SZCPM v Minister for Immigration
[2006] FMCA 439
•10 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 439 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Egypt – where the applicant did not attend court. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff S157 of 2002 v Commonwealth [2003] 211 CLR 476 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZCPM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 250 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 March 2006 |
| Date of Last Submission: | 10 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2006 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondent: | Ms Wong |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Refugee Review Tribunal be joined as Second Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 250 of 2004
| SZCPM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal which was made on 5th December 2003 and handed down on 6th January 2004. The Tribunal affirmed a decision made by a delegate of the Minister refusing the applicant a protection visa.
The applicant has not attended Court today. The matter was listed for final hearing at 10.15 this morning. The applicant did not appear when the matter was called at 10.17 am so I stood the matter down and the applicant was again called at 10.47 am. No one answered the call.
The applicant is no longer represented by a firm of solicitors as his solicitor, Mr Agnew, filed a notice of withdrawal on 3rd August 2004. No message has been received from the Registry or directly from the applicant indicating that he has been delayed, hindered or otherwise prevented from attending Court today due to illness, injury or any other personal circumstances.
I note that the solicitors for the respondent Minister wrote to the applicant on 7th March 2006 enclosing a copy of the respondent's submissions and reminding him of the hearing today. I note that the letter included the address of the Court. I also note that a copy of that letter forwarded to the address of the authorised recipient has been returned marked "No longer at this address". The other letter appears not to have been returned.
It is appropriate in the circumstances, as the matter has been in the list since 27th January 2005 when it was listed for final hearing, that I should proceed to a hearing generally, rather than just dismiss the matter for want of appearance.
The applicant is a citizen of Egypt. He arrived in Australia on
18th April 2002 and applied for a protection visa on 14th May of that year. That application was refused on 29th August 2002 and on
24th September that year the applicant lodged an application to the Refugee Review Tribunal for a review of that decision.
He claimed a fear of persecution in his home country because of his father's political opinions and activities. The claim extended to the fact that the applicant said that he had suffered personally as a result of the government's opposition to his father's activities.
The applicant attended a hearing of the Refugee Review Tribunal where he gave oral evidence. He described how his father had been detained and after his release the authorities came to arrest him again and so they took the applicant into custody. The applicant told the Tribunal that he remained in custody for some 21 days and was tortured beyond description.
The Tribunal, in its decision, did not accept that the applicant was, in fact, ever a member of the Socialist Labour Party in Egypt and that he had not claimed that he had ever faced persecution as a consequence of his membership of that party. The Tribunal did not accept that the applicant's father was a member of that party or had faced persecution on account of his membership of the party or that the father was now in hiding.
The Tribunal did not accept that the applicant was detained and tortured prior to his departure from Egypt. The Tribunal did not accept that the applicant would face further persecution for this reason if he were to return Egypt or that he would be persecuted in relation to an unauthorised departure from his country.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution and the Tribunal found that the applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act.
The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant.
The applicant commenced proceedings in this Court seeking judicial review of the decision of the Refugee Review Tribunal. In that application he alleged, by way of grounds of review, first, that the Tribunal misapplied the statutory definition of persecution as set out in s.91R of the Migration Act and second, he claimed that the Tribunal's decision was so unreasonable that no reasonable decision maker could have made it by reference to the Tribunal's statutory obligations under
s.420 of the Migration Act.
As I said, the applicant has not attended Court today. The grounds for review set out in his application which is submitted on behalf of the respondent Minister amount to a request to the merits review of the Tribunal's decision which is not available in this Court.
The Minister submits that the applicant has not demonstrated jurisdictional error and the application should be dismissed.
The Minister submits that the Tribunal's decision could be set aside in circumstances where it had fallen into jurisdictional error, for example, where there had been a failure to discharge imperative duties or to observe inviolable limitations or restraints and I am referred to the decision of Plaintiff S157 of 2002 v Commonwealth [2003] 211 CLR 476 at [76].
If the applicant were to fail to establish jurisdictional error the decision of the Refugee Review Tribunal would be a privative clause decision within the meaning of sub-s.474(2) of the Migration Act and would not therefore be amenable to judicial review by this Court.
In respect of the grounds for review given by the applicant, first of all, in respect of ground 1, the applicant just does not provide any particulars of this ground. The Tribunal did not need to consider whether the persecution that the applicant claimed fell within the definition of serious harm because the Tribunal just did not accept the applicant's claims that his father went into hiding at the instigation of officials of the Socialist Labour Party. The Tribunal did not accept that the applicant was detained and tortured by the secret police to ascertain the whereabouts of his father.
Counsel for the respondent Minister, Ms Wong, submits, and I believe correctly, that the applicant's real complaint is that the Refugee Review Tribunal did not accept his claims. This amounts to a request for merits review which is outside the jurisdiction of the Court, undertaking judicial review of a decision of the Refugee Review Tribunal - see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
I am satisfied that the respondent's submissions are correct and that ground 1 does not demonstrate the jurisdictional error.
Ground 2 is the unreasonableness ground. It is a claim of jurisdictional error on the grounds of Wednesbury unreasonableness. That ground must also fail. The applicant does not provide any particulars as to why the Tribunal's decision was unreasonable. Counsel for the respondent Minister submits, and I believe correctly, that an analysis of the reasons for decision shows that the opposite conclusion is true, namely that the Tribunal reviewed the evidence carefully - both the evidence provided by the applicant and the independent country information - and that the Tribunal engaged in a thorough and logical reasoning process when determining the applicant's claims were not to be accepted.
I am satisfied that there is no basis for the applicant's claim that the Tribunal demonstrated jurisdictional error on the grounds of Wednesbury unreasonableness. That ground must also fail.
I am mindful of the fact that the applicant is not legally represented nor has he been so represented since 3rd August 2004. I have read through the decision myself in an effort to see whether the decision shows any other jurisdictional error other than the jurisdictional errors claimed by the applicant in his application.
I am unable to discern any jurisdictional error as a result of my own independent perusal of the Tribunal's decision. I am satisfied that no jurisdictional error has been demonstrated and that the decision of the Refugee Review Tribunal is, in fact, a privative clause decision as defined by sub-s.474(2) of the Migration Act and it therefore attracts the protection set out in sub-s.474(1) of that Act.
I intend to dismiss the application. I note that the Refugee Review Tribunal had not been joined as a respondent to the application and I propose to order that that should be done, although it is of purely academic interest. I also note that the title of the respondent Minister has been changed to the Minister for Immigration and Multicultural Affairs and I will make an order reflecting that fact.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 27 March 2006
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