SZGSL v Minister for Immigration
[2006] FMCA 1593
•16 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1593 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal complied with its obligations under ss.425 and 426 of Migration Act 1958 (Cth) – whether Refugee Review Tribunal failed to comply with its obligations under s.424A(1) of Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B; 424; 424A(1); 424A(3)(a); 424A(3)(b); 425; 425A; 426; 426(1); 426(2); 426(3); 474; pt.7 div.4; pt.8 div.2 |
| Applicant: | SZGSL |
| First Respondent: | MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1805 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 16 October 2006 |
| Date of last submission: | 16 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms A. Mansour, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1805 of 2005
| SZGSL |
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 Act1903 (Cth) and Part 8 Division 2 of the Migration Act1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 May 2005.
The applicant was born on 10 March 1976, and claims to be from Israel and of Jewish ethnicity and faith. The applicant arrived in Australia on 21 August 2004, having legally departed Tel Aviv on a passport in his own name, and a visa issued on 23 March 2004.
On 16 November 2004, the applicant lodged an application for a protection (class XA) visa with the Department of then Immigration and Multicultural and Indigenous Affairs (“the Department”).
In his protection visa application, the applicant claimed that he feared persecution by Israeli authorities because he is a pacifist and refused to serve in the Army Reserve, as a result of which he was gaoled for a month after being charged as a deserter.
On 30 December 2004, a delegate of the Minister of the Department (“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 25 January 2005, the applicant lodged an application for review of the Delegate's decision by the Tribunal. The applicant's application for review was lodged with the Tribunal on 25 January 2005, and identified a migration agent as the authorised recipient in respect of correspondence from the Tribunal. Attached to the application for review was a letter from the applicant's migration agent stating, inter alia, that the applicant arrived in Australia on 21 August 2004, and did not make an application for a protection visa until 16 November 2004 because:
“…he felt safe in Australia and when one feels safe in a country he looses (sic) that feeling of desperation which pushed him to leave his country and look for safe haven.”
On 25 January 2005, the Tribunal acknowledged receipt of the applicant's application for review, and requested that any documents, information, or other evidence that the applicant wished to have the Tribunal consider, be sent immediately.
On 10 February 2005, the Tribunal sent a letter to the applicant's authorised recipient inviting the applicant to attend a hearing on
18 April 2005. The letter noted that the Tribunal had considered the material before it in relation to the applicant's application, but was unable to make a decision in the applicant's favour on this information alone. The letter also requested that the applicant complete a ‘Response to Hearing Invitation’ form, including the witnesses’ part of that form if the applicant wished the Tribunal to obtain oral evidence from other persons.
The ‘Response to Hearing Invitation’ form was received by the Tribunal on 27 February 2005. That response indicated that the applicant did wish to attend a hearing; however, in relation to the question: "Do you want the Tribunal to take oral evidence from any witnesses?" the response indicated ‘No’.
The applicant and his migration agent attended a hearing on 18 April 2005 at which the applicant gave evidence. The Tribunal noted that the applicant claimed that if he went back to Israel he could be gaoled because he was a pacifist and had refused to serve in the Army.
The Tribunal identified in some detail the applicant's evidence and exchanges it had with the applicant during the course of the hearing. The Tribunal also identified independent country information to which it had regard.
In the ‘Findings and Reasons’ section of its decision, the Tribunal made findings arising out of the applicant's claims and evidence.
Those findings included the following:
“[The Tribunal] did not accept that, while the Applicant was in the USA from May 1998 until November 2001, his mother received call-up notices, nor that the Applicant was arrested at a demonstration organised by ‘Peace Now’ in Tel Aviv after he returned to Israel from the USA in November 2001, nor that he was then sent to prison for a month as a deserter from the reserves.”
In rejecting that evidence, the Tribunal noted that it had regard to information contained in the applicant's passport, which contained a stamp that indicated that the applicant did not have military service obligations outstanding, and that independent country information before it indicated that such persons were required only to complete military service upon return to their country in respect of time spent in the country.
The Tribunal noted that independent evidence before it indicated that there is political freedom in Israel, and that there is nothing to prevent people from expressing the views or participating in demonstrations expressing the sort of views that the applicant claimed he had expressed.
The Tribunal noted that the police would take steps to deal with violence, and noted that independent evidence before it indicated that police were deployed to protect demonstrators, in particular at the Peace Now rally in 2002, which the applicant claimed to have participated in.
The Tribunal had particular regard to the fact that the applicant had not elected to go to the US after he renewed his passport in 2003, and did not apply for a protection visa when he first arrived in Australia.
The Tribunal noted that instead the applicant travelled to New Zealand twice, and only applied for a protection visa when his visitors' visa was about to expire. The Tribunal noted the applicant's explanation about why he travelled to New Zealand, including that he had done so on advice.
The Tribunal found that this conduct cast doubt on whether or not the applicant's fear of persecution were he to return to Israel was well-founded.
The Tribunal considered the compulsory Reserve Service required in Israel in respect of the men, and the difference in respect of that expectation for women. However, the Tribunal found that the operation of law relating to military service in Israel was appropriate and adapted to achieving legitimate national objective, and was therefore not discriminatory for the purposes of the Refugees Convention.
The Tribunal did not accept that the applicant's claim of objection to performing military service on the basis of political views opposed to military operations being conducted by the Israeli Government was genuine, nor did it accept the applicant's claims of a fear of persecution because he is a pacifist.
The Tribunal found that if the applicant had genuinely feared being persecuted as he claimed, he would have taken steps to apply for a protection visa earlier than he did. The Tribunal found that his claim to be a conscientious objector was a fabrication to which the applicant resorted in an attempt to prolong his stay in Australia.
The Tribunal found that the applicant would be free to express the views that he claims to have expressed in the past without a fear of being persecuted for reasons of his political opinion if he were to return to Israel now or in the reasonably foreseeable future.
The Tribunal concluded that it was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he were to return to Israel, and accordingly affirmed the decision under review.
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter in Hebrew. The applicant confirmed that he relied on a further amended application filed by him in this Court on 4 October 20006. That application is in the following terms:
“Tribunal proceeding and findings
1. My case has been refused by the Refugee Review Tribunal. Such outcome is the result of a shallow assessment by the Tribunal.
2. Incorrect methods led the Tribunal to a wrong decision. There was a failure by the Tribunal to accord procedural fairness in my case.
3. The Tribunal was unable to provide information, which I could explain or added under section 424A of Migration ACT (sic) 1958. In this case I could have a chance to contact the witness and obtain a statement of I could request the Tribunal to contact a witness under the section 426 of Migration ACT (sic) 1958.
4. In many case the member of the Tribunal did not even explain why he doubted my claim. I accept the fact that a decision-maker could doubt my statement but in this case he exercised his power of rejection in the case without consideration of the truth.”
Ground 1
Ground 1 does not disclose any error capable of review. The allegation is that the outcome of the Tribunal's assessment is shallow; there are no particulars provided, and it would appear that such a ground is seeking merits review and doing no more than cavilling with the conclusions of the Tribunal. For those reasons, ground 1 is rejected.
Ground 2
Ground 2 alleges a failure by the Tribunal to accord procedural fairness to the applicant; again, no particulars are provided. Section 422B of the Act states that the subdivision to which it belongs is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
At the heart of the applicant's complaint, as submitted by the applicant this morning, is a complaint that the Tribunal failed to seek to obtain witnesses on behalf of the applicant, and did not give the applicant an opportunity to prove his claims.
Section 425 of the Act requires the Tribunal to invite the 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 provides the statutory regime by which such an invitation is to issue. In accordance with s.425 of the Act, the Tribunal wrote to the applicant on 10 February 2005 inviting him to appear at a hearing on 18 April 2005 in accordance with the statutory regime. Section 426 of the Act requires a notice given under s.425A of the Act to notify the applicant, relevantly, that he is invited to appear before the Tribunal to give evidence, and that he may, within seven days after being notified under s.426(1) of the Act, give the Tribunal written notice of persons from whom he wanted the Tribunal to obtain oral evidence. Section 426(3) of the Act states that, if the Tribunal is so notified by an applicant, then the Tribunal must have regard to the applicant's wishes, but is not required to obtain evidence, orally or otherwise, from any person named in the applicant's notice.
As stated above, the applicant or his agent completed the ‘Response to Hearing Invitation’ form, indicating that the applicant did not wish the Tribunal to take oral evidence from any witnesses. There is no evidence before this Court to suggest that there was any further request received by the Tribunal from the applicant, or his authorised recipient, for the Tribunal to take oral evidence from any such witnesses. Further, I note that the ‘Response to Hearing Invitation’ form is dated 28 February 2005, which is well in excess of the seven day time frame provided for in s.426(2), the invitation being dated 10 February 2005.
Accordingly, there was no denial of procedural fairness by the Tribunal as alleged by the applicant of being an opportunity to attend a hearing or to bring witnesses.
In the circumstances, there was no breach by the Tribunal of any obligations that may arise under s.426 of the Act.
The relevant subdivision also contains the requirements under s.424A of the Act that the Tribunal must give certain information to the applicant where that information may be part of the reason for the Tribunal affirming the decision under review.
In relation to s.424 of the Act, the first respondent submits that there were three pieces of information relied upon by the Tribunal. The first was the stamp in the applicant's passport, which was part of the reason which led the Tribunal to observe that the applicant's passport did not indicate that there was any outstanding military service, such information being part of the reason for the Tribunal affirming the decision under review. However, pursuant to s.424A(3)(b) of the Act, such information is excluded from the requirements of s.424A(1) of the Act where an applicant gives that information to the Tribunal for the purposes of the review application.
The Tribunal, in relation to that information, states explicitly that the applicant's passport was produced by the applicant at the hearing and given to the Tribunal. I note that the applicant confirmed before me this morning that, indeed, he did provide the passport to the Tribunal Member at the hearing, albeit at the request of the Tribunal.
There is no transcript produced before me to suggest that the Tribunal's record is anything other than accurate, and there has been nothing said by the applicant this morning to indicate otherwise.
The Tribunal also had regard to information from the applicant about why he did not apply for a protection visa when he first arrived in Australia. That information was provided to the Tribunal by way of a letter from the applicant's migration advisor, and attached to his review application. That letter was dated 24 January 2005 and is referred to above in these Reasons.
In the circumstances, the information about why the applicant did not apply for a protection visa when he first arrived in Australia, is also information excluded from the requirements of s.424A(1) of the Act by operation of s.424A(3)(b) of the Act because the applicant gave that information to the Tribunal for the purposes of its review in his letter to the Tribunal dated 24 January 2005.
The Tribunal also had regard to independent country information. Such information is also excluded from the obligation of s.424A(1) of the Act by operation of s.424A(3)(a) of the Act.
The credibility findings are not information that enliven any obligations under s.424A of the Act.
In the circumstances, there was no breach by the Tribunal of its obligations under s.424A(1) of the Act.
Ground 3
Grounds 2 and 3 really relate to the issues that I have just addressed, and for those reasons, I refer to those reasons in respect of ground 3.
Ground 4
Ground 4 appears again to cavil with the conclusions made by the Tribunal, and otherwise seeks merits review, which this Court cannot undertake.
The findings and conclusions made by the Tribunal were open to the Tribunal on the evidence and material before it, and for which it provided reasons. The Tribunal complied with the obligations provided by the Act in Division 4 of Part 7, which as I have stated, are exhaustive in respect of the natural justice rule.
In the circumstances, the Tribunal's decision is not affected by jurisdictional error, and accordingly, is a privative clause decision.
Pursuant to s.474 of the Act, this Court has no jurisdiction to interfere, and the proceeding before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 27 October 2006
0
0
2