SZDJX v Minister for Immigration
[2004] FMCA 888
•23 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDJX v MINISTER FOR IMMIGRATION | [2004] FMCA 888 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.417, 476(2), 477(1A)
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395
Egounova v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 49
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Mijoljevic v Minister for Immigration & Multicultural Affairs [1999] FCA 834
| Applicant: | SZDJX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1204 of 2004 |
| Delivered on: | 23 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by the applicant.
| Solicitors for the Respondent: | Ms K Howey of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1204 of 2004
| SZDJX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 May 2003 and handed down on 11 June 2003, affirming a decision of a delegate of the respondent (“the delegate”) made on 20 June 2002 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant, who claims to be a citizen of the Ukraine, arrived in Australia on 4 July 2001 (Court Book p.3) (“CB”). On 14 August 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”) (CB p.1). The application was rejected by the delegate on 20 June 2002 (CB p.48). On 15 July 2002 the applicant applied for a review of that decision by the Tribunal (CB p.62). On 11 June 2003 the Tribunal handed down its decision affirming the decision of the delegate (CB p.79). On 8 August 2004, the applicant requested that the respondent substitute the Tribunal’s decision with a decision more favourable to the applicant, pursuant to s.417 of the Act (Affidavit of Kirsty Howey sworn on 19 November 2004) (“Affidavit of Ms Howey). On 16 March 2004 the respondent decided not to exercise its power to substitute the decision of the Tribunal for a decision that was more favourable to the applicant (Affidavit of Ms Howey).
The applicant was born in Zaporozie on 20 September 1979. The applicant stated he had completed fifteen years of education and attended the Zaporozie State University from December 1996 until June 2001 and obtained qualifications as an economist. The applicant stated he was employed from June 1996 to December 1996 as a “Manager”. The applicant stated that he had resided at the same address in Zaporozie from July 1991 to July 2001. The applicant obtained his passport on 28 May 1998 and his visitor’s visa on 5 March 2001. The applicant stated he left Ukraine legally on 2 July 2001.
The applicant claimed he was a member of the Pentecostal Church and his membership of the Church prevented him from serving in the military forces. The applicant claimed that up until June 2001 he avoided conscription because he was a student. He also claimed that when he finished his studies he was obliged to perform military service and received his call-up papers from the Military Registration Office before he graduated. The applicant claimed he was prepared to perform alternative military service, which is allowed under the Ukrainian Constitution, but was told by an officer that regardless of his constitutional rights he would be sent to a military unit because military officials did not care about his religious beliefs. The applicant claimed he was told he would be forcibly taken into the Army should he make any attempt to avoid military service.
The applicant claimed he approached his Pastor for assistance in dealing with the Military Registration Office but the Pastor told him the Church had no influence and all attempts by the Church to protect the rights of its members who were conscripted led to problems with the military officials. The applicant also claimed the Pastor told him that no one had been given permission to perform alternative duties and the Ukrainian Army tried to get everyone to perform military service regardless of the conscript’s health or religious beliefs. The applicant claimed he had no choice but to leave Ukraine and since leaving that country the military office continued to send him call-up papers.
The Tribunal’s findings and reasons
The applicant gave oral evidence to the Tribunal on 11 April 2003 and stated he attended University full-time from December 1996 to June 2001, studying management. He stated it was a five year course and he had graduated from the University in June 2001. The applicant claimed he joined the Pentecostal Church at the end of 2000 and that he joined the Church because it was so different from other religions in terms of freedom. He also claimed he could pray in any place at any time. However, the applicant had difficulty naming the Church he attended in the Ukraine. The applicant claimed he attended Church regularly and had little difficulty in practising his faith in the Ukraine. Again, he had difficulty in giving the Tribunal details of the practice of the Church or of any Bible passages relating to the “Gift of the Tongues”. When pressed on this issued, the applicant claimed he was only new to the Church and was not an expert on the particular passages in the Bible about the Holy Spirit.
The Tribunal did not find the applicant to be a truthful or credible witness. The applicant’s claim regarding conscripts who objected to military service on religious grounds being forced to perform military service was not supported by the independent information before the Tribunal. The issues that led to this finding were as follows:
a)Although he claimed to attend church regularly in the Ukraine he was hesitant and vague about the name of the church he attended.
b)The applicant could not name any other gifts of the Holy Spirit and did not seem to understand the significance of the “Gift of the Tongues”.
c)The applicant has not been baptised into the church.
d)The applicant could not cite any passages to support his personal conviction against military service, claiming that he had been told by the church that the army was violent and that if he joined the army he would not be able to achieve the “clarity of his soul”.
Based on these findings, the Tribunal did not accept the applicant was a member of the Pentecostal Church. However, even if the Tribunal accepted that the applicant was a member of the Pentecostal Church, there was no independent information before it to support the applicant’s claim that conscripts, who had a genuine objection to military service on religious grounds, were forced to perform military service. Independent information regarding conscripts indicated that those conscripts who had a genuine objection to military service on religious grounds were able to perform alternative service. Given this information, the Tribunal did not accept the applicant’s claims that when he went to see a senior officer in the army about performing alternative military service, he was told he would be forced to perform military service. The Tribunal did not accept the applicant’s claim that his local Pastor said he could not help because he did not want to get into trouble with the authorities. The Tribunal found that the law relating to conscription in the Ukraine is a non discriminatory law of general application.
According to an Amnesty International Report dated 1 February 1997 (CB p.128), only ten percent of those drafted actually entered the military service. Fifty percent of those remaining received permission to postpone their military service for medical reasons. Even if the applicant was persecuted for failing to register for military service, the independent information indicated that the penalty for draft evasion were punishable under the criminal code and apply to those who fail to obey a call-up. There was no evidence to suggest that these laws are imposed discriminatorily for any Convention reason.
The Tribunal also found that the applicant’s visitor’s visa was signed by the applicant on 20 September 2000 before the applicant claimed he started attending the Pentecostal Church. Based on this information the Tribunal was unable to be satisfied that the applicant had a well-founded fear of persecution for any Convention reason.
Application for review of the Tribunal’s decision
On 23 April 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following ground:
“I left Ukraine fearing persecution due to my refusal to perform military service. My refusal was the result of my religious beliefs. As a member of the Pentecostal Church I cannot participate in such activities. Consequently, I come to Australia in hope of protection. However the Department of Immigration maintained that my religious beliefs will prevent me from persecution. In my opinion, this is possible only in theory as there have been no instances of such exemptions. The Ukrainian authorities will conclude that I remain in Australia in order to avoid military service which is true. If I go back to Ukraine now I will be charged with high treason which will result in imprisonment for up to five years. I ask you to consider these factors and to let me remain in Australia on humanitarian basis.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Hearing
On 19 August 2004 the applicant attended a directions hearing before a Registrar. He signed Short Minutes of Orders by consent in which it was clearly stated that the applicant had to file and serve any amended application, giving complete particulars of any ground of review being relied upon to the Court by 28 October 2004. The applicant was also required to file and service any written submissions seven days prior to the hearing date. No documents of this nature have been filed.
At the time of the directions hearing, the substantive hearing was listed before me at 10.15 a.m. in the John Maddison Tower, 88 Goulburn Street, Sydney. However, on the day of the substantive hearing there was no appearance by the applicant. The matter was called again in the Court precinct at 10.45 a.m. but there was still no appearance by the applicant. I was advised by the respondent’s solicitor, Ms Howey, that she had spoken to the applicant at approximately 10.10 a.m. and he indicated he was on his way to attend the hearing. Despite the additional period of thirty five minutes, the applicant failed to appear and further attempts to contact him by Ms Howey were frustrated because he had turned off his mobile phone.
As the respondent had filed and served written submissions and was available to supplement those submissions by oral presentation, I elected to proceed to hear the substantive issues.
Submissions
The respondent was represented by Ms K Howey, Solicitor, who had filed written submissions. It was submitted that the applicant was seeking a review of the respondent’s decision not to exercise the power to substitute the Tribunal’s decision pursuant to s.417 of the Act. Section 417 of the Act relevant provides:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
It was submitted that s.476(2) of the Act provides that the Court does not have jurisdiction to review decisions of the Minister made under s.417 of the Act not to exercise, or not to consider the exercise of the Minister’s power. It was further submitted that the Full Court of the Federal Court also held that the Court does not have jurisdiction to review decisions of that kind: NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs, followed by Branson J in Egounova v Minister for Immigration & Multicultural & Indigenous Affairs. The respondent solicitor submitted that the application was therefore incompetent. Even if the Court found that it had jurisdiction to review the s.417 decision, it was submitted, that relief should not be granted and since the respondent does not have a duty to consider whether to exercise power conferred by s.417(1), mandamus could not issue and there would be no utility in granting relief to set aside the respondent’s earlier decision: S134/2002.
In respect of the applicant seeking a judicial review of the Tribunal’s decision, the ground of the application merely recite the merits of the applicant’s claim to be a refugee. No grounds were raised in the application which would give rise to a reviewable error. The Court cannot review the merits of the Tribunal’s decision. It was submitted that the Tribunal’s decision was not affected by jurisdictional error, and is a privative clause decision.
It was further submitted that s.477(1A) of the Act relevantly provides that an application to the Federal Magistrates Court in respect of a privative clause decision must be made to the Federal Magistrates Court within 28 days of notification of the decision. The Tribunal handed down the decision to which the application relates on 18 July 2002 and the application to the Court was made 3 February 2004. It was submitted that the application, to the extent that it is an application for a review of the Tribunal’s decision, should therefore be dismissed on the basis that it is incompetent.
In support of the respondent’s submissions there was an affidavit filed by Ms Howey on 19 November 2004. Filed in Court were three documents:
a)A letter to the Minister for Immigration & Multicultural & Indigenous Affairs from the applicant dated 8 August 2003, seeking a s.417 decision.
b)A response to the letter of 8 August 2003 acknowledging receipt dated 3 September 2003.
c)A letter dated 7 April 2004 from Andrew Knott, Ministerial Intervention Unit Onshore Protection NSW indicating that the Minister had declined the request from the applicant.
Conclusion
The applicant in these proceedings was self represented and failed to appear at the scheduled date of the substantive hearing. Despite attending a directions hearing on 19 August 2004 and consenting to Short Minutes of Order, the applicant also failed to file and serve various information in accordance with the Orders. At the same directions hearing, the applicant indicated that he wished to take part in the Pilot RRT Legal Advice Scheme (NSW) to assist in the preparation for this hearing. The applicant was allocated a member of the legal profession to provide this advice. However, whether the applicant availed himself of this service is not known. The applicant was contacted on the day of the hearing just before the schedule commencement time and he indicated that he was going to attend and was only minutes away. Despite allowing thirty five minutes to enable the applicant to attend, no appearance occurred. The matter then proceeded in his absence and the applicant did not appear during this period which was one hour after the scheduled commencement of the hearing.
Since I am cognisant of the obligation of this Court in respect of self represented applicants, I must independently consider whether arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. Despite the absence of the applicant at the scheduled hearing and the application in respect of competence, I have proceeded to consider the substantive issues of the applicant’s case. Turning firstly to the application, there was no obvious ground pleaded other than a vague suggestion of a merit review. The document contained no particularisation.
The main thrust of the Tribunal’s decision is a rejection by the Tribunal of the applicant’s case based on credit. This rejection was based on both the applicant’s claims in respect of his religious beliefs and the requirements to fulfil his obligations to perform his compulsory military service.
The final issue that had a bearing on this case was whether the applicant’s objection to military service was sufficient to attract the protection of the Refugees Convention. This was considered in Mijoljevic v Minister for Immigration & Multicultural Affairs per Branson J at [23]:
“This Court has on a number of occasions recognised that the enforcement laws providing for compulsory military service, and for the punishment of those who avoid such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention (see for example, Murill-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750). See also Hathaway, The Law of Refugee Status at para 5.6.2.”
I have not been able to identify any ground that the Tribunal committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate: Menna McMullan
Date: 23 November 2004
0
3
0