SZBOJ v Minister for Immigration - [2005] FMCA 577

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBOJ v MINISTER FOR IMMIGRATION

[2005] FMCA 577

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in failing to consider claims not made to it where advisor allegedly failed to put claims to the Tribunal – whether jurisdictional error where applicant claimed not to have attended hearing in reliance on advisor’s advice.

Migration Act 1958, ss.51(1) and 65(1)

Re Minister for Immigration & Multicultural & Indigenous Affairs and Another; Ex parte Applicants S134/ 2002 (2003) 211 CLR 441

Applicant:

SZBOJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2054 of 2003

Judgment of:

Barnes FM

Hearing date:

19 April 2005

Delivered at:

Sydney

Delivered on:

19 April 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2054 of 2003

SZBOJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of the Ukraine, applied for a protection visa on 23 November 2001. In essence he claimed to fear persecution from the authorities in the Ukraine on the basis that he faced compulsory military service in that country and was a conscientious objector.
After his application was refused he sought review by the Tribunal by application received on 16 April 2002. In that application he provided the same address as his home and mailing address. He did not provide any contact telephone number. He nominated a named migration agent as his authorised recipient. A copy of the statement which had been annexed to his protection visa application was annexed to the Tribunal application.
On 16 April 2002 the Tribunal wrote to the applicant at the address provided and also to the migration agent, advising the applicant that if the Tribunal could not make a decision in his favour he would be asked whether he wanted to come to a hearing to give oral evidence and present arguments and that if had any new documents or written evidence he should send them to the Tribunal at the earliest possible point in the review process.
On 10 March 2003 the Tribunal wrote to the applicant at the address that he nominated, with a copy sent to his migration agent, advising him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. It invited him to come to a Tribunal hearing on 10 April 2003 to give oral evidence and to give arguments in support of his claims. It provided details of the proposed hearing and under the heading “Important Information” advised:
The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing you must contact the Tribunal immediately. If you do not attend the hearing and Tribunal does not postpone the hearing it can make a decision on your case without further notice.
The letter also asked the applicant to complete a response to hearing form indicating if he was coming to the hearing and to send any new documents or written arguments to the Tribunal for consideration.
In its reasons for decision which were handed down on 4 September 2003 the Tribunal records that no response to this letter was received from the applicant. I note that the applicant does not dispute that the letter of 10 March 2003 was sent to and received by him. Nor does he claim to have responded to the letter of the Tribunal.
The Tribunal also stated that when it contacted his adviser, the adviser informed the Tribunal that he had had no contact from the applicant. In these circumstances the Tribunal was satisfied that it had discharged its obligation to provide the applicant with the opportunity to give oral evidence and present arguments and that he had effectively declined that opportunity. It then proceeded to make a decision on the review without taking further action to allow or enable the applicant to appear before it.
The Tribunal outlined the applicant's claims: that he had completed military service (from which he was discharged in 1992) and that since his arrival in Australia his parents had received notification from the Ukraine authorities that he should register with the military due to his unique military qualifications. It recorded that he feared being forcibly recruited to serve in the Ukraine military.
The Tribunal stated that it had before it the Department's file as well as the protection visa application. Included in the Department's file was the statement attached to the protection visa application and the other documents provided to the Department. The Tribunal accepted for the purposes of the Convention that the applicant should be assessed as Ukrainian. However it concluded that without further evidence from the applicant it did not accept that he was required by the Ukraine authorities to attend the military office or that he was a conscientious objector to military service. It had regard to the fact that the applicant's claims were vague, that he had not attended the Tribunal hearing and made only the briefest of claims without providing any detail. It found that without further information from him it did not accept that he objected to service in the Ukraine military.
The Tribunal also found that it was not satisfied that any Ukrainian conscription law was discriminatory, being universal to all males in the Ukraine, or that it was applied in a persecutory manner. It was not satisfied that the applicant had a well-founded fear of Convention-based persecution on return to the Ukraine. It is notable that, as the Tribunal had decided that on the evidence before it, which it described as brief, vague and without any detail, it was not satisfied either than the applicant was required for service in the Ukraine army or that he was a conscientious objector, the findings in relation to any discriminatory element in the Ukraine conscription law are alternative bases for its decision.
The applicant filed an application in this Court on 2 October 2003 in which he stated that the decision of the Tribunal needed to be reviewed due to incomplete information being provided. Particulars of this claim were that when the Tribunal made a decision to refuse his application it had what he described as ‘a basic draft’ of his reasons for refugee status and that he would have specified the classified part of his reasons to add to his application (as he had taken an oath in the Soviet army not to disclose State secrets). He claimed that he did not attend the Tribunal hearing due to having severe flu.
In an affidavit in support of his application the applicant suggested that there was a slight misunderstanding as to why he objected to service in the Ukrainian army. He gave details as to his experience and skills and why he understood that he was being required to serve. The affidavit addresses the merits of the Tribunal decision.
At the commencement of the hearing today the applicant filed a statement which I take as written submissions. Annexed to that statement are a number of references or statements in support of the applicant referring to his application for permanent residency. As I explained to the applicant, it is not for the Court to determine his application for permanent residency but only to determine whether the Tribunal fell into jurisdictional error.
The essence of the complaint that he makes in his written statement and also in oral submissions to the Court is that the migration agent who assisted him in his applications to the Department and the Tribunal was at fault. He submitted that he relied on his agent to present his case and tell him of requests for information from the Department and the Tribunal, that he did not understand the letter from the Tribunal concerning the hearing and that he was told by the agent that if he wanted to go to the Tribunal hearing on 10 April 2003 he could attend but it was not necessary. He claimed he did not know that the agent did not respond to the hearing invitation and continued:
“… as I had a severe flu and a temperature of 39.5 degrees centigrade on 10 April I could not go in any case.”
He set out details of information that he claimed to have provided to his migration agent in support of his claims to fear persecution. He said he had verbally provided this information to his agent and relied on him to report these points to the Department and the Tribunal and that he did not find out that most of his claims were omitted from the applications until after the Tribunal's decision was translated for him. He raises a number of issues which were not contained in the statement provided to the Department or the Tribunal, in particular, in relation to his opposition to nuclear missiles (it being his expertise in relation to facilitating the firing of such missiles that he said made him sought by the military in the Ukraine). He claimed that he had relied on his agent and the agent's fault was beyond his control.
The first of the complaints is that his agent did not put to the Tribunal, or indeed to the Department, central elements of the claim he wished to make. Insofar as the applicant seeks merits review or that the court determine the issue of whether he is a refugee, such merits review is not available.
It is clear from the content of the statements provided in connection with the applicant’s protection visa application and his Tribunal application that aspects of the claims that he now says he wished to put were not included in such material. However the applicant's complaint that more claims should have been put forward on his behalf by his agent is not something that constitutes a jurisdictional error on the part of the Tribunal. The Tribunal's obligation was to consider the claims that were in fact put forward on behalf of the applicant.
As is clear from Re Minister for Immigration & Multicultural & Indigenous Affairs and Another; Ex parte Applicants S134/ 2002 (2003) 211 CLR 441 at [32] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, s.65(1) of the Migration Act 1958 obliges the Tribunal to determine its satisfaction as to whether the criteria for the visa sought were satisfied, but “there is no obligation imposed by s.65(1) to reach a state of satisfaction (or otherwise) respecting criteria which [the applicant] did not advance”. Similarly the Tribunal is not obliged to consider elements of claims not advanced or not apparent on the material before it. While the applicant now contends that he has a conscientious objection to the use of nuclear or strategic weapons, the claim that he made to the Department and to the Tribunal was not put in those terms and did not raise such a claim. There was no jurisdictional error by the Tribunal in failing to consider claims that were not made to it.
The applicant also takes issue with a particular aspect of the Tribunal consideration of his claims. He suggests that the Tribunal erred in stating that his parents had received notification from the authorities that he should “register” with the military due to his unique military qualification.
In oral submissions he drew a distinction between the concept of “registration” in the Ukraine, that being a formal process which is carried out after military service. He told the court that he had registered after he completed his service. He contended that the Tribunal confused registration with his claim that he had been asked to go to or “appear” at the military office (so that he could be required to engage in military service).
In the statement annexed to his protection visa application and to the Tribunal application, the applicant referred to the fact that he had been called to the Military Registration and Enlistment Office and received a proposition to join the army, which he rejected, and that recently he had received information from his parents that the military authorities called him to the military registration office, that his parents went to that office, explained that he was overseas and could not attend, and inquired as to the reason for the call. He claimed that it was explained that he should attend military registration office and make an oath of allegiance to the Ukrainian State and undertake three months' military training because of his unique military qualification being in demand. He then went on to give reasons why he felt that he could not join the military forces because of his opposition towards compulsory military service. He did not attend the hearing to elaborate on these claims.
In these circumstances, the applicant's complaint that the Tribunal erred in referring to a claim that his parents received notification that he should “register” is not such as to constitute a jurisdictional error. The part of the Tribunal reasons in which the statement in question appears is the summary of the applicant's claims and evidence which, given the failure of the applicant to attend a hearing, depended entirely on the written statement.
The findings and reasons part of the decision makes it clear that the Tribunal correctly understood that the applicant’s claim included a claim that he was required by the authorities to “attend the military office”. It rejected this claim as well as with his claim to be a conscientious objector in the absence of further evidence from the applicant. The Tribunal properly addressed and considered the actual claims made by the applicant. In light of the manner in which his claims were presented in the statement attached to his application, I am not persuaded that use of the word “register” rather than “appear” in the summary of the applicant’s claims constitutes an error, let alone a jurisdictional error. The applicant’s description of being called to the registration office is consistent with the manner in which the Tribunal summarised his claims, albeit that it used a word which he contends has a special meaning in the context of Ukrainian military requirements. Moreover, if the Tribunal did err in describing the notification to his parents as a notification that he should “register” rather than a notification that he should “attend” the military registration office (which the Tribunal understood carried with it the prospect of military service), then this would be no more than a factual error, having no bearing on the Tribunal decision.
The Tribunal was obliged to follow the procedures laid down in the Migration Act 1958 (C’th). The central element of these procedures is that contained in s.425 of the Migration Act: to invite the applicant to appear before it to give evidence and present arguments. The Tribunal met this obligation in its letter sent to the applicant at the correct address on 10 March 2003. The letter complied with the requirements of s.425A of the Act. It was sent not only to the applicant but also to his migration agent as authorised recipient in compliance with ss.441A and 441G and there is no suggestion that the period of notice given was not as prescribed. The letter also met the requirements of section 426 as to notification to the applicant of certain matters.
The applicant did not appear before the Tribunal on the day and time and place at which he was scheduled to appear. As he had been properly invited under s.425 to appear, pursuant to s.426A the Tribunal was empowered to make a decision without taking any further action to allow or enable him to appear before it. The applicant does not dispute receiving the letter of 10 March 2003. Taking what he says at its highest in relation to the conduct of his agent, it is not such as to establish that the Tribunal fell into jurisdictional error.
The Tribunal properly discharged its obligation to ask the applicant to a hearing. There is nothing in the Migration Act to overcome the effect of s.426A where the Tribunal has properly met its obligations and indeed, more generally, there is nothing in the material before me or indeed in anything that was said by the applicant to suggest that there was any lack of procedural fairness in the manner in which the Tribunal proceeded. Indeed it went beyond the statutory requirements, in contacting the migration agent when no response was received about the hearing invitation. While the applicant takes issue with what the migration agent is recorded as having said in response to the Tribunal, again this does not establish error on the part of the Tribunal.
I also note that there was no method for the Tribunal to communicate with the applicant, other than by way of letter to him or letter or telephone call to his migration agent, as no telephone contact number had been provided by him in his Refugee Review Tribunal application.
As counsel for the respondent quite properly pointed out, if the applicant has a complaint about the conduct of his migration agent, either in relation to the Department or the review by the Tribunal, or in relation to whether the agent put his claims to the Tribunal, such complaints do not establish a jurisdictional error but may be matters that can be raised by the applicant direct with the Minister for Immigration (or indeed with the Migration Agents Registration Authority). The court does not have power to resolve such matters as they do not go to establish any jurisdictional error by the Tribunal in this instance.
The applicant also took issue with a number of aspects of the respondent's submissions, but this amounted to a disagreement with the merits of the Tribunal decision. As indicated, disagreement with the merits of the Tribunal decision does not establish jurisdictional error.
Finally, the applicant explained that he had not obtained a medical certificate in relation to his ill health at the time of the Tribunal hearing because of lack of funds. However it is notable that there is also no evidence of any contact with the Tribunal to advise of his ill health or to seek an adjournment despite the fact that the letter of 10 March 2003 advised that if he thought he might be unable to attend the hearing he must contact the Tribunal immediately.
As I have indicated, the applicant makes quite serious claims in relation to the conduct of his migration agent. For the purposes of determining whether there is any jurisdictional error apparent in the decision or procedures of the Tribunal I have had regard to those claims but, as indicated above, the alleged conduct of the migration agent (if it were to be established) is not such as to establishes a ground for review of the decision of the Tribunal.
As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that he meet the costs of these proceedings. There is nothing in the circumstances before me to warrant a departure from the normal rule that an unsuccessful applicant should meet the costs of the respondent. In light of the nature of this and other similar matters I consider that the amount of $4,500, which is sought, is appropriate.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 May 2005