SZIWA v Minister for Immigration & Anor
[2006] FMCA 1389
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1389 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Malaysia – where the applicant failed to attend RRT hearing – no jurisdictional error – privative clause decision. PRACTICE & PROCEDURE – Where affidavit did not comply with Federal Magistrates Court Rules – no certification that contents explained or translated to applicant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A,474, 477 Federal Magistrates Court Rules 2001 R 15.27 |
| SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 |
| Applicant: | SZIWA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1438 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 September 2006 |
| Date of Last Submission: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Migration Review Tribunal is removed as a party to the application.
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 $2,900.00 and I allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1438 of 2006
| SZIWA |
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 a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 19th December 2005, and handed its decision down on 12th January 2006.
The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection visa. The applicant now seeks unspecified orders in respect of that decision.
The applicant is a citizen of Malaysia. He arrived in Australia on
19th August 2005. On 4th October he applied for a protection
(class XA) visa, but it was refused on 17th October 2005.
On 7th November 2005 an application was lodged with the Refugee Review Tribunal, bearing the applicant's signature, seeking a review of that decision. The applicant gave a home address and a post office box number as his mailing address.
He set out in the application that his reasons for making the application were "race and religion problem". The applicant signed that document and identified his signature to the Court at the hearing.
The Tribunal wrote to the applicant at his post office box address on 22nd November 2005. The Tribunal sent the applicant two letters.
The first told him that the Tribunal had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. The Tribunal invited him to attend a hearing on Monday, 19th December 2005. The letter contained a response to hearing invitation form which the applicant was invited to complete.
In the other letter to the applicant of 22nd November 2005 the Tribunal wrote under the provisions of s.424A of the Migration Act. The letter began by saying:
The Tribunal has information that would, subject to any comments you make, be the reason or part of the reason for deciding that you are not entitled to a protection visa.
The letter went on to say:
The Tribunal has received applications for review relating to protection visa applications containing almost identical claims to the ones you have made in your application for a protection visa. This raises a credibility issue as it might indicate that the claims have been fabricated in order to support the application for a protection visa.
The letter invited the applicant to comment on that information.
The applicant did not attend the hearing. Although the s.424A letter of 22nd November warned the applicant that if he did not give comments by 15th December 2005 the Tribunal may make a decision on the review of his case without further notice, the Tribunal did not take that step, even though no reply was received by the Tribunal.
The Tribunal went through its checklist procedure, and a copy of that document appears on p 43 of the Court Book. The applicant did not attend the hearing of the Tribunal on 19th December. The Tribunal then decided to proceed to make the decision using its powers under s.426A of the Migration Act without taking any further action to allow or enable the applicant to appear before it.
The Tribunal noted the applicant's claims. Those claims were that he left Malaysia for a race and religion problem; he claimed to be a Buddhist believer; and that Muslim extremists were forcing him and his family to join the Muslim religion. He reiterated the race and religion problem in his application for review.
The Tribunal's findings and reasons, which are necessarily brief, are set out on pp 54 and 55 of the Court Book. The Tribunal noted that it was satisfied that the applicant was a citizen of Malaysia of Chinese ethnicity. The applicant had provided details of his Malaysian passport with his protection visa application.
The Tribunal noted at p 54 that the applicant's claims were vague, general, and lacking in details. The Tribunal also noted that the applicant had not provided any corroborative evidence and just made a series of assertions. The Tribunal went on to say that it was satisfied that the applicant had been given proper opportunity to support his application, both at the primary level as well as at the review stage.
The Tribunal went on to say this at pp 54 and 55 of the Court Book:
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 that the applicant is a Buddhist believer, or that he had left Malaysia because of any racial or religious problems, or that he and his family were under a lot of pressure.
The Tribunal was not satisfied about any other aspects of the applicant's claim. Accordingly, the Tribunal was not satisfied that the applicant had suffered any Convention-related harm, or that there was a real chance of any such harm occurring in the reasonably foreseeable future.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention-related reason, and affirmed the decision not to grant a protection visa.
The applicant has filed an application under the Migration Act according to r.44.05, accompanied by an affidavit. The affidavit annexes a copy of the Tribunal decision. The applicant identified the signature on the affidavit as his, and told the Court that he had signed the affidavit in a McDonald's restaurant, but had not had the contents of the affidavit translated to him.
The affidavit does not contain any certification that a translation of the affidavit and oath or affirmation had been read or given to the applicant, and it appears to me that that did not happen. The affidavit does not comply with r.15.27(2) and under r.15.27(3) I am not satisfied that it should be used in the proceeding. I reject it.
The affidavit appears to have been signed in the presence of a Justice of the Peace whose name is given as Hugo C Sardi, JP960419. I am not satisfied that the Justice of the Peace appears to have complied with the procedures for affirming affidavits, and I intend to direct the Registrar of the Court to forward a copy of this decision to the Attorney-General of New South Wales. All Courts, both Federal and State, rely heavily on affidavits, and Justices of the Peace have a responsibility in this regard.
The application itself seeks an extension of time for making the application under s.477 of the Migration Act. Whilst the application sets out the date of the decision, it provides no date as to when notification of the decision was received by the applicant. Whilst there is evidence that the decision of the Tribunal was handed down on
12th January, there is no evidence of the date of actual notification as opposed to deemed notification.
In the absence of such evidence, I am unable to find that the application is out of time, and the solicitor appearing for the Minister, Ms Nesbitt, quite properly conceded that no point would be taken in respect of the Court's jurisdiction.
The rest of the application has been accurately described by the solicitor for the first respondent as formulaic. It is indeed an application that is familiar in this jurisdiction.
The grounds of the application are given as follows:
(1) The Tribunal made his decision in bad faith. The Tribunal deprived me of the natural justice. The Tribunal denied the evidentiary proof of my claim. The Tribunal's decision did not reflect the material facts of my claim.
(2) The Tribunal has given a decision which was pre-set in the back of its mind. The Tribunal mixed up many facts with this decision which affected the decision. The Tribunal concentrated in particular fact while ignored many other facts in this condition.
(3) The Tribunal make up his mind without any inquiry regarding my claim, and he did not believe my genuine Convention-based refugee claim.
There is no particularisation of any of those claims. The applicant explained that someone had prepared this application for him. When I asked him to expand on the grounds in his application he did not know what they meant. Indeed, the applicant's depth of knowledge was so shallow that I had to explain to him what the Refugee Review Tribunal was.
The applicant made no submissions, although given the chance to make oral submissions. He did indicate that he had not had any education, and I am prepared to believe that he was not literate in his own language, and he also has the disadvantage of being unable to speak, read, or write English.
He has not been able to show any jurisdictional error. I am mindful of the fact that he is not legally represented, and indeed, suffers from not having had an education in his native country. I note from the Court file that he took part in the Refugee Review Tribunal scheme for legal advice, and was referred to a barrister for advice on 29th June 2006. Nevertheless, he was not legally represented at these proceedings.
I have read through the decision and made my own independent assessment and I am satisfied that no arguable case for jurisdictional error was disclosed.
The fact is that the applicant had not provided with his application for review any further information than was in his application for a protection visa, apart from the claim of race and religion problems.
The Tribunal had formed the view, when it wrote its s.425 letter to the applicant on 22nd November, that it was not able to make a decision in his favour based on the material that was before it. As the applicant did not attend the hearing to give evidence and did not provide any further written information, the Tribunal was left no better off than it was before.
It is quite clear that the reason that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution and affirmed the Delegate's decision was because the information was wholly inadequate. Where an applicant does not attend a Tribunal hearing, it is hardly surprising that the Tribunal is not able to be satisfied of the applicant's claims; see SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [15] to [18], and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16].
The applicant told the Court that he had received a letter from the Tribunal but could not read it. When he asked people who spoke Chinese but could also read English about the letters he said that they told him it did not matter. Of course, it did matter. By not attending the Tribunal hearing the applicant lost his chance to substantiate his claim that he was a refugee.
The application will be dismissed. There is no jurisdictional error, and the Tribunal decision is a privative clause decision as defined by
sub-s.474(2) of the Migration Act.
I note the applicant's application, whilst it named the Minister for Immigration & Multicultural Affairs correctly as the first respondent; the second respondent was given as Refugee Review Tribunal or Migration Review Tribunal. The Migration Review Tribunal should not be a respondent to these proceedings, and I propose to make an order deleting the Migration Review Tribunal from the proceedings.
I will hear submissions on costs.
There is an application for costs on a party-party basis in the sum of $2,900.00 on behalf of the first respondent. The applicant has been wholly unsuccessful in his claim, which was entirely without merit. There is no reason why the first respondent should not be entitled to an order for costs. I propose to make that order.
The amount sought is $2,900.00. It is a modest sum in the circumstances, and an entirely appropriate figure for me to award.
The applicant says that he cannot afford that amount because he is not working and does not have those funds.
Whilst I see no reason to doubt that, that is not a reason why I should not make a costs order, but I will allow time to pay it. I intend to allow six months to pay it.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 September 2006
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