SZBBO v Minister for Immigration
[2004] FMCA 955
•6 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBBO v MINISTER FOR IMMIGRATION | [2004] FMCA 955 |
| MIGRATION – Review of Refugee Review Tribunal decision – previously dismissed by the Federal Magistrates Court – procedural fairness – no error of law – privative clause decision – application dismissed. Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 |
| Applicant: | SZBBO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1936 of 2004 |
| Delivered on: | 6 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 6 December 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Anthony McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the Minister's costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1936 of 2004
| SZBBO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 6 February 2003.
The applicant, who is a citizen of Jordan, arrived in Australia on 4 July 2001. He arrived on a student visa but he breached his visa conditions, was apprehended and placed in detention. His visa was cancelled on
19 March 2002. He applied for a protection visa on 15 May 2002 and on 3 June 2002 his application was refused by a delegate of the Minister.On 27 June 2002 he applied to the Tribunal for a review of the decision. He was released from detention on reporting conditions. He breached these conditions and was returned to detention on 12 December 2002.
A hearing was to be held on 16 January 2003, but this was delayed because the applicant was in detention and a security escort could not be provided. The hearing was finally held by video conference on
3 February 2003. As noted above, the decision of the Tribunal was handed down on 6 February 2003 affirming the decision of the delegate.The applicant appealed to the Federal Magistrates Court on 1 August 2003. Barnes FM adjourned the hearing on 8 October 2003 to
5 December 2003 at the request of the applicant with self-executing orders that if the applicant failed to file and serve an amended application by 19 November 2003 the application would be dismissed. As the applicant failed to do so the application was dismissed. He then appealed to the Federal Court with an application for an extension of time in May 2004. This was dismissed by Whitlam J on 15 June 2004. On 24 June 2004 the applicant applied once again to this Court.
Claims before the Department and the Tribunal
The applicant claims he does not want to return to Jordan or Saudi Arabia. The claims both before the delegate and the Tribunal centre upon an imputed political opinion. He fears persecution in Jordan because he thinks they will beat and torture him on his arrival.
He will be persecuted in Jordan because of a conversation he had with some friends comparing Australia with Jordan. During this conversation, he made comparisons with the Middle East, in particular with Jordan and Saudi Arabia. He made comments about the Jordanian Royal Family. He was told a report had been sent to Jordanian intelligence about the conversation.
The applicant swore about the people who had told the intelligence services but others around him accused him of damning the Jordanian system and government.
The decision of the Tribunal
The Tribunal’s decision is accurately summarised in the respondent’s submissions:
20.The Tribunal found that
(a) the applicant was vague about the conversations he claimed to have had which were critical of the Jordanian government and which formed the basis for his refugee claims.
(b) the content of these conversations, as recounted by the applicant, was very general and innocuous.
(c) the fact that the application for a protection visa was lodged only after his student visa had been revoked and after he had been placed in detention, cast some doubt on the validity of the applicant’s claims.
(d) the applicant did not claim to have suffered harm amounting to persecution in the past.
(e) the applicant did not claim that he had suffered discrimination in the past.
(f) the evidence suggested that the applicant’s family had not suffered discrimination sufficient to bar them from pursuing careers or advanced studies.
(g) it was not satisfied that a private conversation between young men at which no other national appeared to have been present would incur penalties, even if the “information dissemination” was to come to the attention of the Jordanian authorities.
(h) it was not satisfied on the basis of the applicant’s evidence that the authorities had been informed about his critical comments, or that they had any interest in the applicant for that reason or any other reason.
(i) even if the authorities had been informed about the applicant’s remarks, the Tribunal was not satisfied that Jordanian authorities would be interested in pursuing him because of them, given that the remarks were made privately, the applicant was a young man without any political or other influence, and the remarks themselves appeared to have been very general and innocuous.
Consideration of the issues
The amended application filed on 29 September 2004 does not contain any grounds which point to any legal error by the Tribunal, let alone jurisdictional error.
The amended application appears to be claiming three things. The first is that the applicant will face persecution if he returns to Jordan because of the conversation he had with his friends about Jordan and its Royal Family and making comparisons between Jordan and Australia. The second is that the applicant was bashed by his ex-wife’s ex-husband also a Jordanian and his friends and this may lead to “war” between the two families. The third is his sexual orientation. He says he is gay. Fourth, at the hearing he alleges that he was treated unfairly by the Tribunal.
Failure by the Tribunal to consider the beating by the ex-husband
Taking the second ground first, that is, the bashing by the ex-wife’s ex-husband, the applicant says that the Tribunal failed to consider this matter. The first occasion when this came to the attention of the Tribunal was in a facsimile sent by the applicant’s migration agent which was addressed to the Migration Review Tribunal. In fact it was received by the Refugee Review Tribunal on 15 December 2002 and this is recorded at the Court Book pages 57 to 60. The facsimile says:
On Friday 13 December his fiancée contacted me to ensure that we would act on [the applicant’s] behalf promising that she would write down the details of his story about him failing to comply with the DIMIA conditions and for not fulfilling his commitments to the agreement conditions with his adviser
On page 60 of the Court Book it states
A six pages handwritten fax was sent by his fiance attached explaining events that happened to the applicant since I lost contact with him in Sydney until today. The applicant has lodged an appeal to the MRT on 13/12/2002. He again asked me to act on his behalf
We find that he has failed to comply with the DIMIA conditions set in his bridging visa application due to the continuous harassment that faced his fiance
This matter was considered by the Tribunal as noted at Court Book page 94 under the heading “Claims and Evidence”. I have carefully read the documents in the Court Book, particularly the Tribunal’s reasons, and it is clear to me that no separate or distinct claim was made to the Tribunal based on the bashing and the feud with the ex-wife’s ex-husband. As the respondent says, this material was provided to the Tribunal by the adviser to explain the applicant’s failure to comply with conditions on his bridging visa. In fact it seems it was intended to go to the Migration Review Tribunal rather than the Refugee Review Tribunal but it was before the Refugee Tribunal. The facsimile was there to explain the applicant’s failure to comply with conditions on his bridging visa. I can discern no separate and distinct claim being made to the Tribunal based on this material. This ground must be rejected.
Unfair treatment by the Tribunal
At the hearing the applicant alleged the Tribunal treated him unfairly. The first contention was that he was not given an adequate opportunity to obtain evidence from Jordan which he said was very difficult for him to obtain. The applicant was somewhat vague about the evidence he would have obtained although he suggested that some had only become available since the Tribunal decision.
There is no evidence before me that at any stage the applicant sought an opportunity to obtain such material and to place it before the Tribunal. Moreover, he was represented for much of the time by a migration agent. The agent’s facsimile of 15 December 2002 to which I have already referred, although addressed to the Migration Review Tribunal, actually went to the Refugee Review Tribunal. There is nothing in that nor anywhere else to suggest the applicant sought extra time to present material before the Tribunal. Furthermore, various documents from the Tribunal, and earlier from the Department to the applicant, made it abundantly clear that he should provide all the information and documents that were necessary to support his claim.
The applicant’s second ground for alleging unfairness was that he asked that the Tribunal call a witness to the oral hearing. This is recorded at Court Book page 73, the name of the witness being Mr Mohammed. Mr Mohammed was to give evidence “to tell about the conversation that took place with other friends and that was reported to the Jordanian intelligence”. Apparently Mr Mohammed was not called.
Section 426 of the Act provides that an applicant may, within seven days after being notified of the hearing, give the Tribunal written notice that he wants the Tribunal to obtain oral evidence from a person or persons named in the notice. It also provides that although the Tribunal must have regard to the applicant’s wishes it is not required to obtain evidence, orally or otherwise, from a person named in the applicant’s notice.
There thus was no obligation on the Tribunal to obtain evidence from Mr Mohammed. But equally, here the evidence that the applicant wanted Mr Mohammed to present to the Tribunal was in relation to the conversation about Jordan. This evidence was unnecessary because the Tribunal accepted that the conversation took place and accepted the contents as described by the applicant.
The procedural fairness grounds are not made out.
The other two grounds
The other two grounds can be easily resolved. The sexual orientation ground was never claimed before the Tribunal and the fear of persecution ground (the first ground) is really just a dispute with the Tribunal’s fact-finding. They too must be rejected. As I made clear to the applicant at the hearing, the role of the Court is quite different from that of the Tribunal. It is not within the powers of the Court to reassess the evidence and make new factual findings. That is a matter for the Tribunal.
Conclusion
Counsel for the respondent Minister submitted to me that the application must be dismissed as no reviewable legal error has been disclosed.
I agree.The findings made by the Tribunal which I summarised earlier were reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. As the applicant is unrepresented I carefully read the decision and the materials before coming to that conclusion.
I find the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. In addition, the decision of the Tribunal was a bona fide attempt to exercise its power. It clearly related to the subject matter of the Migration Act 1958 and related to the powers conferred on the Tribunal.
In the circumstances I will dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 12 January 2005
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