SZFXC v Minister for Immigration - [2006] FMCA 1757

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFXC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1757

MIGRATION – Review of decision by Refugee Review Tribunal – opaque unparticularised grounds – whether decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 65; 424A(1); 426A; 474; pt.8 div.2
Federal Magistrates Court Rules 2001

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
Abebe v The Commonwealth (1999) 197 CLR 510
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 412

Applicant:

SZFXC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG645 of 2005

Judgment of:

Emmett FM

Hearing date:

10 November 2006

Date of last submission:

10 November 2006

Delivered at:

Sydney

Delivered on:

10 November 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Mr R. White, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG645 of 2005

SZFXC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 January 2005.
The applicant was born on 29 December 1977 and is a Bangladeshi National. The applicant arrived in Australia on 15 October 2000, having legally departed Dhaka on a passport issued in his own name and a student visa.
On 23 August 2004, the applicant lodged an application for a protection (class XA) visa with the Department.
In his protection visa application, the applicant claimed that he feared persecution by members of the Bangladesh Nationalist Party (“the BNP”) because of his involvement in Awami League student politics. In a statement lodged in support of his protection visa application, the applicant asserted that, in 1995, one of the leaders of the BNP tried to hide arms in the courtyard of the applicant's house in order to show that the applicant was carrying illegal arms.
The applicant stated that, with the help of police, the person was arrested. However, now that the BNP is in power, the applicant claims that person is seeking revenge.
On 31 August 2004, a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 27 September 2004, the applicant lodged an application for review of the Delegate's decision by the Tribunal. The applicant provided no further material in support of his claims to the Tribunal.
On 17 December 2004, the Tribunal wrote to the applicant informing him 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 letter went on to invite the applicant to attend a hearing on 24 January 2005. The letter informed the applicant that the Tribunal would only change their hearing date for good reasons and that if the applicant thought he may be unable to attend the hearing, he should contact the Tribunal immediately, but if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.
The letter enclosed a ‘Response to Hearing Invitation’ form and asked that the applicant complete and return that form and also requested the applicant to send any new documents or written arguments that he wished the Tribunal to consider. That letter was sent to the applicant at the address identified by him for correspondence on his application for review. No further material was provided to the Tribunal by the applicant and the ‘Response to Hearing Invitation’ form was not returned.
A file note indicates that, on 20 January 2005, an attempt was made to telephone the applicant on his mobile number, but a message from Optus stated that the number was not connected. However, the file note does not identify the telephone number that was rung, although there is a telephone number provided by the applicant in his application for review.
In its decision, the Tribunal noted that it wrote to the applicant on
17 November 2004, inviting the applicant to attend the hearing and to give oral evidence and present arguments. The Tribunal noted that the letter advised the applicant that, if he did not attend the hearing and the postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal noted that no response was received from the applicant and it noted that it had confirmed that the letter of invitation was sent to the applicant at the most recently advised residential address for the applicant. I note that there is only one address identified by the applicant on his application for review.
The Tribunal also noted that an attempt had been made to telephone the applicant on the mobile number telephone number he had provided, but that a recorded message stated that the number was not connected.
The Tribunal also noted the applicant did not have an adviser. In the circumstances, the Tribunal, purported to exercise its discretion under s.426A of the Act to proceed with its review without taking any further steps to enable the applicant to appear before it.
It is clear on the face of the Tribunal decision that it considered whether or not it should exercise that discretion and it provided the information upon which it relied in the exercise of that discretion.
The Tribunal was satisfied that the statutory regime for inviting the applicant to attend the hearing had been complied with. In the circumstances, the Tribunal was entitled to proceed pursuant to s.426A of the Act with its review without taking any further action to enable the applicant to appear before it.
The Tribunal had regard to the applicant's statement provided in support of his protection visa application and identified, with particularity, the claims made by the applicant in that statement. However, the Tribunal noted that the applicant had provided very little evidence to support his claims, that his claims were very general in nature and provided very little specific information. In particular, the Tribunal identified its concerns about the approximate date on which arms were allegedly hidden his courtyard or when the perpetrator was arrested. The Tribunal noted that the applicant did not in fact claim that he was harmed, although he stated that BNP party members tried to beat him and others in the Awami League students’ group.
These were matters that the Tribunal stated it would have explored with the applicant, had he attended the hearing. The Tribunal stated that it was unable to be satisfied that the applicant had suffered Convention based persecution in the past and again noted that the applicant provided only sparse evidence, lacking in detail, to support his claims.
In considering whether there is a real chance that the applicant will be persecuted, if he were to return to Bangladesh in the foreseeable future, the Tribunal noted that the applicant did not apply for a protection visa until some four years after he arrived in Australia and concluded that conduct may indicate that the applicant was not in fear of serious harm when he came to Australia. The Tribunal stated, “Even if he were, the Tribunal has found, on the evidence before it, that the applicant has not been persecuted in the past.”
The Tribunal concluded that, on the evidence before it, it was not able to be satisfied that there is a real chance that the applicant will be persecuted for a Convention reason were he to return to Bangladesh and is therefore not satisfied that the applicant has a well-founded fear of persecution.
In circumstances where the applicant does not satisfy a decision maker, such as the Tribunal, that he meets the criteria set out in s.36 of the Act required for refugee status, s.65 of the Act states that the decision maker must refuse a protection visa in those circumstances.
On 15 March 2005, the applicant filed an application seeking judicial review of that decision in this Court and filed an amended application on 9 June 2005.
The applicant is unrepresented before this Court this morning, although has the assistance of an interpreter. The applicant confirmed that it was the amended application upon which he relied. Despite being questioned on several occasions whether he had any submission to make in support of his application, the applicant declined to make any submissions in support of his grounds. The applicant stated that he did not write the grounds and certainly he did not appear to understand them. The applicant informed the Court that they were written by a friend whom he met on the ground floor of the Federal Court building, whose name he cannot remember.
The grounds are in the following terms:
“1. The Refugee Review Tribunal (the Tribunal) did not properly understand the real criteria of the protection obligation when it simply rejected my genuine claim by saying that – “the applicant has provided very little evidence to support his claims to refugee status. The claim he has made are very general in nature, and provide very little specific information.” (Page -5 of the decision of the Tribunal). In this observation the Tribunal has travelled beyond its jurisdiction not knowing the definition of the Refugee.
2. The Tribunal unreasonably making some observations to reject my claim is an unfair procedure or which other way an error of jurisdiction when the Tribunal observed that the applicant has a fair (sic) of persecution but it is not satisfied because of my late application for the protection visa and I was not persecuted past which are question of time is no way related in deciding my claim for protection. So the decision is made on bad faith.”
Turning first to Ground 1, it is difficult to understand what the complaint is that is intended by that ground.
However, to the extent that the Tribunal considered the applicant's claims in his protection visa application and was unable to be satisfied on that material that the applicant met the criteria of being a refugee, that lack of satisfaction was because of subjectively perceived inadequacies in the information before the Tribunal, rather than any material contained in the protection visa application itself. It was the lack of information that was the reason for the Tribunal's lack of satisfaction about the applicant's claims (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 per Allsop J at [29]).
Further, it is not for the Tribunal to make the Applicant’s case for him. It is for the Applicant to satisfy the Tribunal that the criteria required, pursuant to ss.36 and 65 of the Act, for a protection visa are met by the Applicant (Abebe v The Commonwealth (1999) 197 CLR 510 at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]).
A fair reading of the decision as a whole makes it clear that, in the proceeding before this Court, it was the lack of information that gave rise to the Tribunal's lack of satisfaction.
Accordingly, Ground 1 is rejected.
Turning to Ground 2, the applicant appears to be complaining about the statement by the Tribunal that the applicant did not apply for protection visa until some four years after he arrived in Australia, which might indicate that he was not in fear of serious harm when he came to Australia and that those words reflect some bad faith on the part of the Tribunal.
However, a fair reading of the decision as a whole would suggest that those words reflect no more than an observation made by the Tribunal from which no finding was made. Even if it were to be suggested that it was unreasonable for the Tribunal to make such an observation, unless that unreasonableness was of sufficient seriousness to amount to Wednesbury unreasonableness, the observation by itself does not reflect jurisdictional error. There are no particulars provided by the applicant as to how it is that those words reflect a lack of good faith on the part of the Tribunal. Such an allegation is very serious as it involves a personal attack on the honesty of the decision maker (SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19]).
The first respondent, in written submissions, has referred to NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 412 at [24] where Gyles J stated that in order to make out a case of bad faith it must be shown:
“…the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him - tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples.”
However, no such allegation of bad faith can be made out by the reference to those words alone. The use by the Tribunal of those words does not indicate that it conducted its review with a closed mind not open to persuasion or in bad faith. It did no more than make the observation. Indeed, the applicant himself expressed those words in Ground 2 in terms of being an “observation”.
The conclusions of the Tribunal were open to it on the evidence and material before it and the decision is not affected by jurisdictional error..
In the circumstances, the Tribunal's decision is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.

RECORDED : NOT TRANSCRIBED

The first respondent seeks costs fixed in the amount of $3500.
The relevant schedule is pursuant to the old rules that attach to the Federal Magistrates Court Rules 2001 and I note that the sum available to a first respondent in circumstances is in excess of the sum sought. In the circumstances, I am satisfied that the sum sought is reasonable and accordingly, I order that the applicant pay the first respondents costs in the amount of $3500.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 28 November 2006