SZIAU v Minister for Immigration
[2006] FMCA 797
•22 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 797 |
| 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, 425, 426, 476 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration & Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259 Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 NAXV v Minister for Immigration [2004] FCA 346 SZAKV v Minister for Immigration [2004] FMCA 222 SZAKV v Minister for Immigration [2004] FCA 1160 SZCIA v Minister for Immigration [2006] FCA 238 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEZI v Minister for Immigration [2005] FCA 1195 WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276 |
| Applicant: | SZIAU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG36 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of an Urdu interpreter |
| Advocate for the Respondents: | Ms F Kerr |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The first respondent’s application to show cause is upheld.
The application filed on 3 January 2006 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 |
SYG36 of 2006
| SZIAU |
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 3 January 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 28 November 2005 and handed down on 15 December 2005, affirming a decision of the delegate of the first respondent made on 3 September 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 Tribunal member Kim Rosser, reference N05/52320. 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 applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIAU”.
Background
The Tribunal decision contains the following background information. The applicant claims either to be a citizen of Pakistan, or is stateless and a former resident of Pakistan. He arrived in Australia on 27 July 2005. On 18 August 2005, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 3 September 2005, a delegate of the Minister refused to grant a protection visa and on 21 September 2005, the applicant applied to the Tribunal for review of that decision.(Court Book (“CB”) 59)
Applicant’s claim
The applicant’s claims are set out in the written submissions prepared by Ms Kerr on behalf of the first respondent:
5.2The Applicant claimed in his “statement of claim” filed with his protection visa application (CB 26-27) that:
(a)as a student he was affiliated with the Peoples Student Federation;
(b)he later became a full member of the Pakistan Peoples Party (PPP);
(c)in 1998 he was elected president of People Youth Wing of gharibpura;
(d)he actively took part in all elections held in Pakistan;
(e)he was an important member of the PPP and a strong supporter;
(f)in 2002 he started his own hotel business at the same time he was working for his party;
(g)he was interrogated by Army authorities in Pakistan during Military rule in 1999;
(h)when the president of Pakistan dismissed the PPP government he participated in demonstrations against this action by the government as well as other demonstrations against the government;
(i)after the PML (Nawaz Group) won the general election the applicant became a target because the PPP was the opposition party to the PML;
(j)the applicant was specifically targeted because the Interior Minister of Pakistan was from his electoral area and knew him from the times when he started his political activities;
(k)the PML and PPP parties have now united against the Military dictatorship in Pakistan;
(l)the present Civilian regime in the province of Punjab started to involve the applicant in “false cases” and he was arrested by the police many times and kept in illegal confinement;
(m)the applicant tired to seek help from the police but because the Interior Minister of the province was from the PML and was against the applicant because of the time when the PPP and PML were in opposition to each other, he could not get help from the police. Attempts to go to Court to get help failed because the applicant lacked evidence;
(n)in May 2005 the applicant was arrested by the police and imprisoned for 2 days;
(o)the applicant “again took out procession against the present regime” but was kidnapped, had his shoulder dislocated and “also received the bullet shot by the hands of the workers of the present ruling party”;
(p)to save his life the applicant went to Muscat and then returned to his country to see if the situation had changed;
(q)the applicant was again mistreated by workers of the ruling party and received “the shots and his shoulder was dislocated as a result of being tortured for no reason off mine”;
(r)the applicant’s hotel/restaurant was closed because the police used to raid it and this forced customers away; and
(s)the applicant had no alternative but to escape to save his life.
Application for review of the Tribunal’s decision
The applicant filed an application on 3 January 2006 under s.39B of the Judiciary Act setting out the following three grounds:
1.That the RRT did not gave the applicant a fiar chance of hearing. The RRT failed to appreciate the evidence and the claim of the applicant.
2.That the RRT did not took in to consideration the amount of the persecution to which the applicant has to face and the threat of life and liberty of the applicant is in danger.
3.That the applicant’s claims self-explanatory as the interior minister is after the applicant. The RRT has erred in law and facts, the procedural unfairness was committed by the member of the RRT. (copied without alteration or correction)
The applicant attended first directions on 14 February 2006, and was granted leave to file an amended application. The amended application was filed on 13 April 2006 and contained the following three new grounds:
1.That the applicant was an active member of Pakistan Peoples Party working for the party from very beginning while he was a student. The interior minister of the previous regime who was than in the Pakistan Muslim League Nawaz Group was very personal against the applicant, after the army coup he her joined the ruling party namely PML (Q) group. As the applicant was working for the restoration of the democracy, the said minister who is in the power, the applicant was tortured and was open to persecution. The applicant was arrested many a times, and was bashed by the police under the instructions of the authorities. The applicant joined the above party while he was a student, the applicant use to take out the processions against the present regime working under the army authorities.
2.That the applicant being an active member of the party took part in the general elections in Pakistan. The applicant was known for his activities in the politics, the applicant use to take part in the demonstrations which were made against the present regime. The applicant was the president of the youth wing of the party within his own area, this shows the importance of the applicant. The applicant was open to persecution even before when the PML Nawaz group was in power and Pakistan Peoples Party Sialkot dated 15/01/2006. The president of the party was in the jail previously when the applicant requested before, the President of the Sialkot district party mentioned this in his letter, the applicant is attaching this letter with the amended application. This letter which is enclosed with this amended application bears the signature of the president duly dated 15/01/2006. The applicant was arrested many a times, the applicant was bashed by the hands of the police, the applicant was also many a times bashed by the workers of the opposition. The applicant was running a small hotel which was attacked many a times by the opposition, the ruling party. They have the full support of the ruling party as such the applicant was not given any type of remedy by the authorities despite the fact that the applicant many a times requested the authorities to give him the protection.
3.The Refugee Review Tribunal gave the verdict that the case of the applicant does not falls within the refugee law, it is submitted that in the refugee law and in the general laws of the refugee any person who can not be given protection in any way can be given the protection. The applicants family was under the constant harassments of the authorities concerned. The RRT did not took in to consideration the fact that the applicant was an active member of the political party, and is a person of importance as far as the acts of violence against the applicant are concerned. In the month of May 2005 the applicant was again arrested by the police, the applicant was kept in the lock up, the applicant was released after three days, the applicant took out the procession against the ruling party, The applicant was kidnapped by the workers of the ruling party, the applicant tried his beset to get the remedy, but the applicant could not get the remedy. The applicant left for Muscat to save his life for sometimes, the applicant came back to his country to see the situation, the applicant was again put to persecution, the applicant was again harassed by the hands of the opposite party, again the state protection was not available to the applicant, despite the request made to them. The applicants hotel was closedown as the opposite workers of the ruling party use to always attack on the said business place of the applicant. The case of the applicant falls well within the definition that any person who can not be given the protection can be given the protection. The applicant is not an criminal as such the applicants case was not considered by the RRT.
The Tribunal did not make findings in relations to these claims, specifically whether the events might occur again and whether the applicant had a well founded fear of persecution on this basis. In these circumstances, the tribunal decision involved jurisdictional error. (copied without alteration or correction)
Reasons
The applicant is a self-represented litigant and appeared with the assistance of an Urdu interpreter. At first directions, the applicant expressed his desire to participate in the Court’s Legal Advice Scheme. The applicant attended a conference with the allocated adviser and received advice. As acknowledged above, the applicant filed an amended application on 13 April 2006. At first directions, the applicant was also ordered to file submissions seven days prior to the hearing. This has not been complied with.
On 19 October 2005, the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. The Tribunal extended an invitation to the applicant to attend a hearing on 24 November 2005 at which time he would be able to give oral evidence and present arguments in support of his claim. This invitation was extended to include any witnesses that the applicant wished to bring to give evidence in support of his application. He was also invited to submit any further documents or written arguments to the Tribunal by 11 November 2005. On 23 November 2005, the Tribunal received a response from the applicant indicating that he did not wish to attend the hearing. He also consented to the Tribunal making a decision on the review without taking any further action to allow or enable him to appear before it. That document was signed and dated by the applicant on 21 November 2005. Consequently, the Tribunal did proceed to make its decision pursuant to s.426 of the Act.
The first respondent submits that the applicant cannot say that he was denied the opportunity to a fair hearing in circumstances where he elected in writing not to attend the Tribunal hearing and asked for a decision to be made “on the papers”. The applicant was put on notice that the Tribunal could not make a favourable decision on the material before it and in accordance with s.425 of the Act, invited him to a hearing. The applicant initially accepted the hearing invitation but later withdrew his acceptance. There can be no error on the Tribunal’s part in circumstances where the applicant declined the hearing invitation, consented to the Tribunal making a decision on the papers alone and the Tribunal then finding that the applicant had provided insufficient material to establish his claims to the satisfaction of the Tribunal: NAXV v Minister for Immigration [2004] FCA 346; SZAKV v Minister for Immigration [2004] FMCA 222 (affirmed on appeal, SZAKV v Minister for Immigration [2004] FCA 1160); Minister for Immigration v VSAF of 2003 [2005] FCAFC 73. The applicant must satisfy the Tribunal that the statutory elements for the grant of a visa have been established: Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559.
The Tribunal had considered all of the evidence before it in reaching its decision. This was limited to material in the Department file, which included the protection visa application and the delegate’s decision record.(CB 61) There was nothing else attached to his application to the Tribunal. The member indicated that it was a lack of evidence before the Tribunal that led it to affirm the delegate’s decision. The member made the following statement at CB 63-64:
Overall, there is insufficient detail in the protection visa application to allow me to make findings of fact. As I am unable to make findings of fact in relation to the applicant’s claims, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
The Tribunal set out the applicant’s claims that it considered for the purpose of its review.(CB 62-63) These claims accord with those contained in the applicant’s statement of claim attached to his visa application. The applicant has not made any further claims in his application for review to the Tribunal.
The grounds for review described at [7] above seek impermissible merits review of the Tribunal’s decision. Clearly a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision. This is not a hearing de novo. This Court does not make an assessment of the evidence or the applicant’s credibility.
Ms Kerr submits that the Tribunal simply concluded that there was insufficient evidence before it to allow factual findings to be made in respect of the applicant’s claim. The Tribunal did not err in law in drawing this conclusion: WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276 at [26]-[29]; SZEEU v Minister for Immigration [2006] FCAFC 2 per Allsop J at [207].
Ms Kerr also submits that the Tribunal did not rely upon any information in affirming the decision under review that may engage s.424A of the Act. In SZEEU v Minister for Immigration, it was established 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 the present case, the applicant may argue that the only information that was before the Tribunal was that provided in his protection visa application. His Tribunal application contained no purporting information and made no reference to the original visa application. If there was a direct reference in the Tribunal application referring to the visa application, that would draw that material into the Tribunal application. There was no information provided the applicant for the purposes of the Tribunal application and the exceptions contained in s.424A(3)(b) do not apply to the Tribunal’s obligations pursuant to s.424A(1). However, the circumstances of this application fall outside of that requirement on the basis of the following reasons.
In SZEZI v Minister for Immigration [2005] FCA 1195 at [8] (“SZEZI”), Allsop J found that that applicant did not attend the Tribunal hearing and therefore recorded the relevant reasons for the Tribunal decision. His Honour proceeded with the following conclusion 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.
Similarly, in SZCIA v Minister for Immigration [2006] FCA 238, the applicant did not attend the hearing and Allsop J emphasised the need to make an evaluation of the Tribunal’s reasons. In the present proceedings, the Tribunal under the heading ‘Findings and Reasons’, did no more than the Tribunal did in SZEZI. It referred to background information about the applicant, taken from his protection visa application, but stated that there were insufficient details in the application to allow it to make a finding of fact in relation to the applicant’s claims. As in SZEZI, there was no reason or part of the reasons for its decision based on the material from the visa application. The reasoning of Allsop J in SZEZI and SZCIA v Minister for Immigration applies to the present case. The Tribunal did not make a positive finding of fact about the position of the applicant. Rather, it rejected his claims because of his inability to satisfy the Tribunal, on the lack of information before it, that it owed him an obligation under the Refugees Convention.
Conclusion
The applicant in these proceedings is a self-represented litigant and appears with the assistance of an Urdu interpreter. In his application, he applied 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. 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). Ms Kerr, appearing for the respondents, assisted the Court with submissions addressing all of the issues raised in the applicant’s application.
As the applicant is self-represented, it places an obligation on this 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. To satisfy this obligation, I have read all of the material in the Court Book and reconsidered the Tribunal decision. I am satisfied that none of the grounds identified in either the applicant’s original application or his amended application can be sustained. 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. I am satisfied that the applicant has been given an opportunity to avail himself of independent legal advice under the Court’s sponsored scheme and that he has received that advice. The applicant was granted leave to file an amended application and he has taken advantage of this opportunity, although the amended application is substantially a restatement of the factual background surrounding the applicant’s claim. I do not believe that setting down this matter for final hearing sometime in the future is going to change the approach or the content of the applicant’s application. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order 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: 21 June 2006
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