SZFAY v Minister for Immigration
[2006] FMCA 21
•25 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFAY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 21 |
| 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, 424A, 430B, 441A(4), 441C(4), 474, 477(1A)
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
| Applicants: | SZFAY, SZFAZ, SZFBA & SZFBB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG3373 of 2004 |
| Delivered on: | 25 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 2 December 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicants appeared in person.
| Advocate for the Respondents: | Mr Z Chami |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as second respondent.
The application is dismissed.
The applicant husband and the applicant wife are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3373 of 2004
| SZFAY, SZFAZ, SZFBA & SZFBB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRBIUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 18 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 July 2003 and handed down on 28 July 2003, affirming the decision of the delegate of the first respondent (“the delegate”) made on 3 June 2002 to refuse to grant the applicants protection (Class XA) visas. The applicants seek unstated relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonym “SZFAY” (applicant husband), “SZFAZ” (applicant wife), “SZFBA” (son) and “SZFBB” (son).
Background
The applicants are husband, wife and children who claim to be citizens of Fiji. The applicant husband arrived in Australia on 10 March 1998 and the applicant wife and children arrived in Australia on 26 August 2000. On 13 May 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-64) (“CB”). On 3 June 2002 the delegate refused to grant a protection visa (CB pp.69-77) and on 19 June 2002 the applicants applied to the Tribunal for a review of the delegate’s decision (CB pp.78-81).
Only the applicant husband made specific claims under the Refugees Convention and for convenience I will refer to the applicant husband as the applicant. The applicant’s claims are set out in his original protection visa application and in a two page statement filed with that application. The applicant was born in May 1971 and came to Australia on a sporting activity visa in March 1998. His wife and family joined him in August 2000. In the protection visa application, the applicant’s claims concerned the political and economic instability in Fiji. Although he made no specific claims of particular issues concerning himself or his family, the applicant did refer to a
3.5 percent pay cut in his wife’s civil service salary. The applicant also made reference to George Speight and his supporters and the coup in Fiji. He also referred to an increase in unemployment and the rise in the crime rate together with the breakdown of social values as a result of the coup. The applicant stated he was opposed to George Speight and his movement (CB p.98).
The Tribunal’s findings and reasons
All of the applicant’s claims were contained in a two page typed statement submitted with his visa application form (CB pp.41-42). In the statement the applicant claimed:
a)
he was in Australia on a sporting assignment at the time of the staging of the coup in Fiji and his wife and children joined him
30 months later;
b)he was concerned about the political and economic instability in Fiji but did not provide specific concerns that he had for himself or for members of his family;
c)his wife suffered a 3.5 percent pay cut in her civil service salary; and
d)there was an increase in unemployment, a rise in the crime rate and a breakdown in social values and he was opposed to George Speight and his movement in Fiji.
The Tribunal dealt with the applicant’s claims comprehensively. It was not satisfied that the applicant had a well founded fear of persecution and, accordingly, affirmed the delegate’s decision to refuse to grant protection visas. The Tribunal made the following findings in relation to the claims of the applicant and his family (CB p.99):
a)the applicant’s claims were generalised, vague and lacking in detail;
b)the applicant’s claims related to economic and social conditions and his opposition to the coup in Fiji and specifically George Speight;
c)independent evidence was that George Speight and his principal supporters had been prosecuted and imprisoned according to law;
d)the security situation in Fiji was stable at the time of the decision; and
e)there was no evidence before the Tribunal to indicate the applicant would be at any risk of harm if he and his family were to return to Fiji.
Application for review of the Tribunal’s decision
On 18 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following claims:
a)Mr Mahmoud Kork (alias Michael Kork) of CLI Call International did not represent the applicants at the Tribunal hearing of 22 May 2004;
b)information at “folios 48-45” of the Department’s file as declared by Mr Kork was irrelevant to their application;
c)the applicants could not find the declaration stating that they did not wish to attend the RRT hearing; and
d)the applicant husband did not come to Australia on a sporting activity visa in January 2000 but on 10 March 1998.
The applicant stated the following grounds in support of those claims:
a)George Speight and his principal supporters were not endangering people but unemployed followers were harassing people;
b)the security situation in Fiji was unstable; and
c)currently the people of Fiji were being harassed.
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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.
Reasons
The applicant entered Australia on a visa permitting him to play rugby in the Sydney metropolitan competition for a Sydney club side. The applicant indicated that he first entered Australia in March 1998 under these arrangements. The Departmental records contained in the Court Book and referred to by the delegate and the Tribunal record the applicant’s arrival in Australia as January 2000. The applicant takes issue with the accuracy of the Departmental records. This discrepancy was raised during the hearing but was not resolved with any clarity. There were no movement records provided by the Department to indicate whether the applicant was returning to Fiji during the part of the year when the Sydney rugby competition was in recess. This issue was also raised in the claims contained in the application filed in these proceedings.
The respondents, in their written submissions, indicated that the applicant’s statement to the Department in support of the protection visa application dated 2 May 2002 (CB pp.41-42) stated that the applicant was “here in Sydney, Australia on a sporting assignment”. As part of that application for a protection visa, the applicant stated that he arrived in Australia on 10 January 2000 and this appears to be the basis for all references to the applicant’s date of arrival. In any event, even if the applicant arrived in Australia in 1998 as claimed, this is not relevant to establishing a jurisdictional error. As nothing flows from this inconsistency of the date of the applicant’s arrival in Australia,
I believe it can be set aside as requiring no further consideration.
The second claim made by the applicant in his application for judicial review, referred to Mr Mahmoud Kork (alias Michael Kork) of CLI Call International. When the applicant made his original visa application, he completed a Form 956 authorising a person to act and receive communication and named Mr Michael Kork as the authorised person (CB p.11). Mr Kork was forwarded correspondence from the Department concerning the applicant and his family (CB pp.66-68, 70). However, Section C of the review application to the Tribunal nominating the details of any authorised recipient was left blank (CB p.79) as was the response to hearing invitation (CB p.87). The Tribunal made no mention of Mr Kork in its decision nor was there any mention of Mr Kork in the application for review of the Tribunal’s decision. Mr Kork’s name was also mentioned by the applicant and his family from the bar table during the hearing but his involvement in the application for review before the Tribunal was not pursued by the applicant.
In the applicant’s claims reference was made to the contents of the Departmental files and reference to a cultural/social (temporary) (Class TE) visa. There is no particularisation in respect of this issue and any relationship that it may have in regard to the current protection application, the subject of these proceedings. This may have been the visa applied for by the applicant during the period when he was a sponsored rugby player prior to the protection visa application. I do not believe that this has any impact on the Tribunal’s decision in respect of the granting of protection visas to the applicant or his family.
The other claim raised by the applicant was that he was unable to find the document in the Departmental files indicating that he declined to give evidence before the Tribunal. A copy of the response to hearing invitation was contained in the Court Book (CB p.87), which clearly indicated the question “Do you want to come to a hearing?” was ticked in the “No” box and signed and dated by the applicant on 7 May 2003. This response was received by the Tribunal on 9 May 2003. This document had been forwarded to the applicant with a letter dated
1 April 2003 inviting the applicant to a hearing on 22 May 2003 and indicating that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone (CB pp.84-85).
While it is acknowledged that the applicants are self represented, both the applicant and his wife are fluent in English. The response to hearing invitation clearly stated that the applicants did not wish to attend the Tribunal’s hearing.
The applicant’s grounds of review set out in paragraph 7 above relate to asserted factual situations in Fiji. The three issues raised indicate a disagreement with the factual matters which the Tribunal assessed and as such are not grounds of review alleging jurisdictional error on the part of the Tribunal in its decision making process. There is no particularisation of any of the three issues and they do not give rise to any suggestion of a jurisdictional error.
Where an applicant is self represented, the Court must independently consider whether an arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The applicants were afforded full procedural fairness in accordance with the procedures set out in Division 4, Part 4 of the Act. The applicants were given several opportunities to advance their claims and provide the delegate and the Tribunal with information to support those claims. The applicants were advised in writing that the Tribunal had considered the material before it in relation to their application, but was unable to make a decision in their favour on this information alone. Accordingly, they were invited to attend a hearing of the Tribunal to give oral evidence and present arguments in support of their claim. This invitation was extended to any other person or persons who may have been able to assist in providing oral evidence in support of the applicants’ claims. The applicants were also provided with the opportunity to submit new documents or written arguments in support of their claims and they were advised that if they were in any doubt or experiencing problems in respect of these requests, they were provided with details of a contact person to assist in any explanation that may have been required. However, the applicants chose not to attend the Tribunal hearing.
The applicants’ claims were assessed by the Tribunal and it concluded that they had failed to substantiate those claims and it was not satisfied that the applicants had a well founded fear of persecution within the meaning of the Convention. This was a conclusion open to the Tribunal on the evidence before it: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs (“NAVX”). This decision sets out the obstacles for an applicant seeking review of a Tribunal decision when the applicant failed to attend the Tribunal hearing: NAVX per French, Emmett and Dowsett JJ at [5]:
“In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant has a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”
In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) his Honour McHugh J emphasises that the issuing of writs under s.75(v) of the Constitution and s.39B of the Judiciary Act 1903 (Cth) is discretionary. His Honour notes at [80]:
“Discretionary relief may be refused under s39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is a delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.”
Here the conduct of the applicants was “inconsistent with the application for relief”. They declined to attend the Tribunal hearing despite being told that a decision would not be made in their favour unless they did. They cannot be said to be coming with “clean hands” to the review process when they have done nothing that suggests any intention of engaging meaningfully in the process.
I accept the respondents’ submission following the decision of SAAP, that strict compliance with s.424A is required and the information contained in the two page statement attached to the original visa application lodged with the Department is not excluded or exempt from the strict compliance requirement of s.424A: Minister for Immigration & Multicultural Affairs v Al Shamry.
In this case, the Tribunal in its letter to the applicants dated 1 April 2003 (CB p.84) stated that it had “considered the material before it” but was “unable to make a decision” in the applicants’ favour based on this “information alone”. Thus, the Tribunal was informing the applicants that the information in the two page statement was insufficient and that, without further information, it would dismiss the application. The Tribunal subsequently rejected the application, concluding that the claims were “generalised, vague and lacking in detail” and it could therefore not be satisfied that there were any past or current circumstances giving rise to a well-founded fear of persecution within the Convention. The primary reason for the Tribunal rejecting the application was the lack of information placed before it. Section 424A obliges the Tribunal to give particulars of “information” upon which it plans to base its decision. It does not oblige the Tribunal to give particulars when the reason for its decision is the “lack of information” provided by the applicant: VAF v Minister for Immigration & Multicultural & Indigenous Affairs per Finn, Merkel and Stone JJ at [24(iii)] which held, citing WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [26]-[29], that the “information” referred to in s.424A does not:
“… extend to identified gaps, defects or lack of details or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.
Conclusion
I have been unable to identify jurisdictional error infecting the Tribunal’s decision. The decision by the Tribunal is therefore a privative clause decision as defined by s.474 of the Act. Pursuant to s.477(1A) of the Act, an application to the Court for review of a privative clause decision must be made within 28 days of the notification of the decision. The Tribunal handed down its decision on 28 July 2003 pursuant to s.430B of the Act. On the same day the applicant was notified of the decision pursuant to ss.441A(4) and 441C(4) of the Act. The applicant did not apply to the Federal Magistrates Court for a review of the Tribunal’s decision until
18 November 2004. The delay of approximately 503 days falls outside the required period specified in s.477(1A) of the Act. Accordingly, 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 first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 25 January 2006
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