SZEUM v Minister for Immigration
[2005] FMCA 559
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUM v MINISTER FOR IMMIGRATION | [2005] FMCA 559 |
| 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, 474
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Rule 13.03A(d)
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
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 238
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
| Applicant: | SZEUM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1825 of 2004 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 20 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1825 of 2004
| SZEUM |
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 10 May 2004 and handed down on 1 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 5 June 2003 to refuse to grant the applicant a protection visa.
Background
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 “SZEUM”.
The applicant, who claims to be a citizen of Poland, arrived in Australia on 2 October 2002. On 4 June 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-26) (“CB”). On 5 June 2003 the delegate refused to grant a protection visa (CB pp.29-36) and on 7 July 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.37-40).
According to his application for a protection visa, the applicant was born in December 1984, is a national of Poland and a Pentecostal Christian. The applicant stated he had completed eleven years of education and described his occupation as a carpenter. He stated he had lived at the same address in Poland from 1992 until his departure for Australia in 2002. The applicant’s visa to Australia was issued on 17 September 2002 and he departed Poland legally on 2 October 2002, travelling on his own passport (CB p.65).
The applicant claimed that for eighteen months prior to his departure from Poland he was a Pentecostal Church member which put him at odds with the Catholic majority. He claimed he had to hide his faith, was insulted and humiliated by friends, neglected by neighbours and assaulted on a number of occasions. The applicant stated he feared similar treatment if he were to return to Poland and believed that the treatment he would encounter would affect his studies and future career (CB p.66).
In his application for review, the applicant stated he was aware that the Government of Poland recognises freedom of religion and has ratified the European Convention on Human Rights. However, the Government of Poland cannot protect him against the persecution he would encounter on a daily basis (CB p.39).
The Tribunal’s findings and reasons
Ms T Wong, Counsel for the respondent, prepared a brief summary of the Tribunal’s decision, which I have adopted and reproduced as follows:
a)After reviewing the legal principles applicable to determining the applicant’s claims, the Tribunal then reviewed the procedure that had been undertaken prior to its decision, and the failure of the applicant to attend three hearings (CB pp.62-67).
b)The Tribunal noted that it: “… remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”, and that “… [a] decision-maker is not required to make the applicant’s case for him or her” (CB p.67).
c)The Tribunal was satisfied that the applicant was a national of Poland, however noted that the applicant had provided no information or details regarding:
i)how and under what circumstances the applicant converted to Pentecostalism;
ii)the nature of the insults and humiliations he claimed to have suffered;
iii)on how many occasions he was assaulted, who were the perpetrators; what was the extent of his injuries, if any, and whether he reported these incidents to the police; and
iv)how his career or future would be jeopardised if he were to return to Poland.
d)The Tribunal concluded by finding, in view of the insufficient information and lack of detail contained in the applicant’s claims, that it was unable to be satisfied that the applicant had been persecuted for a Convention reason in the past, or that there was a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant (CB pp.68-69).
Application for review of the Tribunal’s decision
On 15 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On the same date the applicant filed an affidavit in support of his application. Although not expressly stated as a ground of review, the original application contained the following statement:
“I ask the Federal Magistrates Court of Australia to consider issues of law. In my case, whether or not the Department of Immigration and the RRT interpreted the case correctly and whether or not they followed the correct methods in my claims assessment.”
The applicant’s supporting affidavit contained the following two statements:
“1.I [applicant] am asking the Federal Magistrates Court of Australia to review RRT decision on my protection visa application.
2.I was persecuted in Poland due to my religious beliefs.
I have had to hide my faith. I was insulted and humiliated on numerous occasions.”
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.
Procedural background
A brief background of the matter is set out as follows:
a)The applicant entered in Australia on 2 October 2002 as a visitor (CB p.15).
b)On 4 June 2003 the applicant lodged an application for a protection visa with the Department.
c)On 5 June 2003 the delegate refused to grant the applicant a protection visa.
d)On 7 July 2003 the applicant lodged an application with the Tribunal for a review of the delegate’s decision. On the same date the Tribunal wrote to the applicant acknowledging receipt of the application and inviting him to submit documentation in support of his claim.
e)By letter dated 12 March 2004 the Tribunal informed the applicant it was unable to make a decision in his favour based on the information before it and invited the applicant to attend a hearing on 21 April 2004.
f)The applicant failed to attend the Tribunal hearing on 21 April 2004 and submitted a medical certificate (CB pp.47-48).
g)By letter dated 22 April 2004 the Tribunal acknowledged the applicant’s ill health and set down a second hearing for 30 April 2004 (CB p.49).
h)On 30 April 2004 the applicant’s sister contacted the Tribunal and requested a further postponement of the hearing as the applicant was still suffering from ill health. The applicant later submitted a medical certificate (CB p.51).
i)On 30 April 2004 the Tribunal scheduled a further hearing date for 7 May 2004. The Tribunal also contacted the applicant’s medical practitioner and author of the second medical certificate to enquire about the applicant’s medical condition. After being advised of the nature of the Tribunal hearing, the medical practitioner was of the opinion that the applicant would be able to give oral evidence at the hearing and indicated he would contact the applicant and/or his sister to discuss the matter with them (CB p.67).
j)On 4 May 2004 an officer of the Tribunal called the applicant on his mobile number but received no answer. The officer also called the applicant on his home number and left a recorded message asking the applicant to contact the Tribunal. The applicant did not return the officer’s call (CB p.67).
k)On 7 May 2004 the applicant failed to attend the Tribunal hearing and on 1 June 2004 the Tribunal handed down its decision, affirming the delegate’s decision not to grant the applicant a protection visa.
l)On 15 June 2004 the applicant filed an application for review of the Tribunal’s decision in the Federal Magistrates Court of Australia.
The hearing
The applicant failed to attend the hearing at the scheduled time. When the applicant failed to appear my associate attempted to contact him on the telephone numbers he had provided to the Court. On the first call a woman answered who identified herself as the applicant’s sister and when asked whether her brother was en route to the Court or whether he intended to appear, his sister indicated that she was unaware of his location but that she would endeavour to contact him to determine whether he was intending to attend Court. After a delay of approximately ten minutes, all further attempts to raise anybody on the telephone contact numbers failed. The matter was called before me at approximately 2.35 p.m. but there was no appearance in Court by the applicant. Counsel for the respondent made an application that the hearing proceed generally in the absence of the applicant pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth). Counsel supported this application with the submission that the applicant had failed on a number of occasions to attend scheduled hearings before the Tribunal and had failed to comply with Court orders in respect of filing of documents.
The Court Book together with the Court files indicated that the applicant had made little effort to prosecute this matter. Despite being given repeated opportunities to comply with Court orders, and having the benefit of advice from an independent legal adviser under the Pilot RRT Legal Advice Scheme (NSW), the applicant appears to have demonstrated little interest in this matter.
On 22 September 2004 the applicant attended a directions hearing before Registrar Tesoriero where he consented to Short Minutes of Order requiring him to file and serve an amended application giving full particulars of each ground of review to be relied upon by 9 December 2004. A further order was made on that date that if the applicant failed to comply with the order to file an amended application, the respondent had leave to list the matter in a non compliance list before this Court. The applicant was also required to file and serve any written submissions fourteen workings days prior to the hearing date. These orders were not complied with despite the significance of non compliance being explained to the applicant during the directions hearing and the provision of an independent legal adviser being allocated to assist him in the preparation of his matter.
The Court Book indicated the applicant was provided with three different dates on which to attend the Tribunal hearing. On two of these occasions the applicant failed to appear but provided some medical evidence for his non appearance. However, on the third occasion he failed to appear without explanation.
I am satisfied that the applicant had clearly been advised of the date, time and venue of this Court hearing and had been provided with a map to assist in his location of the Court. In the circumstances, I acceded to the respondent’s application and agreed to hear the matter generally.
Respondent’s submissions
Ms T Wong of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The applicant’s ground for review was unparticularised and, taken at its highest, asked the Court to consider in broad terms whether the Tribunal fell into jurisdictional error by failing to consider the applicant’s claims in an appropriate manner or by failing to follow the procedure required by the Act.
b)A review of the Tribunal’s decision demonstrated that the appropriate legal tests were applied to determine whether the applicant had a well-founded fear of persecution. The Tribunal considered the applicant’s claim to fear persecution resulting from his Pentecostal faith and concluded that he had failed to provide sufficient information to substantiate his claim. The conclusion was open to the Tribunal on the evidence before it: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs.
c)The Tribunal summarised and took into account the limited evidence presented by the applicant in support of his claim and there was no evidence to suggest that there was relevant material before the Tribunal which was not considered. Nor does the Tribunal’s decision disclose any lack of good faith or pre-judgment of the issues to be decided: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs at [38] per Von Doussa J; SBBF v Minister for Immigration & Multicultural & Indigenous Affairs.
d)With regard to procedural fairness, the applicant was given numerous opportunities to make his claims and provide the delegate and the Tribunal with information in support of those claims. The applicant was given three opportunities to attend a Tribunal hearing. On the first two occasions the applicant presented a medical certificate stating that he could not attend the hearing. However, on the third occasion no excuse was offered. The evidence before the Court demonstrated that the applicant was afforded full procedural fairness, in accordance with procedures stated in Division 4, Part 7 of the Act.
e)To the extent that the applicant invited the Court to reconsider the merits of the Tribunal’s decision, the Court does not have jurisdiction to engage in such an enquiry: A v Minister for Immigration & Multicultural Affairs. The Tribunal’s decision demonstrated a careful analysis of the evidence placed before it and was not amenable to challenge on any basis.
Reasons
I have set out under the section “The Hearing” above the reasons for my decision to hear this matter generally in the absence of the applicant. I believe the applicant has been provided with every opportunity and assistance to prosecute this matter but he has failed to do so. Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
I acknowledge the filing of the initial documentation in this Court would be extremely difficult for a self represented litigant who was approaching the task without being fluent in the language or having knowledge of the legal system to which he is subject. However, as I have indicated above, assistance has been made available, including the interpreter service at all times when dealing with the Court staff or the independent advisers. The applicant’s inability to attend the Tribunal hearing due to illness was acknowledged and catered for. This included the Tribunal staff speaking to the applicant’s doctor to determine whether he was well enough to have a further scheduled hearing in light of his recent illness.The documents filed by the applicant do not disclose any ground of review in respect of the Tribunal’s decision. The pleadings are no more than a general statement of dissatisfaction with the outcome as it is contrary to the applicant’s position. The original protection visa application (CB p.1-28) contained very limited information for the delegate and subsequently the Tribunal to consider.
The Tribunal’s letter to the applicant dated 12 March 2004 indicated the material before it in relation to his application was insufficient to be able to make a decision in his favour. That letter invited the applicant to attend a hearing to give oral evidence and present argument in support of his claim together with an opportunity to submit any further information that he may desire and an opportunity to bring forward any witnesses that may assist him in the presentation of his case. In his response to the Tribunal’s hearing, the applicant indicated that he intended to bring his brother and sister to the Tribunal hearing to assist in this role. I have already indicated that invitations were issued to three separate hearings but no attendances were subsequently made and no further written evidence was submitted.
Orders of this Court provided the applicant an opportunity to file additional evidence in support of his claim but these orders were not complied with. Despite these various opportunities to supplement and enhance his application, nothing further has been added by the applicant to his initial application which contained little information.
The applicant has an obligation to make out his own case. The relevant facts pertaining to the application need to be provided by the applicant himself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out: Minister for Immigration & Ethnic Affairs v Guo & Anor at 59. The situation facing the Tribunal was clearly stated in its “Findings and Reasons” as follows:
“The applicant has provided scant details and the Tribunal has significant problems with his claims. His claims are expressed in general terms and he does not provide essential details, including dates and events.” (CB p.68)
I accepted the submissions prepared by the respondent’s Counsel and agreed that a fair reading of the Tribunal’s decision did not disclose any lack of good faith or pre-judgment of the issues to be decided, and that the applicant had been accorded procedural fairness. Although no specific requests for a merits review have been made, it was reasonable to assume that this was the desire of the applicant. However, this Court cannot entertain a merits review.
Conclusion
The ground in this application for review was very general and without particularisation and on a fair reading of the Tribunal’s decision, I was not 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 the applicant to 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: 29 April 2005
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