SZFZM v Minister for Immigration
[2006] FMCA 1539
•5 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFZM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1539 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of the Philippines – where applicant did not attend Tribunal hearing – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 426A, 474 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2005] FCAFC 61 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | SZFZM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 786 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 October 2006 |
| Date of Last Submission: | 5 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms McNaughton |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 786 of 2005
| SZFZM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 10th February 2005.
The Tribunal handed down its decision 3rd March 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. In these proceedings the applicant seeks an order in the nature of certiorari to quash the decision of the Tribunal and an order in the nature of mandamus requiring the Tribunal to consider the application for a protection visa according to law.
The applicant is a citizen of the Philippines who arrived in Australia on 31st October 2004. On 23rd November he lodged an application for a protection (Class XA) Visa but that application was refused on
9th December 2004. The applicant then applied to the Refugee Review Tribunal for a review of that decision.
The applicant lodged his application at the Sydney registry of the Tribunal on 4th January 2005. He did not have a migration agent acting for him and gave his residential address as his postal address for the purpose of the proceedings.
The applicant did not submit any further information when he lodged his application for review.
The Tribunal wrote to the applicant on 6th January 2005 acknowledging receipt of his application and informed him that he may be invited to attend a hearing of the Tribunal. The letter told the applicant that a hearing would be his opportunity to give the Tribunal evidence to support his application.
The Tribunal wrote to the applicant again on the 14th January 2005.
In that letter the Tribunal said:
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.
You can also ask the Tribunal to obtain oral evidence from another person or persons.
The applicant did not return the response to hearing invitation form and an officer of the Tribunal spoke to the applicant by telephone on
4th February 2005. The applicant told the Court that he spoke to the person from the Tribunal who only wanted to know whether or not he was going to attend the hearing on 9th February. He told the Tribunal officer that he had not decided at that stage whether to attend the hearing but later that same day sent a facsimile message to the Tribunal saying:
I cannot come.
The applicant told the Court that he had been working and had suffered a lower back injury which was causing him some pain. He told the Court that he did not apply for a postponement or an adjournment of the hearing saying that the person to whom he spoke on the telephone only wanted to know whether or not he was going to attend on the hearing date. Apart from his facsimile message that same day, he did not have any other written communication with the Tribunal.
The Tribunal proceeded to decide his application under the power given to it by s.426A of the Migration Act. The Tribunal noted at page 56 of the Court book that the Tribunal had received a handwritten facsimile from the applicant stating:
I cannot come.
In the Tribunal decision the Tribunal summarised the applicant's claims and evidence from the department's file and that summary appears at pages 55 and 56 of the Court book. The Tribunal noted that the applicant had claimed to the department that his problems in the Philippines started when rebel people asked him for a donation.
The rebels kept asking for money and started harassing the applicant so that he could not open his shop on a daily basis. He went on to say that he sought the assistance of the military but that made the rebels angry and they harassed him and threatened to kill him. He indicated that he feared that the rebel people would harm or mistreat him if he were to return. He did not believe that the authorities in the Philippines were either willing or able to protect him, claiming that there were so many problems in the Philippines that the individual problem of the citizen was the least priority of the government at the moment.
The Tribunal set out its findings and reasons and they appear at pages 57 and 58 of the Court book. The Tribunal was satisfied that the applicant held the nationality of the Philippines on the basis of the photocopies of his passport and assessed his claims against the Philippines. The Tribunal noted the applicant's claim of harassment and threats from the rebels which prompted the applicant to leave his native country.
The Tribunal pointed out that the Tribunal's letter of 14th January advised the applicant that the available material was insufficient for it to make a favourable decision. This, to my mind, appears to be a fair summary of the effect of the letter sent to the applicant, which was clearly sent under the provisions of s.425 of the Migration Act.
The Tribunal went on to say:
The Tribunal has before it little more than vague, incomplete assertions in the applicant's written statements. It has not had the opportunity, through a hearing or otherwise, to obtain further information to determine the veracity of the applicant's claims and their relevance to his application for refugee status.
The Tribunal went on to set out relevant matters on which it was unable to be satisfied.
The Tribunal went on to find that on the limited evidence before it the Tribunal could not be satisfied that the applicant had in fact been subject to threats from rebels in the past or that there was a real chance that he would be subject to such threats in the future or that adequate and effective state protection was not available if any such threats eventuated.
Accordingly, the Tribunal was not satisfied that the alleged past events or any other indications gave rise to a well-founded fear of persecution within the meaning of the convention in the reasonably foreseeable future.
The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugee's Protocol. Accordingly, the applicant did not satisfy the criterion set out in
sub-s.36(2) of the Act for a protection visa. The Tribunal affirmed the decision not to grant a visa.
The applicant seeks a review of that decision and he filed an application at this Court on 1st April 2005. He filed an amended application on 23rd May 2005. He sets out in the amended application that he is aggrieved by the decision for four reasons.
i)The decision was to affirm a decision refusing to grant him a protection visa.
ii)The decision involved failure to apply the rules of natural justice.
iii)The decision was made in excess of the powers of the Refugee Review Tribunal.
iv)The Tribunal ignored relevant facts and made erroneous findings.
The applicant sets out the grounds of his application under the general heading that the Tribunal failed to exercise its jurisdiction.
He provided four paragraphs of particulars. The particulars in summary are:
a)The Tribunal failed to investigate whether the actions of the rebels which resulted in the denial of his means of making a livelihood were so severe that it may constitute persecution within the United Nations Convention. This was critical to the decision because the applicant claimed that the actions of the rebels resulted in his inability to continue his business activities and he was left with no alternative but to close down his shop.
b)Given that the applicant had claimed that the actions of the rebels resulted in denial of his earnings and means of making a livelihood, the Tribunal fell into administrative error by failing to investigate if the government could provide him with financial support or any other assistance.
c)The Tribunal failed to investigate the motives of the rebels and whether or not their threats and attacks on him constituted persecution within the United Nations Convention. The Tribunal failed to obtain further information or facts from the applicant but relied merely on assumptions. The Tribunal has failed in its natural justice obligation and failed to comply with s.424A of the Migration Act.
d)The Tribunal failed to consider a claim that the authorities in the Philippines were not willing or able to provide protection to him.
He went on to say:
I would expect a reasonable Tribunal to investigate such claims and make findings on that. The Tribunal merely assumed that the government would be able to provide me with adequate protection based on the available country information.
The applicant attended Court and although he had not provided a written outline of submissions, made some brief oral submissions.
He told the Court that he had obtained some legal advice from a barrister to whom he was referred under the Refugee Review Tribunal Legal Advice Scheme. He told the Court that he was not legally represented because obtaining a solicitor would be very expensive.
He confirmed that he made a decision not to attend the Tribunal hearing because of the pain that he felt in his lower back and did not ask for an adjournment or postponement.
The reason he gave for not asking for an adjournment or a postponement was because he did not get the opportunity to do so in his telephone conversation with the Tribunal officer. He told the Court that he was not conversant with Australian law and was not able to say whether or not he had received a fair go from the Tribunal.
Counsel for the first respondent minister, Ms McNaughton, prepared a written outline of submissions. She submitted that the applicant relied upon one general ground; a failure to exercise jurisdiction and that all particulars of that claim were based on a misplaced contention that the Tribunal was required to investigate the applicant's claims and erred in failing to do so. She relied on the decision of Minister for Immigration v SGLB (2004) 207 ALR 12 to support the proposition that the Tribunal does not have such an obligation and put to the Court that the Tribunal rejected the applicant's claims on the basis that the applicant had provided such limited evidence that the Tribunal was unable to be satisfied about the applicant's claims.
In oral submissions Ms McNaughton put to the Court that the Tribunal complied with its obligation to invite the applicant to attend the hearing under s.425 of the Migration Act. The applicant's facts to the Tribunal that he could not attend the hearing with no further explanation was, she submitted, sufficient to entitle the Tribunal to proceed to exercise its powers under s.426A of the Migration Act to decide the review without taking any further step to enable the applicant to appear before it to give evidence or make submission. She reiterated that the Tribunal had no obligation under s.424 of the Migration Act to make its own inquiries and that it is up to the applicant to make out his own case.
The applicant made no submissions in reply.
This is a case where I am satisfied that the Tribunal did comply with its obligation under s.425 of the Migration Act to invite the applicant to attend a hearing and give evidence. I am satisfied by the Tribunal's letter to the applicant of 6th January 2005 which is set out on pages 43 and 44 of the Court book, that the Tribunal explained to the applicant that he may be invited to attend a hearing of the Tribunal and set out why a hearing would be important. I am further satisfied that the Tribunal complied with s.425 of the Act by its letter of 14th January 2005 set out on pages 46 and 47 of the Court book, inviting the applicant to attend the hearing at 2.00 pm on Wednesday 9th February 2005. I am satisfied that the Tribunal had made it “pellucidly clear” to quote Hely J in SZDXC v Minister forImmigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16] that it was unable to make a decision in the applicant's favour on the basis of the information before it.
When the applicant failed to accept the opportunity to elaborate on that information at the scheduled hearing the inevitable consequence was the rejection of his application (See also SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [16]).
I am satisfied that the Tribunal acted correctly when it exercised its power under s. 426A of the Migration Act. The Tribunal was aware on 4th February that the applicant would not be attending the hearing which was scheduled for 9th February. Whether or not the applicant had an opportunity in his telephone conversation with the Tribunal officer of 4th February to ask for an adjournment or postponement is to my mind immaterial. It was open to him to seek an adjournment or postponement of the hearing in his faxed message of 4th February and it was open to him to provide a medical certificate to the Tribunal to verify his claim that he was unable to attend the hearing due to lower back pain. The applicant did not do so.
In considering the material before it, I am satisfied that the Tribunal had very little material upon which it could be satisfied that the applicant had made out a claim for a protection visa. The Tribunal had already formed the view the information was inadequate and had conveyed that view to the applicant in its letter of 14th January 2005. The applicant was not only given the opportunity to attend the hearing and give evidence; he was given an opportunity to call another person to give evidence on his behalf or at least ask the Tribunal to hear from such a person and he also had the opportunity to forward written submissions to the Tribunal elaborating on his case.
The Tribunal made it clear in its letter of 14th January 2005 that it was open to the applicant to forward written material to the Tribunal for its consideration. The Tribunal's letter said:
Send us any new documents or written arguments you want the Tribunal to consider. Please note: any documents or arguments you send should be in English or translated by a qualified translator.
See at page 46 of the Court book.
The applicant did not take advantage of that invitation.
The applicant's amended application claims that the Tribunal fell into error by not making its own independent investigations. There is clear authority that the Tribunal has no duty to make further inquiries about the applicant's claim. It is not for the Tribunal to conduct an investigation of the applicant's claims in order to make out the applicant's claims. (See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR, 12 at [43]). That ground is rejected.
The particulars also contain what may be interpreted as other grounds. One of them is a failure to apply the rules of natural justice which also appears at point two on page one of the amended application and the other, which also appears in paragraph 1(c) is a failure to comply with s.424A of the Migration Act.
In my view there is no evidence of a failure to comply with the rules of natural justice. The Tribunal invited the applicant to attend the hearing and the applicant chose not to attend the hearing and did not provide any further information. The applicant had been placed on notice that the information that the Tribunal already had was not considered sufficient to make out his claim. There is no breach of natural justice that I can see.
In any event; the Full Court of the Federal Court has made it clear that in matters to which s.422B of the Migration Act applies, and this is such a case having been commenced after the 4th July 2002, that the statement in s.422B is an exhaustive statement of the natural justice hearing rule. (See SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 in which the Full Court applied the decision of Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2005] FCAFC 61).
The applicant claims that the Tribunal failed to comply with the provisions of s.424A of the Migration Act. I asked the applicant about that claim and he was unable to provide any particulars of it other than that which was set out in the application. In my view a reading of the Tribunal's findings and reasons makes it clear that the inadequacy of the information available was the reason that the Tribunal was not satisfied that the applicant had complied with the appropriate criterion for a protection visa.
It is well established by the decision of the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 that inadequacy of information is not information for the purpose of s.424A and in my view there has been no lack of compliance with s.424A.
I note that in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [17] Bennett J said:
In my view there has been no lack of compliance with s. 424A. The Tribunal sent the letter to the appellant inviting him to a hearing and notifying him that the Tribunal was not able to make a decision in his favour. The Tribunal therefore had informed the appellant that it was not satisfied that the appellant had a
well-founded fear of persecution because of inadequacies of the information he provided. The reason for the decision was the deficiency in the information.
The applicant also claims that the Tribunal failed to consider a claim made in his application about whether the authorities were willing and able to provide effective state protection to him. This is set out in paragraph 1(d). The applicant claims that this was a failure to consider a relevant claim. In my view the Tribunal's decision did consider that claim and I note that the applicant's claim is set out at page 56 of the Court book and also at page 57. The Tribunal at page 58 of the Court book sets out that the basis for the applicant's belief that the authorities would not be able to protect him in the future was one of the relevant matters on which it was unable to be satisfied due to the inadequacy of the information. In my view the Tribunal did not fail to consider that part of the applicant's claim.
I am mindful of the fact that the applicant is not legally represented, although he did have legal advice from a barrister as part of the Refugee Review Tribunal Legal Advice Scheme. I have read through the decision independently in order to ascertain whether there is any other jurisdictional error not mentioned by the applicant that appears in the decision. I am unable to discern any. In my view, no jurisdictional error has been made out.
As no jurisdictional error has been made out, the decision is a privative clause decision as defined in s.474(2) of the Act. Consequently, the decision is not subject to the orders for mandamus or certiorari which the applicant seeks. The application will be dismissed.
There is an application for costs on behalf of the first respondent minister. The applicant has been wholly unsuccessful in his claim and in my view this is a matter where costs should follow the event.
The amount sought is $3,100.00 inclusive of counsel's fees. I note that this is a matter that was commenced prior to 1st December 2005 when there were substantial amendments to the Act. The amount sought, $3,100.00, is, to my mind, a relatively modest figure and well within the range that the Court would regard as reasonable. I propose therefore to make an order that the applicant should pay the first respondent's costs in that amount.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 16 October 2006
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