SZGTN v Minister for Immigration

[2006] FMCA 1074

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGTN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1074

MIGRATION – Review of decision by Refugee Review Tribunal – failure of applicants to attend Refugee Review Tribunal hearing – indication of non-attendance given on ‘Response to Hearing Invitation’ form – Refugee Review Tribunal proceeded with review pursuant to s.425(2)(b) of Migration Act 1958 (Cth) – Refugee Review Tribunal not satisfied criteria for refugee status met by applicants on information before it – applications dismissed.

Migration Act 1958 (Cth), ss.36; 65; 65(1); 425; 425(2); 425(2)(b); 425A; 426A; 474
Federal Magistrates Court Rules 2001, sch.1

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

First Applicant: SZGTN

Second Applicant: SZGTO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File numbers: SYG1854 of 2005; SYG1855 of 2005

Judgment of: Emmett FM

Hearing date: 19 July 2006

Date of last submission: 19 July 2006

Delivered at: Sydney

Delivered on: 19 July 2006

REPRESENTATION

Both Applicants appearing on their own behalf

Solicitors for the Respondent: Mr L. Leerdam, Phillips Fox

ORDERS

(1)That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”

(2)That the first named applicant’s application is dismissed.

(3)That the second named applicant’s application is dismissed.

(4)That the first named applicant pay the first respondent’s costs in an amount of $2200.

(5)That the second named applicant pay the first respondent’s costs in an amount of $2200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1854 of 2005 & SYG1855 of 2005

SZGTN

First Applicant

SZGTO

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There are two applications for judicial review pursuant to s.39B of the Judiciary Act 1903 (Cth) seeking constitutional writ relief in respect of two decisions of the Refugee Review Tribunal (“the Tribunal”). The first decision in respect of the first named applicant was made on
   25 May 2005. The second decision in respect of the second named applicant was made on 26 May 2005.

   2.Each of the applicants in this case is of Chinese ethnicity and is a citizen of Mongolia.  The first named applicant, being SZGTN, is a 36 year old male and the second named applicant is his wife.  The applicants arrived in Australia on 4 January 2005 having legally departed from Ulaanbaatar on a passport issued in their own name.

   3.On 1 February 2005 the second named applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). On
   2 February 2005 the first named applicant lodged an application for a protection visa (class XA) with the Department.  On 5 March 2005 a Delegate of the first respondent refused to grant a protection visa to each of the applicants and on 4 April 2005 each of the applicants lodged a review of that decision with the Tribunal.

   4.On 14 April 2005 the Tribunal wrote to each of the applicants, via their authorised recipient, Zahirul Hoq Mollah. In respect of the first named applicant, he was invited to attend a hearing on 25 May 2005. In respect of the second named applicant, she was invited to attend a hearing before the Tribunal on 26 May 2005.  The letter notified each of the applicants that the Tribunal had considered the material before it in relation to their application but was unable to make a decision in their favour on that information alone.

   5.The Tribunal invited each of the applicants to come to a hearing to give oral evidence and present arguments in support of their claims.  The letter also notified the applicants that they could provide oral evidence from other persons in support of their claims.  In compliance with s.425A of the Migration Act 1958 (Cth) (“the Act”) the letter identified the day, time and place at which each of the applicants was invited to attend.  The letter stated that the Tribunal would only change the hearing date for good reason and notified each applicant that:

   “If you think you might be unable to attend the hearing you must contact the Tribunal immediately.  If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.”

   6.The letter enclosed ‘Response to Hearing Invitation’ forms and requested that the applicants complete the forms and return them to the Tribunal.  The letters also invited the applicants to send any new documents or written arguments that they may wish the Tribunal to consider and to do so by 2 May 2005. 

   7.On 19 May 2005, the Tribunal sent another letter to each of the applicants at their residential address attaching a copy of the letter sent on 14 April 2005 inviting them to attend a hearing and noting that no response had been received to that letter.  The letter asked each of the applicants to telephone Mr Drake on a particular telephone number by close of business on Monday 23 May 2005, to let the Tribunal know whether or not they would be attending the hearing. 

   8.Each of the applicants signed the ‘Response to Hearing Invitation’ form dated 22 May 2005 and received by the Tribunal on that date.  The response of the first named applicant simply contained a tick in the box indicating, “No, I do not want to come to a hearing.”  Underneath that box are the words, in printed form:

   “I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.”

   9.In respect of the second named applicant, she also ticked the same box saying ‘no’, and the same standard formed words that I have just read were below that box.  However, the second named applicant also hand wrote next to the box:

   “Because I did not collect relevant document yet, without the document I will be unable to provide complete information.”

   10.In respect of the first named applicant, the Tribunal proceeded with its review on 25 May 2005 in the absence of the first named applicant.  The Tribunal stated:

   “On 14 April 2005, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 May 2005.  On 22 May 2005 the applicant advised the Tribunal in writing that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision without taking any further action to allow or enable him to appear before it.  This matter has therefore been determined on the evidence available to the Tribunal.” (Court Book at 58)[FMCoA1]

   11.The invitations were sent to the applicants on 14 April 2005, pursuant to, and in accordance with, s.425 of the Act in that the notice complied with the requirements as set out in s.425A of the Act. Section 425(2) states that the Tribunal is not obliged to invite the applicant to appear where the applicant consents to the Tribunal deciding the review without the applicant appearing.

   12.The first named applicant sent back the completed ‘Response to Hearing Invitation’ form indicating that he did not wish to attend a hearing and consented to the Tribunal proceeding with its review. In the circumstances, the Tribunal was entitled to proceed pursuant to s.425(2) of the Act.

   13.The Tribunal noted that the claim by the first named applicant was that he faced discrimination in Mongolia because of his ethnic Chinese background.  The Tribunal had regard to the first named applicant’s primary claims as the only evidence of any claims made by the first named applicant.

   14.The Tribunal noted that a number of relevant questions were left unanswered by the first named applicant in his primary claims and noted that the first named applicant, in his primary claims, had stated that he would provide more information later.  No such information had been received by the Tribunal from the first named applicant.  The Tribunal had regard to independent country information from the United States Department, Human Rights Watch and Amnesty International, which the Tribunal found revealed no reference to discrimination against people of Chinese ethnicity in Mongolia.

   15.The Tribunal noted that it was unable to ask the first named applicant about an inconsistency in his claim not to be able to get work and his claim to have worked as a butcher, resulting in the Tribunal not being able to accept that the first named applicant had been denied employment by reason of his ethnicity or attacked or threatened with death for that reason.

   16.Section 65(1) of the Act authorises the decision maker to grant a protection visa if it is satisfied that prescribed criteria have been met. It is for an applicant to satisfy the decision maker that the criteria required for a protection visa as a refugee are met by that applicant. In the event that the decision maker is not so satisfied that the criteria are met then s.65 of the Act states that the visa application must be refused.

   17.The Tribunal was faced with the inadequacy of information identified by it such that it was not able to be satisfied that the criteria set out in s.36 of the Act had been met by the first named applicant (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 per Allsop J at [29] and [30]).  In the circumstances, the Tribunal had no alternative but to refuse the protection visa to the first named applicant.

   18.Those findings and conclusions were open to the Tribunal on the material before it and the Tribunal’s decision is not affected by jurisdictional error or any error. In the circumstances the Tribunal’s decision is a privitive clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere. Accordingly the first named applicant’s application is dismissed.

   19.In relation to the second named applicant, the only difference to the factual matrix is the words written by the second named applicant on her ‘Response to Hearing Invitation’ form proffering an explanation why she had ticked the box ‘No’, namely:

   “Because I did not collect relevant document yet, without the document I will be unable to provide complete information.”

   20.The Tribunal in proceeding with its review noted that:

   “On the reply to the invitation to hearing the applicant noted that she did not want a hearing because “I did not collect relevant document yet, without the document I will be unable to provide complete information.” (Court Book at 58)

   21.Having indicated to the Tribunal that she did not want to come to a hearing, the Tribunal was entitled, pursuant to s.425(2) of the Act to proceed with its review on the basis that the second named applicant had consented to the Tribunal deciding the review without the applicant appearing before it.  Certainly that consent, that is apparent on the face of the ‘Response to Hearing Invitation’ form immediately under the box ticked by the second named applicant, was not deleted. In the circumstances, the words of explanation offered by the second named applicant did not impede the entitlement of the Tribunal to proceed with its review in accordance with s.425(2) of the Act on the basis that the second named applicant had consented to the Tribunal proceeding.

   22.However, the Tribunal noted that each of the applicants had advised the Tribunal in writing that each did not wish to attend a hearing. In these circumstances, by completing that form, each applicant had consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicants to appear before it.

   23.Accordingly the Tribunal was entitled to proceed with its review pursuant to s.425(2)(b) of the Act.

   24.The second named applicant otherwise relied on the same grounds of judicial review as the first named applicant. For the same reasons I gave in respect of the first named applicant’s application, the decision of the second named applicant by the Tribunal is not affected by jurisdictional error or any error and is a privitive clause decision.

   25.Accordingly, this Court has no jurisdiction to interfere and the application of the second named applicant is also dismissed.

   RECORDED : NOT TRANSCRIBED

   26.The first respondent seeks costs fixed in an amount of $2200 in respect of each of the applicants. I note that the amount sought is substantially less than the amount provided for in sch.1 of Federal Magistrates Court Rules 2001.  In the circumstances I am satisfied that the amount sought by the first respondent is reasonable.

   ORDERS DELIVERED

   I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Emmett FM

   Deputy Associate:  S.Tsang

   Date:  28 July 2006

   [FMCoA1]Sylvia – I inserted the page reference – do you want to keep it in?