SZIXJ v Minister for Immigration
[2006] FMCA 1478
•5 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1478 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 425, 425A, 426A, 441A, 476 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 SZCIA v Minister for Immigration [2006] FCA 238 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEZI v Minister for Immigration [2005] FCA 1195 |
| Applicant: | SZIXJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1604 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 5 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Gujarati interpreter |
| Advocate for the Respondents: | Ms M Jolley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 6 June 2006 is dismissed.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1604 of 2006
| SZIXJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
This is an ex tempore judgment which has been revised and edited from the transcript. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 June 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 26 April 2006 and handed down on 16 May 2006, affirming a decision of the delegate of the first respondent made on 14 February 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIXJ”.
The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act. In the original application of 6 June 2006, the applicant set out the following grounds of review:
1.The delegate of the Minister made an error of law which the Tribunal failed to notice that the Applicant’s original PV application was neither signed by the Applicant nor by the Justice of Peace.
2.The Tribunal failed to understand that the Applicant fear genuine Convention based persecution on the basis of his association to a particular social group as defined in the Refugee Convention.
The applicant set out the following grounds of review in his amended application of 18 July 2006:
1.The Applicant was helped by a person to lodge his Protection Visa Application whom he had known since his arrival from India, i.e for few days. This person agreed to help the Applicant ‘free of charge’ in lodgement of his PV Application, because the Applicant didn’t had any money to go to a Migration Agent or consultant.
2.The Applicant signed part B (about the Applicant personal and family composition details), of form 866 (On Shore Protection Visa form), and was told that when part C of form 866 (which includes statement of claims) is completed he had to come back, it would be read back to him and then he was to sign it in presence of Justice of the Peace (which is a mandatory requirement for a ‘valid’ Application, to be accepted by the DIMIA).
3.The Applicant after telling his situation back home in India and his fear of persecution for the convention based reason of belonging to a particular social group – who were working against the mafia, indulged in drugs and human business – left for his home. The Applicant also gave this person $50 for the Application fee and photocopying.
4.The Applicant was then unable to get in touch with this person for a week or so and when he finally got in touch with him, this person handed him over copy of his PV application and receipt of A$30 money order dated (6/12/2005) the same day when the Applicant signed part B of form 866 and filled in other personal details in part c of the same form.
5.The Applicant is totally illiterate person who can only speak Gujarati language, didn’t knew that what was written in his statement of claims part of the form, nor was asked to sign it in front of the Justice of the Peace. All the Applicant could do was to thank this person for the favour of lodging his Application without charging him any fee. The Applicant was never read back what that person has written in his Application.
6.Although, the PV Application should have been sent back to the Applicant by the Department marking it as an ‘invalid’ Application as neither it was signed by the Applicant nor by justice of the peace, but in fact it was accepted and a decision was made on the information provided, which was neither detailed nor accurate. Thus, the Applicant was denied of his right of procedural fairness.
7.After the decision was sent to the Applicant by the Department and was translated to him by a community member who could understand a little bit of English, the Applicant really got scared and worried as only then he came to know that what was written in his PV Application which was neither accurate nor detailed. His unfortunate and dangerous circumstances were not explained as it was told by him to that person.
8.The same person who translated the Department’s decision to the Applicant told him that now he should apply to the Refugee Review Tribunal as was written in the letter to at least keep his immigration status legal, which the Applicant did.
9.Although, the Applicant pursuant to s424A of the Act was asked by the Tribunal to comment on the relevant information on 15th March 2006, but by then the Applicant had become scared and ill advised by a few community members that he would be sent back to India, if he get in touch with the Tribunal or go there for an interview, as what has been written in his PV Application is not good enough to keep him here in Australia.
10.The Applicant eventually didn’t attend the RRT hearing because of his fear and ignorance of law that he would be either detained or sent back home where he fear persecution.
11.In the meantime, the Applicant found a job and was able to consult an immigration consultant who advised him that he should not worry about being sent back and lodge his Application for review at Federal Magistrates Courts, which he did with the help who took and accompanied him to this immigration matters consultant.
12.The Applicant is an Indian married citizen. The Applicant was born and grown up in slump areas of India. The Applicant used to sell tea and was living a modest life before coming to Australia. In Applicant’s area of residence the drug mafia was very active, who also used to buy and sell poor girls/women for sex industry in India and abroad.
13.The Applicant along with few other people were really worried about the whole situation as most of the poor working people of his region were getting addicted to drugs, losing there jobs, had to sell there house hold items to buy drugs and when left with nothing they would not hesitate to sell there female family members to these cruel and in humane people.
14.The Applicant along with other like minded people tried to educate and stop these drug addicted people but they would never listen to them. The Applicant one day head a group of people and went to the Police station to inform them about the activities of these mafia people, but because these devil people were working with full co operation of the Police, the Applicant and other people were abused and kicked out of the Police station for the reason that they were maligning names of ‘respected’ people of the society.
15.The Police informed the mafia people about the Applicant head group and there un lodged complaints against them.
16.On his return to home from the Police station these people were already waiting for the Applicant. They ruthlessly beat him up and went away, but not before threatening the Applicant with dire consequence if he didn’t keep his mouth and eyes shut, including losing his life and his wife taken away.
17.The Applicant, although, could not do much with his limited and modest resources but he was un able to keep his eyes and conscience shut, in spite of the dangers involved.
18.The Applicant after recovering from the injuries sustained went to a relatively rich and influential social worker to seek his help in this regard. The Applicant also sent his wife and family away, so that to keep them out of harms way.
19.The Applicant was not disappointed by the response he got from his social worker who promised him to help him in this regard on the condition that the Applicant should be ready as a witness to all what was happening in his area if the situation arise, to which the Applicant readily agreed.
20.In few days time the mafia police came to know about the whole situation and in broad day light came to the Applicant’s tea shop, brought him out in this busy slump area market and started beating him up once again and left him unconscious, threatening other people not to help the Applicant.
21.After this incident the mafia associates would come to the Applicant’s shop, taking things without his permission or paying for it. They would also tease and intimidate the Applicant by saying foul things about his wife and daughter.
22.The Applicant’s life became a living hell as neither he had any skills or resources to move to another place nor was able to keep his conscience quite about the in humane and heinous crimes of these people.
23.The Applicant was once visited by this social worker along with a press reported at his shop to tell them about the whole situation of his area, which he did. The mafia bosses were straight away informed by there informants in the area. The first thing they did was to stop release of press report against them through there contacts and influence.
24.The Applicant was also informed by that social worker to come over to his place as these people might do something very dangerous to him. During night time these mafia associates came armed to the Applicant’s place and when they didn’t found him, they burnt his small house. They also told the neighbouring people that they would found out the Applicant no matter where on earth he is and would kill him in front of these people, so that they all know that how powerful they are and what they would do to any one who go against them.
25.When Applicant came to know about this he really got worried and asked the social worker if he can do anything about it. The social worker told him that even he is help less against these people as they are very influential and powerful. The only thing he could do was to arrange for the Applicant to leave the country and have a safe and protected life. The social worker also asked if the Applicant can arrange for part of expenses and the Applicant said that he would try.
26.Those were the most miserable days of the Applicant’s life, as he was in hiding, away from his family and needed to arrange for some funds. The Applicant almost begged people to give him money but he could only generate a little bit.
27.The social worker was kind enough to arrange for his Australia Visa through an agent and his travelling expenses to leave India for Australia, where the Applicant is now seeking refuge.
28.The Applicant’s Visa Application was filled in by the Agent who got him the Visa and he is totally un aware that what he wrote in that Visa Application form. All he knew was to leave India and escape persecution at the hands of his persecutors.
29.The Applicant’s well founded fear of serious harm under s 91R(1) of the Act for the convention based reason of belonging to a particular social group ie. working against the evils of the society are well above 50% and is entitled to the Australian protection.
30.The Applicant request this Honourable Court to make an order that the Applicant’s fear of persecution be reconsidered by the Tribunal for the grant of protection of Australia under the Refugee convention. (copied without alteration or correction)
The respondent filed the following response to the application of 6 June 2006, on 29 June 2006:
The respondent relies upon the following grounds and particulars in defence of the application:
1.The application does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 16 May 2006.
2.The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
3.The Court has no jurisdiction to review the Delegate’s decision made on 14 February 2006 as subsection 476(2) of the Migration Act 1958 (Cth) applies.
Background
The Tribunal decision of Ms Patricia Leehy, reference N06/53260, contains the following background information. The applicant, who claims to be a citizen of India, arrived in Australia on 26 November 2005. On 20 December 2005, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 14 February 2006, a delegate of the Minister refused to grant a protection visa and on 8 March 2006, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 59)
The Tribunal had before it information from the applicant’s Business visa application form for temporary entry to Australia lodged in India in November 2005. That application indicated that the applicant was employed as the CEO of a business in India and had been employed by this business since July 2000. Yet in his Protection visa application, the applicant said that he had never been employed, but that he used to sell tea on the streets and sometimes used to beg. The Tribunal considered that this information would form the reason, or a part of the reason, for affirming the decision under review, subject to the applicant’s comments.(CB 61)
Reasons
In respect of the first ground of the applicant’s original application, I accept the third ground of the response as correct. I refer to s.476 of the Act which defines the jurisdiction of the Federal Magistrates Court:
(1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) …
(4)In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
The second ground of the application is not particularised and does not identify any “particular social group” or any alleged error. In the absence of any specific claims, I will now deal with the proceedings generally.
The Tribunal wrote to the applicant indicating that it was unable to make a favourable decision on the information supplied in his application. It invited him to give oral evidence and present arguments at a hearing on 26 April 2006. However, there was no reply by the applicant to that letter and no attendance at the hearing. The Tribunal decided to proceed with its decision without further notice.(CB 62)
Part 7, Division 4 of the Act contains provisions for the conduct a review by the Tribunal. Section 422B(1) of the Act states:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Section 425(1) of the Act states:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 425A of the Act states:
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 441A(4) of the Act states:
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and …
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
The Tribunal letter of 16 March 2006 was addressed to the applicant.(CB 51) There is no evidence that the applicant’s address had changed between the date he filed his Tribunal application and the dispatch of the relevant letters. The Tribunal decision provides the following information in respect of checks carried out as a result of no response to its invitation to the applicant to attend the hearing:
The applicant does not have an authorised recipient, and the letters addressed to the applicant were sent to the mailing address given by him in his review application. The applicant’s files were checked to ensure that no change of address had been advised. On 26 April 2006, the Tribunal rang the telephone number given to the Department by the applicant as his contact telephone number. It confirmed that the address of the woman who answered the phone was the residential address given by the applicant in his review application. The woman indicated that she did not know the applicant and that he was not there.(CB 62)
Section 441C(4) of the Act states:
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document;
Section 426A of the Act states:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
As the applicant did not attend the scheduled Tribunal hearing, the application was decided on the papers before the Tribunal. Based on the material before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal member was unable to be satisfied from the evidence before her that the applicant faces a real chance of persecution should he return to India now or in the foreseeable future.(CB 63-64)
The Tribunal found that there were insufficient particulars provided by the applicant to explain the inconsistent evidence before it and the circumstances prior to his arrival in Australia. As the applicant failed to attend the Tribunal hearing, the member was not able to ask these questions to the applicant.(CB 63)
The circumstances in this case are similar to those in SZEZI v Minister for Immigration [2005] FCA 1195 (“SZEZI”). In SZEZI, Allsop J found that the applicant did not attend the Tribunal hearing and records the relevant reasons from the Tribunal decision (at [8] and [29]):
8. The relevant reasons of the Tribunal were as follows:
The applicant [name provided] has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case…how he was able to leave Bangladesh unharmed if, as he claims, he is a risk of [sic] being killed or crippled because of his sexual preference, why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known to others given his claim that his sexual preference would be known if he returned there now.
29.On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s424A (1) by s424A (3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
In SZCIA v Minister for Immigration [2006] FCA 238, another matter in which the applicant did not attend the Tribunal hearing, the Federal Court emphasised the need to make an evaluation of the Tribunal’s reasons. Justice Allsop stated at [9], [11] and [12]:
9.The Tribunal after dealing with the legislation and applicable law referred to the departmental file, which was before the Tribunal. It is clear from the cases dealt with up to and including SZEEU v Minister for Immigration and Multicultural and Indigenous [2006] FCAFC 2 that the departmental file may well contain information the subject of section 424A and within the meaning of that section. However, as I sought to make clear in SZEEU at [208] – [216], and in [216], whether information is the reason or a part of the reason depends upon a judgmental analysis of the reasons of the Tribunal for why the Tribunal came to the view it did.
10. …
11.The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.
12.In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.
As in SZEZI, this was not the reason or part of the reason for that Tribunal’s decision. It was referred to by the Tribunal merely as another piece of information which it considered crucial and which it intended to discuss with the applicant, had he chosen to attend the hearing.
The reasoning of Allsop J in SZEZI and SZCIA v Minister for Immigration applies to the present case. The Tribunal did not make positive findings of fact about the position of the applicant, but rather rejected his claims because of its inability to be satisfied, on the lack of information before it, that Australia owed protection obligations to him under the Refugees Convention. This proposition is clear from the Tribunal’s conclusion at CB 63:
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satify the criterion sest out in s.36(2) of the Act for a protection visa.
I am satisfied that the amended application is in effect a re-statement of the applicant’s merits application to the Minister and/or the Tribunal. It does not address the issue of jurisdictional error by the Tribunal in its decision-making process.
It is not apparent that any other ground of review exists which suggests the Tribunal made a jurisdictional error.
I accept the following written submissions of Ms Jolley in respect of the amended application and adopt paragraphs 9 to 12 of those submissions:
9.Grounds one to eight of the amended application make claims in relation to the completion and signing of the applicant’s protection visa application. Contrary to the applicant’s assertions in ground 6, the application for a protection visa was signed and witnessed by a Justice of the Peace (CB 25). There is therefore no evidence to support the applicant’s contention that the application was invalid. These grounds do not allege any error on the part of the Tribunal. To the extent that they allege any error on the part of the Delegate of the First Respondent, the Court has no jurisdiction to review the Delegate’s decision as subsection 476(2) of the Migration Act 1958 (“Cth”) applies.
10.Grounds 9 to 12 of the amended application refer to advice received by the applicant in relation to his application for review to the RRT. Whether or not the advice of an adviser is a matter for the applicant and cannot form the basis of a complaint that the applicant was denied procedural fairness. Again, no error on the part of the Tribunal is allged or established.
11.Grounds 13 to 29 contain claims that should have been made to the Department and the Tribunal. They do not provide a proper basis for remitting the matter to the Tribunal for re-consideration, as is sought in ground 30.
12.The applicant was unsuccessful before the Tribunal because it could not reach the requisite level of satisfaction on the material before it to find that the applicant met the necessary visa criteria. In short, the facts put forward by the applicant did not satisfy the applicable visa criteria. The Tribunal was not obliged to accept at face value the applicant’s claims, and when the applicant did not respond to the s424A letter and failed to attend the hearing, a decision affirming the decision of the Delegate to refuse him a protection visa was the inevitable result. No jurisdictional error is revealed in this approach.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. The solicitor for the respondents assisted the Court with written submissions which were supplemented by oral submissions in respect of the amended application. It was apparent that the applicant did not comprehend the significance of the contents of amended application or the operations of the proceedings. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 19 October 2006
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