SZGGJ v Minister for Immigration

[2006] FMCA 1933

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGGJ v MINISTER FOR IMMIGRATION [2006] FMCA 1933

MIGRATION – Review of RRT decision − where applicant claimed persecution on the ground of political opinion − whether RRT considered every integer of the applicant’s claims − where RRT invited the applicant to a hearing − where applicant declined to attend − where RRT made its decision after receiving the applicant’s response to the invitation and before the period of notice under s.425A expired − whether the obligations of the RRT to hold a hearing cease once the applicant declines the opportunity to attend a hearing.

Migration Act 1958, s.425A

Minister for Immigration v SGLB [2004] 207 ALR 12
Abebe v The Commonwealth [1999] 197 CLR 510
SAAP v Minister for Immigration [2005] 215 ALR 162
Minister for Immigration v SZFML (2006) FCAFC 152
NBHP v Minister for Immigration (2005) FCA 1857

Applicant: SZGGJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 1196 of 2005

Judgment of: Raphael FM

Hearing date: 20 December 2006

Date of Last Submission: 20 December 2006

Delivered at: Sydney

Delivered on: 20 December 2006

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the Respondent: Mr J. Mitchell

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1196 of 2005

SZGGJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan.  He arrived in Australia on 27 September 2004.  On 12 November 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 3 February 2005 a delegate of the Minister refused to grant him a protection visa and on 15 February 2005 the applicant applied for review of that decision by the Refugee Review Tribunal.  On 10 March 2005 the Tribunal wrote to the applicant advising him that it 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 Tribunal invited the applicant to a hearing on 1 April 2005.

2. In his helpful written submissions, in which the respondent fully accepts its responsibility as a model litigant, the counsel for the Minister points out in Part 8 Point 2 of those submissions that the notification requirements for the invitation to a hearing may not have been satisfied.  However, on 29 March 2005 the Tribunal received a response to that hearing invitation from the applicant signed by him indicating that he did not wish to come to a hearing.  The Tribunal then proceeded on 30 March 2005 to make its decision affirming the views of the delegate not to grant the applicant a protection visa. 

3. The ground upon which the applicant claimed to have a well founded fear of persecution for the Convention reason of political opinion was that he was a member of a pro-Shia radical Islamist party, known then as the TNFJ, which had been banned by the Pakistan government because of its propensity to violence.  The applicant had submitted a statement which was considered by the delegate and which is found at [CB29] in which he said that he was the joint secretary of the local branch of the TNFJ and was responsible for carrying out party programs amongst the Shia Muslims in Lahore.  He used to organise demonstrations and processions and hand out leaflets amongst the public and members of the Shia community.  The applicant claimed that he was the subject of false charges having been raised against him by the opponents of the TNFJ, in particular the equivalent Sunni organisation, the SSP. 

4. In the Tribunal’s decision the member set out the history of the applicant’s protection visa application and the delegate’s decision.  In its findings and reasons, commencing at [CB65], it says:

   “The applicant’s claims were that he had been persecuted in Pakistan for his religious opinion as an activist in the radical Shia TNFJ by the opposing Sunni group.  The applicant also stated that he was wanted by the authorities on fabricated charges because of his activity.

   The applicant provided no details at all of the alleged “fabricated charges”, on the basis of which he claimed to be wanted by both the national and provincial authorities, nor of any efforts to evade the authorities prior to departure.  There were also obvious questions to be answered in relation to his claimed level of activity in the TNFJ, including as a “prominent religious activist” and secretary of his local TNFJ branch at a time when he would have been just 18 or 19 years of age.  Without corroborating or supporting evidence of some kind the Tribunal found it hard to accept that the applicant had the leading role he ascribes to himself at the time.

   Also, as noted by the delegate, it is highly unlikely that the delegate would have been able to depart Pakistan legally and openly on his own passport (notwithstanding evidence about exit checks) if he were indeed wanted by the national and/or provincial authorities.

   The Tribunal is not satisfied and does not accept that the applicant had a significant profile in the TNFJ or that he was wanted by the authorities (whether on genuine or fabricated charges) at the time he left Pakistan.

   In any event, certain TNFJ activists (and indeed certain activists of the opposing SSP) are legitimately subject to arrest by the Pakistan authorities in connection with particular violent activities with which some members were involved.  Such action by the authorities in relation to unlawful activity would not of itself necessarily amount to persecution for religious opinion or for any other Convention reason.”

   It can be seen from that extract, which is effectively the entire findings and reasons of the Tribunal, that the ground for declining the applicant Australia’s protection was that he failed to satisfy the Tribunal of his entitlement to it.  It is now clear that the requirement for satisfaction is a positive one.  If an applicant does not appear before the Tribunal then it makes it very difficult for the Tribunal to ask him or her the necessary questions which would allow the Tribunal to reach the state of satisfaction that is required.  This is what occurred in this case. 

5. In the grounds contained in the amended application dated 10 August 2005, the applicant argues that his case was not properly looked into by the Tribunal, in particular in reference to his position as a Shia Muslim in Pakistan.  He then quotes the fact that Shia Muslims have been killed in Mosques and recently in Karachi about 300 Shia Muslims were killed in a bomb blast.  The information there provided by the applicant is exactly the sort of information that the Tribunal may well have been hoping to elicit from him had he appeared. 

6. In the absence of appearance the Tribunal is not generally obliged to make inquiries or obtain material because it is for the applicant to advance his own case (Minister for Immigration v SGLB [2004] 207 ALR 12 at [43]; Abebe v The Commonwealth (1999) 197 CLR 510 at [187]). The Tribunal had before it the delegate’s decision and gave that consideration. The delegate had been quite thorough in the way in which an analysis was made of the current situation in Pakistan so it cannot be said that the Tribunal ignored relevant information.

7. The second ground put forward by the applicant was that the Tribunal failed to take into consideration religious tension in Pakistan and did not obtain its own independent opinion.  It made a claim that the applicant had faced a lot of harassment and persecution.  The remarks which I have made about the first ground seem to me to apply equally to this second ground.

8. The third ground raised by the applicant is a dispute with a finding by the Tribunal that he would have been given protection by the courts.  In fact, this finding was not made by the Tribunal at all but by the delegate.  The Tribunal did not make any findings.  The Tribunal merely came to the conclusion that the applicant had not satisfied it that he was a person who was entitled to the protection of Australia because the evidence put forward was not sufficient.

9. I am satisfied that, in coming to the conclusions it did and the way in which they were expressed, the Tribunal did not fall into any jurisdictional error.  The only question that remains is whether the failure to provide the applicant with the statutory time to respond to a request for a hearing is in itself a jurisdictional error that requires the court to grant the constitutional writs requested.  There have been a number of cases on time limits, in particular SAAP v Minister for Immigration (2005) 215 ALR 162, Minister for Immigration v SZFML (2006) FCA FC 152 and NBHP v Minister for Immigration (2005) FCA 1857.

10. The principles which one obtains from these cases is that whilst there is undoubtedly a duty under s.425A to provide the applicant with an opportunity to have a hearing and that the time limits in relation to that opportunity should be obeyed, if an applicant declines the opportunity to attend a hearing and so notifies the Tribunal the obligations of the Tribunal to hold such a hearing cease. It cannot be said that just because the time limits were not complied with the applicant has a greater right to obtain a hearing than if the hearing invitation and the date of hearing were offered in accordance with the Act and an applicant notifies the Tribunal that he does not wish to attend a hearing.

11. There is no reason why, if the Tribunal gives an incorrect number of days notice of the invitation but before even that date has been reached the applicant returns the form declining to attend, the Tribunal cannot then proceed.  This seems to have been confirmed by Jacobson J in NBHP, a case on appeal from a decision of this court in which at [26] his Honour says:

    “There is nothing in s 425 or in any provision of Division 4 of Part 7 which required the RRT to await the expiration of the appointed hearing date in circumstances in which the applicant indicates that he or she does not wish to attend the hearing.”

12. In those circumstances I cannot see any ground upon which the applicant can claim that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in his case.  I dismiss his application and I order that he pay the respondent’s costs which I assess in the sum of $5,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: