SZIWM v Minister for Immigration
[2006] FMCA 1627
•23 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1627 |
| 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 Pakistan – applicant claims fear of persecution for reasons of his political opinion – where the applicant did not attend Refugee Review Tribunal hearing – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 474, 476 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | SZIWM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1486 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 October 2006 |
| Date of Last Submission: | 23 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Smith |
| 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 $3,000.00 and I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1486 of 2006
| SZIWM |
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 a review of the decision of the refugee review Tribunal, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on 18th April and handed down on 11th May 2006. In his application filed on
23rd May 2006 the applicant seeks an order that the decision of the Refugee Review Tribunal should be quashed. He sets out four grounds in the application, claiming in particular that the Tribunal did not consider the amount of persecution and fear he had, which was well founded and claims that this was unfairness on the part of the respondents.
The applicant is a citizen of Pakistan who arrived in Australia on
25th November 2005. He applied for a protection (class XA) visa on 19th January 2006 but it was refused on 24th February. The applicant applied to the Refugee Review Tribunal on 10th March 2006 for a review of that decision. The applicant lodged his application for review at the Sydney office of the Tribunal on 10th March and he did not provide any further information with his application.
The Tribunal wrote to the applicant that same day acknowledging receipt of his application and advising him that after looking at the information a member of the Tribunal would either make a decision in his favour or invite him to attend a hearing. The letter went on to tell the applicant that a hearing was his opportunity to give the Tribunal evidence to support his application. A copy of that letter is set out on pages 46 to 47 of the court book.
The Tribunal in fact wrote to the applicant on 20th March advising 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 the applicant to attend a hearing at 12:30 pm on Thursday 13th April 2006. The letter enclosed a response to hearing invitation form which the applicant was asked to complete and return. The applicant did return that form and a stamp on the form indicates that it was received on 31st March 2006.
The applicant placed a tick in the box beside the words "No, I do not want to come to a hearing." The balance of the form was crossed out, except that the applicant appears to have signed it at the bottom of the page. For some reason it is dated 28th October 2006, which is clearly incorrect.
The Tribunal handed down its decision on 11th May 2006. A copy of the Tribunal’s reasons for decision is set out on pages 56 through to 63 of the court book. In the decision the Tribunal considered the applicant's claims and evidence and noted that the applicant had advised the Tribunal in writing that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The Tribunal then considered the applicant's claim on the basis of the material that it had.
The Tribunal summaries the applicant's claims for protection on pages 60 and 61 of the court book. The Tribunal noted that the applicant claimed that he was an active member of the Pakistan Muslim League Nawaz Group, the PMLN, and that he took an active part in politics when he finished high school. The Tribunal noted that the applicant claimed to have prepared literature and fliers against the present regime and as a result the police and intelligence agencies started to search for him. He was told by a friend who was an active member of the party that the authorities would arrest him for creating unrest in the country. He said that a friend, with the help of an agent, arranged for his passport, visa and ticket and a claim that if he returned to Pakistan he would have to face an unfair trial and be punished and prosecuted by military tribunals for creating unrest in Pakistan. The Tribunals findings and reasons appear on pages 61 and 62 of the court book.
The Tribunal accepted that the applicant was a citizen of Pakistan.
The Tribunal noted the applicant's claim that he was an active member of the PMLN but went on to say, "The applicant's claims lack detail." The Tribunal said that the applicant had provided no specific details of the history or the nature of his affiliation with the PMLN and the Tribunal noted various claims made by the applicant and that the applicant provided no details of those claims. The Tribunal noted that the applicant had not provided any further information to support his claims and had not given the Tribunal the opportunity to explore aspects of his claims with him by attending a hearing. The Tribunal went on to find this, at page 63 of the court book:
Given the lack of detail contained in the applicant's protection visa application, the Tribunal is unable to make findings of fact in relation to the applicant's claims. As the Tribunal is unable to make findings of fact in relation to the applicant's claims, it follows that the Tribunal is unable to find that the applicant has a well founded fear of persecution for a convention reason arising from his claims. The Tribunal is therefore not satisfied that the applicant has a well founded fear of persecution for a convention reason.
The Tribunal is not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol and therefore did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The applicant has sought judicial review of that decision by the Tribunal and has filed an application under the Migration Act and an affidavit at this Court on 23rd May 2005. The affidavit contains no details of the applicant's claim but merely refers to attaching the copy of the Tribunal decision and seeking review in this Court.
The grounds of the application are set out in the affidavit. The first ground claims that:
The applicant was an active member of the PMLN group and the applicant joined the student wing of the PMLN group from the platform of Muslim Student Federation. The applicant became the full member of the party after finishing his studies.
The applicant took active part in the politics. The applicant was persecuted for his political opinion.
That matter set out as ground one is no more than a recitation of the applicant's factual claim and does not contain any claim of a jurisdictional error on the part of the Tribunal. Ground one therefore fails and it need not be considered further.
Ground two says:
That the applicant printed the literature and fliers against the army regime and the puppet government which is in the hands of the army regime. The applicant was a printer. The applicant was chased by the intelligence agencies and was also followed by the police. The RRT ignored the amount of fear in the case of applicant. The RRT has committed jurisdictional error.
The third ground says this:
That the applicant was searched and the police started to search the applicant to arrest him and to prosecute him under Official Secret Act which carries death sentence, as the applicant printed the literature which was distributed all over the country.
The Delegate and the RRT did not consider the amount of persecution and fear which were well-founded. This is unfairness on the part of respondents.
I would comment at this stage that in so far as ground three alleges an error on the part of the Delegate, as opposed to an error on the part of the Tribunal, the Court cannot consider it as that is a primary decision. The Court on judicial review, under s.476 of the Migration Act cannot consider a primary decision that is the Delegate's decision, which is reviewable by the Tribunal, but can only consider the Tribunal's decision.
The second and third ground, as counsel for the first respondent,
Mr Smith, submits, largely relate to questions of fact. Ground two sets out that the RRT ignored the amount of fear in the case of applicant and the RRT has committed jurisdictional error. I imagine the jurisdictional error alleged is therefore a failure to consider relevant material.
The applicant did not explain any of the grounds in his application but reiterated that he had a well founded fear in Pakistan, that his family was being harassed and that his brother was being held by the police, who would only release him if the applicant were to return to Pakistan.
I am not satisfied on a reading of the Tribunal's decision that there is any evidence that the Tribunal failed to consider the applicant's claim or any of the applicant's claims. The Tribunal appears to have summarised the applicant's factual claims concisely and to have found that it was not satisfied on the basis of the inadequacy of the evidence. As there is no evidence that the Tribunal failed to consider a claim or any part of a claim made by the applicant, ground two must fail.
Ground three contains mostly a recitation of factual matters going to the applicant's claims and alleges that the Tribunal did not consider the amount of persecution and fear which were well founded.
There appears to be no support in the Tribunal's reasons for that claim as the Tribunal's coverage of the applicant's claim as appears in his protection visa application appears to be quite comprehensive.
The applicant claimed that not considering the amount of persecution he faced constituted unfairness on the part of the Tribunal, but there is no evidence which would support a claim of unfairness. In any event, as this was an application commenced after s.422B of the Migration Act came into force, there is no basis for any finding of common law procedural unfairness and there does not appear to be any breach of
s.424A of the Migration Act or for that matter any other section which would lead to a statutory procedural unfairness finding.
The fact is that the applicant did not attend the Tribunal hearing.
The applicant claims that he did not attend the hearing because on his way to the hearing he fell down at the railway station and hurt himself, which meant that he was unable to walk for three to four days. He has provided no evidence of that claim. It is not, for instance, referred to in his affidavit filed on 23rd May 2006. He has not produced a medical certificate showing that he received any medical or hospital outpatients treatment for an injury on the day of the hearing. He concedes that he did not contact the respondents’ solicitors to tell them that he had been injured.
As Mr Smith of counsel for the first respondent Minister points out, his explanation of not attending the hearing appears unlikely, due to the fact that he informed the Tribunal in the response to hearing invitation that he did not intend to attend. The response to hearing invitation appears in photocopy form at pages 51 and 52 of the court book.
He indicated in that document that he did not want to come to a hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. That is exactly what the Tribunal did.
The Tribunal found against him because of the inadequacy of his information. The Tribunal found that it was unable to make findings of fact in relation to his claims because of the lack of detail contained in his protection visa application and therefore it was unable to find that the applicant has a well-founded fear of persecution for a Convention reason.
Counsel for the first respondent has submitted, and in my view correctly, that there is no error, jurisdictional or otherwise, in a failure or inability to make findings of fact and refers to Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]. I am also advised by counsel for the first respondent that an application for special leave to the High Court of Australia was refused on 9th September 2005.
I am satisfied that the Tribunal followed the procedure required by the Act. It invited the applicant to attend the hearing by sending a written application to his address. The applicant received that and returned the form saying that he did not wish to attend the hearing. The Tribunal considered the applicant's claims on the basis of the material before it and indeed it is hardly surprising that the Tribunal was not satisfied that it could make a finding in the applicant's favour.
The situation where an applicant chooses not to attend a Tribunal hearing has been considered in a number of cases before the Court. The applicant was well aware that the Tribunal was not able to make a decision in his favour on the basis of the material that it had. It is hardly surprising that if the applicant did not attend the hearing and did not provide further written documentation in support of his claim, that the Tribunal would remain in that same state of mind, namely that it could not be satisfied that it could make a decision in the applicant's favour. The Tribunal did consider the material before it for the purpose of the review as is set out in the decision but was not satisfied.
The applicant's explanation to the Court today as to why it was that he did not attend the hearing does not accord with his decision not to appear and has provided no evidence other than a bald assertion as to these circumstances.
There is no jurisdictional error apparent in the decision.
The applicant's three grounds do not show any jurisdictional error. They therefore cannot stand. My reading of the Tribunal's decision independently of the applicant's application does not disclose any jurisdictional error or any arguable case of a jurisdictional error.
There is no jurisdictional error. The Tribunal decision is therefore a privative clause decision as defined by sub-s.474(2) of the Migration Act. As it is a privative clause decision, it is final and conclusive and is not subject to any order in the nature of certiorari as the applicant claims. Indeed it is not subject to declaration, injunction, prohibition or mandamus. The application will be dismissed. I do propose to make an order that the title of the first respondent is changed to Minister for Immigration and Multicultural Affairs.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim and in my view it is appropriate to make an order for costs in favour of the first respondent. The amount sought is $3,000.00 which I understand to be inclusive of counsel's fees. The application in these circumstances would appear to be one that may not in all of the circumstances have necessitated the briefing of counsel, as it did not contain any particularly complex issues of law. Nevertheless, the overall amount sought is a relatively modest amount and not one which I consider to be inappropriate. I am satisfied I should make an order for costs in favour of the first respondent and I am satisfied that I should do so in the sum of $3,000.00. The applicant is not in employment and I accept the fact he has no funds readily available.
I am prepared to allow four months to pay.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 November 2006
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