SZEQF v Minister for Immigration

[2005] FMCA 1819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQF v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1819

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Mongolia by reason of his religion – applicant claims that decision of Tribunal to proceed to review in absence of applicant was unreasonable.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 65; 424; 424C; 426A; 441A; 474; 483

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration and Multicultural Affairs [2003] FCA 1474
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683
s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283

Applicant: SZEQF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3194 of 2004

Judgment of: Emmett FM

Hearing date: 28 November 2005

Date of Last Submission: 28 November 2005

Delivered at: Sydney

Delivered on: 28 November 2005

REPRESENTATION

Counsel for the Applicant: Mr D. Burwood

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Ms E. Knight, Australian Government Solicitor

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the Applicant’s applications before this Court are dismissed with costs.

4. That the Applicant pay the First Respondent’s costs in an amount of $5020.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3194 of 2004

SZEQF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visas to the applicants.

2. The Applicant was born in Mongolia on 2 February 1978, and was born as a Mongolian citizen. He claims to remain a Mongolian citizen.

3. The Applicant claims to belong to the Mongol ethnic group and claims that he legally departed from Ulaan Baatar on 22 November 2003.

4. The Applicant arrived in Australia on 23 November 2003.

5. On 23 December 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

6. The Applicant claimed that if he returns to Mongolia he will be persecuted for reason of his religion, being a Mormon. The Applicant claims that he is a Morman and was victimised, humiliated, verbally and physically abused by individuals and the police. The Applicant fears that if he returns to Mongolia he will “again be victimised by individuals and by the police.”

7. On 23 March 2004, the Delegate refused the application for a protection visa on the basis that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

8. On 19 April 2004, the Applicant lodged an application for review before the Tribunal. On 23 September 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 28 October 2004, the Applicant filed an application in this Court (“the Application”) seeking judicial review of the Tribunal’s decision.

10. Pursuant to Short Minutes of Order made on 25 November 2004, the Applicant filed an amended application on 28 February 2005 (“the Amended Application”) together with an Affidavit of the Applicant sworn 25 February 2005.

The proceeding before this Court

1. The Applicant was represented by Counsel before this Court and relied on his Affidavit sworn 25 February 2005, and filed in this Court on 28 February 2005. The First Respondent had no objection to the Affidavit and did not seek to cross examine the Applicant.

2. The Applicant’s application before this Court for judicial review of the Tribunal decision, centres around the Tribunal’s decision to proceed with its review without taking any further action to allow or enable the Applicant to appear before it.

3. The Applicant identified in his application for review by the Tribunal, lodged on 19 April 2004, his migration agent as his authorised recipient and the person to whom correspondence about his application was to be sent.

4. On 22 June 2004, the Tribunal sent a letter to the Applicant at his address identified on his review application, and to his migration agent at the address identified in the review application, requesting additional information by 20 July 2004. The letter notified the Applicant that if he did not provided the additional information by 20 July 2004, the Tribunal would, relevantly, proceed to make a decision on the review without further notice to the Applicant.

5. On 20 July 2004, the Applicant’s migration agent wrote to the Tribunal informing it that the agent had tried to contact the Applicant by telephone and by letter and had received no response from the Applicant.

6. The letter addressed to the Applicant was returned to the Tribunal unclaimed as at 27 July 2004.

7. On 30 August 2004, the Tribunal proceeded with its review without taking any further action to allow or enable the Applicant to appear before it. The Tribunal referred to its letter to the Applicant dated 22 June 2004, the fact no response was received to that letter from the Applicant and the fact that the letter was returned unclaimed. The Tribunal also referred to the migration agent’s letter dated 20 July 2004, saying that he had been unable to contact the Applicant by telephone or letter.

8. The Tribunal then had regard to the legislative regime provided in s.424 of the Act in which the Tribunal may seek additional information from an Applicant in accordance with s.441 of the Act. Section 441A(4) provides, relevantly, that such an invitation must be given to the Applicant by way of pre-paid post within 3 working days of the date of the invitation and addressed to the last address for service provided to the Tribunal by the Applicant or the last residential or business address provided to the Tribunal by the Applicant.

9. Section 424C(1) provides that where an applicant is invited pursuant to s.424 to give additional information and does not give the information before the time has passed, the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

10. I note that the envelope returned to the Tribunal is date stamped 22 June 2004, and accordingly I am satisfied that the letter was sent within 3 working days of the date of the letter and, therefore, there has been compliance with s.441A of the Act.

11. In those circumstances, the Tribunal is authorised to proceed to decide the review in the Applicant’s absence. (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11]-[13] citing VNAA v Minister for Immigration and Multicultural Affairs [2003] FCA 1474 at [16]).

12. In considering whether to proceed with its review, the Tribunal noted that it was not compelled to proceed to a decision without offering the Applicant a hearing. However, the Tribunal found that the Applicant had ample opportunity to provide details in support of his application in circumstances where the applicant was aware from the Delegate’s decision that his claims were found to lack credibility as they were very broad and lacking in detail. The Tribunal noted that it had no other address for the Applicant and no contact telephone number other than his migration agent details. The Tribunal further noted it had been informed on 20 July 2004, by the Applicant’s agent, that he, also, was unable to contact the Applicant. The Tribunal relied on these matters in finding that further invitations to the Applicant were “very likely to prove fruitless”.

13. The Applicant submits that he had received 3 other letters, prior to the Tribunal’s letter of 22 June 2004, sent to him at his nominated address and none were returned unclaimed. The letters received by the Applicant were the Delegate’s decision dated 23 March 2004, and the Tribunal’s acknowledgment of receipt of application for review dated 19 April 2004. The other “letter” to which the applicant referred is the Application for review lodged by him on 19 April 2004.

14. Counsel for the Applicant submitted that the Applicant was 26 years old, from a remote country with a different culture and did not speak English.

15. Counsel for the Applicant submitted that the Tribunal was aware of the “disastrous” consequences for the Applicant in the event that the Tribunal proceeded with its review without taking any further action to enable or allow the Applicant to appear before it.

16. Counsel for the Applicant contended that, in the light of these matters, the Tribunal’s decision to proceed with its review was so unreasonable that no reasonable person would have come to that decision in accordance with the principles identified by Green LJ in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683.

17. In the circumstances, the Tribunal was entitled to consider whether to proceed with its review without taking any further action to allow or enable the Applicant to appear before it.

18. The First Respondent submitted that the relevant sections of the Act, referred to above, confer on the Tribunal, not merely a discretion to proceed, but that the Tribunal was authorised under the legislation in taking that step. The First Respondent did not concede that the Tribunal’s decision could be set aside even if the decision was unreasonable in the circumstances.

19. I am satisfied that the Tribunal considered carefully the criteria requiring satisfaction under the Act prior to s.426A being enlivened to authorise the Tribunal to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it. I have recited those considerations above and the Tribunal’s conclusion, on the basis of those considerations that “further invitations to the applicant are very likely to prove fruitless.”

20. In the circumstances, I am satisfied that the Tribunal’s decision to proceed with its review without taking any further action to allow or enable the Applicant to appear before it was made in accordance with its authority under the Act. Moreover, I do not regard the decision, in the circumstances, as unreasonable having regard to the Tribunal’s careful consideration of the material before it. Its finding that further invitations to the Applicant were very likely to prove fruitless was open to it on the material before it and not unreasonable in the circumstances.

21. Counsel for the Applicant concedes that the Applicant did not assert any pro active steps taken by him as to the state of his application either with the Tribunal or his migration agent.

22. For those reasons, the Tribunal was entitled to proceed with its review and its finding that it was not satisfied that the Applicant has a well founded fear of persecution in Mongolia by reason of his Morman religion was open to it, where it found the Applicant’s claims, about his religion and the consequent mistreatment, to be “very vague and lacking in useful detail”. The Tribunal found that the Applicant’s claims about mistreatment from neighbours was at odds with his continued residence at the one address and his voluntary return to Mongolia after visiting China and Russia, earlier in 2003, where he did not seek protection. The Tribunal found that conduct was at odds with his claimed experiences and claimed fear of persecution in Mongolia.

23. The authorities have made it clear that it is not surprising that, where an Applicant does not attend a hearing, a Tribunal is not prepared to accept uncritically any or all the allegations made by an Applicant (s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25]).

24. It is for an Applicant to satisfy the Tribunal that the criteria required pursuant to ss.36 and 65 of the Act are met and that the Applicant is therefore a person to whom Australia owes protection obligation under the Refugees Convention as amended by the Refugees protocol.

25. In the circumstances of this case, the findings made by the Tribunal were open to it on the material before it and the decision is not effected by jurisdictional error.

26. Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

27. The Applicant’s applications before this Court are dismissed with costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  6 December 2005