SZDZW v Minister for Immigration

[2005] FMCA 105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDZW v MINISTER FOR IMMIGRATION [2005] FMCA 105

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 424(2), 422B, 424B, 425, 425A, 426A, 474
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

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cassim (2000) 175 ALR 209
Applicant A179/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1547
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant: SZDZW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2227 of 2004

Delivered on: 11 February 2005

Delivered at: Sydney

Hearing date: 28 January 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of a Nepalese interpreter.

Counsel for the Respondent: Ms L Clegg

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2227 of 2004

SZDZW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 November 2002 and handed down on 7 January 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 18 January 2002 to refuse to grant the applicant a protection (Class XA) visa.

Background

1. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDZW”.

2. The applicant, who claims to be a citizen of Nepal, arrived in Australia on 8 July 1996. On 2 August 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 18 January 2002 the delegate refused to grant a protection visa and on 26 January 2002 the applicant applied for a review of that decision by the Tribunal.

3. The applicant was born in Kathmandu, Nepal on 22 November 1979.  He described his occupation before coming to Australia as a student.  In his application for a protection visa, the applicant stated he left Nepal to study in Australia.  However, he claimed that following the assassination of King Birendra and his family the situation in Nepal had become hostile and his own family had become a target of the Maoists (Court Book p.15) (“CB”).

4. The applicant claimed that the Maoists were waging an armed insurrection against the Nepalese government and that after King Birendra’s murder, his father, in a newspaper interview blamed the Maoists for the assassination.  The applicant claimed that, arising from the accusation against his father, his “whole family” had been threatened and arrested by the Maoists.  He stated that his father suggested to him that in light of this hostility and their resultant vulnerability he should not to return to Nepal.  The applicant also stated that as soon as the political unrest had settled in Nepal he would return (CB p.15).  The applicant claimed that because his family was opposed to the revolutionary Maoist Party their lives were “under threat and in jeopardy” (CB pp.54-55).

The Tribunal’s findings and reasons

1. On 26 January 2002 the Tribunal received an application for a review of the delegate’s decision.  On 29 January 2002 the Tribunal wrote to the applicant inviting him to provide further documentation and evidence (CB pp.40-41).  The applicant did not furnish any such evidence.  On 3 October 2002 the Tribunal invited the applicant to attend a hearing on 14 November 2002 (CB pp.42-43).  He was subsequently notified by a further letter dated 25 October 2002 that the hearing date was changed to 20 November 2002 (CB p.44).  In both letters to the applicant he was advised that if he did not attend the hearing the Tribunal could make a decision about his application without hearing further from him.  No response was received from the applicant to the Tribunal’s letters.  On the day of the hearing an attempt was made by the Tribunal to contact the applicant by telephone but the number provided by the applicant had been disconnected.  When the applicant’s adviser was contacted by telephone he informed the Tribunal that he had not heard from the applicant.

2. In its decision, the Tribunal noted the following:

   a)The applicant was born on 22 November 1979 in Kathmandu, Nepal and was a student;

   b)The applicant applied for a protection visa five years after his arrival in Australia;

   c)The applicant had come to Australia mainly to study;

   d)The claims made by the applicant concerning his fear of persecution;

   e)The applicant’s fears had only arisen after his father had blamed the Maoists for King Birendra’s assassination, which allegedly led to the applicant’s family being “under threat and jeopardy”;

   f)The applicant had not provided any further information as to where or when the newspaper article containing his father’s allegations had been published;

   g)The applicant had not provided further information as to “how his family was opposed to the Maoists or the significance of their stated opposition;

   h)Apart from the alleged incident in August 2001 (in which his family home was attacked by Maoists at midnight searching for his father), the applicant did not provide further information as to the “nature, extent and timing of the threats which he claimed his family had encountered”;

   i)In the incident of August 2001, it appeared that the Maoists warned the applicant’s mother;

   j)There was no additional information as to whether the applicant’s family had encountered any problems since the August 2001 incident;

   k)There was no claim that any actual harm had been occasioned by the applicant’s father or any other member of his family; and

   l)The applicant had failed to forward a copy of the letter to the Department demonstrating that his family had sought protection from the authorities but had not been offered such protection, despite foreshadowing that he would.  (CB pp.55-56)

3. The Tribunal also referred to and relied upon independent country information about the assassination of the Nepalese royal family and the “people’s war” which had been launched by the Maoists in 1996.  The Tribunal noted that there was nothing in the independent country information to suggest that there was any prevailing view that the Maoists were responsible for the assassination of King Birendra (CB p.57).  The Tribunal also noted that Nepal was a constitutional monarchy in which the monarch is disassociated from the day-to-day government activities and in 1999 the third national parliamentary elections were held in Nepal, which were considered to be generally free and fair (CB p.57).

4. The Tribunal noted that as the applicant had not attended the hearing, it had to rely on the material before it.  It noted that it had been unable to properly explore the applicant’s claims and that a number of answers to relevant questions remained unanswered (CB pp.58-59).

5. The Tribunal observed:

   a)The applicant had provided only vague details in support of his claims;

   b)The applicant had referred only in general terms to threats and harassment experienced by his family;

   c)Apart from the August 2001 incident, there were no further details of problems that the applicant’s family had experienced and the extent of those problems; and

   d)It was unclear as to why the applicant’s father would blame the Maoists for the assassination of King Birendra in light of independent country information which suggested that a member of the King’s own family was the perpetrator (CB pp.58-59).

6. The Tribunal formed the view that there was an absence of subjective and objective fear of persecution on the part of the applicant, particularly due to the lack of detail supplied by the applicant in connection with his claim, and the delay of five years from his arrival in Australia to the time he made his application for refugee status (CB pp.58-59).

7. The Tribunal was not satisfied that the applicant would be harmed by the authorities if he returned to Nepal because neither the applicant’s own account nor the independent country evidence suggested there would be “a real chance in the future of him being selected or targeted for persecution owing to a Convention reason” (CB p.59).

Application for review of the Tribunal’s decision

1. On 15 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following ground:

   “1.I’ve a ‘well-founded fear’ of persecution if I’m sent back home and has a real substantial basis for it.

   I and my family had become target of the Maoists followed by the royal carnage.  Despite the regular threats and harassment by them, my home was once attacked one midnight by the Maoists who were searching for my father.  Fortunately, he was not at home at the time of the incident therefore they did the substantial damage to my home and the properties.  Because my father used to work voluntary service in ‘Nepal Communist Party’ from our suburb.  Please note the fact that my father always accused to the Maoists for the assassination of late King Birendra and the royal as well as he had always been opposing Maoists insurgencies in Nepal, which so far has cost hundreds of thousands of Nepalese lives.  Finally, I look forward to hearing a decision to my favour.  Thank you very much for your time and your effort to consider my cause, hope you give me a positive answer.”  (Errors included)

The law

1. 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].

2. 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.

Submissions

1. The applicant appeared self represented with the aid of a Nepalese interpreter.  He attended a directions hearing on 29 July 2004 and consented to Short Minutes of Order requiring the applicant to file and serve an amended application giving full particulars of each ground of review to be relied upon by 21 October 2004.  The applicant was also required to file and serve written submissions on or before five working days prior to the hearing.  Neither of these orders was complied with and the applicant confirmed that he relied solely upon his initial application in these proceedings.

2. When the applicant was invited to make oral submissions the invitation was declined.  At the directions hearing on 29 July 2004 the applicant indicated that he wished to participate in the RRT Pilot Advice Scheme (NSW).  A conference was arranged and the adviser visited the applicant in the Villawood Detention Centre.

3. Ms L Clegg of Counsel, appearing for the respondent, filed written submissions prior to the hearing which addressed the substantive issues.  The first of these issues was that the application should be refused on discretionary grounds due to the inordinate delay on the part of the applicant in filing the application for review 541 days after the time limitation expired.

4. It was submitted that the Court has the discretion to refuse an application on such grounds:  Re Refugee Tribunal; Ex parte Aala per Gleeson CJ at [5], Gaudron and Gummow JJ at [17], [43-51], [54], [56], Kirby, Hayne and Callinan JJ confirmed that the constitutional writ remedy of prohibition does not lie as of right but is discretionary. It was submitted that the applicant had not supplied any reason for the late filing of his application. Counsel submitted that where the delay is completely unexplained and inordinate and where, as in this case, the application displays no merits on its face, there are sound reasons for refusing relief before the Court considers the substantive application.

5. It was submitted that the second issue for consideration was the application for judicial review. In the absence of any substantive ground being pleaded by the applicant the question of whether the applicant was afforded procedure fairness and the responsibility of the applicant to make his own case are addressed. It was submitted that in respect of natural justice in the present case, the Tribunal follow the rules of procedural fairness which existed at the time the applicant made the application to the Tribunal, namely 26 January 2002. The respondent acknowledged that this was prior to the introduction of s.422B of the Act to which the common law rules of procedural fairness apply: Minister for Immigration & Multicultural Affair; Ex parte Miah. The relevant terms of the Act in January 2002 were identical to those which presently exist (with the exception of s.422B: see ss.424-426A).

6. On 29 January 2002 the Tribunal wrote to the applicant at his nominated residential address, inviting him to furnish additional documents and notifying him that he may be invited to attend a hearing (CB p.40). The letter indicated that it was also forwarded to the applicant’s nominated adviser. Counsel submitted that the letter complied with ss.424(2) and 424B of the Act. There was no response from the applicant despite foreshadowing that he would provide further information.

7. It was submitted that the combined effect of ss.425 and 425A of the Act required the Tribunal to invite and notify the applicant of the hearing date and his entitlement to appear at the hearing. Counsel contended that the Tribunal letters of 3 October 2002 and 25 October 2002 warned the applicant that if he did not attend the hearing the Tribunal may proceed to make a determination without hearing further from him (CB pp.42, 44). It was submitted that the Tribunal therefore complied with s.425A(4) and the hearing invitations were sent by the Tribunal to both the applicant and the applicant’s nominated adviser.

8. Counsel submitted that the Tribunal was entitled to make a decision under s.426A of the Act without taking any further action to enable the applicant to appear before it as it had complied with the provisions of the Act. It was further submitted that there was no obligation upon the Tribunal to wait to hear from the applicant in person and it had done all that was necessary to afford the applicant procedural fairness. Counsel argued that no criticism could be made of the Tribunal’s conduct in proceeding to review the case on the paper in circumstances where the applicant’s own conduct and action (on inaction) deprived him of an opportunity to advance his case.

9. To the extent that it might be said that the Tribunal relied upon independent country information in arriving at its decision, it was submitted that the information that was relied upon fell within the exception in s.424A(3):  see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW and discussion by Beaumont J at [39]-[74] concluding that the correct approach to s.424A(3) is a purposive approach, and agreeing with the approach of the Full Court in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs that s.424A(3)(a) imposed one test and not two disjunctive elements.  Merkel and Hely JJ agreed in the result.  Counsel also contended that this information fell within the common law exception to the fair hearing rule formulated by McHugh J in Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cassim on the basis that it was country information in the public domain and information that the applicant should be aware of.

10. Counsel further submitted that, in any event, the country information relied upon was not the only ground for the Tribunal’s decision and the Tribunal made it clear that the applicant’s claim was not made out, regardless of its taking into account the independent country information (CB p.58).  It was submitted that on this basis the present circumstances could be distinguished from the decision of Lander J in Applicant A179/2002 v Minister for Immigration & Multicultural & Indigenous Affairs in which his Honour found that the Tribunal breached the rules of procedural fairness because it failed to put to the applicant adverse country information upon which it relied in making its decision, even though the applicant had chosen not to attend the hearing.

11. In respect of the obligations of the applicant to make his own case, it was submitted that the Tribunal proceeded on the only material before it, namely the facts as alleged by the applicant in his application.  Counsel submitted that the relevant facts pertaining to the application needed to be supplied by the applicant in as much detail as necessary to enable the applicant to establish the facts.  It was contended that it was for the applicant to make out his case:  Minister for Immigration & Ethnic Affairs v Guo per Kirby J at 596. Counsel submitted that, in this case, the applicant had an opportunity to attend the Tribunal hearing to furnish additional facts and he could not now complain that no other facts were taken into account or ask that additional facts be taken into account.

12. Counsel submitted that the Tribunal accurately summed up the nature of the applicant’s claims and that all of the matters considered in arriving at its conclusion were probative of the issues before the Tribunal:  Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs.  Accordingly, it was submitted, the Tribunal made no error in its approach to reviewing the decision of the delegate and the Tribunal’s conclusion concerning the facts (including the plausibility of the applicant’s claims) was open to it and cannot be revisited.

Conclusion

1. As the grounds in the application are vague and without particularisation, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error.  Despite giving the applicant an opportunity to contribute to the prosecution of his own case he declined to make any oral submissions which is consistent with the prior behaviour of failing to attend the Tribunal hearing or comply with any orders made by the Court.

2. As the applicant is self represented I am cognisant of the requirement of the Court to independently consider whether any arguable case based on the material contained within the decision could be made out as a jurisdictional error:  Yo Han Chung v University of Sydney & Ors.  I accept the submissions made by Ms Clegg on behalf of the respondent and agree with those submissions that no jurisdictional error is identifiable.  Consequently, the application should be dismissed.  In respect of the late filing of the application, I do not believe it is necessary to exercise discretion on this issue or the issue of inordinate delay as the substantive application fails due to the absence of jurisdictional error in the Tribunal’s decision.

1. I am satisfied that an order for costs should be made in this matter.  I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  11 February 2005