SZFHC v Minister for Immigration
[2006] FMCA 1787
•23 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1787 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Egypt claiming fear of persecution for reason of religion – whether Tribunal failed to under stand the meaning of the word “persecution” – where applicant did not attend the Tribunal hearing – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.91R, 424, 424A, 425A, 426A, 474 |
| Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259 |
| Applicant: | SZFHC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3694 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 November 2006 |
| Date of Last Submission: | 23 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3694 of 2004
| SZFHC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 28th May 2003, and handed down on 24th June 2003.
The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of Egypt. He arrived in Australia on 24th October 1998. On 1st June 2000 he applied for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs as it then was. That application was refused on 16th May 2002, and on 5th June 2002 he applied to the Refugee Review Tribunal for a review of that decision.
The application for review was lodged at the Tribunal on 5th June 2002. In that application the Applicant gave a home address and a mailing address, which was a Post Office Box number. He set out in Section D of the application his reasons for applying. They were as follows, quote:
The decision maker had serious errors, the group the Case Officer referred to is entirely wrong. He mixed both.
I have the evidence to contradict his findings.
I shall be persecuted surely, and my Jamat (group) were never involved in any violence, quite the contrary.
The Tribunal wrote to the Applicant on that same day, acknowledging receipt of the application and explaining that after looking at the information, the Tribunal Member may either make a decision in his favour or invite him to attend a hearing at the Tribunal. The letter went on to explain what a hearing was and why it was important.
On 2nd April 2003, the Tribunal wrote to the Applicant. The letter said 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. The Tribunal invited the Applicant to attend the hearing, which was scheduled to take place at 11:30am on Tuesday 20th May 2003.
The letter enclosed a Response to Hearing Invitation Form, and the Applicant was asked to complete that form and send it back to the Department. No reply was received. The Applicant did not attend the hearing.
The Tribunal noted that the Applicant did not attend the hearing, and proceeded to deal with the application without giving the Applicant a further opportunity to attend. The Tribunal has this power under s.426A of The Migration Act.
The Tribunal did not make its decision on the day of the hearing. On 27th May, a week after the hearing, a Tribunal officer completed a checklist. That Checklist is headed ‘No reply to hearing invitation, s.424 or 424A Letter’.
The Checklist noted a variety of information, including the date that the Tribunal's file was checked for a more recent address, the date that the Department's file was checked for a more recent address, and the date that the movement's database was checked in order to ascertain whether or not the Applicant had left Australia. All of those dates were 27th May 2003, which is one week after the scheduled date of the hearing.
The Tribunal then proceeded to make its decision on 28th May 2003, the day after that cheque had been done. The Tribunal handed down its decision on 24th June. It is, of course, the date on which the decision is handed down by the Tribunal that is the date of the decision.
A copy of the Tribunal decision, or Tribunal decision and reasons for decision, appears at pages 79 through to 98 of the Court Book. In the decision the Tribunal noted that the Applicant claims a well founded fear of persecution in Egypt as a result of his membership of a particular religious group called the Jama'et Al Tableegh. The Tribunal translated that as meaning the group orally and peacefully communicating the call.
The Tribunal noted the Applicant's statement that this group had had a great effect on him, and the Tribunal noted that the group's main concern was the confirmation of the genuine belief and the call for good deeds, which relied on reminding the people with the Koran and the code of profit, and the restoration of peace in case of strife and discord. The Tribunal noted that the Applicant had stated that the group had been subject to hardship and harsh treatment by many people in Egypt, who advocated Jihad and struggle and the overthrowing of the Egyptian government.
The Tribunal noted the Applicant's intensive reading and study of the subject, his sadness when he saw people heaping curses and accusations on the members of the group, and his description of his activities in Egypt. The Tribunal noted that the group was banned at present in Egypt. The Tribunal also considered independent evidence, and that is set out at pp.88 through to 95 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are relatively brief. The Tribunal noted that the Applicant claimed to fear harm from the Egyptian government, and noted his claim that should he return to Egypt, that the Egyptian government would deprive him of the freedom to worship the way that he deemed proper. He also feared infringement on his freedom to let his beard grow long and to do any activity in the Mosques or the houses.
The Tribunal went on to say that it was unable to have direct evidence from the Applicant that would permit the Tribunal to be satisfied that the Applicant genuinely held these claims. The Tribunal then went on to speculate as to what that evidence might include. The Tribunal did accept that Egypt was currently adopting measures to counter Islamacist extremism, but it was the Applicant's own evidence that the Jamat was not a movement that preached violence.
The Tribunal also had regard to some independent country information, in particular and advice from the Department of Foreign Affairs and Trade “CX45550”, and noted that that independent country information may well have confused the Applicant's group with a more militant group with a similar name.
The Tribunal also noted there was independent evidence that the independent government is wary of committed Muslims who wear beards and dress in flowing robes. However, the Tribunal went on to find, quote:
However, without further evidence from the applicant as to what harm he might suffer from any restrictions he might face upon return to Egypt, the Tribunal cannot be satisfied that such harm would be of sufficient seriousness to constitute persecution.
The Tribunal was not satisfied that there was a real chance that the Applicant might face persecution in the foreseeable future for his religion or for any other Convention reason were he to return to Egypt, an therefore was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugees Protocol.
The Tribunal found that the Applicant did not satisfy the criterion set out in sub-section 36(2) of the Migration Act for a protection visa, and affirmed the decision not to grant a visa.
The Application for Judicial Review
The Applicant sought the review of that decision by filing an application. He filed an amended application on 26th April 2005. The First Respondent Minister has filed a Response, and also filed a Notice of Objection to Competency, although that argument seems - latter argument seems not to have been pressed.
In the amended application the Applicant seeks relief, which includes a declaration that the Tribunal's decision is void and of no effect, and a writ of prohibition directed to the First Respondent Minister, preventing action upon or enforcing the Tribunal's decision. Presumably, the Applicant also seeks orders in the nature of certiorari, setting aside the Tribunal's decision, and mandamus, remitting his application to the Tribunal for determination according to law.
In oral submissions today the applicant has said that he wanted the chance to talk to the Tribunal and explain exactly what happened. There are three grounds set out in the application. They are as follows:
a)The Second Respondent committed jurisdictional error of law by misinterpreting the definition of persecution set out in s.91R of the Migration Act 1958, and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the Applicant.
b)The Applicant had a migration adviser at the time the hearing was scheduled. The RRT had record of the adviser, however no notification was made with respect to hearing.
c)The Second Respondent based much of its findings on independent country information which was not directly relevant.
The application was originally heard on 15th September 2005, at which time I made findings favourable to the Applicant. The Respondent Minister appealed and on 19th May 2006 the Full Court of the Federal Court made these orders:
a)The orders of the Federal Magistrates Court of 15th September 2005 be set aside.
b)The matter be remitted to the Federal Magistrates Court to be determined according to law.
c)The Respondent pay the first named appellant's costs of this appeal, and of the hearing before the Federal Magistrates Court. The citation for that decision is Minister for Immigration and Multicultural and Indigenous Affairs and SZFHC [2006] FCAFC 73.
Ground 1 – The Tribunal Misinterpreted the Definition of Persecution
The Applicant today has submitted that the Tribunal misinterpreted the definition of "persecution" by in fact taking a narrow view of persecution. The Applicant pointed out that persecution did not just relate to matters of religion, and he submitted that it was well known that the Egyptian government mistreats people.
The counsel for the Respondent, Ms McNaughton, has submitted that the Tribunal did not misinterpret the definition of persecution, and that the Tribunal's explanation of persecution as it applies under the Migration Act was correctly set out in the decision at page 81 of the Court Book.
The Tribunal's understanding of persecution is that under s.91R1 of the Act, persecution must involve serious harm to the Applicant, s.91R1(b), and systematic and discriminatory conduct, s.91R1(c).
The expression "serious harm" includes, for example, a threat to life or liberty, significant physical harassment or ill treatment, or significant economic hardship, or denial of access to basic services, or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist: s.91R(2) of the Act.
The High Court has explained that persecution may be directed against the person as an individual, or as a member of a group. The persecution must have an official quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy. It may be enough that the government has failed, or is unable to protect the Applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. And third, and most importantly, the persecution which the Applicant fears must be for one or more of the reasons enumerated in the Convention definition: race, religion, nationality, membership of a particular social group, or political opinion.
The persecution feared need not be solely attributable to a Convention reason, but persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared. See s.91R(1)(a) of the Migration Act.
In my view the Tribunal's understanding of persecution in the context of the Migration Act 1958, is correct and appropriate. I find no difficulty in coming to the conclusion that the Tribunal has set out an appropriate understanding of the meaning of persecution. The Tribunal applying this definition considered the Applicant's situation and the material before it. The Tribunal's view was that the evidence was not sufficient that it could not be satisfied that the harm that the Applicant might suffer from any restrictions he might face upon his return to Egypt would be of sufficient seriousness to constitute persecution.
In my view, the Tribunal has not only defined persecution for the purposes of the Act correctly, but has correctly applied that definition in considering the Applicant's situation. It need hardly be said that the seriousness of the harm that a person may suffer is a relevant and important part of deciding whether that harm would amount to persecution or not.
Consequently, the first ground fails.
Ground 2 – Section 425A Issue
As to the second ground, the situation is that this particular Applicant has been poorly served by his migration agent, to say the least. The Post Office Box number given as the mailing address was not the Applicant's address, but the migration agent. The migration agent put the Applicant's old address and not his current address on the application.
The Applicant previously said that the migration agent was under investigation by the Migration Agents Registration Authority and told the Court today that the migration agent is serving a prison sentence. The Applicant said, somewhat ruefully this morning, that it was not in his favour that his agent went to prison and did not help him much. In my view it was a misfortune that the Applicant appeared to have been let down in that way.
The situation that the Applicant faces is that through having relied on a migration agent who did not disclose on the application that he was a migration agent, that the Applicant was not made aware of the hearing and therefore lost his chance to attend the hearing.
The authorities appear to me also that where an applicant follows the advice of an agent or adviser, and through that person's default loses the opportunity to attend the hearing, especially in circumstances where the Tribunal is unaware of the predicament in which the Applicant is in, there is no jurisdictional error.
The actions of the Tribunal in writing to the address given were considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [32] – [33]:
Section 425 of the Migration Act imposes an obligation on the Tribunal to invite an applicant to appear before it to give evidence and present arguments before the Tribunal makes its decision. Section 426A of the Migration Act provides that if an applicant is invited to attend but fails to appear, then the Tribunal may make its decision without taking any further action to allow an applicant to appear. Section 425A sets out steps which the Tribunal must take in relation to an invitation to an applicant to appear.
The question to be determined by the Court is whether compliance with s.425A of the Migration Act exhausts the obligation of the Tribunal to invite an applicant under s.425, or whether additional steps must be taken by the Tribunal to comply with its obligation under s.425. It is of course clear that internal management mechanisms within the Tribunal, such as the checklist in the present case, cannot alter the extent and content of the duty imposed by the statute.
Their Honours went on to say at [39]:
The submissions of the respondent in this respect are rejected. In view of the decision in VNAA & Anor in Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407, it is clear that ss. 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s.425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.
In my view the Applicant's second ground in relation to notification clearly fails. The Full Court of the Federal Court has made it quite clear that compliance by the Tribunal with the obligations of the statute is the extent of the Tribunal's obligations.
Ground 3 – Issues with Independent Country Information
The third ground is that the Second Respondent based much of its findings on independent country information, which was not directly relevant. In my view, that is not entirely correct. The principal reason that the Tribunal was unable to be satisfied that the Applicant satisfied the criterion in sub-section 36(2) of the Act for a protection visa was the inadequacy of the information that the Tribunal had before it. It should be recalled that the Tribunal had perused the information when the application for review was first made, and had decided that, on the information before it, it was unable to make a decision in the Applicant's favour on the basis of that information.
Once the Tribunal had reached that conclusion, it was obliged to offer the Applicant the opportunity to attend a hearing under the provisions of s.425. That is what the Tribunal did.
Unfortunately for the Applicant, due to what appears to be the default of the migration agent, he was never made aware of the offer made by the Tribunal.
What the Tribunal did do was make a check, as set out in the Checklist, before making its decision. The Tribunal did not make its decision on 20th May, the scheduled day for the hearing. A week after the hearing, the Tribunal considered the Checklist and was of the view that matters on the Checklist should be followed, and then made the decision the following day. In my view, there is no breach of s.426A of the Migration Act.
As to the independent evidence, the Tribunal did accept - and it is set out at page 96 - that the advice from the Department of Foreign Affairs and Trade may have confused the Applicant's group with a more militant group of a similar name. Unfortunately, without further evidence from the Applicant, that point could not be followed up by the Tribunal.
The Tribunal did consider that there was independent evidence that the Egyptian government was wary of committed Muslims who wear beards and dress in the flowing robes. It would appear that as far as that consideration was concerned, the Tribunal considered that there was some independent information that in fact supported the Applicant's claim.
This is not, of course, a matter to which s.424A of the Migration Act applies, in the sense that independent country information refers - that independent country information, which is not about the Applicant or another person but purely about a class of people to which the applicant may belong, is excluded under the provisions of s.424A(3)(a) of the Migration Act.
In my view, the ground relating to the independent country information is in fact a challenge to the Tribunal's factual finding and, as I have previously said, it is a request to conduct a merits review of the Tribunal's decision. It is well established that a Court conducting a judicial review does not conduct a merits review of the Tribunal's decision. I refer to Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259.
In my view, therefore, the Applicant's three grounds of review must all fail.
Conclusion
I have considered the material myself independently of either the Respondent's submissions or the Applicant's submissions, mindful, as I am, that the Applicant is not legally represented, and I am unable to discern any other possible jurisdictional error. In my view there is no jurisdictional error. The Tribunal's decision is a privative clause decision as defined in sub-section 474(2) of The Migration Act.
Consequently, the decision is final and conclusive and is not subject to declaration or orders in the nature of prohibition, certiorari, mandamus or injunction.
The application will be dismissed.
I note that the application refers to the First Respondent Minister by a now superseded title, and I will make an order changing the title of the First Respondent to Minister for Immigration and Multicultural Affairs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 30 November 2006
0
3
2