SZHTY v Minister for Immigration

[2007] FMCA 696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 696

MIGRATION – Review of RRT decision – where applicant did not appear at RRT hearing – where Tribunal was unable to make a decision on the information provided in the application – interpretation of s.65(1) Migration Act – whether Tribunal erred in concluding it was unable to grant visa.

Migration Act 1958 (Cth), s.65(1)

VSAF of 2003 v Minister for Immigration [2005] HCATrans 757
Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
NAQR v Minister for Immigration [2004] FCA 1033
Applicant A159 of 2003 v Minister for Immigration [2004] FCA 473

Applicant: SZHTY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3611 of 2005

Judgment of: Raphael FM

Hearing date: 30 April 2007

Date of last submission: 30 April 2007

Delivered at: Sydney

Delivered on: 30 April 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. The applicant shall pay the First Respondent’s costs assessed in the sum of $2,500.00.

3. The First Respondent’s name be amended to “Minister for Immigration and Citizenship”.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3611 of 2005

SZHTY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the Philippines.  She arrived in Australia on 2 May 2005.  On 18 May 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 16 August 2005 a delegate of the Minister refused to grant a protection visa and on 6 September 2005 the applicant applied for review of that decision.

2. On 28 September 2005 the Tribunal wrote to the applicant advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.  The Tribunal invited the applicant to a hearing on 4 November 2005.  It is fair to say that the applicant was then living in Griffith and the documents which are contained in the green book do not indicate that the applicant might have been offered some alternative but to travel into Sydney in order to attend the Tribunal.  That is not to say that such offer was not made in some document that is not contained in the book.

3. In any event, the applicant responded to that invitation on 11 October 2005 indicating that she did not wish to come to a hearing and that she consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.  On 25 October 2005 the Tribunal determined to affirm the decision and handed that down on 15 November 2005.  At [CB 53]-[54] the Tribunal deals with the claim and its decision:

   “The Applicant is a 46 year old married woman with four children.  She lists 17 years of education and states that she worked as a teacher for 25 years.  In the statement of claims attached to her protection visa application she states that she lived in an area of the Philippines that has a high Muslim population.  She states that her brother-in-law was elected to the Municipal Council as a Christian and that she was discriminated against and harassed at her workplace because of her brother-in-law’s political opinion.  She states that in the past relatives of hers were killed for political reasons.

   The Applicant further states that there are ethnic tensions in her area and that conflict rose between her family and Muslims in respect to a claim of ownership of land.  She states the experience of security and safety in Australia that she did not experience in the Philippines.

   …

   The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the applicant is in genuine fear of persecution and that there is a real chance she will be persecuted.  On the limited and imprecise evidence available the Tribunal cannot be satisfied as to the nature and extent of the Applicant’s claim of fear of harm on returning to the Philippines or the Convention nexus or whether the Applicant is unable to avail herself of effective protection in the Philippines in respect to her claimed fears. 

   The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

4. The applicant, who appears in court today in person, had prepared for her by a migration consultant Chandra Jayawardena an outline of submissions that was filed in this Court on 13 March 2007.  The submissions quote from the transcript of proceedings before the High Court, Kirby and Callinan JJ, on an application for special leave in the matter of VSAF of 2003 v Minister for Immigration [2005] HCATrans 757. The submissions extract from that transcript the following statement by Kirby J:

   “In the terms of section 65(1) of the Migration Act 1958 (Cth) as applied to the Tribunal by section 414 of that Act, it had to consider whether it could reach the requisite satisfaction on the materials before it. In this case, the Tribunal decided that it could. It reached and expressed its satisfaction and it reached its consequent conclusion.

   We see no error, still less a jurisdictional error, in what the Tribunal did in the circumstances of this case.  There are no prospects that this Court would disturb the orders of the Full Court of the Federal Court of Australia from which this application arises.”

5. The adviser uses this statement to conclude that the Tribunal was obliged to come to some positive finding in relation to the application but to my mind the adviser has misunderstood his Honour and has clearly not read the decision in the Full Bench of the Federal Court, Minister for Immigration v VSAF of 2003 [2005] FCAFC 73, Black CJ, Sundberg and Bennett JJ. In that case the Court held at [17]:

   “We are unable to agree with his Honour’s statement that “in the absence of findings as to the facts either favourable or unfavourable” to the [respondent], the Tribunal could not reach the requisite state of satisfaction or the requisite state of non-satisfaction”.  As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction.  It does not require the visa to be granted in the absence of an adverse finding.  There are many cases showing that findings of fact are not necessarily required to support a case of non-satisfaction.  In SJSD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at “such a general and vague level that the Tribunal cannot establish the relevant facts”, and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:

   “It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established.  Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.””

   See also NAQR v Minister for Immigration [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration [2004] FCA 473.

6. In view of the remarks made by Kirby J in the transcript it is clear that on behalf of the High Court he gave his support to the views of the full bench of the Federal Court which I have set out above.  The language used may not be easy to comprehend but it is clear that the Tribunal can fail to reach the state of satisfaction required because insufficient evidence is provided to it.  That is what happened in the instant case and therefore the Tribunal did not fall into jurisdictional error in concluding that it was unable to grant a visa and was required to affirm the decision under review.

7. I dismiss the application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $2,500.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  30 April 2007