SZIOR v Minister for Immigration
[2006] FMCA 1403
•12 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1403 |
| 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 Vietnam claiming fear of persecution for political opinion – no breach of Migration Act 1958 (Cth) s.424A – no reviewable error. PRACTICE & PROCEDURE – Adjournment – application for adjournment – adjournment refused – application had previously been adjourned so that applicant could obtain legal advice – sufficient time for legal advice to be obtained. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC2 Plaintiff S157 of 2002 v Commonwealth of Australia [2003] 195 ALR 24 Yo Han Chung v University of Sydney [2002] FCA 186 |
| Applicant: | SZIOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 928 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 September 2006 |
| Date of last submission: | 12 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McDonald |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application for Adjournment is refused.
The Application is dismissed.
The Applicant is to pay the First Respondent's cost fixed in the sum of $3,400.00.
The Applicant is to pay the Setting down fee of $345.00 to the Collector of Public Moneys Federal Magistrates Court of Australia Level 16 Law Courts Building Queens Square SYDNEY NSW within twenty-one (21) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 928 of 2006
| SZIOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 10th February and handed down on 2nd March 2006.
The Tribunal affirmed a decision of the Delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant, by means of his application under the Migration Act filed on 29th March 2006 now seeks an order that the Court set aside the Tribunal's decision not to grant a protection visa.
Background
The Applicant is a national of Vietnam. He arrived in Australian on
5th September 2005. On 3rd November in that year he applied for a Protection (Class XA) visa. On 14th November 2005 his application was refused. The Applicant then applied to the Refugee Review Tribunal for a review of that decision.
The RRT review
The application for review was lodged by hand at the registry of the Tribunal on 19th December 2005. The Applicant accompanied that application with a copy of the letter to him from the Delegate dated
14th November 2005 and a copy of the Delegate's decision on his protection visa application.
The Tribunal wrote to the Applicant on 19th December 2005 informing him that the Tribunal may either make a decision in his favour or invite him to attend a hearing. The letter of the 19th of December, under the heading "What is a hearing and why is it important?" told the Applicant that:
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include
· what you tell the Member at the hearing,
· information or documents you give the Tribunal,
· information or documents you ask others to give the Tribunal.
A copy of that letter is set out on page 63 of the Court Book.
On 5th January 2006 the Tribunal wrote to the Applicant and invited him to attend the hearing on Tuesday the 7th of February. The Applicant attended that hearing where he gave oral evidence with the assistance of an interpreter in the Vietnamese language. He brought with him some documentary evidence including a basic training certificate, a special training certificate and a seaman's passport. He also brought another document in Vietnamese language.
The Applicant told the Tribunal that he came to Australia because he won his ticket in a toothpaste promotion. He had obtained a visa and departed Vietnam legally for Australia on the 5th of September. He said that he did not leave Vietnam until he had obtained leave from his employer. He had overstayed his visa and applied for a protection visa on the 3rd of November.
The Applicant claimed a fear of persecution in Vietnam for Convention related reasons of political opinion. The Tribunal noted in his claims and evidence on page 94 of the Court Book that the Applicant said that he had departed Vietnam in breach of twice weekly police reporting conditions that had been imposed in November 2004. He said that these conditions were imposed after he was arrested on suspicion of inciting a riotous protest but claimed that he had nothing to do with the riot. He was in the wrong place at the wrong time.
The Applicant's evidence was that the police did nothing with his case but place him on reporting conditions after a very brief detention and he returned to work with the shipping company. The Applicant presented to the Tribunal a letter of separation from his employer. This was the document to which I have previously referred, written in Vietnamese. The Applicant read out the letter and the interpreter translated it. The Applicant said that the letter was a notification that he had been sacked and it was linked to his problems with the police.
The Applicant told the Tribunal that he had been sent a summons by the police, which had been sent to the home of his parents in Haiphong. He said that his parents had found the summons when they returned. When the Tribunal asked the Applicant about the summons, the Applicant asked for an extension of time to try to obtain it.
The Tribunal recorded and it appears at page 96 of the Court Book that the Tribunal considered the request. The Tribunal's consideration of the request for time to obtain the summons extends to page 97 of the Court Book. The Tribunal noted on page 97 as follows:
When asked why the applicant had not already had the alleged summons sent to him, he said that he had come to the RRT hearing assuming that it was merely his DIMIA interview. The Tribunal put it to him that this claim of innocent unawareness as to where he was in the application process appeared to be fanciful. He had himself signed an application for review by the RRT and had attached a copy of the finalised DIMIA decision to his application.
The Tribunal refused the Applicant's request for time to obtain and submit the summons.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 97 and 98 of the Court Book. The Tribunal accepted that the Applicant worked with a shipping company until he came to Australia as the winner of a toothpaste promotion competition.
The Tribunal accepted, albeit with some difficulty, that his letter of separation was genuine but did not accept on the evidence before it that the letter reflected any problem between the Applicant and his former employer or any pressure upon the employer by the authorities.
The Tribunal did not accept that the Applicant's claims were genuine, finding them to be inconsistent and implausible. The Tribunal came to the view that the Applicant's substantive claims were what the Tribunal described as:
An afterthought formulated probably at some stage after he came to Australia and perhaps even after he defaulted on his two week visitor visa.
The Tribunal was not satisfied that the Applicant faced a real chance of Convention related persecution in Vietnam and found his claimed fear of persecution was not well founded.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Application to the Federal Magistrates Court
The Applicant filed his application and an affidavit in support on
29th March 2006. There are no grounds of review set out in the application. In the section on the application headed grounds of application, the Applicant has filled in:
a)Political opinion.
b)Freedom.
c)Political persecution.
These are not grounds that go towards judicial review but are in effect a restatement of the Applicant's factual claims. The Applicant's affidavit annexes a copy of the Tribunal decision and apart from the formal parts contains the words:
Dismiss the decision not to grant a protection visa.
The affidavit, like the application, does not contain any grounds for review.
The application was listed for Final Hearing on 25th July 2006.
The Applicant did not file an amended application or any written submissions. The Respondent filed a written outline of submissions.
On 25th July the Applicant applied for an adjournment of the proceedings. He, at that stage, had not apparently obtained legal advice and Burchardt FM adjourned the proceedings until today at the hearing. I note from the Court correspondence file that a referral was made to a Mr Tarrant who is a solicitor on the Refugee Review Tribunal Legal Advice Panel on 28th July 2006.
At the hearing today, the Applicant sought a further adjournment for two reasons. One, he wished to obtain further documentation from Vietnam. Two, he wished to obtain legal representation. I explained to the Applicant that a court conducting judicial review does not consider fresh evidence. As documentation sought to be obtained from Vietnam had quite clearly not been presented to the Tribunal it could not be considered by the Court.
As to the Applicant's claim that he was not legally represented, it is an unfortunate fact that most Applicants before the Federal Magistrates Court in applications for review of Refugee Review Tribunal decisions are not legally represented. That is one reason why the Refugee Review Tribunal has funded a legal advice scheme where applicants may at least obtain advice about their case and the prospects of success. It is a commendable scheme and it is supported by the Court. The fact is that when the matter was before the Court on 25th July 2006, Burchardt FM took those matters into consideration. His Honour considered that in the interests of justice an adjournment should be given.
The situation is that whilst arrangements had been made for a referral, the lawyers on the legal advice panel do not normally appear for applicants unless some separate arrangements are made. Clearly no such arrangements have been made. The Applicant has been given a period of approximately six weeks to seek legal advice and representation and he cannot be heard to complain if he does not get a further adjournment because he has not availed himself of the opportunity given to him by the Court. It is for those reasons that I have refused the adjournment.
As to the application for review, the Applicant has set out no grounds for review. I have had the opportunity of reading the First Respondent's outline of submissions in its amended form and I note the references made to the legislative framework in which judicial review of these decisions operate. I agree with the submission that the application does not provide any proper grounds or particulars.
I note the solicitor for the Respondent, Ms McDonald, submits there is no jurisdictional error in the Tribunal decision. The Tribunal specifically dealt with the Applicant's claim as put at the hearing that he was arrested on suspicion of inciting a riot. That claim, as well as the Applicant’s other claims, was almost wholly disbelieved by the Tribunal on the basis that they were inconsistent and implausible. It is put to me and I think it is well established that findings in relation to credibility are matters strictly for the decision maker and should not be disturbed upon judicial review unless they were not reasonably open on the evidence.
In this case the Respondent submits, correctly in my view, that the Tribunal's findings in relation to the credibility of the Applicant's claim were based on his oral evidence to the Tribunal at the hearing and the passport that he brought. It is submitted that there is therefore no breach of s.424A of the Migration Act.
The material, or information used by the Tribunal to affirm the decision of the Delegate comes from the Applicant's own evidence, which is covered by sub-s.424A (3) (b) and I'm referred to Minister for Immigration andMulticultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27 and SZEEU vMinister for Immigration andMulticultural and Indigenous Affairs [2006] FCAFC 2.
It is submitted that the decision of the Tribunal is a privative clause decision.
It is also submitted that the High Court of Australia has dealt with the challenge to the validity of section 474 in Plaintiff S157 of 2002 v Commonwealth of Australia [2003] 195 ALR 24. The media neutral citation is [2003] HCA 2. The High Court found section 474 to be validly enacted but held that if there were found to be a jurisdictional error then the decision in question would not be a privative clause decision as defined by s.474. The alleged jurisdictional error in Plaintiff S157/2002 was a denial of natural justice and the Court held at [83] that section 474 on its true construction does not protect the decision flawed for reasons of failure to comply with the principals of natural justice. Thus s.474 validly operates to prevent judicial review of all decisions under the act except those that are vitiated by jurisdictional error, which includes, as I said a failure to comply with the principals of natural justice.
I am mindful of the fact that the applicant is not legally represented. As set out in Yo Han Chung v University of Sydney [2002] FCA 186, where an applicant is not legally represented the Court should make an independent assessment of the material before it in order to ascertain whether there is, in fact, an arguable case based on that material. I have done so and I am unable to discern any arguable case based on the material before me.
I am satisfied that there is no jurisdictional error shown in the Tribunals' decision. The decision is therefore, a privative clause decision as defined by sub-s.474(2) of the Migration Act. As such, it is final and conclusive and is not subject to relief by way of a positional writ such as prohibition, mandamus, injunction, declaration or certiorari. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The sum submitted to me is $3,400.00. The Applicant has been wholly unsuccessful in his claim and in my view there is no reason why costs should not follow the event. The amount sought, namely $3,400.00 is, I am told, inclusive of the costs that were incurred on the previous appearance before Burchardt FM. It is a reasonable figure in the circumstances and I propose to make that order.
I also note that the Applicant has not paid the Setting down fee required by the Court which amounts to $345.00. I will make such an order that that amount be paid within 21 days.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 September 2006
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