SZHUS v Minister for Immigration
[2006] FMCA 803
•14 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 803 |
| MIGRATION – Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – application for a show cause proceeding under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 426A, 476 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Chen v Minister for Immigration [2001] FCA 1671 |
| Applicant: | SZHUS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3652 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Tamil interpreter |
| Advocate for the Respondents: | Mr J Bird |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The first respondent’s application to show cause is upheld.
The application filed on 13 December 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3652 of 2005
| SZHUS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 December 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 19 October 2005 and handed down on 3 November 2005, affirming a decision of a delegate of the first respondent made on 14 July 2005, refusing to grant the applicant a Protection (Class XA) visa.
The applicant applies for an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Act in respect of the decision of the Tribunal, of J Silva, reference N05/51883. The first respondent submits that the application for an order to show cause should be dismissed pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”).
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHUS”.
Background
The Tribunal decision provides the following background information. The applicant, who claims to be a citizen of India, arrived in Australia on 27 September 2004. On 8 November 2004, he lodged an application under the Act for a protection visa with the Department of Immigration. On 14 July 2005, a delegate of the Minister refused to grant the protection visa and on 9 August 2005, the applicant applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 62)
The applicant is a 28 year old male national of India. His ethnic group is Tamil and he is of the Hindu faith. The applicant was born in Sivarlapatti, Tamil Nadu, and most recently lived in Chennai. He has completed a Bachelor of Pharmacy and states his occupation as ‘pharmacist’. In his original application, he states that he has no previous convictions. He is, however, aware of pending criminal investigations concerning the ‘supply of medicine to the Liberation Tigers of Tamil Eelam (“LTTE”)’ and ‘helping the Tamil Nadu Liberation Army (“TNLA”) in their activities’. The claimed pending criminal charges involve supporting a banned organisation and being against Indian sovereignty.(CB 65)
The Tribunal, after reviewing the limited material provided, made the following observations in its ‘Findings and Reasons’ (CB 69):
The Applicant provided information which appears to contain anomalies, inconsistencies and a narrative which is detailed in some parts, and vague and incomplete elsewhere. The protection visa application and later statutory declaration provides contrary information on matters such as language, periods of detention and the existence of past and current false charges. The Tribunal has not had the opportunity, through a hearing or by other means, to clarify these points and to obtain further information to determine the veracity of the Applicant’s claims, and whether they establish persecution within the meaning of the Convention and the Act.
The decision then covers a series of topics that the member wished to discuss with the applicant if he had attended the Tribunal hearing as invited. Unfortunately the applicant did not respond to the hearing invitation and did not appear. As a result, the Tribunal made the following finding at CB 70:
On the limited evidence before it, the Tribunal is not satisfied that the Applicant has any association with the TNLA, LTTE or any Tamil separatist or other political organisation in India or Sri Lanka, or will be so perceived by anyone. It is also not satisfied that the Applicant has suffered past harm for reason of his political opinion, or for any Convention related or other reason. The Tribunal is not satisfied that he is subject to pending false charges arising out of any political factors, or for any other reason. With respect to the Applicant’s claimed membership of a lower caste, the Tribunal is not satisfied as to the veracity of this assertion or its relevance to an assessment of his refugee claims. The Tribunal finds no other factors indicating prospective persecution.
Application for review of the tribunal’s decision
The application for review under s.39B of the Judiciary Act sets out the following grounds:
1.RRT decision was affected by Jurisdictional erros. There was insufficient evidence on the question of why the applicant could not obtain on the protection of state for the harm the applicant fears, and thus disregard the operation of the Conventions (Political differences) that the Agent of persecution need not be the state or the persecution in un-controllable by the authorities.
2.RRT decision was not supported by a proper enquiry into the material facts related to the subject matter of that threat: particulars: RRT relied upon independent country information report to reach a conclusion.
3.RRT failed to notice the threat faced by the applicant as being TNLA member by political in the hands of State Authorities. The applicant did not give a second chance to appear And give oral evidence before the RRT. (copied without alteration or correction)
Reasons
The applicant is a self-represented litigant and appeared with the assistance of a Tamil interpreter. The applicant appeared before me for first directions on 21 February 2006. This was a rescheduled date, as the applicant failed to appear at the original directions date of
7 February 2006. The applicant was offered the opportunity to participate in the Court’s free Legal Advice Scheme, but declined. The applicant was granted leave to file an amended application, giving complete particulars of each ground of review relied upon, by 3 May 2006. This order was not complied with. It was explained to the applicant the nature of a hearing under r.44.12 of the Rules and the issues that he would be required to argue before the Court. The applicant was also asked to file and serve a written outline of submissions and a list of authorities 14 days prior to this hearing. This order was not complied with.
In the grounds of review contained in the application filed on
13 December 2005, the applicant claims that he was denied the opportunity to appear at the Tribunal hearing or to provided further information to the Tribunal in respect of his claims. Mr Bird, appearing for the respondents, took the Court to an ‘Appointment of Authorised Recipient’ form completed by the applicant. In that form the applicant appointed a Mr Jayakumar Vedaranyam of ‘Immigration and Naturalisation’ as the authorised recipient of all documents in relation to the Tribunal application. This was signed by the applicant on 22 August 2005.(CB 50-51) On 14 September 2005, the Tribunal wrote to that migration agent, inviting the applicant to a Tribunal hearing on 13 October 2005. This letter said that the Tribunal had considered all the material before it, and as it was unable to make a decision in favour of the applicant, it invited him to a hearing to give oral evidence and present arguments in support of his claim. This invitation extended to any witnesses of the applicant’s. The applicant was also invited to provide any further documents or written arguments in support of his claim.(CB 52-53) The Court Book also contains a check list prepared by the Tribunal when there is no reply to a hearing invitation.(CB 54) This checklist indicates that the Tribunal undertook all necessary steps required of it to ensure that the applicant had been notified of the proposed hearing. Pursuant to s.426A of the Act, the Tribunal decided to make its decision without taking any further action to enable the applicant to appear before it.
The Tribunal records in its ‘Findings and Reasons’ that it did not have the opportunity to clarify a number of points in respect of claims made by the applicant, nor could it obtain any further information to determine the veracity of the applicant’s claims. The Tribunal listed in its decision each issue that it wished to discuss with the applicant to resolve its concerns.(CB 69-70) I am satisfied that the applicant was given adequate opportunity to rectify the deficiencies in his original application. He has not availed himself of that opportunity. Further, I explained to the applicant at the first directions date the broad nature of the difficulties he was facing with his application for judicial review in this Court. I acknowledge the difficulty facing the applicant in that he does not speak the language or understand the legal system in which he is attempting to pursue his claim. Despite this, the applicant declined the limited assistance available to him through the Court’s free Legal Advice Scheme. He also did not take the opportunity to file an amended application or submissions in support of his review application. When offered the opportunity to make oral submissions to the Court in support of his application, his only response through the interpreter was to indicate that he required a further opportunity to appear before the Tribunal to explain his case.
The recent judgment of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 makes clear that the Tribunal is bound to provide an applicant with particulars in writing of any information that might be the reason or part of the reasons for its decision. In this case, the applicant may argue that the only information that was before the Tribunal was that provided in his original protection visa application. There is no reference in the application to the Tribunal of any material supplied by the applicant to the Minister in his original visa application. There is no statement in the application to the Tribunal that would link the original material to the Tribunal application. The Tribunal quite clearly states in its decision under the heading ‘Claims and Evidence’, that the only material available to it were the primary application and the delegate’s decision record. There is no mechanism that in effect restated those claims in the Tribunal application. In the circumstances, the information was not provided for the purposes of the application to the Tribunal. The exceptions in s.424A(3)(b) do not apply and the Tribunal was not obliged to write to the applicant pursuant to s.424A(1). However, the circumstances of this application fall outside of that requirement and I believe this argument is supported by the following proposition.
The factual situation of this case is similar to that in SZEZI v Minister for Immigration [2005] FCA 1195 (“SZEZI”). In that case, Allsop J found that the applicant did not attend the Tribunal hearing and accordingly, His Honour recorded the relevant reasons for the Tribunal decision: SZEZI at [8]. His Honour concluded at [29]:
On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s 424A (1) by s424A (3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
SZCIA v Minister for Immigration [2006] FCA 238 was another matter where the applicant did not attend the Tribunal hearing. Justice Allsop again emphasised the need to make an evaluation of the Tribunal’s reasons. In the present case, under ‘Findings and Reasons’, the Tribunal did more than the Tribunal in SZEZI. It referred to background information about the applicant, taken from his protection visa application, and identified the critical matters it wished to explore with the applicant at the hearing. These are set out as eight dot points within the decision and identified as matters that the Tribunal was unable to satisfy itself of. As in SZEZI, these were not reasons or part of the reasons for the decision. They were referred to by the Tribunal merely as items of information which it considered crucial and intended to discuss with the applicant had he chosen to attend the Tribunal hearing. I believe that the reasoning of Allsop J in SZEZI and SZCIA v Minister for Immigration apply to this case. The Tribunal did not make a positive finding of fact about the position of the applicant, but rather rejected his claims because it did not think that the necessary state of satisfaction existed.
I now turn to the issues raised by the applicant in his grounds for review of the Tribunal decision. Having regard to the fact that the Tribunal only had before it the facts as alleged by the applicant and contained in the original application, it could only proceed on such material. The facts relevant to the application need to be supplied by the applicant himself in as much detail as possible to enable the applicant to establish the facts. It is for the applicant to make out his or her own case: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. The applicant was provided with an opportunity to attend a Tribunal hearing, together with an invitation to bring any witnesses, supply further information or furnish an argument in support of his application. In a situation where the applicant fails to respond to the invitation and fails to appear, that applicant cannot then complain that other factors were not taken into account, or seek to supply additional facts. This claim cannot be sustained.
Another assertion of the applicant in his application for review is that there was no proper investigation into the material facts relating to the threats. The Tribunal is not, either under the Act or the common law, obliged to investigate the applicant’s claim. Neither is it required to actively assist the applicant in presenting his case, nor to carry out enquiries in order to identify what the case might be: Chen v Minister for Immigration [2001] FCA 1671; Abebe v Commonwealth of Australia (1999) 197 CLR 510. See Abebe v Commonwealth of Australia at [187] per Gummow and Hayne JJ:
Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant…It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
See also Re Ruddock (as Minister for Immigration); Ex parte Applicant S154/2002 [2003] HCA 60 at [57].
Conclusion
The applicant in these proceedings is a self-represented litigant, appearing with the assistance of a Tamil interpreter. This places an obligation on the Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr J Bird, appearing for the respondents, assisted the Court with written submissions, supplemented by oral submissions, in respect of the application.
The applicant applies for an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Act, in respect of the Tribunal decision made on 19 October 2005. The first respondent has filed a response against the applicant’s claims, which seeks that the application be dismissed without proceeding to a final hearing. The nature and purpose of these proceedings was clearly explained to the applicant at the first court date when show cause proceedings were foreshadowed. I am satisfied that the applicant has been given an opportunity to avail himself of independent legal advice under the Court-sponsored scheme, which the applicant declined. He was also provided with an opportunity to amend his application and file any additional information in support of it. The applicant failed to take advantage of either of those opportunities. It is apparent that the applicant did not comprehend the nature of aspects of these proceedings or how to achieve his review outcome. I do not believe that listing this matter for a final hearing sometime in the future is going to change the approach or content of the applicant’s application.
I am satisfied that none of the grounds identified in his original application can be sustained. To satisfy the obligation that I have referred to in the paragraph above, I have read all of the material in the Court Book. It is not apparent that there are any other grounds of review that exist to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 13 June 2006
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