SZFXD v Minister for Immigration
[2005] FMCA 698
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFXD v MINISTER FOR IMMIGRATION | [2005] FMCA 698 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424A(3)(a), 425, 426A, 474
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264
WAJA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
SZAKV & SZAKW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 222
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 361
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZFXD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 646 of 2005 |
| Delivered on: | 31 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 18 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms S Burnett of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 646 of 2005
| SZFXD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 March 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 December 2003 and handed down on 16 January 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 19 August 2003 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZFXD”.
The applicant and his wife, claim to be citizens of Fiji and formerly residents of Fiji. They arrived in Australia on 16 March 1999. On
10 June 2003 they lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.2-62) (“CB”). On 19 August 2003 the delegate refused to grant a protection visa (CB pp.67-77) and on 2 September 2003 the applicant lodged an application with the Tribunal for a review of the delegate’s decision (CB pp.78-81).
The applicant stated that he was born in May 1967 and that he and his wife are ethnic Fijians who arrived in Australia on 16 March 1999. The applicant stated he was a farmer and his wife was a kindergarten teacher. The applicant claimed he was harassed by supporters of the coup leaders in Fiji and has unspecified family problems. The applicant claimed that the Fijian authorities were incapable of providing adequate protection. The applicant provided no evidence of how or when he suffered persecution from these agents and appears to have relied on a generalisation which, according to country information, was not supportable (CB pp.97-98).
The Tribunal’s findings and reasons
Ms S Burnett, Solicitor appearing for the respondent, prepared written submissions prior to the hearing and provided a brief summary of the Tribunal’s findings and reasons which I have adopted as follows:
a)The Tribunal noted that it had served the applicant with a notice of hearing in accordance with the Act. It was satisfied that it had discharged its obligation to provide the applicant with the opportunity to give oral evidence and present arguments before it and noted that the applicant had declined that opportunity (CB pp.78-81).
b)The Tribunal made the following findings:
i)owing to the paucity of evidence before the Tribunal, the Tribunal did not accept that the alleged harassment and mistreatment involved serious harm or systematic and discriminating conduct as required under the Act (CB p.99);
ii)the applicant had not established how he was persecuted by supporters of the coup in May 2000 nor how there was a real chance he would face persecution if he returned to Fiji (CB p.99);
iii)on the basis of the country information, the Tribunal was satisfied that although the applicant may have had a subjective fear of persecution as a result of past violence, the present Fijian government was democratically elected and supports the Constitution which provides for the human rights of all Fiji citizens. Fiji had returned to normal, the authorities were capable of ensuring the peace and welfare of the communities and access to the protection of the law was available to all Fijian citizens (CB p.76);
iv)the Tribunal could not be satisfied that the applicant faced a real chance of harm amounting to persecution from the police or military, for reasons of his ethnicity or political beliefs and did not accept the applicant had a well founded fear of persecution on that basis (CB p.100).
Application for review of the Tribunal’s decision
On 11 March 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The Migration Act of 1958 was not properly observed.
The decision was made with an preset mind. Minister has made an legal error in making of the decision.
The decision was made contrary to the definition of the Refugee Convention. (Errors included)
Notice of objection to competency
On 13 April 2005 the respondent’s solicitors filed a Notice of Objection to Competency in the following terms:
“The respondent objects to the jurisdiction of this Court to try this application under the Migration Act 1958 (“the Act”) on the grounds that:
1.On 21 December 2003, the Refugee Review Tribunal made a decision relating to the Applicant (“Decision”).
2.On 16 January 2004, the Decision was handed down pursuant to section 430B(4) of the Act.
3.On 27 January 2004, the Applicant was notified of the Decision pursuant to sections 441A(4), 441C(4) and 441G of the Act.
4.On 11 March 2005, the Applicant applied to the Federal Magistrates Court (“the Court”) for review of the Decision.
5.The Decision is a privative clause decision within the meaning of section 474(2) of the Act.
6.Pursuant to section 477(1A) of the Act an application to the Court for review of a privative clause decision must be made within 28 days of the notification of the decision.
7.The Applicant has failed to make an application within the required 28 days of being notified of the Decision (the application was made 409 days after notification).”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
At the hearing, the applicant appeared self represented with the aid of a Fijian interpreter. He attended a directions hearing on 29 March 2005 and consented to Short Minutes of Order requiring the filing and serving of an amended application giving complete particulars of each ground of review to be relied upon and any affidavit containing additional evidence by 3 May 2005. This order was not complied with and no written submissions were provided by the applicant prior to the final hearing.
When the applicant was invited to make oral submissions at the final hearing, these were limited to a number of statements regarding his two sons who have subsequently been born in Australia and the applicant’s desire to be allowed to stay in Australia to care for those two sons. The applicant also made a number of other statements regarding his general situation since his arrival in Australia. He also raised the issue of sponsorship that was being offered by other residents but this issue had no bearing on the current proceedings before the Court. At the directions hearing the applicant was offered an opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW). The Court file indicated that the applicant was allocated an adviser and that he had been provided with written advice.
Respondent’s submissions
Ms S Burnett, Solicitor appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The applicant filed an application in this Court on 11 March 2005. By that application, the applicant stated the Tribunal was not correct and claimed that:
i)the Act was not properly observed;
ii)the decision was made with a pre-set mind; and
iii)the decision was made contrary to the definition of refugee under the Convention.
b)No particulars were provided by the applicant in his application and the applicant had not served any written submissions. On the face of the Tribunal’s decision there was no indication that the Tribunal did not follow the procedure required by the Act and accord the applicant with procedural fairness.
c)The independent country information referred to by the Tribunal, and relied upon its reasons for decision, was clearly not specifically about the applicant or another person. Therefore, there was no obligation on the Tribunal to provide that information to the applicant because the information falls within the terms of s.424A(3)(a) of the Act as understood in the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairsv NAMW; see also WAJA v Minister for Immigration & Multicultural & Indigenous Affairs.
d)In any event, the gist of the independent country information relied upon the Tribunal was referred to in the delegate’s decision such that the applicant would have had notice of it. Indeed as noted by the Tribunal, the delegate of the Minister included the relevant country information in its original decision. The applicant in his request for a review of the decision by the Tribunal and in his decision not to appear before it, did not seek to rebut this country information (CB p.99).
e)The Tribunal complied with s.425 of the Act as it sent the applicant an invitation to attend the Tribunal hearing and informed the applicant that it could not decide the matter in the applicant’s favour on the documentary information before it (CB pp.84-85). The applicant responded to the Tribunal’s invitation to a hearing indicating that he did not wish to attend and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal (CB p.86). Under those circumstances, the Tribunal was entitled, pursuant to s.426A of the Act, to decide to make a decision on the review without taking any further action to allow or to enable the applicant to appear before it.
f)On the material before it, the Tribunal was unable to be satisfied as to the existence of protection obligations in regard to the applicant or his wife. The Tribunal made it plan to the applicant in its letter that it was unable to make a favourable decision in support of his claims without hearing from him and the applicant chose not to attend. The conclusion reached by the Tribunal was reasonably open to it on the information before it and in these circumstances the Act demanded that the visa be refused and that the decision of the delegate be affirmed: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs and SZAKV & SZAKW v Minister for Immigration & Multicultural & Indigenous Affairs.
g)The applicant was also on notice from the delegate’s decision that the information he had provided to the Department lacked “any specific details with regard to the harassment/physical abuse and mistreatment he has claimed he was subjected to on several occasions” yet chose not to attend the hearing and did not submit any further written information in support of his claim.
h)By ground 2, the applicant appeared to be alleging that the Tribunal’s decision was made in bad faith which was a serious matter involving personal fault on the part of the decision maker and was not to be made lightly: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs. The applicant did not particularise the allegation and presumably invites the Court to make such a finding on the face of the written reasons. While lack of good faith and bias are valid grounds of review, all the respondent has to do is show that the Tribunal made “an honest and genuine attempt to undertake the tasks required by the legislation”: NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs. On the face of its written reasons it was clear that the respondent made an honest and genuine attempt to undertake the tasks required by the legislation.
i)The Tribunal’s decision did not disclose any reviewable error. The applicant had not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos: R v Hickman; Ex parte Fox and Clinton.
Reasons
The applicant in these proceedings was self represented with the aid of a Fijian interpreter and made no written submissions or oral submissions in support of his original application. The grounds in his original application were vague and unparticularised. The pleadings were nothing more than three very general statements that made no reference to the Tribunal’s decision. However, where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
Very little material was placed before the delegate in the original application with a number of the questions on the application form being answered by a single sentence of general nature with no specificity. The Tribunal wrote to the applicant on 15 October 2003 indicating that it had considered all of the material before it relating to the applicant but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 November 2003 but the applicant declined the opportunity to appear. He completed the response to hearing invitation form stating that he did not wish to attend the hearing and consenting to the Tribunal proceeding to make a review without taking any further action to enable him to appear before it. On the Tribunal application for review form the applicant indicated that a “statement will follow” (CB p.80). However, this statement was not forthcoming. The applicant had not supplemented or augmented any of the material supplied in the original application giving the Tribunal only the general information contained in the country reports but no specific claims in respect of the applicant.
I accepted the submissions by the respondent’s solicitor in that they responded to the general allegations made in the grounds pleaded by the applicant. Unfortunately for the applicant, he made the concession at the end of his oral submissions that he did not disagree with the Tribunal’s decision made on 21 December 2003. I do not believe the applicant had any idea of the significance of the statement he made and I have put that matter to one side.
In order to fulfil the responsibility of the Court to independently consider the application of the self represented litigant, I have read the Tribunal’s decision again and reviewed the accompanying material contained in the Court Book and conclude that I am not able to identify any jurisdictional error on the face of the document nor is there any material contained in the papers that would suggest that the Tribunal had not adopted the appropriate decision making process as required under the Act.
Conclusion
I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 May 2005
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