SZIFI v Minister for Immigration
[2006] FMCA 1263
•21 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1263 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – where applicant did not attend hearing and response to hearing invitation form apparently received by Tribunal after date of decision. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426, 426A |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 7 NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1857 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 SZFHM v Minister for Immigration & Multicultural Affairs [2006] FMCA 321 SZFTC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1148 SZFTC vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1744 |
| Applicant: | SZIFI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG283 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 21 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Nil |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG283 of 2006
| SZIFI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 19 December 2005 and handed down on 10 January 2006. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, who claimed to be a citizen of Pakistan, arrived in Australia in September 2005 and applied for a protection visa.
In his protection visa application the applicant claimed to fear harm in Pakistan, in particular from the Pakistan Peoples’ Party (PPP) because he was a member of the Pakistan Muslim League, Nawas Group (PML). He claimed that he suffered because of tension between the PPP and the PML and that he participated in a movement for democracy against the PPP military dictatorship, distributing flyers and literature against the corruption of the generals controlling the country. He claimed that he was targeted because he knew people who been blackmailed by the army into joining the regime, that he was harassed many times at the hands of the army and workers of the opposing political party who had collaborated with the army authorities.
He claimed that he had been taken to the police station, beaten by the police on the instigation of the authorities and warned that false charges would be filed against him if he continued to demonstrate against the regime.
The application was refused by a delegate of the respondent.
On 16 November 2005 the applicant sought review by the Tribunal.
In his application for review he provided his residential address as the address to which he wanted correspondence sent. He did not nominate an adviser or authorised recipient.
On 23 November 2005 the Tribunal wrote to the applicant at the nominated address advising him that it was unable to make a favourable decision on the information before it and inviting him to attend a hearing on 19 December 2005. The letter advised that if the applicant did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.
The Tribunal reasons for decisions and a document headed “RRT hearing record” indicate that the applicant did not attend the hearing scheduled on 19 December 2005. Also contained in the court book is a response to hearing invitation which is signed and dated 12 December 2005 stamped received by the Tribunal on 20 December 2005 (that is the day after the hearing was scheduled).
In that response to hearing invitation the response “No” is ticked beside the question, “Do you want to come to a hearing?” Thereafter the words appear, “I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.”
The Tribunal made its decision on 19 December 2005. It was handed down on 10 January 2006. In describing the background to the application and the claims and evidence before it, the Tribunal correctly described the applicant as claiming to be a citizen of Pakistan and summarised his claims to fear persecution in the manner contended for in the protection visa application, including his claim to fear that if he returned to Pakistan he would be killed. The Tribunal noted that the applicant had provided no further claims after his application for review.
In its findings and reasons the Tribunal commenced by stating that the applicant had claimed, and the Tribunal accepted, that the applicant was a national of Indonesia. However it went on to canvas the applicant’s claims to be from Pakistan, to have joined the PML and to fear that if he returned to Pakistan he would be killed. The Tribunal recorded that it had written to the applicant on 23 November 2005 advising that it was unable to make a favourable decision on the information before it, that it invited him to give oral evidence and present arguments at a hearing on 19 December 2005. It stated that the letter had not been returned to the Tribunal. It noted that the applicant did not appear before the Tribunal on the day and at the time and place scheduled and stated that in those circumstances, pursuant to s.426A of the Migration Act 1958, it decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal found that as the applicant did not attend a hearing his claims could not be tested by it and that it had only the information contained in the written material before it. It summarised the applicant’s claims but noted there was nothing to support these claims other than the applicant’s unsubstantiated assertions. It found that there were insufficient particulars provided by the applicant to enable it to be satisfied that these events had occurred. Given that the applicant’s credibility could not be tested because he did not attend the hearing the Tribunal found that it was unable to be satisfied that the applicant was in danger of being involved in false cases, declared a terrorist and killed at the hands of the authorities.
Hence it was not satisfied on the evidence before it that the applicant faced a real chance of persecution. The Tribunal referred to whether there was a real chance of persecution should the applicant return to the “PRC”, which again is a factual mistake as no such claims was made. However, while it stated that it was not satisfied on the evidence before it that the applicant faced a real chance of persecution should he return to the “PRC” now or in the foreseeable future, it went on to find generally that it was unable to be satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal decision by application filed in this Court on 27 January 2006. He filed an amended application on 10 May 2006. He did not file written submissions and in the hearing today he sought to take issue with the merits of the Tribunal decision, stating that his claims were true and that he wished to have an opportunity to obtain further documents to establish his claim to be a refugee. However, as I explained to the applicant, it is not for the Court to determine whether he is a refugee, but only whether the Tribunal made a jurisdictional error.
The first ground in the amended application repeats the applicant’s claims to fear persecution based on his activities as a worker, frontline leader and participator in the activities of his political party in Pakistan. Such claims seek merits review and do not establish a ground for review of the Tribunal decision.
Ground 2 contends that the element of well‑founded fear was not taken into consideration by the Tribunal and that the Tribunal did not take into consideration the real meaning of the fear and harassment by the authorities that the applicant had undergone. It was claimed that the applicant’s case was not given any weight and that the Tribunal had relied on country information from the same country from which the applicant escaped to save his life. It was contended that certain acts of state violence had been admitted by the delegate of the respondent, but that despite this the reason for the applicant’s persecution and harassment was ignored by the respondents.
However there is nothing to suggest that the Tribunal relied in any way on country information. The finding that it made was that it was not able to be satisfied that the events complained of by the applicant had occurred given the limited particulars and the unsubstantiated assertions. On that basis the Tribunal was unable to be satisfied that the applicant was at risk of being involved in false cases, declared a terrorist or killed as he had claimed, or that he had a well-founded fear of persecution for a Convention reason. It is not apparent from the claims set out in the protection visa application (which is the only place in which the applicant made such claims) that the Tribunal failed to properly consider the applicant’s claims in the manner contended for by him. Insofar as he seeks merits review, merits review is not available in this Court.
There is one issue that might be said to be raised by this ground that needs to be addressed. That is the fact that at the commencement of its findings and reasons the Tribunal found that the applicant was a national of “Indonesia” and later in its reasons for decision it found that it was not satisfied on the evidence before it that the applicant faced a real chance of persecution should he return to the “PRC” now or in the foreseeable future. There is absolutely nothing in the material in the protection visa application, the decision of the delegate or the application for review to suggest that the applicant made any claim to be associated in any way with either Indonesia or the PRC, which I take to be a reference to the Peoples’ Republic of China. Such sloppy references may well be a typographical error or the result of a use of a precedent. The issue is whether they amount to a jurisdictional error.
It is clear from the Tribunal reasons for decision and its summary of the background and the claims made by the applicant that, despite the incorrect references to Indonesia and the PRC, the Tribunal understood and correctly recorded that the applicant claimed to be a citizen of Pakistan, that he was a married Punjabi man born in Pakistan where his family resided, that he left Pakistan legally, that he joined the Pakistani political party, that there was an issue involving another Pakistani party, that he claimed Pakistan was under a military dictatorship and that his party leaders in the named area of Pakistan from which he came had formed a movement for the restoration of democracy.
He claimed to be the most senior worker in the party in that place in Pakistan. The Tribunal also set out the applicant’s claim to fear that if he returned to Pakistan he would be killed. Importantly, in assessing the substance of the applicant’s claims in the findings and reasons part of its decision, the Tribunal correctly addressed his claims relating to his joining the Pakistan Muslim League Nawas Group, his claims about a movement for the restoration of democracy in his home area of Pakistan, the details of his claims and that he claimed that if he returned to Pakistan he would be killed. It was not satisfied as the residence before it that the applicant had a well-founded fear of persecution for a Convention reason.
In these circumstances, while the Tribunal has clearly made a factual error in referring to Indonesia and PRC in its reasons for decision, I consider that such factual error is not such as to amount to a jurisdictional error, that the Tribunal has understood the applicant’s claims and assessed those claims despite the unfortunate reference to the wrong country on two occasions. The written submissions for the respondent cited authority to suggest that in circumstances where the Tribunal accurately recorded the applicant’s claims and referred to his correct (Pakistani) nationality on numerous occasions, such a typing error or computer error was clearly irrelevant. (See SZFHM v Minister for Immigration & Multicultural Affairs [2006] FMCA 321).
While such error does not establish jurisdictional error, it is clearly a matter of concern, particularly where it has occurred on more than one occasion in the same decision. However, reading the Tribunal decision fairly and as a whole and with an eye not too finely attuned to error (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) it is not apparent that the Tribunal failed to understand or consider the applicant’s claims or otherwise erred in a manner constituting jurisdictional error.
The third ground relied on in the amended application contends in essence that the Tribunal failed to consider the applicant’s claims. However, as indicated, the Tribunal considered the applicant’s claims but could not be satisfied about them on the material before it. There is considerable authority to establish that no jurisdictional error is apparent because the facts put forward by an applicant do not cause a Tribunal to be satisfied as to the applicable criteria, and that in circumstances where an applicant has been put on notice, as he was here by the letter of 23 November 2005 (as well as by the decision of the delegate) as to the inadequacy of the information provided and the fact that the Tribunal was unable to make a favourable decision on that information alone, the affirmation of the decision not to grant him a protection visa is an inevitable consequence of his failure to attend a Tribunal hearing. See Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215; and SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457.
There are two other issues that were addressed by the respondent in written submissions. First an issue was raised as to whether any error was apparent from the manner in which the Tribunal proceeded to its decision in the circumstances where the applicant failed to attend the Tribunal hearing, and where he completed and returned a response to a hearing invitation. The respondent’s written submissions addressed whether any error arose from the Tribunal acting pursuant to s.426A of the Migration Act 1958 (Cth) rather than pursuant to sub-ss.425(2)(b) and 425(3).
Section 426A of the Act provides that if the applicant is invited under s.425 to appear before the Tribunal and does not appear on the day, time and place specified, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Section 425(1) obliges the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues. Subsection (1) does not apply if the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it, or if the applicant consents to the Tribunal deciding the review without the applicant appearing before it (s.425(2)(b)) or if the applicant has been invited to give additional information or comment and information and has not responded to such invitation. In such circumstances the applicant is not entitled to appear before the Tribunal (s.425(3)).
The respondent’s submissions were put on the basis that the applicant had given his consent to the Tribunal to make a decision on the review without taking further action to allow him to appear before it by virtue of the response to hearing invitation, which appears to be signed and dated 12 December 2005. However that document is stamped by the Tribunal received 20 December 2005, the day after the scheduled hearing and the day after the decision was signed, and indeed the day after the Tribunal wrote to the applicant advising him that the Tribunal had made its decision and the decision would be handed down on 10 January 2006.
No issue arises of any conflict between the operation of the provisions in ss.425 and 426A. The Tribunal wrote to the applicant inviting him to a hearing on 19 December 2005. This correspondence complied with section 425A of the Act and there is nothing in the material before the Court to suggest that there was any lack of compliance with s.426(1) or 441A(4). There is nothing to suggest that the letter of
23 November 2005 was returned to the Tribunal. There was no reason for the Tribunal to address the receipt of the response to hearing invitation in all the circumstances. The Tribunal did not make its decision until after the time scheduled for the hearing. No issue arises as to the operation of ss.425(2) or (3). The return of the response to hearing invitation merely put it beyond doubt that the applicant was not entitled to appear before the Tribunal (s.425A(3)).
It was open to the Tribunal, when the applicant did not appear at the scheduled hearing, to proceed to make a decision under s.426A of the Act. The response to hearing invitation was not received by the Tribunal until after the time for the hearing. Even if that were not the case, the fact that the Tribunal did not make a decision prior to the appointed time for hearing but allowed that time to pass, then made a decision would not establish any jurisdictional error. See SZFTC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1148, upheld on appeal in SZFTC vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1744. In NBHP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1857, it was suggested by Jacobson J that there was no inconsistency between the effect of s.425(2)(b) and s.426A. It was open to the Tribunal, in any event, to reach the same conclusion pursuant to s.425(2)(b) or merely by reference to s.426A.
The basis for the Tribunal decision was the applicant’s failure to attend the Tribunal hearing and the lack of detail in his claims which prevented the Tribunal from obtaining the requisite level of satisfaction as to the central criterion for the grant of a protection visa. It not being so satisfied, its obligation was to refuse to grant the visa under s.65 of the Act.
The fact that this was the basis for the Tribunal decision also addresses the other issue raised in written submissions, that is the possible application of s.424A (1). The Tribunal’s thought processes and reasoning are not matters within s.424A(1)(a). (See SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [23] per Bennett J and cases cited therein.) This is not a case in which the Tribunal relied on inconsistencies between information provided by the applicant in the protection visa application and thereafter (cf SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2). The only claims made by the applicant were those accompanying his protection visa application.
No breach of s.424A is apparent.
For the sake of completeness I note that in his original application the applicant also contended that the Tribunal ignored the principles of natural justice. Whatever the effect of s.422B, this is not a case in which there is anything to support the claim there was a lack of natural justice. The only matter of concern in that respect is the factual errors I referred to earlier. However, as indicated above, despite those factual errors the Tribunal in fact dealt with the substance of the applicant’s claims in relation to Pakistan in the body of its reasons for decision and those factual errors are not such as to establish that the Tribunal denied the applicant procedural fairness.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent. The applicant told the Court that at present he is not working, but that is not a reason for not awarding costs, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover costs. The amount of $3,000 which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 7 September 2006
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