SZATJ v Minister for Immigration
[2003] FMCA 485
•4 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZATJ v MINISTER FOR IMMIGRATION | [2003] FMCA 485 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – objection to competency – application filed out of time – no jurisdictional error. |
Migration Act 1958
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244
| Applicant: | SZATJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1066 of 2003 |
| Delivered on: | 4 November 2003 |
| Delivered at: | Sydney |
| Hearing Date: | 4 November 2003 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms M Allars |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the objection to competency be upheld.
That the application is dismissed.
That the Applicant pay the Respondent's costs set in the amount of $4,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1066 of 2003
| SZATJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal made on 12 February 2003, affirming a decision of the delegate of the respondent to refuse to grant the applicant a protection visa. The applicant filed an application in this Court on 16 June 2003. The respondent has filed a notice of objection to the competency of the application on the basis that it was not filed within 28 days of notification of the Tribunal's decision.
The applicant, a citizen of Nigeria, of Ibo ethnicity and Christian religion, claimed that she had a well-founded fear of persecution for the reason that the state of Nigeria was unwilling or unable to protect her against persecution on account of her homosexuality.
In her application for a protection visa the applicant claimed that:
i)when her father discovered she was a lesbian be bashed her, leading her to leave home;
ii)her husband, whom she had married in August 1994 in order to hide her sexual orientation, discovered she was a lesbian and beat her, resulting in her being comatose in hospital for a week;
iii)while she was in hospital unknown groups of men started visiting and asking about her whereabouts;
iv)her father and her husband reported her to the police;
v)homosexual relationships were prohibited by the Nigerian Criminal Code and punishable by 14 years’ imprisonment;
vi)her father reported her to a vigilante group called the Bakassi Boys;
vii)the police refused to arrest or charge her husband although he was reported to the police for injury he caused to the applicant; and
viii)her girlfriend, who helped her leave Nigeria, was assaulted.
On 11 December 2002 by letter sent to her last notified address and by letter sent to her migration agent, the Tribunal invited the applicant to attend a hearing on 5 February 2003. Neither the applicant or the migration agent replied to the invitation. The Tribunal attempted, unsuccessfully, to contact the applicant and her adviser by telephone. She did not attend the hearing.
The Tribunal found that the applicant’s claims lacked detail. It canvassed aspects of the claims about which it had concerns including:
b)The absence of detail about the time which had elapsed between her father beating her and her leaving home;
c)what, if anything, happened after her father reported her to the local police;
d)whether she encountered problems between 1991 and 1994 so as to lead her to marry to disguise her sexual orientation;
e)when her husband found out, and how she could have cohabited with him for apparently five years without him finding out about her sexual orientation;
f)the circumstances of the report to the police that her husband beat her;
g)how she became aware of unknown men making enquiries about her after the alleged assault and visiting her in hospital. This section of her claims was described as very confused;
h)how her girlfriend assisted her to leave Nigeria and why she apparently departed three months after she obtained the papers to do so (as such information did not support her claim that she was in imminent danger);
i)why her father would have reported her in 1990 to the Bakassi Boys when country information indicated this group was formed in 2000 (such a claim being regarded as implausible);
j)how she came to know that her father and husband had reported her and how she came to know of her girlfriend’s movements.
The Tribunal’s reasons for decision dealt with the aspects of the applicant’s claims about which there was insufficient detail or a lack of clarity or plausibility or which did not support her claim to be in imminent danger. The Tribunal regarded many of the claims as mere assertions. It found that the applicant’s claims were too general and lacking in detail to satisfy it that she had a well-founded fear of persecution within the meaning of the Refugees Convention.
The Tribunal made its decision on 12 February 2003 and handed it down on 6 March 2003. The applicant was notified by certified mail of the handing down and invited to attend but did not do so. The decision was sent to the applicant at her address for service care of her migration agent on 6 March 2003 by certified post. It is submitted by the respondent, correctly, that pursuant to sections 441A(4) and 441C of the Migration Act 1958 the Tribunal's reasons should be taken to be received by the applicant seven working days after 6 March 2003. Hence it is clear that the application to this Court on 16 June 2003 was filed outside the 28-day period specified for the filing of applications under section 477(1)(a) of the Act.
The respondent submitted that the Court has no jurisdiction to hear the application unless it finds that the Tribunal fell into jurisdictional error. The applicant's grounds for review are set out in her application. In essence they amount to claims that the Tribunal made an error of law amounting to jurisdictional error, or that the Tribunal denied the applicant procedural fairness. In the application she claims that the Tribunal made an error of law by not considering her to be a refugee, that the Tribunal did not inquire into her matter properly, and that the Tribunal did not accept her documents.
In addition, in oral submissions today she complained that she was not happy with the Tribunal decision in the way that it had dealt with her application and that she did not receive the letter inviting her to attend the hearing on 5 February 2003 which was sent by the Tribunal on
11 December 2002. She told the Court that she had moved from the address that had been notified to the Tribunal, that she had not notified the Tribunal of a change of address or telephone number, and that she had not been advised by her migration agent of the time set for hearing until some time after the hearing date.
It is clear from the material before the Court that on 19 January 2002 the applicant authorised her migration agent to act for her in connection with the Tribunal application. The Tribunal was notified of this on
22 January 2002. The applicant authorised her agent to receive communications from the Tribunal and it was to his address that the Tribunal sent the letter of 11 December 2002 notifying her of the hearing. At the same time a copy of that letter was also sent to the last notified personal address for the applicant. The Tribunal adopted the appropriate method for notifying the applicant in this case in accordance with paragraphs 441A(4)(b) and (c) of the Act. I am satisfied that no complaint can be made on the evidence before me of the manner in which the Tribunal notified the applicant. Insofar as the applicant complains that she was not notified personally of the hearing, this was not attributable to the Tribunal as she had not notified the Tribunal of her changed personal address and the Tribunal correctly sent the notice to the last notified address for service as well as to the last notified personal address. Insofar as she complains that the agent did not notify her of the hearing, again, this is something that cannot be attributed to the Tribunal. The Tribunal did not fall into error in the manner in which it notified the applicant of the hearing.
The more general grounds that were raised in the application are lacking particulars. To a large extent they take issue with the merits of the Tribunal decision. I have, however, considered whether any jurisdictional error is apparent.
As to the claim about the Tribunal’s alleged failure to inquire, it is for the applicant to make out the case that she is entitled to a protection visa (MIEA v Guo (1997) 191 CLR 559, 596 and Prasad v MIEA (1983) 6 FCR 155). The Tribunal was not required to accept without question the claims that she made in her original application. It may conclude that it is not satisfied of matters including factual matters in the absence of rebutting evidence for those matters (see Selvadurai v MIEA (1994) 34 ALD 347, 348). While it may make inquiries it is not obliged to do so (MIMA v Applicant S [2002] FCAFC 244 and Prasad v MIEA (1985) 6 FCR 155). No jurisdictional error is apparent on the material before me.
The applicant claimed, without elaboration, that the Tribunal refused to accept her documents. There is no evidence that the applicant sent documents to the Department or to the Tribunal which were not considered. The Tribunal did consider the claims made by the applicant in connection with her application for a protection visa and in her later statutory declaration. The applicant did not attend the hearing. She has explained why that was so, but I am not satisfied that the circumstances that she says led to her failing to attend the hearing amounted to any denial of procedural fairness by the Tribunal. Nor is this a situation where the Tribunal has failed to comply with its obligation, under section 425 of the Act, to invite the applicant to appear before the Tribunal to give evidence and present arguments in relation to the issues arising about the decision under review.
In short then, no jurisdictional error has been established. Accordingly, the objection to competency is well-founded. The objection should be upheld and the application should be dismissed.
In written submissions the respondent indicated that costs would be sought and I will hear submissions in relation to costs before I make the orders.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks that she pay costs in the sum of $4,500. The applicant has pointed out that she is not working and has no money and is unable to meet an order for costs at the moment. The applicant's impecuniosity is not a reason for not ordering costs although it is a matter that may be taken into account by the Minister in deciding whether or not to seek to recover costs. If a costs order is made then it will be a debt due to the Commonwealth which would be recoverable should the applicant leave Australia and then seek to return to Australia.
Nothing has been said to lead me to consider that it is appropriate to depart from the principle that the unsuccessful applicant should pay the respondent's costs. I consider that the amount of $4,500 is appropriate and that costs should be set in accordance with the Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 4 November 2003
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