SZITK v Minister for Immigration & Anor
[2006] FMCA 1440
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1440 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Malaysia claiming fear of persecution for reason of religion and race – whether Tribunal misinterpreted the meaning of persecution – where hearing rescheduled because of the unavailability of an interpreter – where applicant attended rescheduled hearing and gave evidence – Tribunal not required to provide notice of rescheduled hearing in accordance with s.425A(3) of the Migration Act 1958 (Cth) – whether relief should be refused on discretionary grounds – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 422B, 425A, 474 Migration Regulations 1994, reg.4.35D |
| Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 Appellant S395/2002 Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 SZBOV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1407 followed SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026 followed SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 followed SZBZO v Minister for Immigration [2005] FMCA 1351 SZCZX v Minister for Immigration [2006] FMCA 786 SZFKF v Minister for Immigration [2005] FMCA 1152 SZCDH v Minister for Immigration [2006] FMCA 78 SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 followed Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 |
| Applicant: | SZITK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1206 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 September 2006 |
| Date of Last Submission: | 26 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
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 $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1206 of 2006
| SZITK |
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 signed on 1st March and handed down on 21st March 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant asks the court for a declaration that the Tribunal’s decision is null and void and an order in the nature of mandamus remitting the application to the Tribunal for determination according to law.
Background
The applicant is a citizen of Malaysia of Chinese ethnicity who arrived in Australia on 12th September 2005. He applied for a protection
(class XA) visa on 26th October but it was refused on 1st November 2005. The applicant then sought a review by the Refugee Review Tribunal.
Review by the Refugee Review Tribunal
The applicant lodged his application for review at the Registry of the Refugee Review Tribunal on 5th December 2005. In that application he provided his residential address and nominated a post office box number in his suburb as his address for correspondence. He attached to his application a copy of the letter from the Minister’s delegate informing him that his application for a protection visa had been refused.
The Tribunal wrote to the applicant on 5th December 2005, acknowledging receipt of his application. For some reason, the letter was addressed to the applicant’s residential address and not his address for correspondence, the post office box.
The Tribunal wrote again to the applicant on 15th December 2005, inviting him to attend a hearing at 10:00am on Monday 9th January 2006. Again, the letter was sent to the applicant’s residential address. What then happened was that the Tribunal wrote to the applicant on 6th January 2006, this time at his post office box, inviting him to a hearing scheduled for 11:30am on Tuesday 31st January 2006.
The applicant contacted the Tribunal by fax on 30th January 2006. He asked for an adjournment of his case with refreshing honesty, saying:
I suffer stomach pain today because I ate too much in the Chinese new year. I worry that I can not go to hearing tomorrow
11:30 am. Can you set a new hearing for me please? I am sorry.[1]
[1] See at Court book page 58
The Tribunal agreed to this request and wrote to him on 31st January, inviting him to attend a hearing at 11:30 am on Monday 6th February. The applicant did not attend the hearing. He sent a fax to the Tribunal on 8th February 2006, saying:
Last week I write to you to ask for a postpone hearing because I was sick. Yesterday (Tuesday) I checked my post box and found your letter that a hearing was scheduled on this Monday. I am sorry that I missed the hearing. I did not check my post box regularly because I was sick last week.
I wonder if I can still get a hearing opportunity?[2]
[2] See Court Book at page 60
The Tribunal agreed to this request and sent the applicant a letter on that same day, inviting him to attend a hearing at 10.00 am on Thursday 16th February 2006. The letter was sent to the applicant at both his postal address and his residential address.
The Tribunal wrote to the applicant on 16th February, informing him that since he had not confirmed whether or not he would attend the hearing, the Tribunal did not book an interpreter for him. The hearing was re-scheduled to Monday 20th February at 12 noon.
The applicant attended the hearing on 20th February and gave evidence with the assistance of a Mandarin interpreter. He told the Tribunal about being subject to discrimination in Malaysia and about his fears of terrorism from Muslim extremists. He said that he was scared that he would be bombed by terrorists because of the racial and religious tensions in Malaysia.
Findings and reasons
The Tribunal noted that the applicant made these claims:
·As an ethnic Chinese who is also a Buddhist, he fears persecution by ethnic Malays.
·A store in which he worked was burnt by Malay extremists in 1994.
·As an ethnic Chinese he faces discrimination in Malaysia and life is very difficult for him because of his ethnicity. He therefore has a well-founded fear of persecution in Malaysia.[3]
[3] See Court Book at pages 81 and 82
The Tribunal found that the applicant was an ethnic Chinese Malaysian. Whilst the Tribunal raised with the applicant the fact that he had given conflicting accounts of the year when the shop in which he had worked had been burnt down, the applicant told the Tribunal that he had suffered lapses of memory because of a recent accident.
The Tribunal was satisfied with the applicant’s explanation.[4] The Tribunal noted that country information supported the claim that historically there have been tensions between ethnic Malays and ethnic Chinese, and that this has in the past led to attacks on some shops and property. The Tribunal found it was plausible that a shop in which the applicant had worked had been set on fire by Malay extremists.
[4] Court Book page 82
The Tribunal found that while the applicant may have lost his job at a construction site, it was due to hard economic conditions in Malaysia. The applicant did not indicate or claim that it was because of his ethnicity or any form of Convention-related persecution.
The Tribunal considered the applicant’s claim of having been bullied at times while working on the streets in Malaysia. The Tribunal found no specific evidence of any serious harm and therefore found that the bullying as claimed did not constitute persecution.
The Tribunal found that the applicant did not provide any plausible information to support the basis of his fears of terrorist activities and bombings by Malay extremists. The Tribunal rejected the applicant’s claims that he could be a target of Malay terrorists because of his ethnicity or religion.
The Tribunal took into account the fact that the applicant’s wife and children, who also are ethnic Chinese, were still living in Malaysia and his wife had worked in a computer family for the past 10 years.
The applicant did not provide any evidence to suggest that his family was in any difficulty because of their Chinese ethnicity, nor did he provide any credible information to show that his situation in Malaysia would be any different to those members of his family back in Malaysia.
The Tribunal considered the applicant’s claims that he was subject to discrimination because of his Chinese ethnicity and his Buddhist religion. The Tribunal rejected those claims.
The Tribunal went on to find that:
Based on the evidence in its totality the Tribunal does not see sufficient grounds for the applicant’s claims that he faces persecution or that he fears persecution if he returns to Malaysia.[5]
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he were to return to Malaysia and was not satisfied that the applicant 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) of the Migration Act for a protection visa.
Application for Judicial Review
[5] See Court Book at page 84.
The applicant commenced proceedings in this court by way of an application filed on 27th April 2006. He was granted leave to file an amended application in court on the day of the hearing.
The amended application contains one ground, that the Tribunal constructively failed to exercise its jurisdiction. The particulars of that ground are:
In stating that ‘Bullying does not in itself constitute persecution unless it is accompanied by conduct that constitutes serious harm to the victim’ (RD 83), the Tribunal erred in its interpretation of the concept of persecution under Art 1A (2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol.
Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
The applicant did not file any written outline of submissions. He did not make any oral submissions, except to say that he was “not clear about legal things”.
Counsel for the first respondent Minister, Mr Johnson, had prepared a written outline of submissions to meet the applicant’s original application, but submitted that whether the applicant was bullied did not necessarily mean that this conduct amounted to persecution.
He submitted that whether particular harm is sufficiently serious to amount to persecution is ultimately a question of fact for the Tribunal, and he referred to the decision of Jacobson J in SZBOV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1407 at [19].
The first respondent also submits that an immaterial irregularity in the Tribunal’s procedure occurred in that the first hearing invitation, the letter dated 15th December 2005, was not sent in accordance with
ss.425A(2)(a) and 441A(4). It is submitted that at least as a matter of discretion, no relief should be granted based on that mistake.
The first respondent also submits that the Tribunal did not strictly comply with the 14 day notice requirement imposed by the combination of s.425A (3) and reg. 4.35D in relation to the second hearing application. However, the first respondent submits that relief ought not to be granted based on that error. There is no evidence to suggest that the applicant was in any way prejudiced or adversely affected in the presentation of his case by the original non-compliance with reg. 4.35D with respect to the second hearing invitation.
Conclusions
The applicant had not filed any written outline of submissions, nor was he able to make any oral submissions in support of his case, except to say that he was “not clear about legal things”. His amended application was prepared for him by the barrister who provided him with legal advice under the Refugee Review Tribunal legal advice scheme.
I would comment in passing that a number of experienced barristers and solicitors provide their services to applicants through this scheme and it is a scheme which the court supports and endorses.
The applicant’s only ground is claim that the Tribunal constructively failed to exercise its jurisdiction by erring in its interpretation of the concept of persecution. The applicant relies on the decisions of the High Court in Appellant S395/20002 (supra) and of the Full Court of the Federal Court in Win v Minister for Immigration and Multicultural Affairs (supra). There are no particular paragraph references given, but I have read the two decisions cited in order to find the paragraphs cited.
In Appellant S395, McHugh and Kirby JJ in their joint judgment said at [58]:
Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future…It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a “well-founded-fear of being persecuted for reasons of… membership of a particular social group”.
Gummow and Hayne JJ said at [66] that a systematic course of conduct is not required and “that measures in disregard of human dignity may, in appropriate cases, constitute persecution.”
In Win at [31] and [32], Whitlam, Tamberlin and Sackville J noted a criticism of a reference to “serious ill-treatment of some kind” as betraying misunderstanding of the notion of persecution as used in the Refugees Convention. The phrase appeared in this context:
Further, even if he were reporting to the police station every 15 days until he left the country; such treatment (if, as in this case, it is not accompanied by serious ill-treatment of some kind) was not of sufficient seriousness to amount to persecution.
Their Honours held that the primary judge was correct in holding that the Refugee Review Tribunal had not misunderstood the correct test for determining whether an applicant fears “being persecuted” had, even if the Tribunal had misunderstood the test, the error was immaterial.
In SZBOV (supra) at [19], Jacobson J held that whether conduct is sufficiently serious to constitute persecution is an issue of fact and degree for the Tribunal alone.
In my view, the Tribunal did not misunderstand the concept of persecution when dealing with the applicant’s claim of having been bullied. The Tribunal’s statement should be read in context.
The Tribunal said at page 83:
The Tribunal therefore tested the applicant’s claims of bullying by asking him specifically at the hearing if he had suffered any attack on himself in Malaysia because of his ethnicity. He said he had not. He was also asked if he had been subject to any persecution as a result of his ethnicity. He said he had not.
The Tribunal found on that evidence that the bullying as claimed by the applicant did not constitute persecution. In my view, the evidence clearly justified that finding. The evidence would have justified a stronger finding, in my view.
No jurisdictional error has been established in respect of this claim.
The applicant is not legally represented, although he had the benefit of a memorandum of advice and a draft amended application prepared by counsel. He had no legal representation at the hearing. I have therefore considered the grounds set out in his original application in order to ascertain whether they disclose jurisdictional error.
Those grounds are:
a)The Tribunal took into account an irrelevant consideration.
b)The Tribunal failed to afford the applicant procedural fairness.
c)The Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
None of those grounds have been made out. The Tribunal was entitled to find that it was not satisfied, on the evidence before it, that the applicant had made out his claim. There is no evidence to show that the Tribunal took any irrelevant consideration into account, and the applicant has not provided any particulars of any irrelevant consideration.
There is no evidence of any failure to afford procedural fairness. In my view, the reverse is true. The Tribunal rescheduled the hearing on two occasions due to the applicant’s illness and then not clearing his post office box regularly.
There is no breach of s.424A of the Migration Act and the application for a protection visa was made after the introduction of s.422B, on
4th July 2002. The common law hearing rule does not apply (see SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 at [7]-[8], applying Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61).
There does not appear to be any illogicality or caprice in the Tribunal’s reasoning, even if illogicality were sufficient to constitute jurisdictional error.
I agree with counsel for the first respondent that this is simply a case where the Tribunal was not satisfied with the evidence brought by the applicant.
Counsel for the first respondent has very properly raised the issue that there was an irregularity in the Tribunal’s procedure, in that the first hearing invitation, the letter dated 15th December 2005, was not sent in accordance with ss.425A(2)(a) and 441A(4). This was because the letter was not sent to the applicant at his last address for service provided to the Tribunal in connection with the review.
Mr Johnson submitted, however, that at least as a matter of discretion, no relief should be granted as a result of that mistake, for these reasons:
The hearing contemplated by that notice did not proceed and there was a later hearing invitation dated 6th January 2006 (RD55-56) which invited the applicant to a hearing on
31st January 2006. That was sent to the applicant’s correct address of[6] service and the Tribunal file does not indicate that the letter was unclaimed. As the applicant sought an adjournment of the hearing [scheduled for 31st January 2006 by fax dated
30th January 2006 (RD58)], it appears that the letter was received by the applicant. There was also a subsequent notified adjournment or rescheduling and that further shows that the Tribunal’s exercise of jurisdiction could not have been affected by the error that took place as to how the letter dated
15th December 2005 was addressed.
[6] sic
The above submission is quite clearly correct and I adopt the reasoning. There is no basis for relief shown.
Mr Johnson also brought to the court’s attention that the Tribunal did not strictly comply with the 14 day notice requirement imposed by the combination of s.425A(3) and reg. 4.35D in relation to the second hearing invitation. This comes about because the applicant would be deemed to have received the invitation 7 working days after the date of the document (17th January 2006) and the hearing date of 31st January 2006 was just short of the expiration of the 14 day period in reg. 4.35D.
The first respondent submits that relief should not be granted for these reasons:
·
The applicant successfully obtained an adjournment of the hearing listed for 31st January. The Tribunal postponed that hearing to 6th February. The applicant sought a postponement of that hearing and the hearing was postponed to 16th February.
Both 6th and 16th February are well after the expiration of 14 days from 17th January.
·The applicant attended the Tribunal on 16th February 2006 but, as no interpreter had been organised, the Tribunal rescheduled the hearing to 20th February.
·The letters from the Tribunal to the applicant after the one dated 15th December 2005 were all sent to the correct address for service and the applicant did in fact attend the hearing and give evidence.
·The date when the hearing was finally scheduled to occur, and did occur, was considerable later then the effluxion of the prescribed period in reg. 4.35D.
·There is no evidence to suggest that the applicant was in any way prejudiced or adversely affected in the presentation of his case by the original non-compliance with reg. 4.35D.
I adopt the reasoning in the above submission, which is correct in my view.
There is authority for the proposition that the court has a discretion to decline relief where an applicant is not prejudiced by lack of strict compliance with reg. 4.35D (see SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026 at [29] and [31]; SZBZO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 494; SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [14]).
Strict compliance with reg. 4.35D is not necessary where there is a rescheduling even though the adjournment is at the behest of the Tribunal (SZEFM (supra); SZCZX v Minister for Immigration [2006] FMCA 786 at [4]-[7]; SZFKF v Minister for Immigration [2005] FMCA 1152; SZCDH v Minister for Immigration [2006] FMCA 78 at [16]-[17]).
Fresh compliance with reg. 4.35D is not necessary where a hearing is rescheduled at the request of an applicant (SZDQO (supra); SZBZO (supra) at [44]). In this case, the hearing was rescheduled twice at the request of the applicant. I agree with Mr Johnson’s submission that a failure to comply with a period in reg. 4.35D would not invalidate a decision of the Tribunal where there has been a series of postponements either at the behest of the applicant.
I am satisfied that there is no jurisdictional error where the
non-compliance with reg. 4.35D occurs as a result of the rescheduling of a hearing at the request of the applicant. As Conti J said in SZDQO at [29]:
In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s. 425A does not apply in relation to the notice of a rescheduled hearing, at least in so far as concerns the period of the renewed notice.
In the case of the hearing that was rescheduled because of the unavailability of an interpreter, I am less persuaded that this can be categorised as a postponement at the behest of the applicant, but it is clearly in the applicant’s interest. In my view, at the very least, relief should be refused on discretionary grounds, because the
non-compliance was not to the disadvantage of the applicant; quite the reverse, in fact.
The application will be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 28 September 2006
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