SZIRO v Minister for Immigration

Case •

[2006] FMCA 1561

•

12 October 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIRO & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1561
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicants protection visas – applicants are citizens of India claiming fear of persecution – where applicants did not attend the Tribunal hearing – no reviewable error.
Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), ss.424A, 425, 426, 475A.
SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCA FC 73
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494
VCAK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 432
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Multicultural  Affairs v Lay Lat [2006] FCAFC 61
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
First Applicant: SZIRO
Second Applicant: SZIRP
Third Applicant: SZIRQ
Fourth Applicant: SZIRR
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1105 of 2006
Judgment of: Scarlett FM
Hearing date: 12 October 2006
Date of Last Submission: 12 October 2006
Delivered at: Sydney
Delivered on: 12 October 2006

REPRESENTATION

Solicitor for the Applicant: Chandra Jayawardena
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs in the sum of $3,500.00. 

  3. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1105 of 2006

SZIRO

First Applicant

SZIRP

Second Applicant

SZIRQ

Third Applicant

SZIRR

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister not to grant protection visas to the Applicants.

  2. The Applicants by means of their amended application, filed on


    31st August 2006, seek orders by way of writs of certiorari, prohibition and mandamus which would quash the decision of the Refugee Review Tribunal, prohibit the First Respondent Minister from acting further upon the delegate's decision, and redirect the Applicants’ application to the Tribunal for redetermination according to law. 

Background

  1. The Applicants are a husband and wife and their two adult children.  The First Applicant, the father, claims a well founded fear of persecution for a convention reason and the other three Applicants rely on his application. They have no separate claim for protection visa.  The Applicants are citizens of India who arrived in Australia on


    1st August 2005 and applied for protection visas on 9th September in that year. 

  2. On 16th November 2005 a delegate of the Minister refused those applications. The Applicants then sought a review of that decision from the Refugee Review Tribunal by means of an application lodged on 19th December. The Applicants gave their residential address as their mailing address and provided no further documentation with the application. 

  3. The Tribunal wrote to the Applicants on 20th December acknowledging receipt of the application and advising the Applicants:

    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.

  4. The Tribunal wrote again to the Applicants on 5th January 2006, again, at their nominated mailing address, inviting them to attend a hearing at 11:30am on Thursday 23rd February, 2006. The Applicants did not reply and the Tribunal went through its checklist for "No Reply to Hearing Application", the copy of that document appears on page 74 of the Court Book.  No-one appeared for on behalf of the Applicant at the hearing at 11:30am on 23rd February 2006. 

  5. The Tribunal proceeded to make a decision on the basis of material before it exercising its power under s.426A of the Migration Act. The decision is signed on 24th February and handed down on 16th March. The Tribunal noted the Applicants' claims and they are set out on pages 85 and 86 of the Court Book.

  6. The Tribunal noted that although the Applicants had been invited to attend the hearing, no response was received, and no other contact information had been provided to the Department of Immigration or to the Tribunal. The Applicant did not appear before the Tribunal. In those circumstances the Tribunal exercised its power under s.426A of the Act to make its decision on the review without taking any further action to enable the Applicant to appear before it.

  7. The Tribunal briefly summarised the Applicant's claims under the heading Primary Claims on page 86 of the Court Book. The Tribunal added that prior to coming to Australia the Applicant was a writer and freelance camera journalist. He stated that he wrote about Human Rights issues. Some of his writing and photos angered government party supporters who threatened him. He refused, which angered the more, so he left India. He said in his application for a protection visa that he would provide more details and a copy of that section of the application appears at page 21 of the Court Book. The Applicant's words were:

    I will inform more detail later. 

  8. The Tribunal noted, in its findings and reasons, which appeared on pages 86 and 87 of the Court Book that the Applicant had not provided any further information in support of his claims despite ample opportunity to do so. The Tribunal noted that the Applicant had not attended a hearing to give the Tribunal opportunity to explore aspects of his claims. The Tribunal stated that a number of relevant questions are, therefore, left unanswered.

The Tribunal’s Findings and Reasons

  1. The basis of the Tribunal's finding appears on page 86 and 87 of the Court Book as follows:

    In particular, since no supporting material at all has been submitted - the additional material promised has never appeared - and the applicants did not appear for a hearing as invited, I have been unable to satisfy myself as to the truth of any of their claims regarding fear of persecution.  The claims themselves are vague. No details were provided as to the human rights issues about which the applicant claimed to have written or about what in those writings and photos angered Government supporter. Nor has he provided any detailed information about the precise nature of the threats received or as to their source. He does not stated whether he sought protection from the Indian police - indeed, without any elaboration or explanation, he lists the police as one of the groups he thinks will harm him.

  2. The Tribunal was not satisfied that the Applicant would suffer harm and persecution in India for reason of his political opinion or for any other reason and found that the First Applicant is not a person to whom Australia has protection obligations under the Refugees" Convention as amended by the Refugees' Protocol. The Tribunal affirmed the decision not to grant protection visas.

The Application for Judicial Review

  1. The Applicant commenced proceedings in this Court by filing an application on 12th April 2006. He filed an amended application on


    31st August in which he sets out three grounds.  The grounds are as follows:

    a)that the Tribunal's decision lacked the required satisfaction in terms of s.414 of the Migration Act because it failed to carry you the mandatory function of reviewing the Applicant's claims on the papers with the information that was available on file, rather than dismissing his application on the basis that the Applicant failed to attend the hearing on the date;

    b)that the Tribunal's findings that - nor has he provided any detailed information about the precise nature of the threats received or as to their source was made in error because the Applicant had given the reasons on the protection visa application form.

    c)that the Tribunal failed to act under s.424 of the Migration Act, which allows the Tribunal to call further information from an applicant at any time in order to afford to fairness to a refugee applicant rather than dismissing the application on the basis that there was a lack of detail before it to consider the Applicant's application.

  2. The Applicant has filed a written outline of submissions. In respect of the first ground submits that the Tribunal assessed the information the applicant gave in a protection visa application in a negative form because the Tribunal admitted that the Applicant had not provided detailed information, at the same time decided that the Applicant would not suffer harm that is amounting to persecution for the reason of his political opinion or for any other reason.

  3. The Applicant submits that the Tribunal had written information that the Applicant was having threats from a ruling government party members because of his media attack on the government.


    The Applicant submitted, therefore, that the Tribunal failed to carry out the jurisdictional commitment to ascertain whether there would be a real chance of the Applicant facing serious harm or any other harm as set out in sub-s.91R(2). 

  4. The Applicant further submitted that the Tribunal wrongly assessed the Applicant's possible threat to his life or that there would be a real chance or not for the applicant to face serious harm for his life in the future if he returned to India. The Applicant referred to the decision of the Honourable Wilcox J in a decision that was wrongly cited, that is SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857. It is a decision his Honour handed down on 24th June 2005 in respect of an appeal against the decision of the Federal Magistrate's Court. 

  5. The thrust of the submission is that the Tribunal has committed to evaluate the extent of the threat to the applicant's life or the risk as set out in s.91R (2) of the Migration Act and failure to do so amounts to jurisdictional error. His Honour went on to say at [31]:

    I agree with Crennan J said about the consequences of Marshall J’s view. Plainly, persecution is not established merely by proof that somebody has made a statement for threat about an intention to kill the person seeking recognition as a refugee.  The relevant decision maker must evaluate the ‘threat’ and determine whether it amounts to serious harm within the meaning of s.91R (2) (a).  That evaluation needs to take into account all of the surrounding circumstances. 

  6. In oral submissions, Mr Jayawardena, solicitor, raised another point not mentioned in the written submissions, which was an allegation of failure by the Tribunal to consider exercising its jurisdiction under


    sub-s.426A (2) of the Migration Act. The hearing was held on


    23rd February and the Tribunal made its decision the 24th. 


    Mr Jayawardena also submitted that the applicant had provided some detailed information to the Tribunal, which the Tribunal should have evaluated. 

  7. He submitted further that the Tribunal could not be satisfied that there was no real chance of the Applicant facing persecution without all of the detailed information that the Tribunal did not have. He referred to the provisions of s.414 of the Migration Act in his submission that the Tribunal had not reviewed the decision.

  8. Sub-section 414(1) of the Act says that subject to sub-s.(2) if a valid application is made under s.412 for a review of an RRT reviewable decision, the Tribunal must review the decision. Mr Jayawardena submitted that the Tribunal had not conducted inquiries to establish detailed facts of the Applicant's claim as required under s.424 of the Act.

  9. I have read the detailed and comprehensive submissions prepared by the solicitor for the First Respondent Minister, Ms Rose. In her written submissions she addresses the claims made in the Applicant's amended application and the outline of submissions.  In her oral submissions she addressed the oral submissions made by Mr Jayawardena for the Applicant. 

  10. She submits that the Tribunal was entitled to proceed pursuant to s.426A of the Migration Act in the circumstances because the Tribunal had complied with ss.425 and 425A and did not need to take any further steps to contact the Applicants. (See Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]). She also pointed out that there were no other steps that the Tribunal could have taken.

  11. Ms Rose submitted that the Applicant's allegation that the Tribunal dismissed the application because the Applicant failed to attend the hearing is not correct. It is clear that the reason for the Tribunal's decision is the inadequacy of the information before it, and the context of the Applicant's failure to attend the hearing. There is no error, as such in the approach in the circumstances. (See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCA FC 73).

  12. The reason for the Tribunal's decision was simply that it was not satisfied in the absence of further information and detail that the Applicants meet the criteria for the granting of a visa. As was pointed out by Ryan, Jacobson, Lander JJ in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15], sub-s.65(1) of the Act does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established, rather it required if the decision maker is not a affirmatively satisfied that the criteria for the granting the visa in question have been satisfied.

  13. In respect of ground 2, it was submitted that the Tribunal had previously stated that it was not satisfied that the Applicants provided sufficient detail or information in order to allow it to be positively satisfied of the Applicant's claims to be a refugee.  Just there is no error where the Tribunal finds the information provided in the protection visa application to be insufficient. 

  14. The Tribunal's views as to the inadequacy of the information before it and the inability to inquire at the hearing is not information within


    sub-s.424A (1) of the Act. (See SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23]; SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166 at [10]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [9] to [14]; SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494 at [48] and [49]).

  15. As to the third ground it is submitted on behalf of the First Respondent that there is no duty under s.424 of the Act to seek further information. The section provides that the Tribunal may seek any additional information it considers relevant and may invite the Applicant to provide such information. The general principle is that the Tribunal does not have a duty to investigate an applicant's claims nor is it under any duty to consider utilising such permissive statutory powers as it has which might enable it to investigate it, including s.424. (See VCAK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [21] and also [24] to [25]; and W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 432).

  16. I am referred to the decision of Jacobson J in NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18] to [21] which was affirmed by the Full Court on Appeal in NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300. In NAYU Jacobson J said there was no obligation on the RRT to make any further investigation of the claim over and above material submitted by the applicant.

  17. His Honour went on to say that the authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances. Those circumstances are set out by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [169] to [170].

  18. It is also pointed out that this is an application to which s.424B of the Migration Act applies and that section has the affect that the relevant provisions in division 4 of part 7 of the Act are an exhaustive statement in the Acting Justice Hearing Rule. I am referred to Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61.

Conclusion

  1. I have considered the material before me.  This is, to my mind, a case where the Applicant was invited to attend a hearing of the Tribunal and did not attend. It has been made quite clear by Bennett J in SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811; and also by Healey J in SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306, that when the applicant fails to accept the opportunity to elaborate on the information provided at the scheduled hearing the inevitable consequence of the rejection of application. As his Honour as [16] in SZDXC:

    The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it. 

  2. In my view, the Tribunal made it “pellucidly clear” to the Applicants that it was unable to make a decision in their favour on the basis the information before it. An invitation to attend a hearing under s.425 was issued and, in my view, the hearing invitation complied with s.425A. The invitation was sent to the Applicants’ address.

  3. The invitation to a hearing sent by the Tribunal makes it clear that the invitation is to attend a hearing and give oral evidence and make arguments in support of a claim; to ask the Tribunal to hear evidence from other people; and to provide other information such as documents. The Applicants did none of these things, so it can come as no surprise that the Tribunal was not satisfied that the information before it was sufficient for it to be satisfied that the Applicant had met the criterion under s.36(2) for the issue of a protection visa.

  4. As to the claim of a failure to exercise a discretion under sub-s.426A(2) of the Act, it has been made, in my view, clear in a number of decisions that the Tribunal's power under s.426A of the Migration Act is enlivened by the non-attendance of the Applicant at a hearing. It is certainly clear from sub-s.426A(2) that the Tribunal has a discretion to defer the hearing. As Bennett J pointed out in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457:

    It is the case that the Tribunal has the discretion to defer the hearing, but it is only if the Tribunal is obliged to do so that there is jurisdictional error. 

  1. In my view, it has not been made out that the Tribunal was obliged to reschedule or delay the hearing. The Tribunal's letter had not been returned unclaimed.  The Applicant had not claimed to be sick. There is nothing to alert the Tribunal to the fact that there may be some difficulty in the Applicant's attending the hearing. 

  2. In my view, the Tribunal considered all the circumstances relating to the invitation to appear at the hearing and considered the circumstances of the Applicant's failure to attend.  I refer to Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [22]. Having complied with the statutory requirements the Tribunal was entitled to exercise its discretion not to reschedule this hearing. There was no breach of procedural fairness in the Tribunal's approach.

  3. The Tribunal is not under any obligation to exercise its powers under s.424 to conduct its own investigations. The Tribunal has not committed any breach of s.424A of the Act. The Tribunal has considered the material before it, and found that material inadequate to enable the Tribunal to be satisfied that the Applicants met the relevant criteria for a visa. In the circumstances, no jurisdictional error has been demonstrated.

  4. I might add that, in my view, there is nothing to show that the Tribunal did not comply with its obligation under s.414 of the Migration Act to conduct a review. The Tribunal, clearly, did conduct a review on the relatively brief information before it. It is hardly surprising that that information was insufficient to allow the Tribunal to be satisfied.

  5. In my view, there is no jurisdictional error.  The decision is a primitive clause decision and as such it is not subject to any order in the nature of prohibition certiorari or mandamus. The application is dismissed. I will hear you on costs.

  6. There is an application for costs on behalf of the First Respondent Minister.  In my view, as the Applicants have been wholly unsuccessful in their claim and there is no reason why I should not make a costs order in favour of a successful Respondent. The amount sought, namely, $3,500.00 is an appropriate figure in the circumstances of the case. The applicant says that he is not financially sound at present.


    He is not in a position to meet those costs.  I see no reason to doubt what the Applicant tells me. Nevertheless, that is not a ground not to make an order for costs although I will take it into account as far as allowing some time to pay is concerned. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  20 October 2006

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Cases Citing This Decision

1

SZIRO v Minister for Immigration & Citizenship [2007] FCA 260