SZJAS v Minister for Immigration

[2006] FMCA 1896

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAS & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1896

MIGRATION – Review of decision by Refugee Review Tribunal – whether applicant’s fear of harm in Poland by reason of being a Mormon is well founded – whether Refugee Review Tribunal should have investigated applicant’s claims.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 424A(1); 474; pt.8 div.2
Federal Magistrates Court Rules 2001

First Applicant: SZJAS

Second Applicant: SZJAT

Third Applicant: SZJAU

Fourth Applicant: SZJAV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1913 of 2006

Judgment of: Emmett FM

Hearing dates: 14 September 2006 and 13 December 2006

Date of last submission: 13 December 2006

Delivered at: Sydney

Delivered on: 13 December 2006

REPRESENTATION

Counsel for the Fourth Applicant: Mr M. Gibian

The First Applicant appearing on behalf of all other Applicants

Solicitors for the Respondent: Ms K. Rose, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1913 of 2006

SZJAS

First Applicant

SZJAT

Second Applicant

SZJAU

Third Applicant

SZJAV

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refuge Review Tribunal (“the Tribunal”) dated 12 May 2006 and handed down on 6 June 2006.

2. The first named applicant was born on 17 August 1976 and claims to be from Poland and of Mormon faith (“the Applicant”).  The second named applicant is the Applicant's wife, and the third and fourth named applicants are the Applicant's children.

3. The Applicant arrived in Australia on 3 June 2000, according to his protection visa application, having legally departed from Poland on a passport issued in his own name, and a student subclass 560 visa.

4. The Applicant stated in his protection visa application that, whilst in Australia, he converted to Mormonism, as a result of which he feared returning to Poland where 90 per cent of the population are Catholic and are not tolerant.

5. The Applicant stated that the reason for the lack of tolerance is that Mormonism is controversial and many aspects are not tolerated in Poland, such as polygamy.

   RECORDED:  NOT TRANSCRIBED

6. The Applicant stated that he would be mistreated if he were to return to Poland by his family, his friends, and all Catholics.

7. In response to the question on his protection visa Form C:

   “Why do you think this will happen to you if you go back?”

   the applicant stated:

   “Because when I notified everybody about my decision they all told me that it is not acceptable, not right.”

8. On 28 November 2005, a delegate of the first respondent (“the Delegate”) refused the Applicant's application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

9. On 3 January 2006, the applicants lodged an application for a review of the Delegate's decision, by the Tribunal.  No further material was provided by the applicants in support of the application for review.

10. On 13 January 2006, the Tribunal wrote to the Applicant at the address identified by him in his review application for correspondence, informing 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 letter went on to invite the Applicant to come to a hearing of the Tribunal at a nominated date, time and place.  The letter informed the Applicant that if he thought he may be unable to attend the hearing, he should contact the Tribunal immediately and that if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. 

11. The letter enclosed a ‘Response to Hearing Invitation’ form, which it asked the Applicant to complete and return and invited the Applicant to send any new documents or written arguments that he wished the Tribunal to consider.  A case log contained in the green book discloses that the hearing invitation, dated 13 January 2006, was dispatched by the Tribunal to the Applicant on 13 January 2006.  No response was received by the Tribunal from the Applicant to that letter. 

12. However, a file note made on 6 March 2006 indicated that the second named applicant telephoned to see if the Tribunal's decision had been made.  According to the file note, the second named applicant stated that the ‘Response to Hearing Invitation’ form had been returned by the applicants, informing the Tribunal that they would not be attending the hearing. 

13. The Tribunal noted in its decision that it had written to the applicants at the address provided by them on 13 January 2006, inviting them to attend a hearing on 13 February 2006 and informing them that the Tribunal was unable to arrive at a decision favourable to them on the basis of the material in their files alone.  The Tribunal noted other content in that letter and noted that the applicants did not respond.

14. The Tribunal noted that it undertook checks to confirm that the invitation was correctly addressed and to check that the applicants had not left Australia.

15. The Tribunal noted that, although the statutory deadline of 90 days since lodgement had passed at the time the decision was made, the Tribunal decided to proceed with its review without taking any further step, to enable the applicants to appear before it.

16. The Tribunal noted that it had before it the Department's file relating to the applicants - - -

    RECORDED  :  NOT TRANSCRIBED

    - - - and that it had regard to material referred to in the Delegate's decision and other material available to it from a range of sources.

17. The Tribunal noted the Applicant’s claims made in his protection visa application, and that, in particular, the Applicant claimed that Poles opposed Mormonism because of aspects of the religion, like polygamy, which are not tolerated in Poland.  The Tribunal noted that the Applicant did not provide any further detail in relation to that claim.

18. The Tribunal noted that the applicants had not provided any evidence of their affiliation with the Mormon church.  The Tribunal noted that Poland is widely known to be a predominantly Catholic country, but that the applicants had not provided any evidence of any persecution of religious minorities in that country, or in Poland, let alone of Mormons specifically.

19. The Tribunal noted that it was unable to find any evidence from Mormon sources, or any other sources, to suggest that disaffection regarding the presence of Mormons in Poland at any level has led to, or would lead to, mistreatment of Mormons amounting to what could reasonably be regarded as persecution.  The Tribunal also noted that the applicants did not suggest that the opposition to the Applicant's conversion went beyond verbal disapproval and a desire not to mix with the Applicant socially.

20. The Tribunal accepted that the applicants were nationals of Poland. 

21. The Tribunal noted that the Applicant was twice invited by the Tribunal to provide relevant supporting material for consideration in the review, and was also invited to give oral evidence at a hearing.

22. The Tribunal found that the Applicant's claim regarding affiliation with the Mormon church was a bald, unsupported claim.  The Tribunal concluded that there was insufficient evidence in support of the Applicant's claims for the Tribunal to be satisfied that any of the applicants is a Mormon, and, for that reason alone, their application must fail.

23. However, the Tribunal noted that, even if it were to give the Applicant the benefit of the doubt in respect of his claimed conversion to Mormonism and that he would be alienated in Poland, the Tribunal concluded that there was insufficient information before it to support any conclusion that the Applicant faced a real chance of persecution in Poland by reason of being Mormon.

24. The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the Applicant is a person to whom Australia has protection obligations and therefore affirmed the Delegate's decision. 

25. On 11 July 2006, the Applicant filed an application in this Court seeking judicial review of that Tribunal decision on the following ground:

    “The Tribunal misunderstood the nature of its jurisdiction and in consequence applied a wrong test, misconceived its duty.

    Particulars: The Tribunal did not assess claims for Protection visa against the independent country information and therefore has not fulfilled its task as it prescribed by law.”

26. The applicants were unrepresented before this Court, although had the assistance of an interpreter.  The Applicant confirmed that he appeared on behalf of all the applicants and that none of the second, third or fourth named applicants had protection applications in their own right, each being dependent on the outcome of the application of the Applicant.  The only submission made by the Applicant in support of his application is his contention that the Tribunal should have investigated the situation in Poland further.  Otherwise, the Applicant made no meaningful submissions in support of his application.

    RECORDED  :  NOT TRANSCRIBED

27. There is no duty on a Tribunal to enquire or make investigations to endeavour to support claims made by applicants before it.  There was no material provided to the Tribunal by the Applicant, despite several requests for any further material in support of his claims.  Despite the letter on 13 January 2006 informing the Applicant 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 Applicant still did not furnish the Tribunal with any further information, nor did he attend the hearing. 

28. In those circumstances, the ground in the application cannot be made out, and is rejected.

29. It is clear from the Tribunal's decision that it understood the nature of the Applicant's claims.  It identified the claims and expressed its concern about the lack of opportunity to explore and discuss those claims with the Applicant at a hearing.  Because of the inadequacy of the material before it and the lack of opportunity to explore and discuss its concerns, the Tribunal was not satisfied about the Applicant's claims to be a Mormon. 

30. That conclusion by the Tribunal can hardly be a surprise to the Applicant, in circumstances where the Applicant had been informed by the Tribunal in writing on 13 January 2006 that the material presently before it was insufficient to enable the Tribunal to make a decision in his favour. The reasons for the Tribunal's conclusions were the deficiencies and inadequacies identified by it in the material before it. The Tribunal, in reaching that conclusion, did not rely on information communicated to or received by it, but was doing no more than setting out its thought processes. In those circumstances, there was no information to which the Tribunal had regard that enlivened the obligations or the requirements of s.424A(1) of the Act.

31. Section 65 of the Act mandates that it is for an applicant to satisfy a decision maker, such as the Tribunal, that he or she meets the criteria required for being a refugee. Where the Tribunal is not satisfied that the criteria for being a refugee are met by an applicant, then s.65 mandates that a protection visa must be refused.

32. The conclusions of the Tribunal were open to it on the material before it and for which it gave reasons. There is no error in the manner in which the Tribunal conducted its review and its decision is not affected by jurisdictional error. Accordingly, the decision is a privative clause decision and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

33. The first respondent seeks costs fixed in the amount of $3500.  I note that such amount is less than the amount provided for in the Federal Magistrates Court Rules 2001. 

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  19 December 2006