SZITZ v Minister for Immigration
[2006] FMCA 1314
•24 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1314 |
| 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 protection visa – applicant is a citizen of India – fear of persecution for reasons of religion and political opinion – where applicant did not attend the Refugee Review Tribunal hearing – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 65, 426A, 474(2) |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NABX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Plaintiff S157 of 2002 v Commonwealth of Australia (2003) CLR 476 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 481 |
| Applicant: | SZITZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1257 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 August 2006 |
| Date of Last Submission: | 24 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application for an adjournment is refused.
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 $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1257 of 2006
| SZITZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of the decision of the Refugee Review Tribunal. The decision was signed on 29th March and handed down on 18th April 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant seeks a review of that decision, and asks the Court to make orders in the nature of certiorari quashing the decision, and mandamus compelling the Tribunal to re-hear and re-determine his application according to law.
The applicant has been found to be a citizen of the Republic of India. He arrived in Australia on 20th November 2005. Two days later, on the 22nd, he applied for a protection (class XA) visa. That application was refused on 15th February 2006. On 28th February 2006 he applied to the Refugee Review Tribunal for a review of that decision.
The application was not accompanied by any statement or other documents.
On 9th March 2006, the Tribunal wrote to the applicant at the mailing address that he had given in his application. The letter said, relevantly, quote:
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 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 Tuesday, 11th April 2006, time 11.30 am.
The letter included a response to hearing invitation form, and the applicant was asked to fill that document in and return it. He returned that document to the Tribunal, and in the space marked: "Do you want to come to a hearing?" he completed the box saying: "No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it". The balance of the form was crossed out and the applicant signed that on 27th March 2006.
The Tribunal noted the applicant's consent to dealing with the matter without a hearing, and accordingly cancelled the arrangements for the hearing. The Tribunal proceeded under the provisions of s.426A of The Migration Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal considered the applicant's claims, and the Tribunal's consideration of those appears at page 68 of the court book. In short, the Tribunal noted that the applicant is of Sikh ethnicity and religion. He was a leader of a party known as the Akali Dahl, and claims a
well-founded fear of persecution for reasons of his political opinion.
He alleged that a member of the Congress Party had lodged a false claim against him, and blaming him for the death of a person who was killed during the election. And in May of that year he said that he was arrested and detained for a month. He was later given bail.
He said that on 10th May at a time when he said he was at a party meeting, unknown police attacked his house and the house was burned down, and his brother was at home and was injured. It certainly appears from the Tribunal's recitation of the facts alleged that there was some error, because on the facts referred to before me the applicant was arrested and detained for one month on 5th May 2002 and the attack on the house occurred on 10th May 2002. The applicant could not have been absent at the party meeting because he would still have been in detention. Nevertheless, that is a factual matter for the Tribunal and not for the Court.
The applicant claimed that he were to return to India he fears that he would be persecuted, he is in great danger, and would be killed at the hands of the opponents.
The Tribunal's findings and reasons are set out on pages 69 and 70 of the court book. The Tribunal, on the basis of the available information, was satisfied that the applicant is a citizen of India and was satisfied that the applicant was of Sikh ethnicity and religion.
The Tribunal went on, however, to point out that the applicant had made a series of vague and general claims lacking in details and describes the claims as no more than a series of vague assertions.
The Tribunal was satisfied that the applicant had been given a proper opportunity to support his application, both at the primary level as well as at the review stage.
The Tribunal, at page 70, went on to set out in a sentence beginning, quote:
Without further details, clarifications, corroborative evidence, and without having had the opportunity to explore the claims with the applicant at a hearing and test the evidence, the Tribunal is not satisfied - - -
and the Tribunal member then goes on to mention all of the matters about which the Tribunal could not be satisfied.
I will not read them through in full, although I notice that the sentence, the beginning of which I have quoted, covers almost the entire page.
It would at times be helpful for a Court reviewing decisions of the Refugee Review Tribunal if Tribunal members could perhaps pay a little bit more attention to the rules of punctuation. Nevertheless, the Tribunal was not satisfied that the applicant had suffered any convention-related harm and was not satisfied that there was a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
The Tribunal was not satisfied the applicant had a well-founded fear of persecution for a convention related reason, and affirmed the delegate's decision not to grant a protection visa.
The applicant sought a review of that decision from this Court by means of an application filed on 3rd May. The application came before the Court for a first Court date on 29th May, when directions were made for hearing.
The applicant was offered the opportunity to take part in the Legal Advice Scheme which is available to applicants seeking review of decisions of the Refugee Review Tribunal. He filled in the appropriate form, and his documentation, or at least the documents relevant to the case, were referred to a member of the Legal Advice Panel, a Mr Lloyd, barrister. According to the Court file, that referral was made on 5th June 2006, only a few days after the first Court day.
On 21st July the barrister concerned reported to the Court that he had prepared the appropriate legal advice based on the documentation, and forwarded that advice by letter for the reason, and I quote:
As attempt to contact failed.
The directions made by consent at the first Court date on 29th May gave the applicant leave to file and serve an amended application by 3rd July. The applicant was also directed to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. Despite having received legal advice from a barrister, he did neither.
He sought to file an amended application and an outline of submissions on 22nd August, two days before the hearing. Those documents were rejected by the registry. However, I gave the applicant leave to file those documents in Court at the hearing, and permitted him to rely upon them. Copies were made available to the solicitor for the respondent Minister.
The applicant told the Court that he does not speak, read or write English, and that a friend had prepared the amended application for him. It appears that the person who prepared the material for the applicant may have been confused. One of the grounds for the application says, quote:
The Refugee Review Tribunal did not appreciate the facts and the circumstances of the case. It is a known fact that even the states are unable to stop the drug dealers. The applicant, with no backing, fought the war against the drugs in his country.
The amended application goes on at paragraph 2 to refer to, quote:
The applicant lost all his business, family, and was open to a great fear of his life being taken away by the drug lords in Pakistan.
The ground goes on to say, quote:
The applicant cannot be given the protection in Pakistan. If the applicant is sent back to Pakistan, in that case the applicant shall be done to death by the hands of the drug lords in Pakistan.
The amended application complains that the Tribunal did not make findings in relation to those claims.
As the applicant has always claimed to be a citizen of India who was seeking a protection visa on the basis of his political opinion and membership of the Akali Dahl party, it is quite clear that the reference to Pakistan and a struggle against the drug lords of that country has no relevance to the applicant's case at all. I asked the applicant about that, and he indicated that he had nothing to do with Pakistan.
The balance of the amended application, at least in paragraph 1, refers mainly to a claim about the applicant's membership of the Akali Dahl party, and claims the Tribunal did not appreciate the evidence in the claim of the applicant, to the effect that the applicant fears persecution in India, because the applicant was and is against the present regime of the Indian authorities.
The balance of the amended application refers to factual matters, and it is clear that the applicant is seeking to challenge the factual findings of the Tribunal.
The applicant was offered the opportunity to make oral submissions. He told the Court he agreed that he had made a mistake when accepting the advice of someone not to go to the hearing. He said that he was misguided about the Tribunal hearing because somebody had said,
"Do not go there." He said that he needed another opportunity to go to the Tribunal hearing.
When asked to speak to his application generally, he said that he needed more time so that he could prepare his case. When asked how much time he needed, the applicant said he needed the maximum time.
I took this to be an application for an adjournment. Needless to say, the solicitor for the Minister in the circumstances opposed the application.
In my view there are no grounds for an adjournment whatsoever.
The applicant is, after all, the applicant. He was the one who chose to commence these proceedings. He has had three months, almost, to prepare his case. He has been offered and given legal advice by an experienced barrister free of charge.
In my view there are no grounds for an adjournment, and as I indicated during the hearing, the adjournment is refused.
The solicitors for the Minister have prepared a written outline of submissions, which I have read with great interest. The Minister submits that the Tribunal's decision in the present case is a privative clause decision as defined by sub-s.474(2) of The Migration Act. As is submitted, in the well known decision of Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476, to which I am referred in the submission, the High Court upheld the validity of s.474 and it then went on to consider how the section should be reconciled with the remainder of the Act.
The decision is authority for the fact that s.474 validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error. The submissions which were prepared in answer to the original application, in that the amended application and outline of submissions had not been made available, claim that no jurisdictional error has been made out.
Those submissions I note were filed on 17th August, which does, to my mind, comply with the directions that were made.
The basic submission as to the absence of jurisdictional error still applies. The amended application does no more than seek merits review. In other words, it does no more than restate the applicant's factual claim, and insofar as it is relevant, challenges the Refugee Review Tribunal's factual findings. Parts of it, as I indicated earlier, are quite irrelevant and refer to some other applicant's case.
The respondents, in reference to the decision of the Refugee Review Tribunal, submit that the Tribunal complied with its statutory obligations to invite the applicant to attend the hearing, and the applicant was informed that the Refugee Review Tribunal was unable to reach a decision in his favour on the material before it.
That invitation was expressly declined, and the Tribunal was unable to reach the state of satisfaction required by ss.36 and 65 of the Migration Act in order to grant a visa.
Insofar as s.56 is concerned, I am referred to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, where their Honours said:
As s. 65 and Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 481 make clear, the section requires a visa to be rejected in the absence of the positive finding of satisfaction.
I am also referred to SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 where the Full Court, at [15] and [16], concluded that a legislative regime which requires a positive state of satisfaction as to whether protection obligations exist mandates a refusal of the decision of that state of satisfaction is not reached.
The fact is that this applicant chose not to attend the Tribunal hearing. As was pointed out in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs& Anor [2005] FCA 1306 at [16], quote:
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 NABX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
That is the situation in this case. The applicant elected not to take the opportunity to attend the Tribunal hearing. The reason why the Tribunal affirmed the delegate's decision was because it was not satisfied that the information was sufficient to enable it to grant a visa.
It was the lack of information which the Tribunal had already made clear that brought about what the Late Justice Healy in SZDXC (supra) described as the inevitable result. There is no reviewable error.
I am mindful that the applicant is not legally represented, although as I said earlier, he did have legal advice provided to him free of charge by an experienced barrister.
I have read through the decision itself in order to ascertain whether there may be an arguable case for any other jurisdictional error to which the applicant has not adverted. I am unable to see any sign of a jurisdictional error. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent.
The applicant has been wholly unsuccessful in this case, and in my view this is an appropriate matter to make an order for costs.
I note that the applicant says that he is unable to pay the amount of costs sought, which was the relevantly modest sum of $2,000.00.
That is not, in this jurisdiction, a reason why a successful party should be deprived of a costs order. It is a reason, however, that the Court should take into account in assessing time to pay.
I propose to make an order for costs in the sum of $2,000.00 in favour of the first respondent. The amount of $2,000.00, as I said, is a modest sum indeed and well within the scale that the Court would allow under the Federal Magistrate Court rules. I will, however, allow the applicant four months to pay.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 September 2006
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