SZIAO v Minister for Immigration & Anor
[2007] FMCA 111
•13 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 111 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.36, 65, 91X, 422B, 424A, 425 |
| SZEEU v Minister of Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 SZCRJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 |
| Applicant: | SZIAO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 24 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 January 2007 |
| Date of Last Submission: | 30 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 24 of 2006
| SZIAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 14 July 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 8 December 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 12 August 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The applicant is a citizen of Sri Lanka who arrived in Australia on
18 January 2004.
The applicant claims to fear future persecution in Sri Lanka by the members of the Janatha Vimukthi Peramuna (“JVP”) and the Sri Lankan army.
The facts alleged in support of the applicant’s claim for a protection visa as provided in his protection visa application are set out on pages
6-7 of the Tribunal’s decision (Court Book (“CB”) pages 65-66). Relevantly, they are in summary:
a)after the applicant completed his studies, members of his family wanted him to join the Sri Lankan Army (“SLA”) to get military training;
b)JVP (Janatha Vimukthi Peramuna) party activists forced the applicant to obtain military training under the JVP;
c)the applicant refused to work for the JVP party because he wanted to study rather than become a military person and so JVP men abducted him on many occasions;
d)while travelling with his cousin, a naval officer, the applicant was targeted by the Liberation Tigers of Tamil Eelam (“LTTE”);
e)the applicant decided to leave Sri Lanka because he was constantly followed by JVP members who took him away a few times. If he returned to Sri Lanka, they will abduct him and force him to undergo military training. Sri Lankan Army (SLA) officers will also humiliate and mistreat him;
f)the last time he went to Sri Lanka, JVP activists went to his home to recruit him but he refused. They were very rude to him and took him to the jungle. They threatened not to leave him alone unless he joined their training. They advised him to leave Sri Lanka because he would not be able to lead a peaceful life there;
g)the Sri Lankan authorities would not protect him unless he joined the SLA;
h)the applicant has been accused by police of spying and passing on information to the LTTE through his Tamil friends. He does not want to be involved in political activities; and
i)the last time he went to Sri Lanka, the applicant was sexually harassed by JVP activists so that he would join the “military section”.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 14 November 2005. On 12 November 2005, the applicant sent to the Tribunal a facsimile enclosing a “Medical Certificate” and a letter seeking an adjournment of the hearing.
On 14 November 2005, the Tribunal sent a letter to the medical practitioner who had provided the Medical Certificate (Dr Renganathan) and sought responses to the following questions:
· From what date until what date is [SZIAO] incapacitated?
· The dates on the medical certificate are crossed out, please explain the reasons.
· Did [SZIAO] tell you he had a hearing today?
· How does [SZIAO’s] “Allergic Rhinitis” affect his ability to give evidence at a hearing? (CB 47)
On 15 November 2005 Dr Renganathan provided the following responses to the Tribunal:
· The certificate issued is a certification of attendance and not a sick leave certification.
· Dates on the certificate crossed out by me because it is a “Fixed Format” on the computer print for sick leave – which was not provided to the applicant.
· [SZIAO] did not mention of [sic] any “Hearing for the day”.
·
In my opinion the allergic rhinitis with sneezing and runny nose which he said he was having for about three months would not affect his ability to give evidence at a Hearing.
(CB 49)Nevertheless, the hearing was adjourned to 18 November 2005. The applicant was advised that if he did not attend the hearing listed on
18 November 2005 and a postponement was not granted, the Tribunal could make a decision on the case without any further notice. (CB 50)
On 18 November 2005, the applicant sent a facsimile to the Tribunal to advise that he was still unwell and he failed to attend the hearing (CB 54). On 23 November 2005, the applicant provided to the Tribunal a “Medical Certificate” from a different medical practitioner (Dr Navaratne), dated 18 November 2005, which stated:
This is to certify that on 18/11/05 I examined the above named person. In my opinion he is suffering from allergy and I’ve referred him to the allergy specialist. (CB 55)
The Tribunal found:
Given the fact that the Medical Certificate of 18 November 2005 does not say that the applicant in [sic] unfit to give evidence at a hearing, nor does it explain how the applicant’s “allegy” could have any impact on his ability to attend a hearing and or to give evidence, and given previous clinical evidence, namely the letter of 15 November 2005 from the other medical practitioner that “In my opinion the allergic rhinitis with sneezing and runny nose which he said he was having for about three months would not affect his ability to give evidence at a hearing”, the Tribunal has decided not to adjourn the hearing … In accordance with Section 426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. (CB 65)
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the claims made by the applicant are vague and lacking in detail. His claims of being forced to obtain military training by the JVP, being followed, abducted and sexually harassed by the JVP, being targeted by the LTTE and harmed by the SLA are not spelled out in any detail;
b)the applicant has not provided any corroborative evidence to support his claims; and
c)the applicant had no reasonable explanation for failing to attend a hearing at which he would have been given the opportunity to give further evidence to support his claims.
The Tribunal found:
Without further details, clarification, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing, the Tribunal is not satisfied that the applicant has ever been abducted by JVP men, or that JVP men had forced him to obtain military training, or that he was targeted by the LTTE, or that he was ever followed by the JVP, or that he was ever taken away by the JVP, or that he was ever threatened by the JVP, or that he was ever accused by the police of spying and passing on information to the LTTE, or that he was sexually harassed, nor is the Tribunal satisfied that if he were to return to Sri Lanka, he would be targeted by the JVP or SLA or LTTE. In essence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm. (CB 67-68)
Proceedings in this Court
In his amended application the applicant raises the following grounds:
a)the Tribunal failed to comply with s.424A of the Act by not supplying to him details of communications which the Tribunal had with Dr Renganathan;
b)the Tribunal failed to afford the applicant procedural fairness by refusing his application for an adjournment;
c)the Tribunal was in breach of s.424A(1) in its reliance on its communications with Dr Renganathan to make adverse findings on the applicant’s credibility and to find that the applicant was not genuine; and
d)the Tribunal denied the applicant natural justice by its reliance on the communications with Dr Renganathan.
Additionally, the applicant’s affidavit sworn 4 January 2006 contains, in paragraph 6, other grounds for the relief claimed, namely:
a)the Tribunal failed to afford the applicant procedural fairness by not granting a postponement of the hearing due to the applicant’s illness;
b)the Tribunal failed to afford the applicant procedural fairness by not granting an adjournment in order that the applicant could obtain documents to submit to the Tribunal in support of the claim;
c)the Tribunal erred in finding “that the applicant has not suffered any Convention related harm nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future”;
d)the Tribunal erred in finding “that there is no evidence of any or any significant discrimination against the applicant”;
e)
the Tribunal erred in finding “that the applicant does not have
a well-founded fear of persecution for a Convention related reason”;
f)the Tribunal exceeded its jurisdiction in making its decision to affirm the delegate’s decision;
g)the Tribunal constructively failed to exercise its jurisdiction in arriving at its decision;
h)the Tribunal erred in failing to appreciate that “imputed political opinion” is an essential element in considering the fear of serious harm amounting to persecution of the applicant; and
i)the Tribunal failed to perform the duty imposed by s.425 of the Migration Act to decide the applicant’s case and the material put to it and by conducting an appropriate enquiry thereon.
Dealing with each of these grounds in turn:
The Tribunal failed to comply with s.424A of the Act by not supplying to him details of communications which the Tribunal had with
Dr Renganathan
Section 424A provides:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
The section will only apply to information used by the Tribunal in reaching its decision to affirm the delegate’s decision. The communications between the Tribunal and Dr Renganathan were relevant to the Tribunal’s decision to refuse the applicant’s request for a second adjournment. A decision on the adjournment does not amount to a decision on the merits of the case which is the issue with which s.424A is concerned. Although the following passage does appear at page 8 of the Tribunal’s decision (CB 57):
He claims to be unwell and consequently cannot attend a hearing yet the medical evidence before the Tribunal does not support the applicant’s assertion.
this passage does not form part of the Tribunal’s reasons for affirming the delegate’s decision. Rather, it is part of the Tribunal’s explanation of why it proceeded to a decision. As Allsop J said in SZEEU v Minister of Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 262 [216]:
… One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of the protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question of whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of a reason).
Because the communications with Dr Renganathan, which are reproduced at page 5 of the Tribunal’s decision (CB 54), did not form part of the reason for its affirmation of the delegate’s decision, s.424A does not apply to that information and thus the fact that the Tribunal did not provide it to the applicant does not amount to a breach of the section and this ground is not made out.
The Tribunal failed to afford the applicant procedural fairness by refusing his application for an adjournment
By virtue of s.422B, ss.422B to 429A of the Act provide an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Tribunal. Consequently, common law principles have no application: Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; SZCRJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62.
The applicant asserts that on the date of the hearing, 18 November 2005, he was too unwell to attend the hearing. The Tribunal’s decision records at page 5 (CB 54) that the applicant sent the Tribunal a facsimile at 9.17am that day advising that he was unwell and requested a postponement of the hearing. The Tribunal records that the letter was unsupported by any medical evidence although on 23 November 2005 the Tribunal received a medical certificate which is reproduced at
CB 55 together with a referral letter reproduced at CB 56. The medical certificate certified that the applicant was suffering from an allergy.
In his evidence before me, the applicant said that on the morning of
18 November 2005 he went to a post office or a pharmacy near Parramatta and had his letter of 18 November 2005 faxed for him to the Tribunal. He said that he then attended Dr Navaratne who provided him a certificate and referral following which he returned to the post office or pharmacy near Parramatta and he arranged for the medical certificate and the referral to be faxed to the Tribunal. Facsimile notations at the top and the bottom of the letter of 18 November 2005 said by the Tribunal to have been received by it that day record that it was transmitted on 18 November 2005 - apparently sent at 9.17am and received at 9.19am. The medical certificate and referral letter said by the Tribunal to have been received by it on 23 November 2005 are notated top and bottom that they were faxed on 23 November 2005 - apparently sent at 11.16am and received at 11.19am that day. I do not accept the applicant’s evidence that the medical certificate and referral were faxed by him to the Tribunal on 18 November 2005.
Section 425(1) of the Act provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The requirements of s.425 have been discussed by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 at 300 [37] in the following terms:
On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a `real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
To invite the applicant to a hearing which he was unable to attend because of his health would be an empty gesture and a denial of procedural fairness: Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [36].
The question in the present case then is whether there was a real and meaningful invitation to the hearing or just a gesture rendered empty by the applicant’s ill health.
The evidence does not support a conclusion that the applicant’s health was such that he could not attend the hearing. Neither of the doctors’ documents dated 18 November 2005 say that the applicant was unfit to give evidence. The documentary evidence before this Court is of no better quality or persuasiveness than the evidence available to the Tribunal. This is notwithstanding the fact that these proceedings were commenced over a year ago and on two occasions the Court has set timetables for the applicant to file and serve any additional affidavits. He has not done so. No evidence from any of the doctors was adduced at the hearing in this Court.
Consequently, there is no evidence before this Court, other than the applicant’s own oral evidence, that he was too ill to attend the Tribunal on 18 November 2005. As I do not accept the applicant’s evidence that he had Dr Navaratne’s certificate and the associated referral letter faxed to the Tribunal on 18 November 2005, in the absence of corroborating expert medical evidence, I do not accept him when he says he was too unwell to attend the Tribunal hearing.
Consequently, the Tribunal had no obligation to grant the applicant another adjournment of his hearing and thus this ground is not made out.
The Tribunal was in breach of s.424A(1) in its reliance on its communications with Dr Renganathan to make adverse findings on the applicant’s credibility and to find that the applicant was not genuine
This ground misconceives the Tribunal’s findings. The Tribunal did not find that the application before it was not genuine. Rather, it expressed the view that on the basis of available information it was not satisfied that the applicant had a well-founded fear for a Convention related reasons (CB 68.4). Insofar as the Tribunal made adverse findings about the applicant’s credibility, all the Tribunal said was this:
The Tribunal is satisfied that the applicant has been given proper opportunity to support his application both at the primary level as well as at the review stage. He has not attended a hearing and the Tribunal has no reasonable explanation for the lack of attendance. He claims to be unwell and consequently cannot attend a hearing yet the medical evidence before the Tribunal does not support the applicant’s assertions. The Tribunal is satisfied that the applicant was put on notice that the Tribunal could not make a favourable decision on the basis of the available information. The Tribunal is satisfied that the applicant has had notice of the hearing but is not genuine about pursuing his case. The Tribunal is satisfied that his requests for adjournments are not for medical reasons. The Tribunal can only speculate as to his real reasons for not attending the hearing. (CB 67)
This finding did not impinge upon the Tribunal’s consideration of the principal issue, namely the application for a protection visa. On that issue the Tribunal simply found that there was insufficient evidence before it which could lead it to the level of satisfaction necessary to arrive to a conclusion different from that of the delegate: SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 per Allsop J at [12].
As a result, this ground is not made out.
The Tribunal denied the applicant natural justice by its reliance on the communications with Dr Renganathan
The applicant has not particularised in what way he says he has not been given natural justice. To this extent, and for the reasons already expressed, the Act sets out the scope of the natural justice hearing rule in relation to the Tribunal’s proceedings. This ground does not add anything to the second ground of appeal referred to above and for the reasons discussed in relation to that ground, this ground is also not made out.
The Tribunal failed to afford the applicant procedural fairness by not granting a postponement of the hearing due to the applicant’s illness
This ground also adds nothing to the second ground of appeal discussed above and, for the same reasons, is not made out.
The Tribunal failed to afford the applicant procedural fairness by not granting an adjournment in order that the applicant could obtain documents to submit to the Tribunal and support the claim
This ground refers to the letter dated 6 October 2005 sent by the applicant to the Tribunal and which is reproduced at CB 43. In that letter the applicant says amongst other things:
… at present I am unable to get the relevant documents in support of my claims due to the pre-election violence and unrest that prevail in Sri Lanka and the general election was scheduled to be held in November 2005. Therefore I am compelled to request for a postponement of the hearing to early next year so that I would be able to submit the necessary documents in support of my claims. (CB 43)
The applicant did not specify what material he sought to obtain from Sri Lanka nor why such material would be relevant to his application to the Tribunal. He did not provide any evidence to this Court as to what such material might have been. Although, as already noted, refusal of an adjournment can amount to a denial of procedural fairness, whether or not to grant an adjournment of proceedings is a matter which is ordinarily within the discretion of the Tribunal: NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [36]. In this case, the applicant’s claim that procedural fairness was denied him because he was not allowed time to gather additional evidence is no more than assertion based on an unproven assumption that the documents he referred to in his letter of 6 October 2005 would have been relevant and helpful to his application. In the absence of evidence that substantiates his claim, this ground must fail.
The Tribunal erred in finding “that the applicant has not suffered any Convention related harm nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future”
The Tribunal did not make a finding of the nature asserted by the applicant. The Tribunal did say that it was not satisfied that there was a real chance of such harm occurring to the applicant in the reasonably foreseeable future; but this was no more than the Tribunal stating that the evidence before it did not permit it to make a finding of that nature because that evidence was insufficient for the Tribunal to reach the necessary degree of satisfaction where it could make such a finding.
Therefore this claim fails at the factual threshold, quite apart from the fact that it impermissibly invites the Court to review the Tribunal’s fact finding.
The Tribunal erred in finding “that there is no evidence of any or any significant discrimination against the applicant”
Again, this ground misconceives the Tribunal’s decision. No finding of this nature was made and thus this ground must fail.
The Tribunal erred in finding “that the applicant does not have a well-founded fear of persecution for a Convention related reason”
Again, no finding to this effect was made by the Tribunal. Rather, it stated that it was not satisfied that the applicant had a well-founded fear of persecution for Convention-related reasons. Consequently this ground fails.
The Tribunal exceeded its jurisdiction in making its decision to affirm the delegate’s decision
The applicant does not identify in what way the Tribunal’s jurisdiction was exceeded. This ground is unparticularised. But as the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations, the combined effect of ss.65 and 36 of the Act required that the delegate’s decision be affirmed. In doing so, the Tribunal acted within jurisdiction with the result that this ground is not made out.
The Tribunal constructively failed to exercise its jurisdiction in arriving at its decision
The applicant has not identified what duty the Tribunal has not discharged. In circumstances where the Tribunal’s decision appears, on its face, to record a review conducted in accordance with Division 4 of the Act, and in the absence of contradictory evidence, there is no basis upon which I can conclude that the Tribunal constructively failed to exercise its jurisdiction. As a result, this ground is not made out.
The Tribunal erred in failing to appreciate that “imputed political opinion” is an essential element in considering the fear of serious harm amounting to persecution of the applicant
This ground is not particularised nor was it addressed in the submissions. It appears to suggest that the Tribunal’s decision involved it concluding that although the applicant might have been persecuted in Sri Lanka, such persecution was for reasons other than the Convention reason of political opinion. The difficulty for the applicant on this point is that the Tribunal was not satisfied that the applicant had suffered or would suffer any of the harm claimed by him. (CB 68).
As the Tribunal said:
In essence, the applicant made a series of vague and general claims lacking in details. (CB 67.4)
The applicant failed to demonstrate that he was persecuted, let alone persecuted for any particular reason such as his political views. Thus even if the Tribunal had failed to appreciate that imputed political views could amount to a Convention reason the fact that it was not satisfied that persecution had occurred or would occur means that this claim fails.
The Tribunal failed to perform the duty imposed by s.425 of the Migration Act to decide the applicant’s case and the material put to it and by conducting an appropriate enquiry thereon
For the reasons set out in paragraphs 19-28 above, this ground also fails.
Conclusion
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
Consequently, the application will be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Parisra Thongsiri
Date: 13 February 2007
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