SZFIO v Minister for Immigration - [2005] FMCA 1391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1391

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where applicant did not attend RRT hearing.

PRACTICE & PROCEDURE – Competency – Notice of objection to competency – summary dismissal.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A; 477(1A)
Federal Magistrates Court Rules 2001, R. 13.10

Minister for Immigration & Multicultural Affairsex parte; Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] 52 FCR 537

Applicant:

SZFIO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3774 of 2004

Judgment of:

Scarlett FM

Hearing date:

8 September 2005

Date of Last Submission:

8 September 2005

Delivered at:

Sydney

Delivered on:

9 September 2005

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Ms Warner-Knight
Australian Government Solicitor

ORDERS

The application is dismissed.
In the alternative, the application is not competent having been commenced out of time.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,500.00.
The hearing date of 18 November 2005 is vacated.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3774 of 2004

SZFIO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

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 5 June 2003 and handed down on 23 July 2003. The applicant filed his original application on

24 December 2004 and filed an amended application on 21 April 2005. In his original application the applicant sought the following orders:
a)an order of or declaration to redirect the applicant's claims to the RRT for further consideration and to advise the Tribunal to make a further consideration of this matter;
b)an order that no action is taken to remove the applicant from Australia while the decision is pending;
c)an order for costs and any further orders that this honourable Court may deem appropriate.
The orders sought are in effect, an order of mandamus and an order of prohibition. The original application is said to be under the Judiciary Act 1903 (Cth) and it is quite clear that the ground of jurisdiction is under s.39B of the Judiciary Act.
The background to this matter is that the applicant is a citizen of Bangladesh. He arrived in Australia on 7 October 1999. He had originally obtained a student visa and, as he told the Court, he had commenced a course of study at the Edith Cowan University in Western Australia. On 21 May 2002 the applicant lodged an application for a protection (class XA) visa. That application was refused on

8 August 2002 and on 11 September 2002 the applicant applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal wrote to the applicant after acknowledging receipt of the application the Refugee Review Tribunal again wrote to the applicant on 8 April 2003. That letter said, in part:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter then invited the applicant to attend a hearing on Wednesday, 4 June 2003 at 9 am. The letter went on to say, under a heading "Important Information about your Hearing", the following:
The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
The Tribunal received, on 3 June 2003, a response to hearing invitation in which a cross had been placed in the box that said that the applicant did not want to come to the hearing. The applicant signed that document on 1 June 2003. The Tribunal then proceeded to consider the applicant's claim on the basis of the material that was before it. In its decision, the Tribunal noted that the Tribunal had invited the applicant to give oral evidence and to present arguments at a hearing on

4 June 2003 but that the Tribunal had received written advice on 3 June from the applicant saying that he did not wish to attend. Whilst it is not specifically stated, it is clear that the Tribunal exercised its power under s.426A of the Migration Act to decide the matter on the basis of the material before it.
The Tribunal in its decision made a number of findings. After reviewing the law relating to a finding as to whether or not a person has a well-founded fear of persecution, the Tribunal pointed out that it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. The Tribunal said that although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts in the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Tribunal went on to say:
The applicant's inaction means that I am unable to be satisfied that the claims have any truth to them. That inaction, including especially the failure to attend the hearing, leads me to conclude that the applicant is indifferent to the fate of his claims (and is keen to avoid being questioned face to face about them) and that the reason for that indifference is that the applicant had exaggerated or fabricated his claims.
The Tribunal went on to say that the Tribunal member did not rely solely on those matters; it included country information in its decision.
The Tribunal was not satisfied that the applicant had established that even if he had a well-founded fear of persecution in his own reason that the applicant could not avail himself of the real protection of his country of nationality elsewhere within that country. The Tribunal referred to the decision of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] 52 FCR 537, at pages 440 and 441. The Tribunal considered that decision and the principle which arises from it which can be referred to as "the Randhawa principle" and went on to say this:
However, this principle only applies to people who can genuinely access domestic protection and for whom the reality of protection is meaningful. If relocation is not a reasonable option in particular circumstances, it may be said that in a relevant sense the person's fear of persecution in relation to that country as a whole is well founded.
The Tribunal referred to Randhawa (supra), both to the judgments of Black CJ and Beaumont J at pages 450 and 451. The Tribunal went on to note that the applicant claimed that he had had to leave to Bangladesh to escape his difficulties there. The Tribunal did not believe that claim because the Tribunal believed that the applicant could relocate within Bangladesh to find safety. The Tribunal noted that the applicant was then 30 years of age, well in to adulthood and has had at least 11 years experience of living among strangers.

The Tribunal took the view that the applicant could relocate within Bangladesh and noted that the applicant's passport issued in 1996 showed that he had travelled into and out of Bangladesh many times in the period 1996 to 1999. The Tribunal went on to say:
I believe that in the absence of any indication to the contrary, it is reasonable for me to conclude that he visited Arian in that period.
The Tribunal went on to say that it attached no significance to the applicant's claim that he had had difficulty in finding a university place because of his political opinion, saying:
Had he attended a hearing, I might have been able to explore that claim. But without that opportunity the claim remains a mere assertion, one which is undercut by the overall weakness of his case and the fact that he now has two or more degrees and is probably more than ready to go out into the world and earn his living.
The Tribunal went on to refer to the fact that the applicant had not applied for a protection visa until 31 months after he had arrived in Australia and seven months after the BNP lead government had come to power in Bangladesh. The Tribunal regarded that as particularly revealing and went on to point out the fact that the applicant had had by that stage been out of Bangladesh for four years was another reason for the Tribunal to suppose that any danger to the applicant had been exaggerated or fabricated in his claims.
The Tribunal, having considered the evidence as a whole, was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention and was satisfied that he was not a refugee. Accordingly, the Tribunal affirmed the decision not to grant a protection visa.
The solicitors for the respondent, apart from opposing the application per se, have filed a notice of objection to competency, noting that the application for review of this decision has been filed outside the strict time limit contained in s.477(1A) of the Migration Act. Indeed, the application is more than a year out of time.
The applicant attended Court for the hearing of this application. He did not require the services of an interpreter even though an interpreter had been ordered in case he needed one. The applicant is a personable and intelligent young man who is clearly well educated and very articulate. He has, if I may say so with respect, an excellent command of English.
The proceedings before me on 8 September involved an application by the respondent Minister for summary dismissal of the applicant's application on the basis that it did not disclose a reasonable cause of action, as set out in Rule 13.10 of the Federal Magistrates Court Rules. The solicitor for the respondent relied on her affidavit in support of that notice of motion, referred to the delay in lodging the application for a protection visa, some two and a half years late, referred to the delay in lodging the application for review, and referred to the applicant's non-attendance at the hearing of the Refugee Review Tribunal.
I had the opportunity of perusing the respondent's written outline of submissions and I was referred in particular to the decision of the Full Court of the Federal Court of Australia in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73. That is a decision of their Honours, Black CJ, Sundberg and Bennett JJ.
That is a decision that related to an application for review of a decision by the Refugee Review Tribunal where the respondent to the appeal, who was the original applicant, telephoned an officer of the Refugee Review Tribunal a day before the hearing to say that he would not be attending the hearing because of a death in the family and his intention to attend that person's funeral. The officer asked the respondent to provide documentary evidence about the funeral arrangements by the close of business the following day. The applicant did not appear and pursuant to s.426A of the Migration Act, the Tribunal proceeded to determine the claim of the respondent in his absence, which it did several days later.
The relevant paragraphs in their Honours' decision are to my mind, paragraphs 18 and 19 which to some extent state the principle to be applied or the principles to be applied, in the negative. I will quote from those two paragraphs verbatim. To my mind, paragraph 18 is necessary in order to understand the context in which their Honours set out their view in paragraph 19:
[18] We do not accept the respondents' submission that the Tribunal failed to make a decision as to "its state of satisfaction or not in relation to the evidence before it at the time of the hearing". In the penultimate paragraph of its decision, having reviewed the evidence, it said "The Tribunal is not satisfied that the respondent is a person to whom Australia has protection obligations".
[19] For these reasons, the primary Judge erred in concluding that in the absence of findings as to the facts either favourable or unfavourable to the respondent, the Tribunal could not reach the requisite state of satisfaction or non-satisfaction.
The principles in VSAF (supra) set out by their Honours are to my mind important. And as of course it is a decision of the Full Court of the Federal Court, it is binding upon this Court.
The applicant told the Court that at the time of the hearing he was really sick. He had been sick, he said, for about three weeks but he had not obtained medical advice because he could not afford it, but he was not well enough to attend the hearing. He said that if he had said to the Tribunal he was sick, that he would get another hearing. He did not, I note in either his application or his amended application, mention not attending the hearing because he was sick. This is a matter that was referred to for the first time by the applicant in the proceedings before me.
The applicant, as I said, is a citizen of Bangladesh. He is well-educated, as he was educated in India at the University of Calcutta where he obtained both a Bachelors Degree with Honours and a Master of Business Administration in Marketing. He obtained employment with a British company as a management trainee and worked there for a while. He then travelled to Australia and enrolled as a student at Edith Cowan University in Western Australia. At the time he told the Court he did not apply for a protection visa because he could not get a work permit and as a student he at least had the ability to work for up to 20 hours a week.
The applicant said that as far as his non-attendance at the hearing was concerned, he thought that the Tribunal would give him another chance to attend the hearing, and that of course is what he wanted.
As to his application being out of time, the applicant indicated that he had sought legal advice and his original legal advice was that his case would be unsuccessful and that caused him a great deal of unhappiness which is not to be wondered at, and for a considerable amount of time he did not know what to do. It was then only later that he brought his own application for review of the decision.
The applicant in his amended application provides a number of paragraphs extending for a little over a page, in which he sets out the grounds for his application for an order redirecting his claim to the Refugee Review Tribunal for further consideration. Paragraph 1 says:
I beg to state that the Tribunal affirms the decision not to grant my protection visa because I have two or more degree that could help me to go out into the world and earn my livings, which is indication that the Tribunal's decision did not reflect the material facts of my claim.
Well that indeed is a challenge to the factual basis of the Tribunal's decision and of course, a court conducting judicial review of a decision does not have the jurisdiction to consider a claim on the merits.

In other words, the Court does not reconsider the facts and make its own factual finding and substitute that finding for the finding of the primary decision maker. The authority for that, of course, is the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, particularly at page 272.

The next paragraph says:
Tribunal also mentioned that I have fabricated my claims on the basis of my failure to attend the hearing, which is not true. As an active supporter of the Jatya Party I myself and my family had to go through difficulties which include arrest, torture, killing, threat et cetera. Tribunal mentioned I could go to the other part of Bangladesh and live nicely, which is easy to say but as a human being, when you live with a fear it is impossible to live.
To some extent of course, that is a challenge to the factual findings which of course the Court cannot consider. The applicant also disputes that he had fabricated his claims and insofar as this is a challenge to the Tribunal's decision about the credibility of his evidence, it is of course the situation that credibility is a matter for the decision maker and not for the Court Minister for Immigration & Multicultural Affairs;ex parte Durairajasingham (2000) 168 ALR 407 is authority for that particular proposition, amongst others.
The applicant then went on to say at paragraph 3:
I myself educated enough to establish myself anywhere in the country unless I have real fear. I am very much disappointed about the Tribunal's decision. The Tribunal concentrating particular facts while it ignored many other facts of my claim.
I asked the applicant to expand on that claim as to which facts the Tribunal had ignored. Basically, the applicant's claim is a challenge to the factual findings. As such, the Court does not have the jurisdiction to upset a factual finding of the Tribunal. The applicant went on to say in paragraph 4:
When I studied in Bangladesh, I just managed to finish it though I was in danger. While I was studying, I was two times tortured. After escaping to India I did go to visit my country but I could not stay more than one night in one place.
That of course is a statement of fact. It would have been helpful if the applicant had attended the hearing of the Refugee Review Tribunal and put that material to the Tribunal, but it is not a matter that the Court can consider.

At paragraph 5 the applicant says:
My younger brother had to leave the country very recently.

He could not finish his law degree from university. I strongly believe that if I go back to my country I would be in danger.
That again is a factual matter which should have been put to the Refugee Review Tribunal at the hearing had the applicant attended.

It is not a ground for judicial review.
At paragraph 6 the applicant complains, inter alia, of a denial of natural justice, saying:
The Tribunal deprived me of the natural justice. Tribunal made his decision which was preset in the back of its mind. I am just a victim of circumstances. The Tribunal mixed up many facts which affected the decision.
The applicant's view is that the Tribunal should have made its own inquiries about the situation in Bangladesh and that by not doing so, the Tribunal deprived him of natural justice. The applicant also said that he believed the Tribunal's decision may have been preset in the back of the Tribunal' member's mind, but made a point of saying that he was not saying that the Tribunal member was biased.
At paragraph 7 the applicant says:
The Tribunal made up its mind without any inquiring regarding my genuine claim and did not believe my genuine, Convention based refugee claim.
The applicant is again challenging the factual findings, which is not a ground for judicial review. The question of credibility in that the applicant says the Tribunal did not believe his claim, is in fact entirely a matter for the decision maker. The applicant has presented factual matters which may well have been helpful had he attended the hearing. He is an articulate, intelligent man who is well educated. His failure to understand the consequences of his non-attendance at the hearing without explanation is most unfortunate and almost inexplicable bearing in mind his excellent command of English and the fact that he does in fact have a Masters degree, which indicates he is a person of intelligence and education and with significant skills in the English language.

He indicated that he had not been able to attend the Tribunal hearing due to illness, he had been ill for three weeks but did not produce then, nor has he produced now, any medical evidence relating to that illness. Again, it is unfortunate. Had the applicant been able to produce some medical evidence he may well have obtained an adjournment of his hearing and had he attended the hearing, he may well, being an articulate young man, have been able to persuade the Tribunal to take a different view of his application. As it was, the Tribunal dealt with the facts that were before it and on the basis of the material that was before it, the Tribunal was not satisfied that the applicant had established that he had a well-founded fear of persecution for a Convention reason.
I have examined the decision myself and I find no other error that would amount to a subject for judicial review. I note that the application is out of time and as no jurisdictional error has been disclosed, the decision therefore is a privative clause decision which attracts the protection of s.474 of the Migration Act. Accordingly, the provisions of s.477(1A) apply and the application is out of time.
It is for these reasons that I make these orders.
This is a matter where costs normally follow the event on a party/party basis. There is no other basis upon which costs would be ordered.

The sum of $3,500.00 is within the scale provided by the Federal Magistrates Court Rules and it is to my mind appropriate.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 22 September 2005