SZFNJ v Minister for Immigration - [2006] FMCA 1094

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFNJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1094

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, s.426

Abebe v The Commonwealth (1999) 197 CLR 510 at 187
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Multicultural Affair; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004) FCAFC 215
SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005) FMCA 25

Applicant:

SZFNJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG166 of 2005

Judgment of:

Barnes FM

Hearing date:

11 July 2006

Delivered at:

Sydney

Delivered on:

11 July 2006

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That the name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs.
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG166 of 2005

SZFNJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 January 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, who claimed to be a citizen of the Philippines, arrived in Australia in August 2004. On 27 September 2004 she lodged an application for a protection visa with the Department in which she claimed to have worked for an agent who obtained investors for a particular company, that she assisted in finding local political figures to invest in the company, and that she was later threatened by them when the company was found to be operating illegally. The company's assets were frozen, and the company boss was gaoled. She gave evidence that investors had lost money, that she was frightened and left the Philippines, and that the case was still in court but she did not believe that the authorities could protect her from any harm the local politician might cause. She provided no further information in support of her claim. Initially her application was refused by a delegate of the respondent on 28 September 2004.
It is relevant to note that in the delegate's decision the delegate pointed out that the applicant's claims were very vague, unspecific and lacking in any detail, that no evidence had been provided in support of her claims and that while she claimed to have been threatened by political figures, there was no information that suggested that this was because of her political opinion.
The applicant sought review of the delegate's decision by application lodged with the Refugee Review Tribunal on 27 October 2004. On

9 November 2004 the Tribunal wrote to the applicant advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. It invited her to a hearing, also advising her that if she did not attend the hearing and the Tribunal did not postpone it, it could make a decision on her case without further notice.
The applicant completed a response to hearing invitation indicating that she wished to attend the Tribunal hearing as scheduled. However it is apparent from the hearing information form in the court book and also from the Tribunal's reasons for decision, that the applicant did not attend the hearing nor contact the Tribunal to explain her failure to attend. In those circumstances the Tribunal proceeded to determine the matter without taking any further action to enable the applicant to appear before it under s.426A of the Migration Act 1958 (the Act).
The Tribunal referred to the applicant's claims in the protection visa application. It accepted that she was a citizen of the Philippines and noted that she claimed that she had become involved in business transactions which went wrong. It found that the fact that one or more of the players in a particular incident happened to be politicians did not bring the incident within the Refugees Convention on the grounds of political opinion. It found that the harm the applicant feared was not for reason of her political opinion or for any other Convention reason, but by reason of the fact that she had cost a number of people a lot of money and they were angry about this fact.
The Tribunal also had regard to the fact that the applicant acknowledged that the case had gone to court and that aspects of the case were apparently still in court. It found therefore, that there was a resolution being sought in accordance with the law and that there was no reason to believe that if one of the aggrieved investors, even a local politician, tried to harm the applicant for a part, albeit that it may have been an unwitting part, in the loss, then the applicant could not seek state protection.
The Tribunal found that if the law was being applied in one respect in the case, there was no reason to conclude it would not be applied in another. It concluded on the material before it there appeared to be nothing that brought the applicant's claims within the scope of the Refugees Convention. The mere fact that the applicant claimed to fear persecution for a particular reason did not establish either the genuineness of the asserted fear, that it was well founded, or that it was for the reason claimed.
The Tribunal referred to the fact that it is for an applicant to satisfy it that all the statutory elements are made out and that a decision-maker is not required to make the applicant's case for him or her or to accept uncritically any and all of the allegations made by the applicant.

The Tribunal concluded that, on the material before it, it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.
The applicant sought review by application filed in this Court on

19 January 2005. She relies on an amended application filed on 7 April 2005. She did not file written submissions and in the hearing today she did not add to the grounds in the amended application or address them in any way.
The amended application contends that the decision was made in excess of the powers of the Tribunal which ignored relevant facts and made erroneous findings. It is contended that the Tribunal failed to exercise its jurisdiction on three bases. First, on the basis that the Tribunal did not complete its jurisdiction in applying procedural fairness in assessing the applicant's claims to be a refugee, in that it failed to investigate whether there were any other motives of her persecutors, given that some of the them were local politicians, as claimed in her primary application and that it failed to investigate whether the applicant or the company she was working for had any affiliation with a particular opposition political party or politician that may trigger the local politicians to use this opportunity to persecute her for political reasons.
However the Tribunal is not obliged to conduct investigations in the manner contended for by the applicant. The Tribunal was not obliged, moreover, to accept at face value the applicant's claims as presented in the protection visa application. No jurisdictional error is established in the Tribunal's approach or findings because, on the material before it and the facts put forward by the applicant, it was not satisfied as to the applicable criteria.
As was stated in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5], in similar circumstances where an applicant failed to appear before a Tribunal at a hearing in the face of a letter as here, putting the applicant on notice that the Tribunal was not prepared to make a decision in the applicant's favour on the basis of the material already before it, rejection of the application was the inevitable consequence “of the applicant's non-attendance”.
In this instance the applicant did not put any further evidence before the Tribunal despite having been notified (not only by the delegate's decision but also by the Tribunal's letter inviting her to the Tribunal hearing) of the inadequacy of the material in support of her claim.

No lack of procedural fairness is established in the manner contended. It was for the applicant to put her case before the Tribunal and for the Tribunal to determine on the material before it whether it was satisfied as to the prerequisites of the visa which was sought. See SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 and SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005) FMCA 25.
The second ground relied on in the amended application is that the Tribunal failed to consider a claim made in the primary application, in that it failed to consider whether the authorities were willing and able to provide protection to the applicant. It is contended that the Tribunal merely assumed that the fact that the case had been to court meant that there was no reason to believe that the applicant could not seek state protection if one of the aggrieved investors tried to harm her. It is contended that this assumption was made in excess of the powers of the Tribunal, that there was no evidence before the Tribunal to make such an assumption and that a reasonable Tribunal could not have made such assertions without evidence.
In the protection visa application, in response to the specific question as to “Do you think the authorities of that country can and will protect you if you go back, if not, why not?” the applicant responded “As far as I know the case is in the court so the Philippines Government is doing something to resolve the case but I don't think they could protect me from the harm that the local official may do to me. He is a strong person and he could do all possible things to ruin my life as well as my family.”
The Tribunal referred to this claim in summarising the claims of the applicant. It addressed it in the findings and reasons part of its decision. However, it is important to note that it did so having already decided that the applicant's claims on the material before it lacked the requisite Convention nexus, and this removed any basis upon which the applicant's claims could succeed.
Moreover, the applicant's claims in relation to state protection were not put in quite the terms contended for in the amended application in relation to the willingness and ability of the state to protect her.

There is, indeed, no suggestion in her claims as to a lack of willingness on the part of the State. Moreover, the Tribunal considered the claim as it was put in light of the only material before it, which was also the evidence from the applicant, as to the case still being in court and the absence of any reason to believe, on the material before it, that the applicant could not seek state protection. No jurisdictional error is established on the basis contended for by the applicant.
Finally, in ground three the applicant contended more generally that the Tribunal did not investigate her claims or seek additional information from her in order to assist a reasonable Tribunal to assess if her claims could fall within the scope of the Convention. I have already indicated that it is for the applicant to advance whatever evidence or arguments she wishes to advance and then for the Tribunal to decide whether her claim had been made out. See Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 54 per Gummow and Heydon JJ, with whom Gleeson CJ agreed at 1; Abebe v The Commonwealth (1999) 197 CLR 510 at 187 and Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170.
The general contention made by the applicant in this respect does not establish jurisdictional error. The Tribunal was not under an obligation to investigate her claims. It met its obligations in the letter inviting her to the Tribunal hearing. I note there is nothing to suggest that the Tribunal failed to comply with the applicable procedures and its obligations under the Migration Act 1958 to invite the applicant to a hearing. It is clear that the applicant was notified of the hearing and of the fact that the Tribunal could not make a favourable decision on the material before it, as she completed the response to hearing invitation. She chose not to attend the Tribunal hearing. In those circumstances no jurisdictional error has been established on the part of the Tribunal in the manner contended for by the applicant.
As no jurisdictional error has been established the application must be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

It is appropriate that the Tribunal be joined as a party and I will make the order sought amending the first respondent's name.
The applicant has been unsuccessful. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount sought is $3,000.

I consider that that amount is appropriate in the light of the nature of this and other similar matters.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 7 August 2006