SZGQQ v Minister for Immigration

Case •

[2006] FMCA 292

•

3 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 292
MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicants claim persecution of the first named applicant in the Philippines – applicants claim denial of procedural fairness – Tribunal proceeded with review in absence of applicants.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36; 36(2); 36(2)(b); 65; 65(1); 91R; 91S; 425; 425A; 425(1); 426; 426A; 426A(1); 426A(2); 441C(4); 441G(1); 441G(2); 483
NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 270
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
First Applicant: SZGQQ
Second Applicant: SZGQR
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1736 of 2005
Judgment of: Emmett FM
Hearing date: 20 February 2006
Date of Last Submission: 20 February 2006
Delivered at: Sydney
Delivered on: 3 March 2006

REPRESENTATION

Solicitors for the Applicant: Mr C. Jayawardena
Counsel for the Respondent: Mr A. McInerney
Solicitors for the Respondent: Ms A. Radich, Blake Dawson Waldron

ORDERS

  1. That each of the applicants’ application before this Court is dismissed.

  2. That the applicants pay the First Respondent’s costs in an amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1736 of 2005

SZGQQ

First Applicant

SZGQR

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 9 June 2005, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

  2. The applicants are a husband and wife who claim to be citizens of the Philippines. The first applicant is the wife of the second applicant. The second applicant’s entitlement to protection depends on the granting of a protection visa to the first applicant.

  3. The applicants arrived in Australia on 19 January 2005, having departed the Philippines on 18 January 2005, on passports issued in their own names.

  4. On 31 January 2005, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

  5. On 22 February 2005, the Delegate refused the applicants’ applications for protection visas on the basis that the applicants are not persons to whom Australia owes protection obligations under the Refugee Convention as amended by the Refugees Protocol.

  6. On 22 March 2005, the applicants filed an application for review before the Tribunal. On 23 May 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

  7. On 4 July 2005, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

  1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

  2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

  3. Australia owes protection obligations to a refugee on Australian territory.

  4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

    “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

  5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

  1. In the application for review, the applicants nominated a migration agent as their authorised recipient of correspondence. Section D of the application for review states the following:

    “You can nominate someone to receive correspondence in connection with the review. This person is known as your Authorised Recipient. If you nominate an Authorised Recipient, all correspondence will be sent to this person.”

  2. The applicants also stated that they would like to receive the correspondence personally.

  3. On 22 March 2005, the Tribunal wrote to the authorised recipient, and copied to the applicants advising the following:

    “As the authorised recipient, all correspondence on this case will be sent to you as requested by [first applicant’s name]. Please note that after this acknowledgment of lodgement of this review application and your appointment to receive correspondence on [first applicant’s name] behalf, no further correspondence will be sent to [first applicant’s name]. It is important that you tell the review applicant about all future correspondence.”

  4. On 19 April 2005, the Tribunal wrote to the authorised recipient advising that it had reviewed the information and material before it and could not make a decision in the applicants favour and invited the applicants to attend a hearing on 17 May 2005. This letter stated:

    “As the authorised recipient, all correspondence on this case will be sent to you as requested by (first applicant’s name). Please note that (first applicant’s name) has not been sent a copy of this letter. It is important that you tell the review applicant about the contents of this letter.”

  5. The applicants did not attend the hearing on 17 May 2005.

  6. Following the hearing, the Tribunal left a message on the telephone number provided by the applicants in their review application and left a message. The applicants did not return the call. The Tribunal also contacted the authorised recipient by telephone, who said that he had spoken to a friend of the applicants’ and had asked the friend to inform the applicants about the hearing date.

  7. In the circumstances, pursuant to s.426 of the Act, the Tribunal proceeded to make a decision on the application for review without taking any further steps to allow or enable the applicants to appear before it.

  8. The first applicant made, inter alia, the following claims in her application for a protection visa:

    a)That she is a citizen of the Philippines and is an evangelical Christian.

    b)That she has been married since 1991.

    c)That she travelled to Australia on a tourist visa issued in Manila on 16 November 2004.

    d)That she was appointed as a church leader in her neighbourhood and taught people the gospel.

    e)That her hometown has a large Muslim population, some of whom belong to terrorist cell, known as More Islamic Liberation Front (“MILF”).

    f)That she was threatened by MILF for teaching Christianity.

    g)That she operated a bible study exclusively for Muslims in her home at the request of a Christian missionary. She claimed that this led to some Muslims converting to Christianity.

    h)That a few months after starting the bible study, the MILF threatened to kill the first applicant and her family. She claimed that she reported these threats to the police.

    i)That she stopped working after the threats, which made her life difficult as she had children to feed and educate.

    j)That she came to Australia with the second applicant for a better life for their children.

  9. The Tribunal accepted that the first applicant was a national of the Philippines.

  10. However, the Tribunal, on the material and evidence before it, did not accept that the first named applicant was threatened by MILF as there were no details of the threats in her application for a protection visa. Further, the Tribunal did not accept that, if the applicants had been threatened and feared persecution as claimed, they would have continued to remain in the same residence until her departure in January 2005.  Nor did the Tribunal accept that she would have delayed travel to Australia in circumstances where her visa was issued in November 2004.

  11. Given the lack of detail in the applicants’ claims, the Tribunal was not satisfied that the applicants had a well founded fear of persecution for a Convention reason and therefore were not persons to whom Australia had protection obligations.

The Proceeding before this Court

  1. On 4 November 2005, the applicants filed an amended application (“the Amended Application”) in this Court. The applicants seek review on grounds set out as follows:

    “1.    The Tribunal failed to carry out it’s Statutory duty.

    PARTICULARS

    (a)    The Tribunal failed to comply with it’s statutory obligation to invite the Applicant’s to the hearing.

    (b)    the Tribunal did not send the hearing invitation to the Applicant’s notified “address for correspondence”.”

  2. The applicants were represented at the hearing before this court at the hearing. The applicants relied on both the amended application filed on 5 September 2005, and the Amended Application.

  3. However, the applicants’ solicitor distilled the applications to two grounds dealt with below.

  4. Ground 1. The applicants’ solicitor submitted that this ground related to a claim that the Tribunal should have postponed its review in the absence of the applicants, in circumstances where it knew that the applicants had not received notification of the hearing.

  5. The applicants’ solicitor conceded that the applicants had been notified of the hearing in accordance with the relevant sections of the Migration Act.

  6. Relevantly, s.425(1) of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A of the Act sets out the obligations of the Tribunal in giving an applicant an invitation to appear before the Tribunal. Section 441C(4) of the Act deems an applicant to have received the invitation if it was sent, within 3 working days of the date of the document, by post to the applicant’s nominated address for service. Section 441G of the Act requires the Tribunal to give such a document to the authorised recipient, where one is nominated (s.441G(1) of the Act). Section 441G(2) of the Act deems such a document to be given to an applicant where the Tribunal gives the document to the authorised recipient.

  7. Section 426A of the Act states, if an applicant is invited under s.425 of the Act to appear before the Tribunal and fails to appear on the nominated day, then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it (s.426A(1) of the Act).

  8. Section 426A(2) of the Act states that s.426A of the Act does not prevent the Tribunal from rescheduling an applicant’s appearance before it, or from delaying its decision on the review, in order to enable an applicant to appear before it at a rescheduled hearing.

  9. It is the Tribunal’s failure to reschedule the hearing in the circumstances that lies at the heart of the applicants’ complaint. The applicants’ solicitor submits, that at the time the Tribunal made its decision to proceed with the review without rescheduling the hearing, it knew that the applicants were not aware of the hearing and therefore it denied the applicants natural justice.

  10. The Tribunal noted that it wrote to the applicants, on 19 April 2005, by letter sent to the authorised recipient advising that it had considered all the material before it relating to the review application but was unable to make a favourable decision on that information alone. That letter went on to invite the applicants to give oral evidence and present arguments at a hearing on 17 May 2005. The letter further informed the applicants that, if they did not attend the hearing and it was not otherwise postponed, the Tribunal may proceed with its review without further notice. The Tribunal noted that this letter was sent by registered mail to the applicants’ authorised recipient at the address notified. The Tribunal noted that no response was received to the Tribunal’s letter and that the applicants did not appear on the nominated day.

  11. The Tribunal noted, that subsequent to that hearing date, the Tribunal rang the telephone number provided by the applicants and left a message to contact the Tribunal. The Tribunal noted that neither of the applicants returned the call.

  12. The Tribunal noted that it also contacted the applicants authorised recipient who advised that he had “spoken to a friend of the Applicants and had told the friend to tell the Applicants about the hearing.”

  13. In those circumstances, on 23 May 2005, the Tribunal proceeded to make its decision on the review without taking any further action to enable the applicants to appear before it.

  14. The applicants’ solicitor referred the court to NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 270, (“NANJ”) at [31] in which Sackville, Sellway and Lander JJ noted that the court below waited a further 6 weeks, before proceeding with its review, after becoming aware that the appellant had not received notice of the adjourned hearing date. However, I note that in NANJ the migration agent had sought an adjournment of the hearing before the Tribunal on the basis that the appellant was ill. I do not regard NANJ as authority for the applicants’ solicitor’s contention that the Tribunal in this case should have postponed the hearing.

  15. In the case before this court, the Tribunal satisfied itself that the applicants had been invited to attend an oral hearing on 17 May 2005. Indeed, on 17 May 2005, it did not proceed with its review because the applicants had failed to appear without any prior notification to the Tribunal. The Tribunal noted the steps that it took in seeking to contact the applicants. Those steps included the attempts at telephone communication both with the applicants themselves and with the authorised recipient. It noted that the authorised recipient said that he had told a friend to tell the applicants about the hearing. As at 23 May 2005, the Tribunal had received no communication from the applicants and there was nothing before it to suggest that the authorised recipient was otherwise in contact with the applicants.

  16. In the circumstances, it was reasonable for the Tribunal to exercise its discretion to proceed with its review, without offering the applicants a further opportunity to appear before it.

  17. Accordingly, pursuant to s.426A of the Act, the Tribunal was entitled to proceed with its review without taking any further action to allow and enable the applicants to appear before it.

  18. For these reasons this ground is rejected.

  19. Ground 2. The applicants’ solicitor sought to file an affidavit annexing various documents which were not before the Tribunal and which it wished the court to have regard in considering whether the findings of fact made by the Tribunal were correct.

  20. The applicants’ solicitor submitted that the applicants had not had the opportunity to present these documents to the Tribunal and that the Tribunal had otherwise relied on independent information that ran counter to the applicants’ documents. Because the documents were not before the Tribunal, those parts of the applicants’ affidavit, annexing documents were objected to by the first respondent and were rejected by me.

  21. The applicants’ claim in respect to this ground is otherwise as follows:

    “The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Philippines based on my religious activities. I am against the more Islam liberation front in Philippines. I was persecuted because of my Christianity. I persecuted by the government and the authority. I will be persecuted if I return back to the Philippines because of my religion. It is a convention base persecution. I did not collect documentary evidences to established my persecution. I have nobody to help me to collect the documentary evidence.

    I was persecuted because of my religion. I refer claims RD pages 000034-000036. It is true I did not collect relevant documentary evidences to prove my persecution. It is important that to provide my oral evidence to support my review application.

    The Tribunal satisfaction that I am not a refugee was not based upon reasoning which proved a rational or logical basis for this belief.”

  22. The Tribunal identified with particularity the first named applicant’s claims, as contained in her application for a protection visa. There was no other material provided by the applicants to the Tribunal for the purposes of its review, despite having received the Tribunal’s letter dated, 19 April 2005, informing them that it had considered all the material before it relating to the applications but was unable to make a favourable decision on that information alone.

  23. Ultimately, in view of the lack of details in the protection visa application, the Tribunal was not satisfied that the applicant had a well founded view of persecution for a Convention reason. It noted that “having considered the evidence as a whole, I am not satisfied that the first named Applicant is a person to whom Australia has protection obligations under the Refugee’s Convention as amended by the Refugee’s protocol. The first named Applicant does therefore not satisfy the criterion set out in s.36(2)(a) of the Act for protection visa.”

  24. The second named applicant’s application depended on the outcome of the first named applicant. It followed that the second named applicant could not satisfy the Tribunal that he was entitled to a protection visa.

  25. In those circumstances, the Tribunal dismissed the applications before it.

  26. The Tribunal referred to the relevant principles in relation to the obligation of the applicants to satisfy the Tribunal that all of the statutory elements were met. The Tribunal acknowledged that the concept of onus of proof is not appropriate to administrative enquiries and decision making. However, it noted that the relevant facts of the individual case need to be supplied by the applicants in as much detail as necessary to enable a body in the position of the Tribunal to be so satisfied that the first applicant had a well founded fear of persecution for a Convention reason.

  27. The Tribunal was not obliged to accept at face value the claims made and, having found that it was not satisfied that the first applicant had a well founded fear of persecution, the Tribunal could do little more than offer the applicants an opportunity to elaborate.

  28. The Tribunal duly notified the applicants by letter of 19 April 2005, that there was insufficient information before it to grant them protection visas. The letter, as stated above, invited the applicants to attend the hearing. When they failed to accept that opportunity, the inevitable consequence was the rejection of their application. In NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] French, Emmett and Dowsett JJ stated that:

    “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”

  1. The findings made by the Tribunal upon which it based its conclusion, where findings of fact open to it on the material before it. They were neither irrational nor illogical. The Tribunal did not make adverse findings in respect of the applicants’ claims. It was simply that the brief details provided were insufficient to satisfy the Tribunal that the first named applicant had a well founded fear of persecution for a convention reason. In those circumstances, the Tribunal must refuse a protection visa (ss.36 and 65 of the Act).

  2. This ground seeks merits review, which this court cannot undertake.

  3. Accordingly, this ground is rejected.

Conclusion

  1. There is no jurisdictional error disclosed in the Tribunal decision.

  2. Accordingly, the Tribunal decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

  3. Each of the applicants’ application before this Court is dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Kwong

Date:  3 March 2006

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