SZEVB v Minister for Immigration - [2005] FMCA 976

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEVB v MINISTER FOR IMMIGRATION

[2005] FMCA 976

MIGRATION – Refugee – failing to take into consideration relevant material.

Migration Act 1958, ss. 426A, 36(2), 424A, 422B, 425, 65, 424A(1)
Federal Magistrates Court Rules 2001, 9.03, 21.02(2)(a)

Applicant:

SZEVB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2065 of 2004

Delivered on:

30 May 2005

Delivered at:

Sydney

Hearing date:

30 May 2005

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Simon Diab & Associates
(Notice of Ceasing to Act filed)

Counsel for the Respondent:

Mr. B. Cramer

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant pay the respondent's costs set in the amount of $3500 pursuant to Rule 21.02 (2)(a) of the Federal Magistrate Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2065 of 2004

SZEVB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application filed on 5 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
3 May 2004 and handed down on 27 May 2004 to affirm the decision made by a delegate of the respondent Minister on 11 March 2004 to refuse a protection visa to the applicant.
The applicant is a national of the Philippines and arrived in Australia on 25 January 2004. Her claims before the Tribunal were contained in her application for a protection visa, see Court Book 1 to CB 25, in particular at CB 7 to CB 10. The applicant claimed that she feared for her life because she is an active member of a labour union which went on strike for basic rights and came into conflict with an employer company which used a private army against her and other workers in relation to strike action. She further claimed that the company called her a “Communist” and she was accused of supporting the “New Peoples Army” (a communist group). She claims that on one occasion she and her husband were stopped while travelling in a car by unidentified men who put guns at her head and she claims to have received threats to stop supporting the labour movement and further claimed that she could not have complained to authorities as they are on the pay roll of the local authorities.
In her application for review to the Tribunal, copied at CB 35 to CB 38, and in particular at CB 37, the applicant said:
“I fear to return to the Philippines. I will explain my fear during hearing. I, being a member of Labour Union Group have strong fear for my life in the Philippines.”
By letter dated 20 April 2004, copied at CB 41 to CB 42, the Tribunal wrote to the applicant advising her that it had considered the material before it, but was unable to make a decision in her favour based on this information. The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments in support of her claims. The Tribunal noted under the heading of "Important information about your hearing" that if the applicant was unable to attend the hearing she should contact the Tribunal, and further, if she did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision in her case without further notice.
The Tribunal’s letter was sent to the applicant's migration adviser consistent with the applicant's advice at CB 36 that the migration adviser was to be the “authorised recipient” for correspondence, and that all correspondence should be sent to the authorised recipient. But in any event, a copy of the Tribunal's letter was also sent to the applicant's home address. The applicant's response to the invitation to come to the hearing was that she did not wish to do so and as a result consented to the Tribunal making a decision without taking any further steps to enable her to appear before it. The completed “Response to Hearing Invitation” is at CB 44. It is signed and dated 30 April 2004.
I note that the “Response to Hearing Invitation” form also bears a stamp and details of the Migration Agency (who also happen to be the solicitors who represented the applicant for part of the time in the proceedings before me), as well as what appears to be the signature of the applicant. (It corresponds with the signature in the applicant’s application to the Tribunal at CB 38.4).
The Tribunal, pursuant to s.426A of the Migration Act, then proceeded to make a decision. The Tribunal had before it the respondent's Departmental file which included the protection visa application and the respondent's delegate's decision record and the applicant's application for review. The Tribunal found the applicant's claims to be vague and lacking in detail. Its “Findings and Reasons” are set out at CB 52 and 53. The Tribunal found in particular, that it was unclear when the claimed strike took place, what role the company and its private army took in stopping the strike and further, that the applicant had not provided any convincing details about the strike. (CB 52.7) The Tribunal also found, consistent with having put the applicant on general notice by way of its earlier letter of 20 April 2004, the lack of detail, the lack of clarity, and in one instance the failure to give a plausible account of how the car in which she claims to have been stopped by unidentified men, would have been identified and successfully stopped, and why out of all the people involved she would have been singled out for this action (CB 52.8). The Tribunal also found that she had not given any detail as to why she would be thought of as being supporting the New Peoples Army (CB 52.9). On the material before it, the Tribunal could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugee's Convention. On that basis the Tribunal found that the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa.
The applicant’s application to this Court of 5 July 2004 asserted jurisdictional error on the part of the Tribunal, but was lacking in any particularity or detail. This application was filed by solicitors, Simon Diab & Co. on behalf of the applicant. This was the same firm who had acted for the applicant in a migration agency capacity before the Tribunal. The applicant continued to be represented by solicitors when on 7 October 2004, orders were made, by consent, by a Registrar of the Court, which required the applicant to file and serve an amended application giving complete particulars of each ground relied upon by 11 November 2004. The respondent sought summary dismissal of the application before me on 4 March 2005 claiming that the applicant had not filed any amended application. An amended application, however, had been filed on 1 March 2005. This application restated the grounds in the original application but provided particulars to each of the restated grounds for review.
“A. The Refugee Review Tribunal (“the Tribunal”) made a jurisdictional error by failing to take into consideration relevant material.
Particulars
a)The applicant stated in her protection visa application that she was an active member of a Labour Union Group which was involved in a strike in one of the companies in the Philippines.
b)She further stated that she was threatened by the company’s private army for being member of the Labour Union as well as supporting the strike. The applicant and her colleagues were termed as ‘communists’ and accused of supporting the ‘New Peoples Army’ by the authority,
c)The applicant and her husband also received death threat at gunpoint and were advised to stop supporting Labour movement or face the consequences. The above statements confirm ‘well-founded fear’ of persecution by the applicant. However, the Tribunal failed to take into account such a grave situation of the applicant and thereby made a jurisdictional error.
B.The Tribunal made a jurisdictional error by misdirecting itself as to the nature of its role and duties responsibilities
Particulars
a)The applicant presented a vivid fear of persecution in front of the Tribunal. However, the Tribunal failed to discharge its duties and responsibilities by ignoring the possibilities of such persecution and thereby chose a narrow view of the situation.
b)Further, the Tribunal while making its decision did not follow the procedure set out in section 424A of the Migration Act 1958 in failing to provide particulars of any information to the applicant that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and did not ensure, as far as practicable, that the applicant understood why that information was relevant to the review, and did not invite the applicant to specifically comment on it. The Tribunal has therefore failed to appropriately discharge its duties and responsibilities in respect of this particular matter.
C.The Tribunal made a jurisdictional error in that the Tribunal made an error of law in its construction of the relevant law applicable to this case.
Particulars
a) The fear of persecution experienced by the applicant was well and truly within the definition of the Refugee Convention as amended by the Refugee Protocol. It was therefore under the purview of Australia’s protection obligations under the Refugee Convention as amended by the Refugee Protocol and Sections 36(2) and 65(1) of the Migration Act 1958. However, the Tribunal failed to apply the above relevant law and wrongly decided the matter against the applicant.”
I refused the respondent’s application for summary dismissal on
4 March 2005. The applicant continued to be represented. The parties agreed to the matter being listed for final hearing before me on 30 May 2005, and by consent, grounds (B) and (C) of the amended application were struck out. The applicant sought to rely on one ground of review at the hearing. This was that the Tribunal made a jurisdictional error by failing to take into consideration relevant material.
On 26 May 2005 the applicant's solicitors, Simon Diab and Associates, filed a Notice of Ceasing to Act for the applicant and by covering letter advised that they sought leave to file a notice pursuant to Rule 9.03 of the Federal Magistrate Court Rules 2001, and further advised that the applicant had withdrawn instructions from them on that day. Leave pursuant to that rule was subsequently granted in light of these circumstances.
The applicant was unrepresented before me today. She was assisted by an interpreter in the Tagalog language. At the hearing before me the applicant sought an adjournment of the hearing to engage another lawyer. I indicated to the applicant that the Court must be satisfied that there is a real purpose and utility in granting an adjournment.
I explained that she would need to provide something to the Court to show such utility when, in circumstances where, firstly she knew at the time of the first Court date on 7 October 2004 that the matter would come to a final hearing today, and secondly, the respondent sought summary dismissal on 4 March 2005, and when this was refused orders were made to continue to a full hearing set for 30 May 2005. Therefore, the applicant had notice of the hearing in the matter and had the opportunity to ensure her legal representation throughout the last
2½ months. Thirdly, and most importantly, the sole reason given by the applicant in support of her request for an adjournment was the need for further time to work and save money to engage a solicitor. This reason as put lacked certainty. I put to the applicant that such a vague assertion is not sufficient to adjourn a hearing that had been set for some time. It is clear that the applicant did not have money to pay her former solicitors and therefore withdrew her instructions. But she was unable before me to show that she had any real prospects of obtaining the funds to engage alternative representation. She said she was working part-time and was not able to set aside money to obtain a solicitor. Despite my attempt to obtain further detail, her response was that she had no “other reason except for the one already provided.” The applicant was silent on any prospects, as for example, of working full-time to increase her earnings, the time even on an approximate basis that she would need, any other sources of funds that may be available to her or even that she had explored or wanted to explore alternative legal representation to see if she could achieve representation for a lesser fee. Her request was open ended as to time, uncertain as to the prospects of achieving the objective of earning money and silent as to the prospect of alternative representation. The applicant failed to show any firm prospect of legal representation and I could see no real useful reason in delaying this hearing which had been set down for some considerable time. Further, I had on 4 March 2005 refused the respondent’s application for summary dismissal. This was on the basis that the sole remaining ground in the application before the Court, although it asserted jurisdictional error and the particulars on their face appeared to be a request for impermissible merits review, nonetheless as the applicant’s solicitor indicated, without detail, had been described as possibly containing more to this claim. I was in light of that, persuaded that the applicant should be given the opportunity to put forward any further argument in support of Ground 1. In this regard I note that at the first Court date an order was made [Order 9] that the applicant file and serve written submissions 14 days before the hearing. This meant that as at that time, (that is, 14 days before the hearing) the solicitors for the applicant were still on the record. No written submissions or other material was filed. As explained below without anything further, there did not appear to be any substance to the ground put forward by the applicant. In all these circumstances I could see no real purpose in granting the adjournment. On this basis, and in the circumstances, the request for an adjournment was refused.
The particulars of the applicant's sole remaining complaint before me, that the Tribunal made a jurisdictional error by failing to take into consideration relevant material, made reference to material which was a restatement of the refugee claims before the Tribunal. The applicant's claim now that the Tribunal failed to take into consideration this relevant material is not borne out. A plain reading of the Tribunal's record of decision shows that the Tribunal clearly made reference to each of the matters raised now by the applicant, by way of the particulars, and which were clearly considered by the Tribunal:
1)The Tribunal noted her claims that she was an active member of the Labour Union Group which was involved in the strike in one of the companies in the Philippines. (CB 51.9)
2)The Tribunal noted that she said she had been threatened by the company's private army, of being a member of the labour union as well as supporting the strike. The Tribunal further noted that she claimed that she had been called "communist" and of supporting the New Peoples Army. (CB 52.1)
3)The Tribunal also noted the applicant's claim that she and her husband had received death threats at gun point and were advised to stop supporting the labour movement. (CB 52.2)
The applicant's complaint before me now really appears to be a complaint seeking impermissible merits review, or at best that these statements were of themselves sufficient to satisfy the Tribunal that the applicant had a well-founded fear of persecution. Also, in the context of seeking to assist an applicant who is now unrepresented before me, and in light of the abandoned grounds, perhaps that the Tribunal should have done more to satisfy itself, and to have put particulars or information to the applicant pursuant to s.424A of the Act.
Relevantly, s.422B of the Migration Act applies to this case and to the extent that Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule requirements in relation to the matters it deals with. There is nothing before me to show the applicant sought any investigation, or further inquiry by the Tribunal or indeed any further action by the Tribunal following receipt of the Tribunal's letter dated 20 April 2004, and the applicant's response to the hearing invitation, which was to decline the invitation. I cannot see, in the circumstances before me, that there is any obligation on the Tribunal to conduct any investigation, or further inquiry. Section 65 of the Migration Act requires a decision maker dealing with matters pertinent to the Act to reach a certain satisfaction that statutory and regulatory criteria are met in deciding whether to grant a visa. In relation to a protection visa these are the matters set out in s.36(2) of the Act. It is open to an applicant to put such material as would enable the Tribunal to be so satisfied.
In the case before me the Tribunal put the applicant on notice that on the material before it, it was unable to make a decision favourable to her. It provided the applicant with an opportunity to come to a hearing before the Tribunal and to put evidence in support of her case. The applicant, as is her right, chose not to attend the hearing before the Tribunal. The Tribunal, after having invited the applicant to attend the hearing pursuant to s.425 of the Act, and having given notice of the possible consequences of the failure to appear, then proceeded to make a decision pursuant to s.426A of the Act. The Tribunal looked at all the claims as put by the applicant before it and was unable, on what was before it, to be satisfied as required by s 65 of the Act that the applicant satisfied the criteria set out in s.36(2) of the Act for the grant of a protection visa.
Clearly, it is for an applicant to make out her claims and it is for an applicant to supply the relevant facts. Also, as the Tribunal reminded itself at CB 52.6, it is not required to accept uncritically any allegation put forward by the applicant. I can see no obligation on the Tribunal to have made further inquiries or to have sought further information. It is clear that the Tribunal affirmed the decision under review because of the lack of detail and the unclear and vague claims put forward by the applicant. The applicant chose not to come to the hearing, the Tribunal had put her on notice as to the possible consequences and on what was before it the Tribunal could not be satisfied as required by relevant the statute that the applicant should be granted a protection visa. Clearly, in the circumstances, this was open to the Tribunal, and it gave reasons as to why the protection visa should not be granted to the applicant.
At the hearing before me the applicant said that the reason she did not go to the hearing was that she was sick. Relevantly, I noted with her that the “Response to Hearing Form” was signed on 30 April 2004 and the hearing was set for 12 May 2004, and asked her when exactly she fell ill. She responded that she was sick on 2 April 2004 and knew she would be sick in May. In light of all this the applicant’s explanation that she did not know she had to inform the Tribunal that she was sick does not provide an adequate explanation for her failure to attend the hearing. On what she put to me she was already sick as at 30 April (when she indicated she would attend) yet failed to advise the Tribunal of the possibility she may not attend. Further, I note that the applicant was represented before the Tribunal by the same firm of solicitors who represented her until recently before the Court. There is no evidence before me that her advisers put anything to the Tribunal in this regard, or indeed, that they argued any failure on the part of the Tribunal in this regard, in the amended application filed in this Court.

The sole ground of the application, that the Tribunal failed to take into account relevant material, cannot be made out. I should just note that, notwithstanding the fact that applicant's grounds (B) and (C) were abandoned, that ground (C) dealt with an allegation of error of law with reference to s.36(2) and s.65 of the Migration Act and in that regard I have already said that I could see no error in the way the Tribunal approached its understanding and application of the relevant law. I also note that ground (B) was an assertion that the Tribunal did not follow or comply with the procedures set out in s.424A of the Migration Act. It is clear from the Tribunal's decision record that the Tribunal's findings were based on a lack or paucity of the evidence put forward by the applicant herself. The Tribunal did not rely on any independent information that would fall within the ambit of this section. As I have said, the review conducted by the Tribunal was subject to s.422B of the Act and to the extent that Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with, then s.424A deals with information that must be given to the applicant.
Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason or part of the reason for affirming the decision under review. But clearly, s.424A is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal. It is not concerned with the thought processes of the Tribunal which appears to be, perhaps, the genesis of the applicant's complaint by way of the abandoned part of the amended application.
Nor for that matter is any failure of common law procedural fairness on the part of the Tribunal evident in this case. The applicant was assisted by a migration agent before the Tribunal, put her claims, such as they were, was given clear notice of the Tribunal’s reaction to the claims as put, and given an opportunity at a hearing to support those claims and to satisfy the Tribunal as to her being granted a protection visa. She was on clear notice as to the consequences of not attending the hearing for whatever reason, as is her right, she chose not to attend. Her complaint now that she was sick is not sustainable. Nothing in this regard was put before the Tribunal. In those circumstances she cannot now complain that the Tribunal was not satisfied that she was entitled to a protection visa.
On all the material before me I can see no error on the part of the Tribunal, either in regard to the sole remaining ground of the application, nor on the abandoned grounds, nor was there anything in addition that the applicant was able to put before me today. I can see no jurisdictional error, in regard to how the Tribunal has gone about its task and made its decision. The application is therefore dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 14 July 2005