SZHXP v Minister for Immigration and Anor (No.2) - [2006] FMCA 1152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHXP v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2006] FMCA 1152

MIGRATION – Review of decision by Refugee Review Tribunal – Refugee Review Tribunal proceeded with review in absence of applicant – applicant’s solicitor instructed to make no submissions – inadequacies in applicant’s information before Refugee Review Tribunal.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 65; 424A; 425; 425A; 426A; div.2 pt.8
Federal Magistrate Court Rules 2001, sch.1

SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZEFM v ~~Minsiter~~Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78

Applicant:

SZHXP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3769 of 2005

Judgment of:

Emmett FM

Hearing date:

1 August 2006

Date of last submission:

1 August 2006

Delivered at:

Sydney

Delivered on:

1 August 2006

REPRESENTATION

Solicitors for the Applicant:

Mr M. Newman

Solicitors for the Respondent:

Mr J. Bird, Phillips Fox Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3769 OF 2005

SZHXP

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 Act 1903 (Cth) and Division 2 Part 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 November 2005 in which the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) refusing a Protection Visa to the applicant.
The applicant did not attend the hearing before the Tribunal and the Tribunal proceeded with its review without taking any further action to enable the applicant to appear before it.
In the application for review lodged with the Tribunal on the 1 April 2005 the applicant identified an authorised recipient for the receipt of correspondence and documentation from the Tribunal. The application form made it clear to the applicant that if the applicant nominated an authorised recipient then that is the person with whom the Tribunal will correspond.
On 4 April 2005 the Tribunal wrote to the applicant's authorised recipient confirming receipt of the applicant's application and providing various information about the process of the review.
On 12 September 2005 the Tribunal wrote again to the applicant's authorised recipient, notifying that person that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in the applicant's favour on that information alone. The letter went on to invite the applicant to come to a hearing and give oral evidence and present arguments in support of her claims. The letter identified the date, time and place of the hearing and also notified the applicant that the Tribunal would only change this hearing date for good reasons and that if the applicant thought that she may be unable to attend the hearing, she must contact the Tribunal immediately and if she did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision in her case without further notice.
The applicant was provided with a response to hearing invitation form and requested to complete that document and return it to the Tribunal, indicating whether or not it was her intention to attend the hearing. On 17 October 2005 that response to hearing document was received by the Tribunal, indicating that the applicant did wish to attend a hearing.
In its decision the Tribunal noted that it had written to the applicant, on the 12 September 2005, care of her authorised recipient, inviting her to attend the hearing in the terms which I have just referred. The Tribunal also noted that, on the 17 October 2005, the applicant advised the Tribunal she wished to attend the hearing. The Tribunal then went on to note that the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. The Tribunal then purported to proceed with its review pursuant to s.426A of the Act.
Section 426A of the Act provides that:
“(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”
A notice of indication to appear at the hearing, being the letter of the 12 September 2005 is a letter sent in accordance with s.425A of the Act and therefore the Tribunal complied with this obligation pursuant to s.425 of the Act. In the circumstances it was open to the Tribunal to decide to proceed with its review, as it did, pursuant to s.426A of the Act which in fact the Tribunal did.
The Tribunal then had regard to the claims made by the applicant and found that the claims were vague and lacking in relevant detail. The Tribunal identified particular concerns it had in respect of the lack of detail in the applicant's claims and concluded that:
“In these circumstances, based on the scanty information provided by the applicant, I am not satisfied that she was indeed an active member of a political party in Mauritius. Nor am I satisfied that she suffered any adverse consequences for reason of any political activity or opinion.”
Pursuant to ss.36 and 65 of the Act, it is for the applicant to satisfy a decision maker such as the Tribunal that she meets the criteria required for a protection visa and if the Tribunal is not so satisfied it must refuse to grant the applicant a protection visa.
The applicant in her application filed on 20 December 2005 relied on the following grounds and I refer to those grounds as if they are herein set out. None of the grounds are particularised.
“1. The Tribunal denied the applicant’s procedural fairness and, in doing, made a jurisdictional error.
2. The procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision were observed.
3. The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the outdated information without any investigation though the tribunal was qualified to do it.
4. The Tribunal failed to take relevant consideration into account in exercising its power to determine me as a refugee.
5. That the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal.
1. The Tribunal decision was unjust and was made with taking into account the full gravity of the circumstances and consequences of the applicant’s Review Application.”
The applicant is represented by Mr Newman, solicitor, this morning. However, Mr Newman informed the Court that he had no instructions to make submissions in support of the applicant's application.
The procedural history of this application has been the subject of an earlier ex tempore decision by me.
The Tribunal, in reaching its conclusions, did so on the basis of the insufficient evidence before it to satisfy it of the necessary criteria for refugee status. The first respondent refers to the decision of Allsop J in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at paragraphs 11 to 13:
“[11] The Tribunal’s obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant’s claims, and in particular whether any information was the reason or a part of the reason for the decision.
[12] In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain. The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction. In SZEEI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:
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 section 424A(1) by section 424A(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 … whilst in some cases an ‘unbundling is necessary’ in order sensibly to apply section 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, 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 a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.
[13] In my view, looking at the Tribunal’s reasons here, those comments equally apply here. The only questions as to whether or not leave should be granted would be to argue that those reasons in SZEZI misstate the law in a case such as this in relation to the operation of s424A.”
The analysis and evaluation of the evidence before it by the Tribunal was conducted according to law and no s.424A issue arises in respect of the Tribunal’s use of information before it.

1.The Tribunal in this case was not satisfied that the applicant had a well-founded fear because of inadequacies in the applicant’s information. The Tribunal, having read all the material and having evaluated its content and weight was unable to reach the statutory required mental state of satisfaction.. (Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 ~~(“SZEZI”)~~ at [ ~~paragraph~~ 29]-[30]; Allsop J in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [11]-[12]). ~~stated that, in the circumstances, the reason for such a decision was that:~~
1.~~“…the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanations which have been invited.”~~

Bennett J, in SZEFM v ~~Minsiter~~Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 ~~(“SZEFM”)~~at [23], referred to similar propositions expressed by Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 and by Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, and referred also to the passage referred to by Allsop J in SZEZI. Bennett J concluded that the Tribunal in the circumstances was setting out its thought processes~~, at paragraph 23 of SZEFM~~.
The Tribunal's decision is not affected by jurisdictional error. In the circumstances, the decision is a privative clause decision and, pursuant to s.474 of the Act this Court no jurisdiction to interfere. Accordingly the application is dismissed.

RECORDED : NOT TRANSCRIBED

The first respondent seeks costs fixed in the amount of $3750. The applicable scale is the sch.1 of the Federal Magistrate Court Rules 2001 prior to the amendments that were enacted this year. Pursuant to that schedule the respondent in the circumstances is entitled to an amount exceeding the sum sought. Accordingly, I am satisfied that the sum sought is reasonable and I order that the applicant pay the first respondent's costs in the amount of $3750.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 7 August 2006