SZIIZ v Minister for Immigration

Case •

[2006] FMCA 939

•

16 June 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 939
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – citizen of Pakistan claiming fear of persecution on the basis of religion and political affiliation – reason for decision the insufficiency of the information provided – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
Applicant: SZIIZ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 484 of 2006
Judgment of: Scarlett FM
Hearing date: 16 June 2006
Date of Last Submission: 16 June 2006
Delivered at: Sydney
Delivered on: 16 June 2006

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I allow eight (8) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 484 of 2006

SZIIZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 16th January 2006 and handed down on 2nd February.

  2. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant. The applicant is a citizen of Pakistan who arrived in Australia on 24th June 2005.  He applied for a protection (class XA) visa but this was refused on


    30th September 2005.  On 19th October 2005 the applicant applied to the Refugee Review Tribunal for a review of that decision. 


    The applicant did not attach any additional information to his application for review.

  3. The Tribunal wrote to the applicant on 21st November 2005. 


    The relevant parts of the letter said:

    The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.  We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and to present arguments in support of your claims. 


    You can also ask the Tribunal to obtain oral evidence from another person or persons.  If you want to come to a hearing it will be on; Date: Monday 16th January 2006, Time: 10 am.  Please arrive at least 15 minutes before the start of the hearing.  Place: Level 11, 83 Clarendon Street, Sydney.

  4. The letter went on to advise the applicant what to do when filling in the response to hearing invitation form.  The letter advised the applicant:

    Send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator.

  5. The Tribunal received a hearing invitation form with a cross placed in the box next to the words:

    No, I do not want to come to a hearing.

  6. The balance of the document was crossed out.

  7. The applicant did not attend the hearing of the Tribunal on


    16th January 2006 nor did he respond to the invitation to send any further documents or arguments. 

  8. The Tribunal set out the applicant's claims in the protection visa application and these appear at pages 63 and 64 of the Court book. The Tribunal noted that the applicant said that he was a Shiite Muslim and he and his family were strongly affiliated to the TNFJ.

  9. There were clashes between the TNFJ and SSP and he was kidnapped for two days by members of the SSP in February 1998.  Following his release his father lodged a complaint with the police but no action was taken.

  10. He went to Muscat & Oman to avoid further harm from the SSP but encountered difficulties with Sunni Muslims as Oman is a Sunni state and because of this he arranged to come to Australia to seek protection.

  11. No additional claims are set out in the application for review.

  12. The Tribunal set out its findings and reasons on page 64 of the Court book.  The Tribunal noted that it had a number of issues upon which it required a good deal more detailed evidence before it could be satisfied that the applicant was in genuine fear of persecution and that there was a real chance that he would be persecuted. The Tribunal found that on the limited information provided in the protection visa application and in the absence of any other information from the applicant, the Tribunal could not establish the relevant facts as to the harm the applicant fears, the real chance that he would face harm and why he could not avail himself of protection in his country.

  13. The Tribunal was not satisfied on the evidence before it that the applicant had a well founded fear of persecution within the meaning of the convention and affirmed the decision not to grant a protection visa.

  14. The applicant sought judicial review of this decision by means of an application filed on 14th February 2006.  He filed an amended application on 17th May 2006 but unfortunately he did not serve a copy on the solicitors for the respondent.

  15. In that amended application the applicant seeks writs of certiorari and mandamus as well as an order for costs. The applicant sets out four grounds in his amended application.  The first ground is that he was and is an active member of the TNFJ group and is a Shiite Muslim.  Second, that the applicant was an active member of the party and was elected to the position of press and publications secretary.  Because of this he became well known and accordingly was targeted by Sunni extremists.  Third, that notwithstanding the verdict of the Refugee Review Tribunal the applicant claimed to have been subjected to systematic harassment at the hands of the SSP and other Sunni extremist groups. 

  16. The applicant claimed that his business was closed down and that he had to flee from his country and went to Muscat to save his life as his life was in grave danger. He said that this issue was totally ignored by the Refugee Review Tribunal.  Instead the respondent discussed other issues which had nothing to do with the applicant's case.  The ground went on to refer to other factual grounds about which he said the tribunal did not make findings and this involved jurisdictional error.

  17. In my view the grounds in the amended application consist of challenges to the factual findings made by the Tribunal and constitute what the solicitor for the respondent has described as impermissible merits review.  It is well established that a Court conducting judicial review of an administrative decision does not conduct a merits review in that it does not review the matter on the facts and substitute its own conclusions on the facts for those made by the administrative decision maker.

  18. Provided that there is evidence upon which those factual conclusions can be made there is no scope for the Court to intervene in respect of factual findings and it is outside the Court's jurisdiction to substitute its own conclusions from the facts for those of the decision maker.

  19. I note the applicant's claim that the issue of leaving his own country and going to Muscat to save his life was totally ignored by the Refugee Review Tribunal.  In my view, that is not a contention that is made out as it is quite clear from reading page 64 of the Court book that the Tribunal did note the applicant's claims that he left Pakistan and travelled to Muscat for his own protection but found difficulties arose there.

  20. The real reason why the Tribunal affirmed the delegate's decision is that there was just not enough information to allow the Tribunal to be affirmatively satisfied that the applicant was entitled to a visa. 


    The tribunal is required to be satisfied under the provisions of s.65 of the Migration Act.

  21. The Tribunal was not satisfied because the applicant chose not to attend and the applicant had been apprised of the fact that on the basis of the information before the Tribunal, the Tribunal could not make a decision in the applicant's favour just based on that material.  That is why the Tribunal invited the applicant to attend the hearing and give evidence and present arguments.

  22. The applicant chose not to do that.  He also chose not to provide further written information which the Tribunal's letter indicated that he was able to do.  Thus, the Tribunal was left in exactly the same situation with no more information than it had where it wrote to the applicant inviting him to attend the hearing saying that it did not have sufficient information to make a decision in his favour.

  23. As has been made clear in such cases as NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, where an applicant does not appear to take advantage of the opportunity give to attend the hearing the inevitable consequence was the rejection of his application.

  24. By not attending the hearing, as Bennett J said SZBKB (supra) at 16:

    The applicant has in effect waived his opportunity to provide further comment on adverse information.  He cannot then complain that by that action on his part the tribunal has denied him procedural fairness.

  25. The Tribunal had informed the applicant that it was not satisfied that the applicant had a well founded fear of persecution because of inadequacies in the information provided and so the reason for the tribunal's decision was the inadequacy of the information. 

  26. There is no jurisdictional error.  The application will be dismissed.

  27. There is an application for costs on behalf of the respondent Minister. The respondent seeks the sum of $5,000.00 according to the Federal Magistrates Court rules.

  28. The applicant indicates that he does not have the ability to pay as he is not working permanently but only has a casual job. Whilst that is not a matter that would necessarily mean that I would not make an order for costs in favour of a successful respondent, I will take into account the applicant's situation when dealing with time to pay.

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:  29 June 2006

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