SZFJF v Minister for Immigration
[2005] FMCA 1427
•16 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFJF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1427 |
| 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 Indonesia claiming a well-founded fear of persecution for reason of his religion – where applicant did not attend the RRT hearing. PRACTICE AND PROCEDURE – Summary dismissal – failure to comply with court order – application does not disclose any reasonable cause of action. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss. 426A, 475A.
Federal Magistrates Court Rules 2001 R 13.03, R 13.10.
Linden & Commonwealth (No. 2) (1996) 70 ALR.
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265.
| Applicant: | SZFJF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3798 of 2004 |
| Delivered on: | 16 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 September 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Muthalib |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
I grant leave to join Refugee Review Tribunal as a Second Respondent in these proceedings.
That the Application is summarily dismissed as it does not disclose a reasonable cause of action.
That the Applicant is to pay the Respondents’ costs fixed in the sum of $3,500.00. I allow four (4) months to pay the costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3798 of 2004
| SZFJF |
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 1st November 2004 after a hearing scheduled for that same day. The Applicant did not attend the Tribunal hearing. The Refugee Review Tribunal handed down its decision on
1st December 2004.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant filed his application for review of that decision on
31st December 2004. He has now filed an amended application.
Notice of Motion
The solicitors for the First Respondent Minister have now filed a Notice of Motion seeking that proceedings be summarily dismissed for these reasons: (a) that the Applicant has failed to comply with an order of the Court made on 11th February 2005 requiring him to file and serve an Amended Application giving complete particulars of each ground of review relied upon by 13th April 2005; and (b) that the substantive application be dismissed under Rule 13.10 on the basis that it does not disclose a reasonable cause of action.
Clearly the Respondent's solicitors had not received a copy of the Amended Application when they filed their Notice of Motion. The Amended Application was not filed until yesterday, 15th September 2005. Accordingly, the Respondents’ solicitors no longer seek to proceed with the Notice of Motion in respect of the first ground. They do seek to proceed in respect of the ground that the application does not disclose a reasonable cause of action.
The Federal Magistrates Court Rules at Rule 13.10 provide that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
b) the proceeding or claim for relief is frivolous or vexatious; or c) the proceeding or claim for relief is an abuse of the process of the Court.
In this case the Respondents’ solicitors seek to proceed under Rule 13.10(a) on the basis of no reasonable cause of action being disclosed in relation to the proceeding or the claim for relief.
It is clear that the power to dismiss a matter summarily is one which should not be taken lightly. The principals which govern the exercise of the Court's power have been discussed by Kirby J in the High Court of Australia in London & Commonwealth (No. 2) (1996) 70 ALR 541 at pages 544 to 545.
In particular, his Honour pointed out at 544:
It is a serious matter to deprive a person of access to the Courts of Law for it is there that the rule of law is upheld including against the Government and other powerful interests. This is why relief is rarely and sparingly granted.
In view of the exercise of this power and the effect that it would have on the Applicant's case, it is necessary to examine not only the amended application but the decision of the Refugee Review Tribunal which is sought to be reviewed.
The Amended Application gives three grounds. They are set out in paragraph 1 of that application:
1) The decision involved an error of law in that:
a) procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed;
b) the decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the respondent;
c) there was no evidence or the other materials to justify the making of the decision.
The orders that the Applicant seeks are set out in paragraphs 1, 2 9 and 10 on page 2 of the Amended Application. They are as follows:
1) The decision of the Refugee Review Tribunal be set aside;
2)an order that the Tribunal member not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter;
9) a decision that I am a refugee;
10) costs.
I note that the Amended Application does not directly seek an order that the application be remitted to the Refugee Review Tribunal for reconsideration according to law. Nevertheless, the application for an order that the particular Tribunal member not constitute the Tribunal in any further hearing or consideration of the matter contains within it the inference that the applicant does seek an order remitting the matter to the Refugee Review Tribunal. In other words, the orders sought must include an order in the nature of mandamus, being an order that the Court direct the Tribunal to hear the matter again.
Accordingly, I am satisfied that the Amended Application has been brought under the provisions of s.39B of the Judiciary Act (1903) and this Court has jurisdiction to hear such an application.
Paragraphs 3 through to 8 inclusive set out particulars of the applicants claim. They are in effect a restatement of the factual issues upon which the Applicant relies:
3)I meet the refugee criteria as I was discriminated by Indonesian people who are Christian and Catholic;
4) My fear of persecution is well founded;
5)I was a Muslim; my family adhered strictly to a religion. Recently the religious and ethnic riots and strife has erupted in one province after another since the downfall of the New Order. The economic and political condition in Indonesia is really unstable;
6)Every day I thought about what I would do to make a peaceful living and that was all I wanted;
7)Some government officials are Christian and Catholic and they will always persecute Muslim;
8)In Jakarta, riots frequently happen between the Muslim and Christian and as a result many people have been killed. I was ever arrested by several policemen from the local police station because the head of the station was Christian.
The background to the matter is that the Applicant and his wife, who is not a party to these proceedings, arrived in Australia on 23 April 2004. On 3 June 2004 they lodged an application for protection visas claiming well founded fear of persecution for reasons of their religion, which is of course a convention reason.
On 8th June 2004 a delegate of the Respondent Minister refused the application for a protection visa and on the 30th of that month the Applicants applied for a review of that decision.
On 16 September 2004 the Refugee Review Tribunal wrote to the Applicant and his wife inviting them to attend a hearing to take place at 10:30am on Monday 1 November 2004. The letter contained this relevant information:
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. We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.
The letter informed the Applicants of the importance of attending the hearing saying:
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 Applicant did not attend the hearing. The Tribunal made the decision to make its decision on the review without taking any further action to enable the applicant to appear before the Tribunal which is a power given to the Tribunal under s.426A of the Migration Act.
At page 68 of the Court Book under the heading "Findings and Reasons", the Tribunal noted:
The essence of the Applicant's claim for refugee status is that as a Muslim living in Indonesia, he has a well-founded fear of persecution at the hands of Catholic Christians.
At page 69 of the Court Book the Tribunal set out in one paragraph the reasons for making the decision against the Applicant:
Although given every opportunity to do so the Applicant has not provided any written or verbal evidence to substantiate his generalised claims. When this absence of evidence is added to the fact that the Applicant did not leave Indonesia for four years after he had obtained an Indonesian passport, that Muslims such as he and his wife constitute approximately 97 per cent of the Indonesian population, and that he did not take the opportunity offered to him to appear before the Tribunal, I am not satisfied that the Applicant has a genuine fear of suffering persecution in Indonesia because of his religious beliefs.
Turning again to the three errors of law alleged in the Applicant's Amended Application I note that the Applicant first of all complains that the Tribunal did not observe procedures required by the Migration Regulations in connection with making a decision. The Applicant was not able to provide any further submissions in support of that claim except that he told the Court that at the time of the hearing he had been in Melbourne and had forgotten the fact that he was required to attend the hearing on 1st November. He remembered the hearing date about a week after that date had been and gone. He promptly returned to Sydney. He did not however attempt to contact the Refugee Review Tribunal to explain his error.
I note that the Tribunal did not proceed to hand down its decision until 1st December 2004. It would have been possible for the Applicant or a migration agent to have contacted the Tribunal and explained the situation and either sought to have obtained another hearing or at least submit a written submission as to why his claim should be granted. Regrettably, he did not do so and as a result of his forgetfulness he has lost the opportunity to present evidence to the Tribunal in support of his claim for refugee status.
In my view the Refugee Review Tribunal complied with its obligation under s.425 of the Migration Act when it wrote to the Applicant on 16th September 2004 inviting him to attend a hearing on 1st November 2004, some six weeks later.
I am satisfied that the period of notice given complies with the requirements of s.425A of the Migration Act.
I am also satisfied that the Applicant's unexplained non appearance was a sufficient justification for the Tribunal to exercise its power under
s.426A of the Migration Act. In any event I note that the Tribunal did not seek to hand down its decision until a month after the hearing date, but the Tribunal wrote to the Applicant on 9th November advising him of the date of handing down of the decision, being 1st December.
Ground 1B of the application alleges an error of law involving an incorrect application of the law to the facts as found by the Respondent. It may or may not be the fact that an application of the law to the facts is found is a legal decision rather than a factual decision but, to my mind, the decision of the Tribunal shows a proper understanding of the definition of a refugee and the matters set out in sections 91R and 91S of the Migration Act.
The decision at page 66 of the Court Book shows an understanding of the four key elements of the convention decision. Namely that: 1) an Applicant must be outside his or her country; 2) the Applicant must fear persecution; 3) that the persecution which the Applicant fears must be for one or more of the reasons enumerated in the convention definition; and 4) that the Applicant's fear of persecution for a convention reason must be a well-founded fear.
To my mind the decision shows an understanding of the appropriate legal tests.
The third ground contained in paragraph 1C was that there was no evidence or other materials to justify the making of the decision. It is trite law that it is up to an applicant to provide evidence to a decision maker sufficient to enable the decision maker to be satisfied that the Applicant meets the tests of having a well founded fear of persecution in his or her home country for a convention related reason.
It is certainly true that the reasons given by the Tribunal are sparse and contained within one paragraph. The reasons given are in fact four in number being: 1) that the Applicant did not provide any written or verbal evidence to substantiate his generalised claims; 2) that the Applicant did not leave Indonesia for four years after he had obtained an Indonesian passport; 3) that Muslims constitute approximately
97 per cent of the Indonesian population; and 4) that he did not take the opportunity to appear before the Tribunal.
It is clear that the fact that an applicant does not attend the Tribunal hearing is not of itself a sufficient reason to permit the Tribunal to affirm a decision of a delegate of the Minister not to grant a protection visa. Section 426A of the Act requires the Tribunal to make its decision on the material that is before it and not just the absence of the Applicant. In this case, however, the Tribunal has pointed to the absence of corroborating written evidence, the very strong point that the Applicant is a Muslim living in a predominately Muslim country and the delay of some four years between the Applicant obtaining his passport and actually leaving Indonesia to travel to Australia.
The Applicant provided an explanation of that four-year delay to the Court today, but it is of course trite law that the Court does not conduct a merits review on the Tribunal decision. The Court does not take fresh evidence and it certainly does not take evidence that was not available to the Tribunal.
Had the Applicant attended the hearing he would have been able to give evidence as to why he and his wife did not leave Indonesia for four years after they obtained a passport.
I note that the Tribunal did not consider in any specific way whether or not the Applicant could have relocated out of the city of Jakarta to any other part of Indonesia in order to escape persecution by Christian people in Jakarta as set out in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265, but I am not of the view that that oversight is such that it creates a jurisdictional error. In any event the Tribunal did consider at page 69 of the Court Book, that in Indonesia Muslims constitute approximately 97 per cent of the population.
This point referred to by the Tribunal member is of such an overwhelmingly persuasive nature that in the absence of a cogent explanation from the applicant his case was almost certainly doomed to fail.
Having considered all of these matters I am of the view that the applicant's case cannot succeed and that there is nothing in the Applicant's Amended Application that would establish a reasonable cause of action.
In my view the Notice of Motion brought by the Respondent is well founded.
The Applicant has been wholly unsuccessful in his claim. in my view this is a matter where the successful party should be entitled to receive an order for costs. The amount sought is a lump sum of $3,500.00.
It is the practice of the Federal Magistrates Court wherever possible to order costs in a lump sum and in my view the amount sought, noting the history of the matter, including the fact that the application was previously before this Court on 1st September, the amount of $3,500.00 is well within the range envisaged by the Federal Magistrates Courts Rules 2001. I propose to make that order.
I note that the Applicant says that he does not have the funds to meet the costs order as he is not working, but helping relatives. That is not a reason not to make a costs order in this jurisdiction, but it is a matter that I will take into account in allowing time to pay. The Applicant has already indicated his intention to exercise his right of appeal. I mention that not because exercising a right of appeal is a matter that should affect an order for costs, but quite clearly it indicates the Applicant's intention to remain in Australia for a reasonable period of time in order to prosecute his appeal.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 28 September 2005
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