SZFCJ v Minister for Immigration
[2005] FMCA 510
•12 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFCJ v MINISTER FOR IMMIGRATION | [2005] FMCA 510 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of South Africa – where applicant declined to attend the RRT hearings. PRACTICE AND PROCEDURE – Notice of objection to competency – where application filed more than two years out of time. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.475A, 477 Federal Magistrates Court Rules 2001, R.13.03A |
| Applicant: | SZCFJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3441 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 April 2005 |
| Date of Last Submission: | 12 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2005 |
REPRESENTATION
| Solicitors for the Applicant: | No appearance |
| Solicitors for the Respondent: | Mr Chami |
ORDERS
The Application is dismissed.
The Application is not competent.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,275.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3441 of 2004
| SZCFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised for transcript)
This is an application for review of a decision of the Refugee Review Tribunal made on 3 April 2002 and handed down on 30 April 2002. In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant. The application for this Court was originally filed on 24 November 2004 and it was listed for final hearing today. The applicant has since filed a document entitled “Further amended application” on 21 February 2005.
It does not appear that this document, or a copy of it, was served on the solicitors for the respondent as the respondent’s written outline of submissions filed on 5 April 2005 did not refer to it. Mr Chami, for the respondent, told the Court that there was no copy of that document in his file. I made a photocopy of the further amended application available to him.
The applicant has not attended Court today. The matter was listed for final hearing at 2.15 pm on Tuesday, 12 April 2005. The matter was called on for hearing at 2.21 pm this afternoon. The applicant did not appear. I stood the matter down on the list and arranged for the applicant to be called again at 2.47 pm. Again, the applicant did not appear. I have ascertained from my staff that no telephone call has been received from the applicant, or anyone on his behalf, saying that he was late or was ill and could not attend. I have also ascertained that no letter or facsimile message has been received from the applicant, or anyone on his behalf, indicating difficulties in attending Court today.
I have received no message or nor have my staff, more correctly, indicating that the applicant has mistakenly gone to the Court complex in Queen Square rather than here.
In short, the applicant has just not appeared for the final hearing and there is no explanation for his non-appearance. I am satisfied the applicant has been reminded of these proceedings as Mr Chami has tendered copies of letters dated 5 and 6 April 2005, which were forwarded to the applicant by Express Post to his post office box and by courier to his home address. Those documents enclosed the respondent’s outline of submissions, or copies thereof.
Those documents were forwarded a week ago or less, which would have acted to remind the applicant of his necessity to attend Court today. But he has not appeared. It is, of course, open to the Court to dismiss the application according to paragraph (c) of r13.03A. Mr Chami for the respondent, however, has asked me to proceed under paragraph (d) of that Rule, which entitles the Court to proceed with the hearing generally.
I have acceded to that application. It has been put to me that the grounds cited in the further amended application do not disclose any grounds for judicial review and no purpose would be served in dismissing the matter for non-appearance under r13.03A(c) as that would permit a further application to this Court to set the order aside.
The facts of this matter are that the applicant is of South African nationality and Indian ethnicity. He filed an application for a protection visa, claiming a fear of persecution, which was well-found in his native South Africa.
A delegate of the respondent refused the application and so the applicant then sought a review of the decision by the Refugee Review Tribunal. On 26 February 2002, the Tribunal forwarded a letter to the applicant. It is a letter that complies with s.425 of the Migration Act. The first paragraph of the letter says:
The Tribunal has looked at all the material relating to your application, but is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.
The letter went on to set out the date, time and place of the hearing. In the second-last paragraph of the letter, there appears a warning contained within a box and printed entirely in upper case. It says:
If you do not attend the hearing and a postponement has not been granted, the tribunal may make a decision on your case without further notice.
On 2 April 2002, the applicant forwarded a response to hearing invitation to the Refugee Review Tribunal. In that response, the “Yes” box had been crossed out and the applicant had placed an X in the “No” box. Underneath the box and the word “NO” in block capitals, are the words:
I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
On 3 April 2002, the hearing proceeded. The Tribunal Member noted that the applicant advised the Tribunal in writing that he did not wish to give oral evidence and would like the Tribunal to proceed to make a decision, “On the papers”. He went on to say:
This matter has therefore been determined on the evidence available to the tribunal.”
It hardly comes as a surprise that the applicant’s claim was not successful. At page 64 of the Court Book, the Tribunal Member says:
The applicant claims that he encountered difficulty because of crime, discrimination on the grounds of race and because he wanted to form an organisation for the welfare of Indian people in South Africa. There is insufficient evidence to enable me to be satisfied that his difficulties as a result of crime are in any way Convention-related. In Minister for Immigration & Multicultural & Indigenous Affairs v Kord (2002) FCA 334, 28 March 2002, the Court made it clear that discrimination alone is not sufficient to amount to persecution. I am not satisfied on the basis of the applicant’s evidence that he had a problem in establishing an organisation that brings him within the Convention.
The Tribunal went on to affirm the decision not to grant a protection visa.
The applicant now seeks a review of that decision. The respondent opposes the Orders and has also filed a Notice of Objection to Competency. In that notice, the responded objected to the jurisdiction of the Court to try the application under the Migration Act, on the ground that the decision privative clause decision pursuant to s.474(2) of the Act, and pursuant to s.477(1) of the Act, an application to the Court for review of a privative clause decision must be made with 28 days of the notification of the decision.
The notice goes on to say that the applicant has failed to make an application within the required 28 days of being notified of decision, in that the application was made approximately 869 days after notification. I note the decision was handed down on 30 April 2002, and the original application to this Court was not made until 24 November 2004.
Of course, in assessing whether or not the application is competent, the Court must form a view as to whether the decision subject to the application is a privative clause decision that attracts the protection of s.474 of the Migration Act. If there is jurisdictional error, then of course the decision will not have the protection of s.474.
I have heard submissions made by Mr Chami for the respondent. With respect, I agree with those submissions. The grounds of the application are relatively lengthy, but I will quote them:
That the RRT decision was effected [sic] to take into account a relevant consideration when it assessed weather[sic] the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars: The Tribunal did not properly consider, in assessing the chance of my persecution and persecuted on my return to South Africa based on the member of a particular social group in South Africa. I was persecuted because I am Indian background. Because of I am discriminated in South Africa, I was persecuted by the authority and the South African community in South Africa.
If I persecuted by the authority, it is not possible for me relocate any other place in South Africa. I will be persecute if I return back to South Africa because of my ethnic, as Indian South African. It is a Convention-based persecution. I did not provided documentary evidences to established my persecution.
I was persecuted because of my ethnic Indian. I refer CB page 33. It is true I did not collect more relevant documentary evidences to prove my persecution because I have no one to help me to collect documents. The Tribunal’s satisfaction that I am not a refugee was not based upon reason which provided a rationale or logical foundation for this belief. The Tribunal did not observe Migration Act 1958 properly to making big decision. The Tribunal failed consider my evidences with the proper way which the Migration Act 1958 provided in my claims.
I will provide more details to support my judicial review application in my outline of submission.
Particulars: The Tribunal did not provide me adequate particulars of the independent information. The Tribunal did not provide me an adequate opportunity to respond to substance of the information. The Tribunal finding with the totality of the country information does not show that Indian South African people, or ethnic Indians are persecuted in South Africa. I did not attend the Tribunal hearing and because I did not collect the documentary evidence, I did not know the consequences of if I do not attend the Tribunal hearing.
Without the proper consideration of my statement, if the Tribunal made a decision, the decision effected by the procedural fairness. I refer High Court judgment, plaintiff S157 v Commonwealth of Australia (4 February 2002). I repeat the claims as relief which I provided in my application under Judiciary Act 1903. I will provide more after the meeting with my barrister.
There are no grounds for judicial review in the further amended application. It is difficult to understand what the first ground means, although Mr Chami has quite reasonably suggested that the word “relevant” should have been “irrelevant”. The ground that the Tribunal did not properly consider the applicant’s claim is no more, no less, than an application for review of the merits. It is well-known that merits review is outside the scope of judicial review. There is no ground to show that the Tribunal’s finding is not based upon reasons which provided a rational or logical foundation for this belief.
The Tribunal’s finding was based on the fact that there is inadequate evidence to support the applicant’s case. I read through the decision thoroughly. There is no indication that the Tribunal did not observe the provisions of the Migration Act and there is no particularisation in the application as to what part of the Migration Act is not observed or how the Act was not complied with. The applicant said that he would provide more details to support his application in his outline of submissions. No such document appears on the file.
The applicant’s claim that the Tribunal did not provide him adequate particulars of independent country information does not indicate a jurisdictional error. Independent country information does not have to be provided unless it refers specifically to an applicant or a person in the applicant’s position, being country information relied upon as a most general nature. The complaint that the Tribunal found that the totality of the country information does not show Indian South African people to be persecuted in South Africa is somehow incorrect; this does not disclose a ground for review, it is purely a merits question which is within the power of the Tribunal.
The applicant admits that he did not attend the Tribunal hearing. He says he did not know the consequence if he did not attend the Tribunal hearing. The letter that the applicant received, to which I have previously referred, advising him of the hearing to my mind makes it perfectly clear what would happen if the applicant does not attend. The Tribunal may well proceed to a hearing and make a decision in the applicant’s absence. That is what the Tribunal did, and that is what the Tribunal told the applicant that it would do if he chose not to attend.
The applicant complains of procedural fairness or the lack of it. I do not see any evidence of any lack of procedural fairness. The applicant was given an opportunity to attend the hearing and to give evidence, and to bring evidence and call his own witnesses should he choose to do so, to support his case. He did not. He did not provide any further information, as he was entitled to do. He had received a letter saying that on the information provided, the Tribunal was unable to make a decision in his favour. He provided no other information, so he can hardly be heard to complain, if on the basis of the information the Tribunal had already considered, it was not persuaded that it should consider that information now to be sufficient, to grant his application.
To my mind, the application must fail. The Tribunal appears to have approached its task in an appropriate manner and I see no evidence of any reviewable error. I have checked through the decision of the Tribunal myself to see whether any jurisdictional error is disclosed that may not have been apparent to the applicant, noting that he was not legally represented. I just see no evidence of any jurisdictional error. There is no reviewable error. The application must be dismissed.
I would comment, as I have commented before, that applicants who choose not to attend the hearing of the Refugee Review Tribunal do themselves a disservice. The very purpose of the hearing is to allow an applicant to attend and give evidence and provide further information if the applicant chooses to do so. The applicant is warned in the usual letter that on the basis of the information already held by the Tribunal, it is unlikely that a decision in the applicant’s favour would be made without something more.
The hearing provides the opportunity to give something more to snatch victory from the jaws of defeat. Those applicants who reject the opportunity to give the Tribunal the information that the Tribunal requires to grant their application do not do themselves any favours at all. Unless an applicant has a good reason for not being able to attend due to illness or injury, or applicants just choose not to attend the RRT hearing, are unlikely to be successful in the ordinary course of events.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 3 May 2005
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