SZIDZ v Minister for Immigration - [2006] FMCA 1290

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIDZ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1290

MIGRATION – Refugee Review Tribunal – Protection visa – whether jurisdictional error – failure to attend hearing due to illness – no attempt to advise Tribunal – whether failure to comply with s.425 of Migration Act.

Migration Act 1958, s.425

Applicant:

SZIDZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG213 of 2006

Judgment of:

McInnis FM

Hearing date:

24 August 2006

Delivered at:

Sydney

Delivered on:

24 August 2006

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms P Sibstain

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5.000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 213 of 2006

SZIDZ

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOTHER

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 5 December 2005. The Applicant is self-represented and I make due allowance for the fact that he is not a lawyer and seeks to rely on material which he has clearly prepared on his own behalf. That material relevantly includes what he seeks to rely upon as an amended application filed 17 May 2006 and in the absence of any objection although it appears the amended application was not served upon the First Respondent the court is prepared to permit the Applicant to rely upon that amended application and leave is granted accordingly.
The Applicant has otherwise sought to rely upon written submissions filed 11 August 2006. The background to this application has been accurately set out in the First Respondent’s Outline of Submissions filed 16 August 2006 where it is noted that the Applicant claims to be an Islamic Punjabi citizen of Pakistan who is a computer professional by occupation. Indeed, he has told this court he has a Master in Computer Science in Pakistan.
He came to Australia on 12 July 2005 having departed lawfully on 11 July 2006 and entering this country on a visitor’s visa which had been issued in Islamabad on 9 May 2005. He had a passport issued in his own name on 13 October 2004. The Applicant relied upon material annexed to his application for a protection visa which appears to have been summarised, again accurately, in the First Respondent’s submissions.
It is perhaps relevant to note at this point before dealing with the summary of the Applicant’s claim that the Applicant despite receiving an invitation to do so did not attend the Tribunal hearing which had been scheduled for 5 December 2005. The summary of the Applicant’s claim attached to his statement include those matters set out in the First Respondent’s Outline of Submissions. They include:
·Whilst in Year 10 he formed Liberal Student Union of Friends with the same thoughts against the Islamic Fundamentalists (who promoted hatred amongst students and wanted to dominate them).
·The primary object of the Student Union was to resist against the religious fundamentalists.
·He formed the Student Union with a friend. He visited many universities and colleges throughout Pakistan to warn students against fundamentalists who were using students to join the hardliners (through the Mullahs).
·There are groups of fundamentalists (eg. Jamait Islami) in every educational institution who had support from religious fundamentalists. F
·Fundamentalists obtained power and strength during the Cold War.
·He was threatened and bashed on a number of occasions by fundamentalists and Mullahs, including on 25 and 30 May 2005.
·He reported it to police but they were powerless to do anything.
·The Applicant went into hiding.
·The Applicant was shot at on 1 June 2005. The Applicant reported the culprits, but no arrests were made.
·The Applicant’s family advised him to leave the country.
·The Applicant had a real chance of being killed by the Mullahs and the fundamentalists and their followers.
·The authorities in Pakistan failed to give protection despite his best efforts to get protection.
·The Applicant could have applied to come to Australia as a skilled migrant and had no time to do so.
It is noted that on 26 September 2005 a delegate of the First Respondent refused the application. On 14 October 2005 the Applicant made application to the Tribunal for review of the delegate’s decision. It is sufficient to note that the delegate had rejected the essential claims made by the Applicant.
It is relevant to note that by letter dated 1 November 2005 (Court Book page 53) the Tribunal invited the Applicant to attend a hearing. The hearing details set out in that letter which I note appears to be what might be described as a standard form letter inviting the Applicant to attend the hearing reveals that the hearing was scheduled for Monday

5 December 2005 at 9 am. It advises the Applicant to arrive at least 15 minutes before the start of the hearing. Under the heading ‘Important Information About Your Hearing’ the letter provides the following:
“The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing we can make a decision on your case without further notice.”
The same letter also enclosed what is described as ‘Response to Hearing Invitation Form’. The letter refers to that form and states, relevantly, the following:
“Please read and complete the enclosed form carefully and tell us if you are coming to the hearing or not coming to the hearing, complete the witnesses part of the form if you want the Tribunal to get oral evidence from another person. Please note the Tribunal does not have to get evidence from any person you name. Send us any new documents or written arguments you want the Tribunal to consider. Please note that any documents or arguments you send should be in English or translated by a qualified translator. Answer all the other questions on the form and return the completed form and any new documents or written arguments by 17 November 2005.”
It is not disputed in the present case that the Applicant received that letter together with the attachments nor is it disputed that no reply was forwarded by the Applicant to the Tribunal. For reasons which will become apparent it is, however, relevant to note that before this court the Applicant has asserted from the Bar table that on the day of the hearing he was not well enough to attend and therefore did not attend the hearing of the Tribunal which was scheduled to occur on

5 December 2005.
In the amended application the Applicant has effectively set out what might be described as an attempt to re-state the facts and circumstances and has clearly indicated dissatisfaction with the decision of the Tribunal. The Tribunal in its decision, relevantly and significantly, had concluded the Applicant was not entitled to a protection visa. It did so after reciting the chronology of events concerning the invitation to which I have already referred but there noted that no documentary proof of matters which one would expect were provided nor was an explanation as to why, despite the fact the Applicant feared for his life, he continued to live at his normal home address.
The Tribunal also noted that the Applicant had not explained why he remained at that address for over two months after his visa was issued rather than leaving without delay. It concluded that that was inconsistent with the claim to have had a fear of serious harm. It is perhaps significant to note that in the decision of the Tribunal the member states the following:
“For these reasons I am unable to establish the relevant facts.”
The Tribunal ultimately concluded it was not satisfied on the evidence that the Applicant had a well-founded fear of persecution. Clearly part of the problem in the Tribunal not being able to establish the relevant facts was the non-attendance of the Applicant at the scheduled Tribunal hearing.
In the amended application it is clear, as I have indicated, that the Applicant re-asserts some of the facts which he would have liked to have placed before the Tribunal. He has in fact reiterated before this court that if given the opportunity to do so he would be able to arrange for further detailed material to be provided either by email or otherwise and translated so that it could be provided to a Tribunal. I take him to also indicate, albeit from the Bar table, that if given the opportunity he would be able to present further material by way of his own oral evidence to the Tribunal and otherwise explain his background including such key issues as to why he remained at the address for over two months after his visa was issued rather than leaving without delay. He has indicated that that is one of the matters which he may be able to explain if given the opportunity to do so.
He further relies in his amended application upon what he describes as a definition that any person who cannot be given a protection can be given protection which I take to mean that in this instance an assumption has been made that where protection is not available to a person seeking refugee status that that may of itself be sufficient to provide a basis upon which a protection visa should be granted. It is clear as a matter of law, however, that that cannot be the case in circumstances whereas in this instance the Tribunal has reached the decision that the Applicant is not a person whom the Tribunal is satisfied has a well-founded fear of persecution.
In any event, what transpired at the hearing in this matter is that the Applicant has essentially sought to explain his non-appearance before the Tribunal and by inference has sought, as I understand it, to argue that, in a sense, the Tribunal has by its conduct failed to discharge the obligations it has pursuant to s.425 of the Migration Act 1958 (the Migration Act).
The chronology of events, in my view, reveals that the Tribunal has in fact discharged the obligations pursuant to s.425 of the Migration Act. It has issued the appropriate invitation. I am satisfied the invitation can properly be described as one which is indeed a real and meaningful invitation to attend the hearing. I otherwise accept the submissions made by the First Respondent that whilst the obligation upon the Tribunal under s.425 requires no more than a genuine, real and meaningful and continuing invitation to attend the hearing that in this instance there is no evidence before the court that the Applicant was precluded from taking part in a meaningful way at the hearing.
At best, the Applicant from the Bar table has asserted that he was ill on the day of the hearing and was unable to attend. He has not provided evidence to support that assertion and nor has he sought to provide any evidence to explain why he did not reply to the letter inviting him to attend the hearing, that is the letter dated 1 November 2005.
I have not required the Applicant to give evidence concerning his illness because even if I were to accept for present purposes that on

5 December 2005 the Applicant was unable to attend the hearing due to illness that does not of itself in my view provide any really proper basis upon which the court can conclude that the Tribunal has failed to discharge its obligations pursuant to s.425 of the Migration Act.
In my view the absence of any contact being made by the Applicant with the Tribunal to at least alert the Tribunal to his non-attendance either on the day of or shortly after the scheduled day of the hearing combined with his failure to respond to the letter in itself is sufficient for this court to note that in the circumstances it is difficult to conclude that the Tribunal itself has failed to discharge its obligations pursuant to s.425 of the Migration Act.
I cannot see how the Tribunal could have done anything more than forward the appropriate letter and give the appropriate notice including, of course, providing to the Applicant the enclosures which are referred as ‘Response to the Hearing Invitation Form’ and the brochure entitled ‘What is a Hearing’ together with the multilingual advice.
Hence, in this case I am satisfied that there has been no failure on the part of the Tribunal to discharge its obligations to invite the Applicant to a hearing and I am satisfied the invitation was indeed what could properly be described as a genuine, real and meaningful invitation.
The Applicant otherwise in my view seeks to essentially provide further material in support of his application or to produce material before this court which would seek, impermissibly, to encourage this court to undertake merit review. It seems clear to me that in this case the Tribunal had no further obligation to otherwise explore the claims which were before it by the Applicant in circumstances where the Applicant had failed to attend the hearing. It has considered the material then before it and has done so in a manner which, in my view, is free of jurisdictional error.
On a proper analysis of the material before me I can see no basis upon which the court should interfere with the Tribunal’s decision and I cannot see any reasonable grounds upon which the court could conclude in this instance that there has indeed been jurisdictional error. It follows for the reasons given that the application as amended should be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 24 August 2006