SZEBM v Minister for Immigration
[2004] FMCA 857
•16 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEBM v MINISTER FOR IMMIGRATION | [2004] FMCA 857 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.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
Minister for Immigration & Multicultural Affairs v Applicant M [2002] FCAFC 253
NASH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 44
NARX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 41
Mijoljevic v Minister for Immigration & Multicultural Affairs [1999] FCA 834
NAPE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 118
| Applicant: | SZEBM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2369 of 2004 |
| Delivered on: | 16 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 16 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Phillips Fox |
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 $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2369 of 2004
| SZEBM |
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 28 May 2004 and handed down on 22 June 2004, affirming a decision of a delegate of the respondent (“the delegate”) made on 30 January 2004 to refuse to grant the applicant a protection visa.
Background
The applicant, who claims to be a citizen of Poland, arrived in Australia on 10 December 2003. On 22 January 2004 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”).
According to his application for a protection visa, the applicant was born on 1 August 1978 and is a national of Poland. He speaks, reads and writes Polish and English. The applicant completed eighteen years of education and described his profession as “IT specialist”.
The applicant claimed he left Poland fearing persecution for the reason of his political opinion. He claimed that after graduating from University he was obliged to undertake compulsory military service and received a call from the military office to that effect. The applicant claimed he objected to the activities of the Polish Army in Iraq and believed that the occupation of Iraq is unlawful. The applicant claimed he had no legal opportunity to avoid his compulsory military service and feared he would be tried by the military tribunal and severely punished for draft evasion. He claimed he would be unable to hide forever and would eventually be found by the authorities. The applicant claimed he could be sentenced to a prison term of three to five years for draft evasion.
The Tribunal’s findings and reasons
The Tribunal was satisfied the applicant is a national of Poland but had significant problems with the applicant’s claims for the following reasons (CB p.76):
a)The applicant provided scant details, and his claims were expressed in general terms without essential details, including the dates of events.
b)The applicant was a 24 year old university graduate and according to country information, university graduate conscripts are usually exempt from military service until the age of 24, and at that age they are assigned as reservists.
The applicant provided no specific information as to when he was called upon to perform his military service nor did he indicate why he believes he would be posted and become part of the “occupants’ regime” in Iraq. The applicant provided no information as to whether he had made any attempt to make an application for conscientious objection status to the local enrolment board of the Ministry of Defence. It was therefore unclear to the Tribunal as to why the applicant had no legal opportunity to avoid compulsory military service. According to country information contained in the War Resisters’ International, the right to conscientious objection had been legally recognised in Poland since 1988 (CB p.83).
The applicant did not claim that he would suffer disproportionately severe punishment for draft evasion on account of his political opinion or any other Convention reason. In the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, fear of prosecution and punishment for desertion or draft evasion does not in itself constitute a well-founded fear for persecution under the Convention (CB p.78). Consequently, on the applicant’s claims, all arising due to insufficient information and lack of detail, the Tribunal was not satisfied there was a real chance that the applicant would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal therefore concluded that the applicant did not have a well-founded fear of persecution for Convention reasons.
The application for review of the Tribunal’s decision
On 22 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following two grounds:
1.The Tribunal applied the wrong test to whether I met the prescribed criteria.
2.The Tribunal had no evidence to claim that my fear is not well founded within the meaning of the Convention.
Neither of the grounds contains any further particularisation in support of the ground.
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.
The hearing
The applicant failed to appear at the scheduled hearing time before this Court on 16 November 2004. The matter was called in the Court precinct but there was no appearance. The applicant attended a directions hearing held on 16 August 2004 where the applicant signed draft Short Minutes of Order consenting to various requirements for the future administration of this matter. The applicant was required to file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court by 1 November 2004. No amended application has been filed. The applicant was also required to file and serve any written submissions seven days prior to the hearing date. Again, no material has been received and no other correspondence has been received from the applicant indicating his inability to appear at the hearing today.
Mr Leerdam, Solicitor appearing for the respondent, filed written submissions prior to the hearing. It is submitted by the respondent that, on the very limited material filed in Court in the original application, the applicant has not raised any arguable case which would require a response. Nevertheless, the respondent submits that nothing amounting to jurisdictional error is evident in the Tribunal’s decision.
The respondent submits that the Tribunal properly complied with the statutory requirements of the Act, namely:
a)The Tribunal’s invitation to the applicant under s.425A was properly made. The letter dated 18 March 2004 invited the applicant to attend the Tribunal hearing on 6 May 2004 at 10.30 a.m. and contained the appropriate information about the attendance at the hearing (CB pp.61-62).
b)The Tribunal properly exercised its discretion pursuant to s.426A to proceed to a decision without a hearing because of the applicant’s failure to appear. The Tribunal’s follow up system was satisfactorily carried out (CB p.63). The Tribunal’s file discloses that the applicant notified a change of address to the Tribunal on 1 June 2004 more than three days after the Tribunal made its decision, but before it handed it down (CB p.66).
It is submitted that there are a number of bases upon which the Tribunal decision can be supported:
a)The delegate’s conclusion on the lack of a Convention ground was endorsed by the Tribunal. On its own, this is sufficient for the Court to uphold the decision: Minister for Immigration & Multicultural Affairs v Applicant M.
b)The Tribunal could not be satisfied of the veracity of any of the claims made by the applicant, given the absence of a hearing particularly that the applicant faced any harm of persecution. In support, the Tribunal cited country information (CB p.76) suggesting that after the age of 24 years, the applicant would not be called up for military service.
It is submitted that in NASH v Minister for Immigration & Multicultural & Indigenous Affairs (“NASH v The Minister”) the applicant did not turn up at a scheduled hearing. While the Tribunal relied on country information in rejecting the applicant’s claim of persecution in relation to loss of employment, no breach of natural justice was found to have occurred. The Full Court’s focus in its judgment was on the insufficiency of the protection visa application. This was despite attempts by the delegate and the Tribunal to alert the applicant of this insufficiency in an effort to fully consider his claims: see NARX v Minister for Immigration & Multicultural & Indigenous Affairs.
The respondent contends that the principles of NASH v The Minister apply to the facts in this case. The applicant’s case was plainly deficient from the start and it was incumbent on him to make good his case. This is quite clearly set out in the Tribunal’s findings and reasons:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. “Although the concept of onus of proof is not appropriate for administrative enquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any or all of the allegations made by the applicant. (Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 191; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170)” (CB p.75)
Conclusion
In the circumstances I had the opportunity to either dismiss this matter for the reason of the applicant failing to appear or alternatively hear the respondent’s arguments on the substantive issues of the case. I have elected to hear the substantive issues. I acknowledge that the only material placed before the Court by the applicant is the original application consisting of two vague and unparticularised grounds. Since the filing of the original application, despite attending a directions hearing and consenting to Orders, the applicant has failed to file any further material.
I accept both the written and oral submissions made by Mr Leerdam during the hearing. I also note the approach by the Federal Court when considering matters of compulsory military service being the basis of a claim of persecution: Mijoljevic v Minister for Immigration & Multicultural Affairs per Branson J at [23]:
“This Court has on a number of occasions recognised that the enforcement of 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.”
The Tribunal made two findings in respect of this issue being primarily:
“The Tribunal notes that according to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute a well-founded fear of persecution under the Convention.” (CB p.76)
The Tribunal made a secondary finding on the same issue:
“The Tribunal further notes that according to War Resisters’ International, the right to conscientious objection has been legally recognised in Poland since 1988. Its present legal basis is the 1992 Law on Civilian Service. This law accepts both religious and moral grounds for grounds for CO status.” (CB p.76)
Without the grounds specifically raising the issues, I believe this Court is under an obligation for the self represented litigant to determine whether there are any other issues that may be inherent in the matter although not clearly expressed due to the lack of expertise of the applicant. These are issues of natural justice and procedural fairness. In this respect I was referred to two authorities: NAPE v Minister for Immigration & Multicultural & Indigenous Affairs and NASH v The Minister.
In the circumstances, I am satisfied that the Tribunal was not provided with sufficient information or any detail of the applicant’s claim, resulting in the Tribunal being unable to be satisfied the applicant had been persecuted for a Convention reason in the past or that there would be any real chance that he would be persecuted for Convention reasons in the reasonably foreseeable future. The Tribunal did not have the opportunity to put to the applicant any material gathered from country information to see whether it applied to his circumstances. On a fair reading of the Tribunal’s decision, it does not expose any jurisdictional error and the application should be dismissed.
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 twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 November 2004
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