SZIGD v Minister for Immigration and Anor (No.2)
[2006] FMCA 1749
•10 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGD v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1749 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Pakistan claiming fear of persecution – where applicant did not attend RRT hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 |
| SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZIGD v Minister for Immigration [2006] FMCA 1487 |
| Applicant: | SZIGD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 334 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 November 2006 |
| Date of Last Submission: | 10 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 334 of 2006
| SZIGD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal which was handed down on 12th January 2006 affirming a decision of the delegate of the Minister for Immigration & Multicultural Affairs that was made on 10th October 2005 to refuse the applicant’s application for a protection (class XA) visa.
The applicant filed his application on 2nd February 2006.
The application was transferred into my docket and arrangements were made to list the matter for final hearing at 11.30 am on
28th September 2006. The applicant did not appear. I dismissed the application for non-appearance by the applicant under the provision of r.13.03A (see SZIGD v Minister for Immigration [2006] FMCA 1487).
On 18th October 2006 the applicant filed an application to set aside the orders of 28th September on the ground that he was ill on that day and the day before. He produced a medical certificate from a Dr Maher Milad dated 27th September 2006 covering those two days. He also produced a facsimile document that showed that it had been transmitted to the registry from Lakemba post office on 27th September 2006. I was satisfied that a case had been made out to set aside the orders of 28th September 2006. I listed the substantive application for final hearing at 2 pm on Friday, 10th November 2006.
The applicant is a citizen of Pakistan who arrived in Australia as a temporary business entrant in July 2005 and applied for a protection (class XA) visa on 8th September 2005. A delegate of the Minister refused the application for a visa on 10th October 2005. So the applicant sought a review of the delegate’s decision from the Refugee Review Tribunal. The applicant lodged his application for review at the Sydney registry of the Refugee Review Tribunal on 31st October 2005. He gave an address in suburban Sydney but did not provide any telephone number. He indicated that he would need an interpreter in the Urdu language. He did not provide any other documents with his application.
The Tribunal wrote to the applicant on 10th November 2005 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 letter invited the applicant to attend the hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The hearing was scheduled for 11 am on Friday, 9th December 2005. The Tribunal received a response to hearing invitation apparently signed by the applicant on 6th December 2005.
The writer had placed an X in the box beside the word “no” and crossed out the balance of the form. The form therefore read:
Do you want to come to a hearing? Please tick box 1 or box 2.
1 No. I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.
A copy of the response to hearing invitation appears at p.56 of the Court Book. A copy of the Tribunal decision record can be found at pp.63 to 70 of the Court Book. The Tribunal decision was signed on 19th December 2005. At page 67 of the Court Book the Tribunal noted that it had received the completed response to hearing invitation form indicating that the applicant did not want to attend a hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to attend.
The Tribunal then proceeded to make the decision on the basis of the material already before it. The Tribunal noted the applicant’s history as it appeared from the department’s file and recited the applicant’s claims for protection. The applicant and his family were all members of the Pakistan Muslim League (Nawaz) or PML(N) and when he had been a student he had been an active member of the Muslim Student Federation, the student wing of the PML(N). After a coup in
October 1999 the applicant’s uncle had been taken into custody by the Army, as had some of his fellow students and all the main heads of the PML. He was taken and warned by the police who gave his name to the Army authorities. He claimed that he feared that he would be imprisoned and persecuted.
The Tribunal’s findings and reasons, which are necessarily brief, appear on pages 68 to 70. The Tribunal stated:
Apart from his statement that he took part in processions against the present Army regime, that he arranged public meetings of the PML leaders and that he was involved in protecting against the forcible exile of Nawaz Sharif to Saudi Arabia, the applicant has provided no details of his activities which he said led to him being known as the backbone of the PML in Lahore.
The Tribunal referred to its letter to the applicant of 10th November 2005 saying that it was unable to be satisfied on the evidence before it about the applicant’s claims. The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he were to return to Pakistan and was therefore not satisfied that he was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal found that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act for the grant of a protection visa.
The applicant filed an amended application on 19th May 2006 seeking writs of certiorari and mandamus. He sets out three grounds, the first two of which do no more than recite the applicant’s factual claims. Neither of them contains any ground of review. The third ground states:
The Refugee Review Tribunal gave the verdict that the case of the applicant does not fall within refugee law. It is submitted that in the refugee law and in the general laws of the refugee any person who cannot be given protection in any way can be given the protection. The RRT did not take into 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.
The ground goes on to recite more details of the applicant’s factual claims and concludes by saying:
The definition that any person who cannot be given the protection can be given the protection. The applicant is not a criminal as such. The applicant’s case was not considered by the RRT.
The Tribunal did not make any findings in relation 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 coupled with the application of the laws which does not govern the refugee laws.
The applicant filed a written submission on 8th September 2006.
The submission largely repeats, and at times expands upon, the applicant’s factual claims.
In his oral submission to the Court the applicant confirmed that he did not attend the Tribunal hearing. He said that he was new in the country at the time of the hearing and he became sick. He sought advice from community members and followed that advice, but they did not caution him about the effect of not attending the RRT.
For the respondent Minister Ms Griffin argues that the application contains three unparticularised grounds of review which do not amount to a claim of jurisdictional error. She described the applicant’s written submission as essentially a litany of complaints about the merits of the decision of the RRT or a recount of the applicant’s claims
Insofar as the applicant submits that the RRT did not take into consideration the fact that the applicant was an active member of a political party and is a person of importance as far as the acts of violence against the applicant are concerned, Ms Griffin submits that the applicant elected not to attend the RRT hearing and the RRT concluded that it had insufficient evidence before it to make a decision in favour of him. That was clearly a finding which was open to RRT. She further submitted that the remainder of the applicant’s written submissions does not raise any complaint which could be the subject of judicial review. She further submitted that the Tribunal complied with ss.425 and 425A in inviting the applicant to a hearing after notifying him that it was unable to make a decision in his favour on the information provided and that the Tribunal was entitled to make a decision without conducting a hearing under s.426A of the Migration Act. It was open to the Tribunal to find that the applicant had provided insufficient detail to support his claims.
For completeness, she also submits that there was no information in the Tribunal’s decision within the meaning of s.424A(1) of the Migration Act. She submitted that the RRT's decision is not affected by any error of the kind identified by the Full Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 because sub-s.424A(1) was simply not engaged in the matter.
She submits that the Tribunal decision is a privative clause decision.
True it is that the applicant did not attend the hearing. He elected not to attend the hearing. Under s.425 of the Migration Act the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising relating to the decision under review. However, sub-s.(1) does not apply if the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it or the applicant consents to the Tribunal deciding the review without the applicant appearing before it. Subsection 424C (1) or (2) apply to the Act.
In this case the applicant consented to the Tribunal deciding the review without appearing before it. Under sub-s.(3) the applicant then was not entitled to appear before the Tribunal. There is no breach of s.425A which relates to the requirement on the Tribunal to give the applicant notice of the day on which and time and place at which the applicant was scheduled to appear and that period of notice must be at least the prescribed period. The notice must contain a statement to the effect of s.426A of the Migration Act.
The s.425 letter, the invitation to hearing which was sent on
10th November, does comply with s.425A and I note it told the applicant:
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, it may make a decision on your case without further notice.
The applicant did not attend the hearing because he had consented to the Tribunal dealing with the matter without taking any further action to allow or enable him to appear before it. The Tribunal made that decision on the review subject to the consent of the applicant.
The reason why the Tribunal affirmed the decision of the delegate was that it was not satisfied on the basis of the evidence before it that there was sufficient information for the applicant to be granted a visa.
The Tribunal needed to be satisfied that the applicant met the criterion under s.36 of the Migration Act, being a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol. The information was not sufficient to enable the Tribunal to reach that positive state of satisfaction.
Unfortunately, where an applicant does not attend a hearing the difficulty is, as was pointed out in the s.425 letter inviting the applicant to a hearing, that the Tribunal did not consider that it could decide the review in the applicant’s favour on the basis of the material before it. As there was no additional material, either by means of the applicant attending or by the applicant forwarding a further written submission, there is hardly any surprise when the Tribunal was still unable to make a decision in the applicant’s favour. Nothing had been added to the information before the Tribunal.
I note this matter has been referred to in a number of decisions on appeal in the Federal Court, including SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [16] where Bennett J said:
By not attending the hearing the applicant has in effect waived his opportunity to provide further comment on adverse information. He cannot then complain that by any action on his part the Tribunal has denied him procedural fairness.
The matter was also considered by Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 with a similar view.
As there was insufficient information for the Tribunal to be satisfied that the applicant met the criterion for a protection visa, the Tribunal had no option but to refuse the application.
I am mindful of the fact that the applicant is not legally represented.
In my reading of the decision and supporting material I have been unable to discern any other matter that may be a jurisdictional error not referred to by the applicant. I am satisfied that no jurisdictional error has been made out. Accordingly, the Tribunal’s decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. It is final and conclusive and it is not subject to the orders in the nature of certiorari and mandamus that the applicant seeks. The application will be dismissed.
This is a proper matter for costs and the amount sought is, in my view, appropriate.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 November 2006
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