SZCZF v Minister for Immigration & Anor
[2007] FMCA 506
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZCZF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 506
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate not to grant a protection visa – applicant is a citizen of Bangladesh – applicant claims fear of persecution for reasons of his political opinion – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 39B, 65, 91R, 422B, 424A, 474
Abebe v Commonwealth (1999) 162 ALR 1
Craig v South Australia (1995) 184 CLR 163
Lu v Minister for Immigration & Multicultural Affairs [2005] FCAFC 340
NARV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 3616
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407
WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277
Applicant: SZCZF
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3162 of 2006
Judgment of: Scarlett FM
Hearing date: 22 March 2007
Date of Last Submission: 22 March 2007
Delivered at: Sydney
Delivered on: 22 March 2007 REPRESENTATION
The Applicant: Appeared in person
Counsel for the Respondents: Mr Potts
Solicitors for the Respondents: Clayton Utz ORDERS
(1)The title of the first respondent is changed to Minister for Immigration & Citizenship.
(2)The application is dismissed.
(3)The applicant is to pay the first respondent’s costs fixed in the sum of $4,000.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYG 3162 of 2006
SZCZF Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
REASONS FOR JUDGMENT
Application
1.This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 27th September 2006 and handed down on 19th October. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class AZ) visa. The applicant has filed an application for judicial review in this Court in which he seeks relief by way of an order in the nature of certiorari quashing or setting aside the Tribunal's decision, a declaration that the decision made is null and void and has no effect in law, an order in the nature of mandamus remitting the application to the Tribunal for redetermination and a writ of prohibition restraining the Minister and the Minister's representatives from acting on the Tribunal decision until the determination of this proceeding.
2.
The background to this matter is that the applicant is a citizen of Bangladesh. He arrived in Australia on 21st June 1998 and applied for a protection (Class XA) visa on 20th July in that year. His application for a visa was refused on 1st September 1998. He sought a review of that decision from the Refugee Review Tribunal and the Tribunal differently constituted from the Tribunal made the decision under review before me, affirmed the delegate's decision on 29th May 2000. The applicant sought judicial review of that decision and on
31st May 2006 Federal Magistrate Smith made orders in the nature of certiorari and mandamus remitting the application to the Tribunal.
3.The Tribunal wrote to the applicant inviting him to attend a hearing on 15th August 2006. The applicant did not attend the hearing. He wrote to the Tribunal saying -
Please cancel my appointment and I look forward to hear from the Tribunal regarding adverse information or any other comment the Tribunal may like to ask.
4.As I said, the applicant did not attend the hearing and the Tribunal telephoned him and as set out on page 157 of the Court book the Tribunal received oral confirmation that he did not wish to attend. Nevertheless, the Tribunal wrote to the applicant and putting certain material to him and seeking his comment in accordance with the requirements of s.424A of the Migration Act. The applicant replied on 30th August 2006.
5.
The Tribunal's findings and reasons are set out on pages 161 through to 166 of the Court book. The Tribunal accepted that the applicant has Bangladesh nationality based on his passport. The Tribunal noted the applicant's claims that he faced persecution in Bangladesh for reason of his political opinion, namely his involvement with the BMP.
The Tribunal referred to the specific fears that the applicant mentioned arising from incidents in 1997 and 1999. The Tribunal considered the applicant's documentary claims and considered the applicant's reply to the letter sent to him under the provisions of s.424A of the Migration Act.
6.
The Tribunal did not accept the credibility of the applicant's claims.
At page 165 of the Court book the Tribunal had this to say
The Tribunal has considered the applicant's claims individually and cumulatively. The Tribunal does not accept that he has had any political engagement at all or that he has suffered any consequent harm. It does not accept that he is wanted on murder charges, on any lesser charges or for any other reasons.
The Tribunal does not consider that the applicant has any political interests or that there are any other factors that may form the basis for a real chance that he will face serious harm if he returns to Bangladesh. The Tribunal is therefore not satisfied that the applicant has a well‑founded fear of persecution for Convention reasons now or in the reasonably foreseeable future if he returns to Bangladesh. He's not a refugee.
7.The Tribunal found that the applicant did not satisfy the criterion set out in sub-s.36(2) for a protection visa and affirmed the decision not to grant a protection visa to the applicant.
8.The applicant sets out six grounds in his application ‑
(a) The Tribunal failed to follow the procedural fairness and in so doing it has made jurisdictional error and error of law;
(b) The procedure required by the Migration Act and Migration Regulations to be observed in connection with the making the decision were not observed;
(c) The Tribunal ignored the merits of the protection visa application. The Tribunal's made its decision on the basis of the outdated and unrelated country information. The Tribunal was biased to make its decision;
(d) The Tribunal failed to take relevant consideration into account in exercising its power to determine a review application;
(e) The Tribunal is involved with jurisdictional error and it led the incorrect interpretation of the applicable law;
(f) The Tribunal decision was unjust and it was made without taking into account of the full gravity of the circumstances and applicable law.
9.Those are the grounds upon which the applicant relies in his application.
10.
On 7th March 2007 he filed a document entitled: Written Case of the Applicant. That is an extensive document extending into five pages. In that document the applicant sets out his history and sets out some 12 paragraphs of grounds in supporting the review application. He also makes a further six points which again go to grounds of the application. The applicant submits that the Tribunal decision under review is subject to jurisdictional error. He claimed that the Tribunal failed to comply with the mandatory requirements of the Migration Act.
He said:
The Tribunal made its decision on the basis of US country reports in respect of availability fraudulent documents in Bangladesh. The Tribunal should not rely on in regards of my case since as an applicant did not provide with the independent country information which was not just a group of people in which I am a member and which fell outside the meaning of s. 424A(3)(a) of the Migration Act where such information was relevant to the Tribunal's decision not only because it concerned the class of persons, but also because it went to a separate issue in the proceeding.
11.The applicant refers the Court to the decision in NARV& Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494. The applicant went on to submit that the Tribunal had:
Gone on a wrong way to draw a wrong issue
In regards to his review application, he claims that the Tribunal wrongly interpreted all of his documents and failed to understand actual information which led him to flee from Bangladesh. He refers to those documents which he claims the Tribunal wrongly interpreted. The applicant went on to refer to the Tribunal's comments that there was a wide discrepancy in the dates of an injury that he is alleged to have had. He sets out why it was that different dates appear, referring, first of all, to treatment by a local medical clinic in 1994 and seeing an orthopaedic specialist in 1997.
12.The applicant refers the Court to the decision of Lu v Minister for Immigration & Multicultural Affairs [2005] FCAFC 340 where their Honours refer jurisdictional error as set out by the High Court in Craig v South Australia (1995) 184 CLR 163. The applicant submits that the rejection of his documents amounted to jurisdictional error which was an error of law. He submits, rather puzzlingly, that whilst it was not mandatory for the Tribunal to make any inquiry about the documents that were produced that there was an obligation to do so. He refers to his application for a protection visa and sets out factual evidence going towards that application. He submits that the Tribunal decision constitutes a jurisdictional error being a breach of procedural fairness. He said it was an essential exercise of the decision making power that attracts s. 39B of the Judiciary Act. He referred the Court to the decision of Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at [33]. He claims that the Tribunal failed to identify that the fear of persecution that he claimed has both elements of subjective and objective fear.
13.The applicant goes on to claim that the Tribunal failed to take a relevant consideration into account in exercising its power to determine him as a refugee. He reiterates that the decision involved a jurisdictional error and claimed that the Tribunal's decision was unjust and maybe without taking into account the full gravity of the circumstances and consequences of his review application. He submits that the decision by the Tribunal was not justifiable by the evidence he used in the decision. He alleges that the decision was an improper exercise of the power conferred by the Act and that he was denied natural justice. There is no clarification or particularisation of how he claims to have been deprived of natural justice, I note.
14.
The applicant filed in Court a short typed submission in which he refers generally to his case and the documents in the Court book.
He made these submissions
The Tribunal made a decision that my documents are not genuine and such decision is wrong because the Tribunal did not confirm that my documents are not genuine. I understand that the Tribunal wrote to me on 1st September 2006 and invited me to comment. Court book 139 to 142. I responded to the Tribunal letter. Court book 143 to 145. After receiving my comment I expected the Tribunal to write back to me to clarify any matter and such did not happen. I ask you to assist me with this matter because I believe I'm a refugee.
15.The applicant has attended Court today. He made some complaints about the earlier Tribunal hearing and confirmed that he did not attend the Tribunal hearing which led to the decision under review. He told the Court that he was ill on that day. He also told the Court that his former migration advisor had made a mistake in writing that he had been involved in some form of altercation and had bitten someone. The applicant denied that he bit anyone.
16.The respondent Minister, Mr Potts of counsel, pointed out to the Court that the applicant had elected not to attend the second Tribunal hearing for reasons of his own and if there were matters that required clarification the Tribunal offered him an opportunity which he chose not to take up
17.I have considered all of these matters. The applicant claims to have been denied procedural fairness. I note, as counsel for the Minister points out, this is not a matter to which s.422B of the Migration Act applies, but the applicant's written case did not give any idea as to what was the denial of procedural fairness that the applicant claimed and it is submitted, and I believe correctly, that the material before me does not show any denial of procedural fairness. There appears to me to be no denial of natural justice.
18.The applicant complains the procedures under the Act and the Migration Regulations were not followed and refers specifically to a breach of s.424A of the Migration Act.
19.The applicant was given the opportunity to comment on the information in s.424A letter that was sent to him on 1 September 2006. The applicant claims that information does not come within the scope of s.424A(3)(a) of the Act but my attention has been drawn to the decision of Giles J in SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 a decision on appeal from a Federal Magistrate, in particular paragraph 7 where it has been held that the information does come within sub-s.424 A(3)(a).
20.As to the third ground where the applicant complains that the Tribunal ignored the merit of his protection visa application and made its decision based on undated and unrelated country information and made a decision that was in some way marred by bias, it is fair to say that the applicant's claim relating to the factual matters of the case is an attempt to engage in merits for view.
21.The Court conducting judicial review of an administrative decision does not reconsider the facts. Giles J again dealt with this particular point quite succinctly, if I may say so, with respect in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3] where he said:
In so far as the Federal Magistrates Court is concerned it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct a Tribunal if jurisdictional error is revealed
22.
There is no evidence that the Tribunal made a decision based on undated and unrelated country information, but in any event the evaluation of evidence on factual matters is purely a matter for the Tribunal. There is an allegation of bias that appears to have been added without anything more almost as an afterthought. There is no reference to any bias in the applicant's supporting material.
The applicant orally today made a complaint about an incident that he said had occurred at the first Tribunal hearing in 2000, but that Tribunal decision was quashed. There is no evidence of bias that I can see in respect of the decision under review.
23.I am mindful that allegation of bias is a serious matter alleging personal fault on behalf of the decision‑maker. It must be strictly alleged and strictly proved. It will seldom be found merely in a perusal of the reasons for decision. I refer to the decisions of the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 3616 and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358. There is no evidence that the Tribunal failed to take into account any relevant consideration. There is no particularisation as to what this relevant consideration was, and, in any event, my perusal of the Tribunal's decision indicates that the Tribunal made a thorough study of the evidence.
24.Again, there is no evidence that the Tribunal incorrectly interpreted the law that applied to these proceedings. The Tribunal decision refers to ss.65, 36 and 5 of the Act along with article 182 of the Refugees' Convention and the convention definition in s.91R of the Migration Act. I do not see any misinterpretation of the law. I have previously held that there is no breach of s.424A of the Migration Act.
25.I note that the applicant complains that the Tribunal's decision was unjust, but that, of course, is a decision on the facts, and that is not a matter that the Court can interfere with on judicial review. Similarly a claim that decision was made without taking into account the gravity of the circumstances is, in my view, a further attempt at merits review.
26.The applicant has claimed the Tribunal should have made inquiries to verify his claim, particularly to verify its documents. The Tribunal does not have any duty to investigate any matters. It may make such inquiries as it considers appropriate under s.424 of the Act, but there is no obligation upon it to do so. Counsel for the respondent Minister has referred me to the decisions of VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459, WAGJ of 2002 Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 and W38901A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407.
27.I am not satisfied that the decision was an improper exercise of the power conferred by the Act or the regulations. There is nothing to show that the Tribunal approached its task other than in the way proscribed by the Migration Act and evaluated the evidence before it. It is, of course, a matter of note that the applicant elected not to attend the Tribunal hearing. It has been made clear in a number of decisions including SZBK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346 that applicants do not assist their case by electing not to attend.
28.The purpose of attending a hearing is to give evidence and to clarify matters that would otherwise leave the Tribunal unsatisfied that the necessary criteria for a particular visa had not been met. By electing not to attend the applicant loses the opportunity to give that evidence, persuade the Tribunal by means of clarifying matters that are otherwise unclear.
I am mindful of the fact that the applicant is not legally represented.
I have read through the Tribunal decision and supporting material independently of what has been put by either party and I cannot discern any arguable case for jurisdictional error. As there is no jurisdictional error, in my view, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. A privative clause decision is not subject to orders in the nature of certiorari, mandamus or prohibition and is not subject to a declaration by virtue of the operation of sub-s.474(1) of the Act. It follows that the application must be dismissed. I will make an order changing the title of the first respondent Minister to Minister for Immigration and Citizenship.I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 28 March 2007
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