Deputy President

1.      The applicant, (name supplied) lodged with the Administrative Appeals Tribunal on 12 June 2007, an application for review of a decision by a delegate of the Minister for Immigration and Citizenship made on 13 June 2003, and also made an application for extension of time for the consideration of such an appeal.

2.       The Applicant attached a statement of his grounds, five in number. He states that the delegate erred first, in not accepting that the applicant would be likely to suffer a persecution in that he’d failed to take account of relevant evidence in relation to the possibility of his re-locating in Bangladesh.  Secondly, that he erred in applying certain information concerning Christians in Bangladesh to the case of the applicant. Thirdly, the finding that Christians in Bangladesh suffer no significant discrimination in employment was not open on the evidence.  Fourthly, that the delegate misdirected himself or herself by relying on factual matters made in circumstances that are not entirely clear from the stated grounds and fifthly, that the decision was taken without participation by the applicant. 

3.      The Registrar of the Tribunal wrote to the applicant on 27 June 2007 indicating that she did not think the Tribunal had jurisdiction, but inviting the applicant to lodge submissions within 14 days indicating the grounds on which he believed that the Tribunal did have jurisdiction.  The applicant duly applied by letter dated 10 July stating his reasons why he thought the Tribunal does have jurisdiction, which are essentially the reasons that he gave today orally.  Insofar as I understand them, they are that the Tribunal does have the power to review the refusal of a protection visa and if it does not, the government should have explained that to him when he lodged the application with the Tribunal. He had held a valid visitor’s visa and, consequently, if a protection visa was refused, he should have been given adequate time to appeal.  Instead, he had been in detention for 16 months where, he says, he was tortured and his mobile telephone was confiscated.  He says that he sought reasons from the Department as to why he should be removed and that he was told on 18 June by an officer of the Department that he would be detained and removed but, in the applicant’s view, without adequate reasons being given.

4.      The applicant appealed to the Refugee Review Tribunal against the rejection of his protection visa application, but said he was unable to participate because he was sick and had no reasonable opportunity to submit a statement.  He asks the Administrative Appeals Tribunal to give him the opportunity of stating the reasons why he is entitled to a protection visa which, in general, relate to discrimination which he says he would suffer in Bangladesh for being a Christian.

5.      He feels that he was very badly treated in detention and was unjustifiably kept in maximum security.  He had complained to the police, but they had told him that they had no jurisdiction to investigate his claims of torture because the Department could make its own inquiries on that matter.  He considers that the High Court’s decision in his case was not acceptable because it was not consistent with international law and that the time limits laid down in the legislation do not apply. 

6. He believes that he was not given a proper opportunity to make submissions before the RRT as required by section 424A of the Migration Act, and for that reason he was seeking to appeal to this Tribunal. He believes that he can prove that he is a genuine asylum seeker because of his Christian religious orientation.

7.      In reply, he stressed that under the Refugee Convention his case did fall within that of a person with a real chance of suffering persecution.  Bangladesh at present has no effective government.  There are abuses of human rights by the army against minorities and the Christians are subject to arbitrary killing.

8.      The respondent, in its letter of 27 June 2007 addressed to this Tribunal with a copy to the applicant which he received, sets out and summarises the respondent’s grounds for submitting that the Tribunal has no jurisdiction.  The respondent notes that the case has a long history, that the applicant first applied for a protection visa which was refused by a delegate.  From that decision the applicant unsuccessfully sought review in the RRT and his application for judicial review in the Federal Magistrate’s Court was dismissed, as was his appeal to the Federal Court and an application for special leave to appeal to the High Court.

9.      In June last year the applicant filed a second application for judicial review in the Federal Magistrate’s Court which was also dismissed, as was his application for leave to appeal to the Federal Court.  He again sought judicial review in the Federal Magistrate’s Court in respect of the Migration Review Tribunal decision relating to his bridging visa conditions.  That application and subsequent application for leave to appeal to the Federal Court were both dismissed.

10.     Notwithstanding that lengthy history, if this Tribunal had jurisdiction I would not hesitate so to find.  However, as the respondent points out, this Tribunal has jurisdiction under section 25 of the AAT Act only when jurisdiction is specifically given by legislation.  In relation to migration decisions this Tribunal has jurisdiction when the RRT refers the matter to it, which has not happened in this case, or pursuant to section 200 in cases of deportation, which is not the present case, or character cases under section 501, which also does not apply, or in relation to a decision to refuse to grant a protection visa or to cancel such a visa relying on certain articles of the Refugees Convention.  They are article 1F, which relates to war crimes or crimes against humanity; article 32, which relates to a person who is a danger to national security and s 33(2), which relates to situations where there are grounds for believing that an applicant has been convicted of a particularly serious crime. 

11.     Neither article 32 nor article 33(2) is alleged to apply in this case.  In relation to article 1F, the decision of the delegate contains a specific finding in paragraph 5.4 that there is no evidence indicating the claimant should be excluded from coverage under the Refugees Convention by articles 1D, 1E or 1F.  Consequently, there is nothing under article 1F for the applicant to appeal against to this Tribunal

12.     The arguments the applicant has advanced relate to his general grievances in relation to his treatment by the migration system, but the AAT has no jurisdiction to review such matters generally nor any jurisdiction to review decisions of the RRT.  Consequently it is clear that this Tribunal has no jurisdiction to entertain the present application.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Walker

Signed:         ..........................[sgd]....................................
  R.Wallace, Associate

Date/s of Hearing  13 July 2007
Date of Decision  13 July 2007  
Date of Written Reasons  31 July 2007
Applicant   Confidential (SYHL)
Representative for the Respondent        Bernadette Rayment, Sparke
  Helmore
Counsel for the Respondent  T. Reilly