SZARO v Minister for Immigration
[2004] FMCA 490
•28 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZARO v MINISTER FOR IMMIGRATION | [2004] FMCA 490 |
| MIGRATION – Review of RRT decision – where applicant sought protection visa as result of her activities as a member of social group comprised of women seeking equal opportunity in the workplace – where applicant did not attend Tribunal hearing – whether the findings and reasons of the Tribunal evidence jurisdictional error or a denial of procedural fairness. |
Federal Court Rules 1979
, O 54B r 2
Migration Act 1958
(Cth), s.48A
Federal Magistrates Court Rules 2001, R 21.02(2)(a)
NARE v Minister for Immigration [2003] FCA 554
| Applicant: | SZARO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 956 of 2003 |
| Delivered on: | 28 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 28 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant pay the respondent's costs which I assess in the sum of $2,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 956 of 2003
| SZARO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Thailand who arrived in Australia on 13 September 2002. On 28 October 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 31 October 2002 the delegate of the Minister refused to grant a protection visa and on 9 December 2002 the applicant applied for review of that decision from the Refugee Review Tribunal. The Tribunal wrote to the applicant on 24 March 2003 advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on this information alone. The Tribunal invited the applicant to a hearing on 15 April 2003. On 9 April 2003 a migration agent on behalf of the applicant signed a form delivered to the Refugee Review Tribunal advising it that she did not wish to come to the hearing [CB 67].
The Tribunal proceeded on the basis of the information before it. It was the same information that had been before the delegate and a statement from the applicant found at [CB 56] to [58]. The statement indicated that the applicant was a sales assistant who began working in a large shopping centre in Bangkok in 1992. During her employment she came to the view that young women in Thailand were discriminated against by not being provided with equal opportunities. She says that she formed a small group and began holding meetings and publishing propaganda. She says that she gave speeches in shopping malls and streets. Her statement goes on to say that in December 1999 she seriously annoyed her employer as a result of her political activity and she was sacked. Thereafter she was visited by the local police and threatened.
The applicant was unable to obtain another job and so she concentrated on her political activities. She said she had to move about but that she had been detained by the authorities after a demonstration. The applicant told the Tribunal in her statement that she feared to return to Thailand because if she did she would be charged for her involvement in her social group activities. She indicated that several of her colleagues had been prosecuted.
The Tribunal considered these matters at [CB 77] and gave a short decision in the following form:
“ I accept that the applicant is a national of Thailand. However, the applicant has provided few details in support of her claims. The applicant does not name the "social group" she claims to have helped form. Nor does she indicate whether the group is still active, and if so what activities it currently undertakes. The applicant has not provided any information concerning the structure of the group. She has also not indicated how many other members there were. Nor has she provided any details of speeches she gave or the publications for which she was responsible. In addition, the applicant claims she was detained in August 2002. The applicant does not explain why, if the authorities had any ongoing adverse interest in her, she was released. The applicant also claims that other group members have been charged and sentenced. She does not explain why, if she was a group leader, this did not happen to her prior to her departure from Thailand. The applicant has also not explained how, if she was of continuing adverse interest to Thai authorities, she was able to obtain a passport and travel to Australia. Overall, the applicant has provided so few details concerning her claims that I am unable to make findings of fact in relation to them. I am therefore unable to be satisfied that the applicant has a well founded fear of persecution for a Convention reason.”
On 28 May 2003 the applicant filed an application in this court seeking review of that decision of the Tribunal. In that application she said that she could not return to Thailand because she belonged to a social group for the equality of opportunity in the workplace for women. The grounds of the application were the decision by the RRT was induced by actual bias of the officer, there was no evidence or other materials to justify the making of the decision. No particulars as required under Order 54B Rule 2 of the Federal Court Rules were given. On 23 July 2004 the applicant filed some written submissions with the court. These included amended grounds for the review. The amended grounds are:
“(a)The RRT erred in law in determining that I was not at real risk of harm if I returned to my home country Thailand. I am a genuine refugee under the UN Convention ... but the authority did not consider my claims and I have been refused to remain in Australia permanently.
(b)The Refugee Review Tribunal has failed to investigate my claims, specifically the grounds of persecution in Thailand. Therefore the Tribunal's decision dated 14 April 2003 was affected by error of law.”
The applicant came before me today and told me that the decision of the Tribunal was incorrect. She told me that the system in Thailand was not as fair as it was in Australia and that she came here for justice and asked me to help her.
I cannot put to the applicant in this court a better explanation than was put by Allsop J in NARE v Minister for Immigration [2003] FCA 554 at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act (Cth) (the “Act”) says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
I do not propose to deal with the claim of bias. It was not particularised and I doubt very much whether the applicant fully understands the nature of that claim. The applicant did not attend the hearing. The only ground upon which she could allege bias is that the Tribunal did not give her what she wished. That fact alone does not constitute the serious charge she has made. The applicant's claim that there is no evidence or other material to justify the making of the decision is equally invalid. It is for the applicant to make her case and to satisfy the Tribunal that she is a person to whom this country owes protection obligations. She did not provide much assistance to the Tribunal and her situation was not helped by her non-appearance.
During the course of the hearing today the applicant told me that she was sick at the time of the hearing. However she has not provided me with evidence about this and I note that the letter declining to attend was signed some days before the hearing itself. The claim made in the amended application that the Tribunal erred in law in determining that she was not at real risk of harm was an argument as to the facts of the case. The Tribunal did not actually come to the conclusion that is stated in that document. The Tribunal said that it could not be satisfied that she was a person to whom Australia owed protection obligations. The applicant also argues that the Tribunal did not investigate her claims. This was always going to be difficult when she did not attend to have questions asked of her about the statement which she had submitted and which the Tribunal was right to have said contained nothing by way of particulars.
Finally the applicant asked me whether it would be possible for her to obtain some more papers from the Tribunal and to make a new application. This is a request for legal advice which the court cannot provide. However, the applicant might benefit from reading s.48A of the Migration Act 1958 (Cth).
There is nothing in this application or in the reasons for the decision of the Tribunal which would lead a court to suspect that the Tribunal had erred in the manner in which it came to its conclusions. There is even less which would let a court suspect that such an error was a jurisdictional error. The application must be dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $2,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 10 August 2004
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