SZEPK v Minister for Immigration

[2006] FMCA 1882

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1882

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming fear of persecution on grounds of political opinion – Tribunal is not required to reach a positive satisfaction that an applicant has failed to satisfy the criterion for a protection visa – where applicant did not attend the Tribunal hearing – no reviewable error.

Migration Act 1958 (Cth),ss.36, 414, 424, 424A, 426A, 474

SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306
NAVX v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA FC 287
SZBKB v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1811
Minister for Immigration & Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZEPK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2411 of 2006

Judgment of: Scarlett FM

Hearing date: 7 December 2006

Date of last submission: 7 December 2006

Delivered at: Sydney

Delivered on: 7 December 2006

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Mr Leerdam

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,800.00.

3. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2411 of 2006

SZEPK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

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 that affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa. The decision was signed on 26^th July 2006 and handed down on 4^th August 2006. 

2. The Applicant seeks orders as follows. 

   a)A writ of certiorari directed to the Tribunal to quash the decision.

   b)A writ of prohibition directed to the First Respondent Minister preventing the Minister from acting upon the delegate's decision to refuse a protection visa. 

   c)An order for writ of mandamus directed to the Tribunal to redetermine the Applicant's application according to law; and further:

   d)an order for costs and an order for any other appropriate relief.

Background

1. The Applicant is a citizen of India who arrived in Australia on 27^th December 2003 and applied for a Protection (Class XA) Visa on 23^rd January 2004.The application for a visa was refused on

   
   

   17^th February 2004 and on 12^th March that year the Applicant sought a review of that decision from the Refugee Review Tribunal. The Tribunal affirmed the delegate's decision on 31^st August 2004 but upon judicial review the Tribunal decision was set aside and the application was remitted to the Tribunal for determination according to law. 

2. The Tribunal wrote to the Applicant inviting him to attend a further hearing. The hearing was scheduled for 21^st July 2006. The Applicant, through his then migration adviser, forwarded a reply to the Tribunal nominating his adviser to act as his representative. That document was forwarded on 14^th June 2006. 

3. The Applicant did not attend the hearing. The Tribunal noted that no response had originally been received and that the Applicant did not appear on the day, time and place that the hearing was scheduled. The Tribunal made a decision under the provisions of 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. A copy of the Tribunal decision record can be found at pages 136 through to 143 of the Court Book.

4. The Tribunal noted from the protection visa application that the Applicant was a Sikh male who resided in the Punjab in India. He claimed he was from the Sikh community and his parents were very religious and strong supporters of the Khalistan movement. The Applicant claimed his uncles were also supporters of Khalistan and this influenced him. The Applicant claimed that the party to which he belonged was demanding a separate state for Sikhs and the Indian government did not like this idea and as a result he would be harassed and mistreated by the police if he went back to India because he was an active member of the party and a strong supporter of Khalistan.

5. The Tribunal noted a submission from the Applicant's adviser attached to the protection visa application. The Tribunal noted the evidence given to the first Tribunal hearing including copies of documents which were said to be warrants issued for the arrest of the Applicant. 

The Tribunal’s Findings and Reasons

1. The Tribunal's findings and reasons are set out on pages 141 to 143 of the Court Book.  The Tribunal noted that the Applicant claimed that his parents were very religious and strong supporters of the Khalistan movement but had not provided any further information as to how his family were very religious or in what ways they supported the Khalistan movement.  The Tribunal did accept that the Applicant's family may have believed there should be a separate state as Sikhs but he was not satisfied, on the evidence before it, that any members of his family had engaged in any activities associated with the Khalistan movement. 

2. Whilst the Tribunal accepted that the Applicant's uncles may have similarly supported the establishment of a separate state for Sikhs and may have members of the Akali Dal Party, the Tribunal was not satisfied, on the evidence before it, that the Applicant's uncles were anything but ordinary members of the party given that the Applicant did not provide any further details. 

3. The Tribunal went on to note at page 142 of the Court Book that whilst the Applicant claimed to have been an active member he had not provided any further information about what he had done and whilst the Applicant claimed to have been the subject of arrest or search warrants and harassment from the police, the Tribunal was not satisfied that there had ever been any arrest or search warrants issued against him in the past because of his membership of Akali Dal. 

4. The Tribunal went on to find:

   The Tribunal is unable to be satisfied on the limited evidence provided the applicant would face a real chance of persecution for his membership of the Akali Dal from both police and the Indian government now or in the reasonably foreseeable future if he returned to India.[1]

   [1] Court Book at 133

5. The Tribunal went on to note that the Applicant had been put on notice that the Tribunal was not able to make a favourable decision on the evidence that he had provided and swore in his application but did not provide any further information despite ample opportunity to do so.  Nor had the Applicant given the Tribunal the opportunity to explore his claims with him at a hearing. 

6. The Tribunal went on to find:

   Many questions regarding his previous and future circumstances remain unanswered.  Due to the lack of detailed information and in view of the above findings, the tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution within the meaning of the convention.

7. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol and therefore did not satisfy the criterion set out in sub-s.36(2) for a protection visa.

The Application for Judicial Review

1. The Applicant had previously been represented by a solicitor.  However, that representation came to an end through, I should make it clear, no fault of the Applicant whatsoever.  Indeed, it was not until the Applicant appeared before the Court on 27^th November when the matter was relisted that he informed the Court that he had only become aware the day before that his solicitor would no longer be able to represent him.  I see no reason to doubt the Applicant's word in respect of that issue and it is regrettable that the Applicant was placed in that position, which was none of his doing.

2. Nevertheless, the Applicant has been able to obtain some other advice, although has not been able to obtain other representation at the hearing.  He tendered an amended application and a written outline of submissions and I granted leave for the amended application to be filed in Court and I allowed a short adjournment in order that the solicitor for the First Respondent Minister should have the opportunity to read through those documents. 

3. In the amended application the Applicant sets out two grounds. First; that the Tribunal failed to assess the Applicant's fears of harm suffered according to refugee criteria and misapplied the Applicant's claims due to the following finding:

   It is not satisfied there has ever been any arrest or search warrants issued against the applicant in the past because he was a member of the Akali Dal, nor is the tribunal satisfied the applicant was harassed and questioned by the police and accused of being a terrorist because of his political opinion or any other Convention reason.[2]

   [2] Court Book at p.143

4. The Applicant submits that it was strange how the Tribunal came to some positive conclusions as above when the Tribunal has clearly said that:

   Without further information the Tribunal is unable to be satisfied the applicant was ever arrested in the past, either because of his involvement with the Akali Dal or for any other reason.

   The Applicant went on to submit that what was in issue is that the Tribunal accepted that the Applicant was a member of the Akali Dal party and therefore it is inconsistent with the available evidence that the Tribunal was able to make such positive findings that contradicts the Tribunal's own position previously taken about the Applicant's claims of membership in a political party which amounts to error of law and hence jurisdictional error.

5. In examining the propositions contained in that ground, I first of all consider that the ground is to some extent a challenge to the factual findings of the Tribunal and thus amounts to a claim for merits review; that of course is unavailable on an application for judicial review.  The Applicant has submitted that it appears to be strange that whilst the Tribunal was unable to be satisfied about matters that went to the Applicant's claim of a well-founded fear of persecution for a Convention reason, that the Tribunal was satisfied or did accept that there was certain other matters which were established, namely that the Applicant was a member of the Akali Dal party. 

6. The submission appears to make the logical jump between the finding that one is in some way a member of a political party and is therefore subject to persecution for political reasons without establishing what activities one had been involved in to bring about the persecution or indeed to be satisfied as to what amount of persecution had actually taken place.  It does not follow, on a factual basis, that if a person is a member of a political party that he or she will therefore have been persecuted or face a reasonable fear of persecution upon his or her return to the country of origin.

7. Ground two appears to go on to consider the question of whether or not the Tribunal reached required degree of satisfaction.  Ground two says as follows:

   That the Tribunal failed to reach the required satisfaction in terms of s.414 of the Migration Act (opposite the s.65 used by the delegate) before the Applicant's refugee claims were dismissed under s.36(2) when the Tribunal has come to the following conclusions:

   "The Applicant was put on Notice that the Tribunal was not able to make a favourable decision upon the evidence he provided in support of his application. Nor has the Applicant gave the Tribunal the opportunity to explore his claims at a hearing. Many questions regarding his previous and future circumstances remain unanswered.  (Court Book p.143 para.3).

   The Applicant submits that when making a decision under s.36(2) the Tribunal should have reached a positive satisfaction that the Applicant failed to satisfy the refugee criteria in the Convention.  The finding under 36(2) is only possible when the Tribunal has gone into all claims and Applicant's evidence.  However in this instant matter it should have relied on s.426A and made the decision under review.

8. In my view the submission indicates a couple of fundamental misconceptions. These misconceptions relate particularly to the requirement of the Tribunal, standing in the shoes of the Minister, to reach a state of satisfaction according to s.65 or according to sub‑s.36(2).

9. The reference to s.414 of the Migration Act does not, in my view, assist the Applicant. That section says:

   (1) Subject to sub-section 2 if a valid application is made under s.412 for review of an RRT reviewable decision the Tribunal must review the decision.

   (2)The Tribunal must not review or continue to review a decision in relation to which the Minister has issued a conclusive certificate under sub-section 411(3).

10. The thrust of the Applicant's submission insofar as s.414 is concerned appears to be that if the Tribunal has not reached a positive state of satisfaction, either one way or another, then in some way the Tribunal has not carried out its obligation to review a decision under s.414. That is not a proposition that can be sustained. The claim that the Tribunal should have relied on s.426A is difficult to fathom because that is what it did rely upon when making a decision to proceed with the review without giving the Applicant a further opportunity to attend before the Tribunal. The Tribunal decision does not indicate that the Tribunal did not review the application. The Tribunal quite clearly did so. It considered the evidence before it but was not satisfied that the Applicant had established that he met the criteria for a visa. That can in no way be described as failing to carry out the review. The Tribunal considered the Applicant's claims but was not satisfied that the evidence before it allowed it to reach a positive status for satisfaction.

11. The other misconception, it appears to me, is that the Applicant when considering s.65 and sub-s.36(2), both of which require a positive state of satisfaction, that the Tribunal did not in some way complete its task.

12. The Applicant claims in his outline of submissions that if the Tribunal was not satisfied it should have used its power under s.424 of the Act, to call for further information from the Applicants because it is paramount that the fundamentals of natural justice include fairness as the underlying criterion in decision making. The Applicant submits that in fairness to the Applicant, before handing down the decision, the Tribunal could have written to the Applicant again and forewarned him that the Tribunal was ready to issue its decision to refuse him a protection visa and whether he still had something to say to the Tribunal about his claims. Well that is a misconception. It is certainly not what s.426A requires.

13. It is a misconception to assume, as the Applicant appears to do, that the Tribunal is required to reach either a positive state of satisfaction that an applicant meets the criteria for a visa or a positive state of satisfaction that the Applicant does not meet the criteria for a visa.  If in some way the Tribunal finds itself unable to be satisfied on either of those bases, it cannot complete the review and must seek further information. This is a fundamental misconception. The Applicant refers to the decision of the High Court of Australia VSAF of 2003 & Ors v Minister for Immigration & Multicultural and Indigenous Affairs (2005) HCA Trans 757 and quotes from Kirby J who said:

    In the terms of s.65(1) of the Migration Act 1958, as applies to the Tribunal by s.414 of the Act, it had to consider whether it could reach the requisite satisfaction on the material before it. In this case, the Tribunal decided it could. It reached and expressed its satisfaction and it reached its consequent conclusions.

14. This does not mean that the Tribunal has an obligation to reach either a positive satisfaction that the Applicant meets the criteria for a visa or that the Applicant does not meet the criteria for a visa.  There is no middle ground.  If the Applicant does not meet the criteria for a visa then it is mandatory on the Tribunal to refuse the application. 

15. I had referred to me by the solicitor for the Respondent, Mr Leerdam the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73. Their Honours at [16] refer to the decision in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274 to 275:

    A condition of the determination is the Minister's satisfaction.  Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that a person is a refugee.  Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution.  This is the ‘decision’ for which provision is made by the Act.

16. Their Honours went on to say at [17]:

    We are unable to agree with his Honour's statement that ‘in the absence of findings as to the facts, either favourable or unfavourable to the respondent, the Tribunal could not reach the requisite state of satisfaction or the requisite state of non-satisfaction’.  See [9].  As s.65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction.  It does not require the visa to be granted in the absence of an adverse finding.  There are many cases showing that the findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the Applicant's claims were of such a general and vague level that the Tribunal cannot establish the relevant facts and therefore had made no findings either accepting or rejecting the claims.

17. In this case due to the lack of evidence the Tribunal was not satisfied that the Applicant met the required criteria for a visa. This is a not uncommon situation in cases where, for one reason or another, an Applicant does not attend a Tribunal hearing. Where under s.425 of the Act the Tribunal is not satisfied that it can make a decision favourable to the Applicant on the material before it, it has the obligation to invite the Applicant to attend the hearing and give evidence and present arguments.  It is an opportunity for the Applicant to do three things.

    i)To attend the hearing and give evidence.

    ii)To ask the Tribunal to hear evidence from other people.

    iii)To provide further written information.

18. The Applicant did none of those. Thus the Tribunal had no further or better information before it than the material which it had previously found wanting when it issued the invitation under s.425. It is fair to say that where the Applicant does not take advantage of the opportunity given by an invitation under s.425 the almost inevitable result will be that an application will be rejected. I refer to SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306, NAVX v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 287 and SZBKB v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1811.

1. In this case the Tribunal did not have before it sufficient information upon which it could be satisfied that the Applicant met the requirements for a protection visa as the Tribunal could not be satisfied due to the Applicant's non-attendance and non-provision of further information the Tribunal had no option but to refuse the application.  There is no jurisdictional error. My reading of the material before me does not indicate any other jurisdictional error which has not been raised by the Applicant.

2. In the absence of jurisdictional error the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Consequently it is not subject to orders in the nature of certiorari, mandamus or prohibition. The application will be dismissed.

3. There is an application for costs in the sum of $3,800.00.  This is a matter where I consider that a costs order is appropriate.  The Applicant has been wholly unsuccessful in his claim. The amount of $3,800.00 which is sought is an appropriate amount.  The Applicant does not have the funds to meet it and I see no reason to doubt his claim that he does not have the funds to meet it.  That is not a ground for not making an order for costs. It is a matter to be taken into account in deciding whether or not to allow time to pay. I propose to make an order for costs in the sum of $3,800.00 but I will allow four months to pay.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  18 December 2006