SZDIQ v Minister for Immigration - [2006] FMCA 560

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDIQ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 560

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 did not attend tribunal hearing – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424B, 425, 426A
Administrative Decisions Judicial Review Act 1977 (Cth), s.5

Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
SAAP v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant:

SZDIQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1134 of 2004

Judgment of:

Scarlett FM

Hearing date:

29 March 2006

Date of Last Submission:

29 March 2006

Delivered at:

Sydney

Delivered on:

29 March 2006

REPRESENTATION

Applicant:

No appearance

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the First Respondent Minister’s costs fixed in the sum of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1134 of 2004

SZDIQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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. The decision was made on 18^th February 2004 and handed down on 11^th March 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant claims to be a citizen of Fiji who arrived in Australia on 16^th September 2003. On the 29^th of that month he applied for a protection (Class XA) visa, but on the following day a delegate of the Minister refused that application. On 30^th October 2003 the applicant applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal wrote to the applicant on 5^th January 2004 in terms of

s. 425 of the Migration Act advising him that it had considered all the material before it relating to his application, but was unable to make a favourable decision on that information alone.
Accordingly, the Tribunal invited the applicant to attend a hearing on 18^th February 2004 to give oral evidence and present arguments in support of his case. On 28^th January 2004 the applicant advised the Tribunal that he did want to give oral evidence.
Regrettably, he did not attend the hearing. The Tribunal decision says at page 67 that the applicant did not contact the Tribunal to explain his failure to attend. In those circumstances the Tribunal exercised its power under s. 426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal considered the applicant's claims at pages 67 and 68 of the Court book. The Tribunal noted that the applicant was a citizen of Fiji who spoke Hindi and was of Indo-Fijian ethnicity. He claimed that he had difficulty with freedom of movement, freedom of religion and freedom of speech and political freedom in Fiji. He claimed to have been discriminated against at his workplace because of his ethnicity and claimed that the situation in Fiji was unstable and, due to political tensions, he could barely make a living.
He also claimed that he and some friends were threatened with assault in July 2000 by a group of ethnic Fijians. He claimed that he reported the matter to the police and, whilst his complaint was registered, no action was taken. He also claimed further harassment from the same people a couple of months after.
The Tribunal considered all of the material before it. The Tribunal member noted at page 69 of the Court book that the applicant did not attend the hearing and this left the Tribunal with claims which were at best stated in the most general of terms. The Tribunal said - and I quote
The level of detail in insufficient for the Tribunal to make findings in h is favour.
The Tribunal member then set out the sort of details that it would have been helpful for the applicant to have provided in support of his claim. The Tribunal held that in view of the vagueness and generality of the applicant's claims and independent country information available the Tribunal did not accept the applicant's claim for the appeared persecution from indigenous Fijians for reason of his Indo-Fijian ethnicity or that he had suffered a threatened assault in July 2000 or that he had suffered theft and property damage in about October 2000.
The Tribunal was not able to be satisfied on the evidence before it that the applicant had a well-founded fear of being persecuted for a convention reason if he were to return to Fiji at that time or in the reasonably foreseeable future and affirmed the decision not to grant a protection visa.
The applicant sought judicial review of this decision by means of an application filed in the Federal Magistrates Court on 19^th April 2004. The application he said was made under s.39B of the Judiciary Act 1903 and, I note, s.5 of the Administrative Decisions Judicial Review Act 1977.
The applicant set out some 20 grounds of review. First, jurisdictional error of law, him having been denied an opportunity to fully present his case. Grounds 2, 3 and 4 and 5 set out factual details relating to the setting of a hearing and the applicant's request for an oral hearing.
Ground 6 the applicant said
This is a matter of contention because the applicant claims he phoned the Tribunal on 18^th February 2004 to explain that he was ill and could not attend the hearing.
He goes on to say that there was no acknowledgement of that telephone call.
The grounds 8 through to 11 are no more than a recapitulation of the Tribunal reasons for not finding in the applicant's favour.
Ground 12 says
The Tribunal failed to exercise its jurisdiction by relying exclusively on evidence from a particular source described as independent country information, or ICI, without any reasonable basis to do so.
The applicant goes on to say that
In relying on the independent country information the Tribunal failed to give the applicant an opportunity to rebut the veracity of the information.
He further claimed that the Tribunal's finding that there was no well-founded fear the applicant would suffer persecution in Fiji for reasons of race was so unreasonable that no reasonable Tribunal could have made such a finding. Paragraph 15 does no more than set out the fact that the Tribunal exercised its power under s.426A of the Migration Act to proceed to a hearing without taking further steps to allow the applicant to attend.
Ground 16 says
This decision of the Tribunal was wrong and a denial of natural justice to the applicant because he claims to have informed the Tribunal of his non-attendance on 18^th February 2004.
He claims that the Tribunal ought to have reconvened the hearing to a future date. He claims that
The non-acknowledgement of the applicant's telephone call of

18^th February 2004 was wrong and an oversight on the part of the Tribunal.
He claimed that the Tribunal by not reconstituting a further hearing denied him, the applicant, an opportunity to be heard and he alleges that the Tribunal displayed
bias and pre-mediated
conclusions based on the above conclusions in the independent country information. I presume that he means pre-meditated conclusions.
The applicant has supported his application with an amended application. He filed that on 11^th October 2004. In that he claims that the Tribunal's decision involved jurisdictional error by asking itself the wrong question and applying the wrong test. He claims that he was not accorded procedural fairness. He claims that the Tribunal did not comply with s.424B and s.425 of the Migration Act. He claims the Tribunal breached the rules of natural justice in connection with the making of the decision.
In particular, he claims that he was given ambiguous information.

He claims that the making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act and that the respondent exercised the power in accordance with the policy without regard to the merits of the applicant's case.
There is an affidavit in support of the applicant's claim filed on

11^th October sworn by the applicant. Contrary to the claim made in his original application that the applicant telephone the Tribunal to say that he was unable to attend due to illness the account that he gives in his affidavit is different. At paragraph 4 he says
I rang up my migration agent on 18^th February 2004 to ring the Tribunal to state that I could come on that day due to illness.

I asked the matter to be stood over to another day.
I presume that he means that he asked the agent to ring the Tribunal to state that he could not come on that day due to illness. Paragraph 5 he goes on to say
I did not receive any acknowledgement of my agent's telephone call. I received a copy of the decision handed down on

11^th March 2004.
He goes on to say at paragraph 6
I have examined the material provided to me in the Court book and read the reason for the decision. I cannot find any acknowledgement of my agent's call to the Tribunal in the decision. I have not been given an opportunity at any stage to explain my specific circumstances.
The difficulty with the applicant's explanation of his failure to attend the Tribunal hearing can be divided into three issues. First, he gives two different accounts of how he attempted to inform the Tribunal that he was unable to attend. Second, his affidavit does not indicate that he telephoned the Tribunal. At best, the affidavit says that the applicant asked h is migration agent to telephone the Tribunal. There is no evidence from the migration agent to say that the migration agent actually did advise the Tribunal that the applicant was ill.
Finally, the applicant has not attended Court today. I am informed by Ms Crawley, the solicitor for the respondent Minister, that she had in fact spoken to the applicant, who indicated that he would not be attending Court today. Whilst that is information given to me from the Bar table I see no reason to disbelieve what this practitioner has told me. The fact is that the applicant is not here. He is not legally represented, although clearly he has had some legal assistance in preparing his material, but he is not here.
The respondent relies on an affidavit sworn 27^th October 2004 by Jonathan Christian Willoughby-Thomas, the District Registrar of the Refugee Review Tribunal. In his affidavit he deposes that he is familiar with the practices and procedures adopted by the Refugee Review Tribunal, particularly in respect of telephone communications with the Tribunal by applicants or their representatives and he deposes that he has examined the file in the case management system and has not found any record of a request made by anyone, whether in writing or by telephone, for an adjournment of the hearing scheduled on

18^th February 2004.
The applicant's evidence does not go to show that anyone did communicate with the Tribunal. The respondent's evidence denies that anyone did. At best, the applicant's evidence shows that he contacted his migration agent. I am not satisfied that the applicant has made out a case on the material before me that he communicated with the Tribunal in any way to advise of his inability to attend the Tribunal because of sickness.
I have read the outline of submissions prepared on behalf of the first respondent Minister by Mr Smith of counsel and I have heard

Ms Crawley, solicitor, in her oral submissions. I am of the view that counsel's submissions set out accurately what appears to be the law in this matter.
Dealing with the first round, that the Tribunal asked itself the wrong question and applied the wrong test, it is submitted
The particulars to this ground reveal that the applicant is doing no more than taking issue with the merits of the Tribunal's decision. This does not support the contention that there was a jurisdictional error in the Tribunal's decision.
With respect, I agree.
The second ground, of course, relates to the applicant's claim that he was not accorded procedural fairness. He claims, first of all, that he was given ambiguous information, but does not explain what he means by that and counsel for the respondent submits that it is not clear from the material before the Court that any ambiguous information was given to the applicant. I certainly cannot see any.
The second particular was that the applicant was not given the proper opportunity to present his case. It is argued for the respondent that the Tribunal complied with the obligation to give the applicant an opportunity to present his case by means of its letter dated

5^th January 2004. The fact that the applicant did not attend the hearing means that the applicant did not take the opportunity that was given to him, but it does not say that the opportunity was not given, I am satisfied that it did.
Counsel for the respondent in submitting that the evidence did not show the applicant's attempt to contact the Tribunal and submits, in my view accurately, that the Tribunal in the circumstances was entitled to proceed to make a decision without any further effort to allow the applicant to appear before it. I am referred to the decision of

NAST v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 208 at [3].
The next particular is the claim that the Tribunal did not comply with

s.424B and s.425 of the Migration Act. It is submitted on behalf of the respondent, and in my view correctly, that s.424B does not apply in these circumstances. It only applies if a person is invited under

s.424 to give additional information or is invited under s.424A to comment on information. I am satisfied that the Tribunal did comply with s.425 of the Act by inviting the applicant to appear before it by means of its letter of 5^th January 2004.
As to the claim that the Tribunal proceeded to make the decision with or without further relevant information, whilst that is a vague complaint it is submitted on behalf of the respondent that this ground does not reveal any jurisdictional error. I believe that is correct.
As to the claim that the Tribunal failed to provide the applicant an opportunity to provide the Tribunal with other independent country information the fact is that the applicant was given the opportunity to do so. He chose not to take it or he neglected to take it.
As to the ground that there was a breach of the rules of natural justice I am not satisfied that that is the case. The applicant was invited to attend a hearing to give evidence and present evidence and make submissions on his behalf, he did not attend. The claim that the decision was an improper exercise of the power conferred by the Migration Act also cannot stand.
As to the applicant's claim in particular that the Tribunal took into account irrelevant considerations, namely general country information, I have heard the oral submissions made by Ms Crawley to the effect that the Tribunal is not required to refer independent country information to the applicant and, as is said in the submissions, it is certainly not irrelevant to the task required by the Tribunal. I am not satisfied that any breach of the findings in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 can be discerned from the Tribunal decision.
Turning to the applicant's claim that the Tribunal failed to take into account relevant considerations, namely other independent information, as well as failing to make an independent investigation of the applicant's evidence, it is submitted quite correctly that there is nothing to suggest that the Tribunal had before it any other independent information.
It is also well-known that there is no obligation on the Tribunal to make its own independent investigations of the applicant's claim. I am referred to the decision of Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47 at [24]. In my view, that case is on point and I propose to follow it.
The final ground it is submitted is also without merit. There is no indication in the Tribunal's decision that it followed a policy of accepting country information without regard to the applicant's circumstances. It is submitted correctly, in my view, that the country information was only relevant because of the applicant's circumstances.
It is unfortunate that claims of bias and breach of natural justice and breach of procedural fairness are made against the Refugee Review Tribunal, particularly in cases where the applicant does not attend a hearing of the Tribunal.
It is well-established that claims of bias and bad faith are serious allegations and it ill-behoves an applicant who does not attend a hearing of the Tribunal and does not attend a hearing of the Court to complain that the Tribunal showed some degree of bias or bad faith. The best way of ensuring one is granted procedural fairness is to attend the hearing, whether it be the hearing of a Tribunal or the hearing of a Court, to present one's case. Failure to take that opportunity will seldom bring about a decision favourable to an applicant.
There is no jurisdictional error. I am unable to discern any jurisdictional error. I have read through the decision thoroughly. I see no jurisdictional error that the applicant did not bring to the Court's attention and those alleged jurisdictional errors that he claims, I am not satisfied that any of them has been made out.
There is an application for costs in the sum of $5,400.00. I see no reason, in the light of the applicant's failure to attend the hearing, of which he has been aware since 28^th January 2005, why I should not make an order for costs in favour of the respondent Minister.

The amount sought is $5,400.00 inclusive.
I note that counsel was briefed to appear and indeed counsel provided an extensive outline of written submissions. I am informed by

Ms Crawley for the respondent, and I believe it to be the truth, that counsel was involved in the matter until yesterday when I presume the respondent became aware that the applicant was not going to attend the Court.
In my view, the amount sought is well within the range that I would allow. I am satisfied that the respondent did have to prepare the case on the basis that it was going to be a contested hearing and I am satisfied that it was necessary to bring evidence to meet the applicant's claims, as witness the affidavit of Mr Willoughby-Thomas.
I note that I should apply the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and join the Refugee Review Tribunal as a party.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 18 April 2006