SZIQO v Minister for Immigration and Anor (No.2)
[2006] FMCA 1658
•25 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIQO v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1658 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a visa – applicant is a citizen of Pakistan – applicant claims fear of persecution for reasons of his family’s political association – where applicant did not attend the Tribunal hearing – no jurisdictional error. PRACTICE & PRODECURE – Application to reinstate – where applicant had not attended previous hearing – applicant gave evidence of sustaining an accident on the way to court – evidence unchallenged by respondents – consideration of strength of applicant’s substantive case. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 424A, 425A, 426A, 474 Federal Magistrates Court Rules 2001 |
| Lindon v Commonwealth (No.2) (1996) 136 ALR 251 referred to NAVX v Minister for Immigration & Multicultural & Indigenous Affairs FCAFC 287 referred to SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 followed SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs 2006] FCA 238 referred to SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed. SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 referred to |
| Applicant: | SZIQO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1046 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 October 2006 |
| Date of Last Submission: | 25 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
That Order 1 made on 28 September 2006 is set aside
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $900.00 and I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1046 of 2006
| SZIQO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
There is an application to set aside a decision made on
28th September 2006 when the substantive application was dismissed because the applicant did not attend Court for a hearing. The applicant, however, has filed an application and an affidavit in support in which he said that he was prevented from attending Court because he fell at a railway station and injured his ankle. He said that that injury, which occurred on the stairs at the railway station, prevented him from attending court.
On behalf of the Minister it has been put that there are two preconditions for the setting aside of a decision. First, that the Court should be satisfied as to the applicant's explanation as to his absence, and (2) that the Court should be satisfied that the applicant has an arguable case. There would be no point setting aside a decision made in the absence of the applicant if the applicant did not have a cause of action to bring.
The applicant has given evidence by affidavit and in the witness box saying that he fell and suffered a painful injury to his ankle. The pain was so severe that it brought tears to his eyes and he was unable to continue his journey. He attended a chemist shop where he obtained a spray and a cream to rub on the injured part. He did not visit a doctor, nor did he notify any of the station staff of his accident. He did not telephone the Court, nor did he telephone anyone at the office of the Minister's lawyers to advise that he was unable to attend due to injury.
On behalf of the Minister it is submitted that the Court only has the applicant's oral evidence and that there is no medical evidence to support his assertions. Nevertheless the applicant has provided an affidavit setting out the facts upon which he relies and he was available for cross-examination on that affidavit. He gave oral evidence and answered questions from the Court. He was not subject to
cross-examination and his oral evidence, apart from questions asked from the bench, is therefore unchallenged. In the circumstances I am satisfied that there is evidence to explain the applicant's absence from Court.
As to whether or not the applicant has an arguable case, it has been put to me that this is a matter where the applicant did not attend a hearing of the Tribunal and, indeed, consented to the matter being dealt with in his absence. It has also been put that no jurisdictional error appears.
I am certainly aware that there are cases that, in these circumstances, require the Court to scrutinise the applicant's case.
It is clearly of no point to set aside the judgment and allow the applicant back in to run his case if the case is hopeless and there is no arguable case. There is certainly a shortage of material that would assist the applicant. His case cannot be called a strong case. It is, however, a serious matter to deny a party access to the Courts and as Kirby J in the High Court said in Lindon v Commonwealth( No. 2) (1996) 136 ALR 251, even a weak case is entitled to its day in Court. The applicant has told the Court that he was on his way to Court on 28th September in order to present his case. He said in evidence that he was ready then and he is ready now. There are no matters that have arisen since 28th September that would necessitate the filing of any fresh material on either side.
The solicitor appearing for the Minister today is the solicitor who has carriage of the matter and this is certainly not a case where counsel had been briefed. My reading of the materials before me has allowed me to assess this case as not being one where it would be necessary for counsel to appear on either side. If I set aside the decision made on 28th September and allow the applicant back in to argue his application, he can do so this afternoon. The solicitor for the respondent can argue the case for the respondent this afternoon. It is far preferable that the Court should deal with a matter on its merits and make a final decision rather than deny a party the opportunity to have his or her voice heard in Court.
It is for these reasons that I have decided to accede to the application and I propose to order that order number (1) made on
28th September 2006 is set aside. I do not propose to set aside order number (2). It would not have been impossible for the applicant to have made some effort to advise the Court or advise the Minister's lawyers. On the evidence before me he was not so seriously injured that it would not have been reasonably possible for him to have made some attempt to advise the parties concerned of his inability to attend. Order number (2) will stand.
I have heard the submissions in respect of the substantive application, which is an application to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 3rd March and handed down its decision on 23rd March 2006. The Tribunal affirmed a decision of a Delegate of the Minister not to grant a protection visa to the applicant. The applicant seeks a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus compelling the Tribunal to re-hear and re-determine his application according to law.
The applicant is a citizen of Pakistan who arrived in Australia on
10th August 2005. He applied for a protection (class XA) visa on
3rd November 2005 but it was refused by a Delegate of the Minister on 22nd December 2005. The applicant then lodged an application for review at the Sydney Registry of the Migration Review Tribunal on
9th January 2006. The application did not contain any additional information.
The Tribunal wrote to the applicant the following day, acknowledging receipt of his application and explaining to him that a Tribunal member would look at his information and either make a decision in his favour or invite him to attend a hearing of the Tribunal. The letter told the applicant that a hearing would be his opportunity to give the Tribunal evidence to support his application. The Tribunal wrote again to the applicant on 20th January 2006 and invited the applicant to attend a hearing at 2 pm on Wednesday, 15th February. The letter enclosed a response to hearing invitation form and invited the applicant to tell the Tribunal if he was going to attend the hearing and, if so, advise the Tribunal if he wished the Tribunal to hear from any other witnesses or forward any documents.
The applicant wrote to the Tribunal on 24th January asking that the date of his hearing be changed from 15th February to the end of March.
He explained that he was waiting for documents from Pakistan to support his case. The Tribunal wrote to the applicant on
30th January 2006. It was not prepared to postpone the hearing for as long as the applicant asked but did agree to reschedule the hearing until 2 pm on Thursday 2nd March. The applicant did not forward his response to hearing invitation form. He did not attend the hearing. The Tribunal noted that the applicant had been invited to the hearing and noted that on 17th February an officer from the Tribunal had contacted the applicant about his attendance at the hearing.
The Tribunal noted that an officer of the Tribunal again contacted the applicant on 28th February 2006 regarding his attendance.
The applicant, according to the Tribunal decision, was unsure whether he was going to attend the hearing or not at that stage. In any event, the applicant did not contact the Tribunal further and did not attend the hearing. He confirmed to the Court today that he did not attend the hearing. He explained that he was confused and scared at the time. The Tribunal decided to exercise its power under s. 426A of the Migration Act and made its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal in its decision noted the applicant's claims and evidence and they appear on pages 73 to 76 of the court book. The Tribunal noted that the applicant was a Muslim and his family was associated with the Pakistan Muslim League. The Tribunal noted the applicant claimed to fear persecution if he were to return to Pakistan for reasons of political opinion. He had claimed that false charges had been brought against him. The Tribunal noted that the applicant had provided no further submissions or information with his review application. The Tribunal also noted that it had postponed the hearing at the applicant's request in order that he may obtain some documentary evidence from Pakistan. No documents were forthcoming.
The Tribunal's findings and reasons are set out on pages 76 through to 78 of the court book. At page 76 the Tribunal had this comment to make, which effectively sums up the Tribunal's decision:
The right to give oral evidence is an applicants right to exercise or waive as he chooses and no adverse inference is drawn by this Tribunal from a decision to forego that right. However, where an applicant does not attend a hearing the Tribunal has only the information contained in the written material before it from which to make a determination. Under the circumstances, it is difficult for the Tribunal to satisfy itself that the applicant does have a well-founded fear of persecution on return to Pakistan.
The Tribunal referred to the fact that the applicant had provided few details as to the circumstances of events and incidents or when they had occurred and had referred vaguely to certain matters. The Tribunal went on to note that allegations rested upon untested assertion and the applicant did not provide any evidence or persuasive detail to back up certain assertions. In the circumstances, the Tribunal was not satisfied that the applicant's experiences and circumstances were as they claimed, nor that the applicant was targeted by or faced a real chance of persecution by the Pakistan authorities or an associated political party.
As far as an allegation that the applicant faced false charges that had been brought against him in Pakistan, the Tribunal had this to say at page 78 of the court book:
Even if the Tribunal had accepted that the applicant was being sought on charges (for example in relation to evasion of duties or excise) it would not follow that any such charges were self evidently unwarranted and or persecutory. To the extent that the applicant might face any related charges or court proceedings in his own country, this would not of itself necessarily amount to persecution for a convention reason.
The Tribunal was not satisfied that the applicant satisfied the criterion set out in s. 36(2) of the Migration Act for a protection visa.
In his amended application filed on 23rd June 2006 the applicant sets out three grounds for relief in respect of the Tribunal decision.
The first ground refers to the fact that the applicant belonged to the Pakistan Muslim League Nawaz Group and that the applicant and his whole family were persecuted due to their political opinion. This is a restatement of the applicant's factual claims for a protection visa and does not disclose any jurisdictional error. The second ground claims that the element of well-founded fear was not taken into consideration by the second respondent, the Tribunal. The ground refers to a number of factual matters and in effect appears to be a challenge to the Tribunal's factual findings.
The third ground claims that the Tribunal did not take certain matters into account, including the fact that the applicant was an active member of a particular party. It refers to a claim that the Tribunal did not make any findings in respect of certain claims, specifically whether certain persecutory events might reoccur or whether the applicant had a well-founded fear of persecution on that basis. It appears, with respect, to be essentially a challenge to the Tribunal's factual findings. The applicant told the Court that he did not have anything new to add but complained that he had not received a permit from the Department of Immigration and Multicultural Affairs permitting him to work whilst he is in Australia. I explained that it was not within the power of the Court to grant such a permit or make the Department issue one.
In a concise but detailed written outline of submissions, the solicitor for the first respondent Minister submitted that the Tribunal complied with its obligations under s. 425 of the Act by inviting the applicant to attend a hearing. She further submitted that the notice of the hearing was sufficient and therefore complied with s. 425A and that when the applicant did not attend the Tribunal hearing the Tribunal made its decision without hearing further from him as it was entitled to do under the provisions of s. 426A of the Migration Act. The thrust of the submission was that the reason for the Tribunal's decision was its finding that there was insufficient evidence to enable it to be satisfied of the applicant's claims.
The solicitor for the Minister referred the Court to the decision of the Full Court of the Federal Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215. In that case the Full Court at [15] and [16] concluded that a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision if that state of satisfaction was not reached. Here the Tribunal could not reach a positive state of satisfaction in relation to the applicant's claims.
The solicitor for the first respondent further submitted that there was no breach of an obligation under s. 424A of the Migration Act.
The reason for the Tribunal's decision was the absence of information which the Tribunal needed to reach such a state of satisfaction. I am referred to the decisions of Allsop J, first of all in SZEZIv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] and also in SZCIAv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [12].
In SZEZI (supra), his Honour held that the reason for the Tribunal decision was not the information but the lack of the requested further assistance and explanation. Accordingly in that case the Tribunal had not failed to comply with s. 424A. In the present application it is quite clear that it was the insufficiency of the information before the Tribunal that meant that the Tribunal was unable to be satisfied that the Tribunal had a well-founded fear of persecution for a Convention reason.
I am satisfied from the decision as a whole that the Tribunal did consider the material before it. In the end, the Tribunal was not satisfied that the information was sufficient for it to reach a state of satisfaction that the applicant was person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees protocol. Unless the Tribunal can be satisfied in that regard, the applicant will not meet the criterion set out in s. 36(2) of the Migration Act for a protection visa. It is clear that the Tribunal informed the applicant in its letter inviting him to a hearing which it sent to the applicant on 20th January 2006. No further information was received either in writing or from oral evidence to the Tribunal.
The situation then is identical to that referred to by Hely J in SZDXC vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]. In that case his Honour said:
The RRT made it pellucidly clear in its letter of 12th March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it. And as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 when the appellant failed to accept the opportunity to elaborate on the information at the scheduled hearing, the inevitable consequence was the rejection of his application.
The case before me, to my mind, is one where the inadequacy of the information, brought about by the applicant's failure to attend the hearing or provide further documents, led to a situation where the Tribunal did not have sufficient information before it to be satisfied that the applicant met the requirements for a protection visa. It is clear that there was no breach of ss. 424A, 425, 425A or 426A of the Migration Act. Accordingly the applicant has not shown that any jurisdictional error has occurred.
I am aware of the fact that the applicant is not legally represented in these proceedings. My own reading of the decision and the other material in the court book does not show any other possible jurisdictional error not referred to by the applicant. As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined in sub-s. 474(2) of the Migration Act. Consequently it is final and conclusive and is not subject to certiorari or mandamus as the applicant seeks or to any other constitutional writ. The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim and it is the usual practice that a successful party should be entitled to a costs order. The costs sought are estimated at $900.00, which appears to me to be a relatively modest sum in the circumstances.
The applicant, however, has pointed out to the Court that he does not have permission to work whilst he is in Australia. In the circumstances he asks the Court to waive any order for costs. An inability to meet a costs order, at least in the immediate future, is not of itself a reason not to make an order for costs. It is, however, a matter to be taken into account in deciding whether or not to allow time to pay. It would be appropriate to allow time to pay and I will allow four months 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: 8 November 2006
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