SZIFR v Minister for Immigration

[2006] FMCA 1326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1326

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.65, 422B, 424A, 425, 425A, 426A, 441A, 441C

Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61
Minister Immigration & Multicultural Affairsv SZFHC [2006] FCAFC 73
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78

Applicant: SZIFR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG304 of 2006

Judgment of: Barnes FM

Hearing date: 4 September 2006

Delivered at: Sydney

Delivered on: 4 September 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the First Respondent fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG304 of 2006

SZIFR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 3 January 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant who claims to be Sinhalese and a citizen of Sri Lanka arrived in Australia in June 2001 and applied for a protection visa in August 2005.  In connection with his protection visa application the applicant claimed to be a citizen of Sri Lanka and set out his claims in an accompanying statement.

2. In essence, he claimed to fear persecution if he returned to Sri Lanka because of his former friendship with and assistance to a Tamil family which he claimed had given him an imputed political profile as a supporter of the Tamil EPDP (the Eelam Peoples Democratic Party).  He claimed that his father, who had previously lived in Italy (where the applicant was born) left Sri Lanka because of threats from the Tamil LTTE.  The applicant claimed that he had received threatening phone calls and was beaten by the LTTE and that the LTTE planned to abduct him. 

3. The application was refused by a delegate of the respondent, essentially on the basis that the applicant had dual nationality of Sri Lanka and Italy and that on that basis he could return to Italy if he held genuine fears in relation to Sri Lanka.  The applicant sought review of the delegate’s decision by application lodged with the Tribunal on

   
   

   11 October 2005.  In that application he provided a residential address as his only contact mail address.  He did not nominate an adviser or an authorised recipient.

4. The Tribunal wrote to the applicant by letter dated 1 November 2005 at the address provided in the application for review advising him that he 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 letter invited him to attend a hearing at a date, time and place specified and indicated that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.

5. In its reasons for decision the Tribunal recorded that this letter was sent to the applicant by registered mail, that the applicant did not respond to the invitation and did not attend the hearing at the scheduled time and place. In those circumstances the Tribunal decided pursuant to s.426A of the Migration Act 1958 to make a decision on the papers without taking further action to enable the applicant to appear before it.  The Tribunal found that as the applicant had failed to take the opportunity to attend a hearing and provide additional evidence in support of his claims it was difficult for the Tribunal to assess the very limited information before it.

6. It found that without having the opportunity to test the applicant’s evidence it was not prepared to accept his assertions, first, that having befriended a Tamil family it would follow that as a Sinhalese the applicant would be regarded as a supporter of the Tamil EPDP, secondly, that because of this claimed support he would be at risk of persecution by the LTTE, a Tamil party or, thirdly, that he was not entitled to Italian citizenship.

7. The Tribunal found that as the applicant did not attend the hearing the Tribunal was unable to explore with him any of these claims and issues and that further explanation would be essential if the Tribunal were to be able to assess his claims in his favour.  It was not satisfied that he had a well-founded fear of persecution for a Convention reason on return to Sri Lanka now or in the foreseeable future. 

8. The applicant sought review by application filed in this court on

   
   

   31 January 2006 accompanied by a supporting affidavit which repeats his grounds of review.  He was given leave to file an amended application in court and accompanying affidavit which added an additional ground to the grounds relied on in the application. He was also given the opportunity to make oral submissions. 

9. The first ground in the application of 31 January 2006 is that the Tribunal failed to grant the applicant sufficient time in relation to compiling relevant documentation. On its face the basis for this claim is not entirely clear, but it appears, as elaborated on in the amended application, to relate to either an allegation of a failure to comply with s.424A or a failure to accord procedural fairness as discussed below.

10. It is also contended that there was a breach of s.425 of the Migration Act and that the Tribunal constructively failed to exercise its jurisdiction. No such failure is established.

11. The Tribunal is obliged under s.425 of the Migration Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues. In this case the application for review was lodged with the Tribunal on 11 October 2005. The Tribunal wrote to the applicant by letter sent by registered post on 13 October 2005 acknowledging receipt of the application, setting out the Tribunal procedures including the fact that he would be invited to a hearing to give evidence to support his application and also asking him to immediately send any documents, information or other evidence he wanted the Tribunal to consider.

12. The Tribunal wrote to the applicant on 1 November 2005 inviting him to a hearing. There is nothing in the material before the court to suggest that there was any failure by the Tribunal to comply with the requirements of s.425 and s.425A in relation to that invitation and notice or, in particular, that the period of notice given was less than that required under s.425A(3) of the Act (and the applicant’s claims do not address the specific issue of the period of notice in the invitation to the hearing but complain more generally about the time for compiling relevant documents).

13. In light of the letter of 1 November 2005 the Tribunal was entitled, as it did, to proceed to make its decision pursuant to s.426A of the Act given that the applicant failed to attend the scheduled hearing. In such circumstances no failure to comply with s.425 has been established. Nor has any jurisdictional error been established in relation to the time allowed by the Tribunal to the applicant in relation to compiling documentation.

14. Having complied with ss.425 and 425A of the Act the Tribunal did not need to take any further steps to contact the applicant under the Migration Act: see Minister Immigration & Multicultural Affairsv SZFHC [2006] FCAFC 73 at [39]. Provided the Tribunal complied with one of the methods of notification provided for in the Act (in s.441A(4)) it was under no obligation to search to discover if there might be some other avenue of communicating with the applicant (see s.441C).

15. Nor was it required to grant the applicant further time in which to obtain documents in circumstances where no such time had been requested.  There is no evidence before the court to suggest and no claim made that the applicant took steps to notify the Tribunal that further time was required. 

16. As there is nothing in the material before the court to suggest that the applicant either sent documents to the Tribunal or sought from the Tribunal additional time to provide documentation, insofar as it is contended that there was a denial of procedural fairness in relation to time to provide documentation (putting on one side the effect of s.422B of the Act) that claim is not established.

17. In ground 4 of the application the applicant states that he had requested documents from several government bodies at a time in close proximity to elections and that the election was the main emphasis rather than the evaluation of his request.  This ‘ground’ appears to be part of the applicant’s complaint as to a lack of sufficient time to provide documents.  However, as indicated, there is nothing in the material before the court to suggest that he brought this issue to the attention of the Tribunal.  No jurisdictional error is established by this circumstance or, indeed, by the applicant’s claim that the state of his father’s deteriorating health had been a further burden.

18. It was also claimed generally that the Tribunal erred in deciding the applicant’s case on the material put to it and failed to conduct an appropriate inquiry.  It was open to the Tribunal to proceed as it did which was to decide the matter before it on the material before it.  This is not a case in which the Tribunal was under any obligation to conduct further inquiries.

19. As to the general claim of jurisdictional error made in the application, no such error is apparent on the material before the court.  In this case the reason for the Tribunal decision was the inadequacy of the information before it in the context of the applicant’s failure to attend the hearing.  Consistent with the approach of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, s.65 of the Act requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. Also see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225.

20. The written submissions for the respondent addressed the possibility that there was a failure to comply with s.424A of the Act. As contended, the Tribunal’s views as to the adequacy of the information put before it by the applicant and its inability to inquire of him at a hearing is not ‘information’ within s.424A(1) that is the reason or part of the reason for affirming the decision under review; see SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [12] and [13] per Allsop J. As in that case the reason for the decision in this instance was an evaluative conclusion based on the perceived inadequacy of the information before the Tribunal, the absence of detail and the absence of the invited extrinsic explanation, also see SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] per Allsop J. Furthermore, insofar as the Tribunal evaluated such information such evaluation forms part of its thought process and not information within s.424A: see SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78.

21. The amended application raises a number of grounds, some of which overlap with those raised in the original application. First, it is contended that the Tribunal failed to comply with s.424A in that it failed to afford the applicant “an adequate opportunity as an effort to submit and support his statement without any available evidence so that he should be able to apply all pertinent information concerning himself and his past experience in as much detail as necessary in view of the post traumatic syndrome all asylum seekers suffered.” I have already considered generally the applicant’s claims in relation to a lack of time to provide evidence. Section 424A is not relevant to such situations as it is a provision which requires the applicant be given certain information and the opportunity to comment on it. This is not a case in which there was adverse information in relation to which the Tribunal was obliged to give the applicant an opportunity to comment. No breach of s.424A is established in the manner contended for by the applicant (or of any other provision of the Migration Act).

22. The next ground is that in failing to provide an adjournment to the applicant (who was without an adviser) the Tribunal failed to give him an opportunity to respond to any adverse information and in so doing failed to give him a reasonable opportunity to appear before the Tribunal or to provide further information in support of his claim. It may be that this ground is intended to raise s.425, as its language contains an echo of the former language of s.425. In any event there is no claim made and nothing on the material before the court to suggest that the applicant at any time sought an adjournment of the Tribunal hearing.

23. Similarly, and putting on one side the effect of s.422B and the decision of the Full Court in Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61, it is not established that the Tribunal failed to afford procedural fairness to the applicant for not adjourning the hearing and acting in haste to affirm the decision of the delegate as contended. Where an applicant has not sought an adjournment of a hearing he cannot complain if the hearing is not adjourned and the Tribunal proceeds in accordance with the provisions of the Migration Act to make its decision.

24. The next ground raises the question of the applicant’s nationality and contends that the Tribunal failed to explore or make adequate inquiry on the “erroneous fact” relied on in the delegate’s decision that the applicant had effective protection in a third country, as he had dual nationality of Sri Lanka and Italy and had made no claims that he would be persecuted in Italy.  The applicant claimed in his protection visa application to be of Sri Lankan nationality, although born in Italy.  A copy of the passport he provided in connection with his application stated that he was a dual citizen.  It is the case that the delegate rejected his application on that basis.  However the decision under review in these proceedings is the decision of the Tribunal.  It is clear on the material before me, in particular the Tribunal’s reasons for decision, that it understood and addressed, insofar as necessary in circumstances where the applicant did not attend the hearing, this aspect of the applicant’s claims.   It found that without having the opportunity to test the applicant’s evidence it was not prepared to accept his assertion that he was not entitled to Italian citizenship. 

25. In other words it was not satisfied that such claim was made out because it was unable to explore with the applicant that issue and would require a further explanation to be able to assess that claim and the other claims in the applicant’s favour in circumstances where he had failed to attend a Tribunal hearing to which he had been invited.  There is no jurisdictional error in the Tribunal proceeding in that manner and not being able to be satisfied of the applicant’s claims on the material before it.  No jurisdictional error is established in the manner contended. 

26. As no jurisdictional error has been established the application must be dismissed.  The applicant has been unsuccessful.  There is nothing to warrant a departure from the normal rule that the unsuccessful application should meet the costs of the respondent.  The amount sought is appropriate having regard to the nature of this and other similar matters.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 September 2006