SZJCM v Minister for Immigration
[2006] FMCA 1535
•16 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJCM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1535 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425 |
| Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 NAHI v Minister for Immigration [2004] FCAFC 10 NAST v Minister for Immigration [2004] FCAFC 208 SJSB v Minister for Immigration [2004] FCAFC 125 |
| Applicant: | SZJCM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2059 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 16 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Ms Z McDonald Phillips Fox |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2059 of 2006
| SZJCM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 13 June 2006. The applicant sought review of that decision by application filed on 26 July 2006. He asserted notification of that decision on 11 July 2006 following the handing down of the decision on 4 July 2006. On that basis I find that the application was made within time.
The applicant is from India. The background to his claims of persecution and the Tribunal’s decision on them is set out in the Minister’s outline of written submissions filed on 9 October 2006.
I adopt as background for the purposes of this judgment paragraphs 2 through to 8 of those written submissions:
The applicant, a male citizen of India[1], arrived in Australia on 3 December 2005. He applied for a protection visa on 1 March 2006.[2] The application was refused on 23 March 2006.[3]
The applicant applied to the Tribunal for review of the original decision on 24 April 2006.[4]
The Tribunal wrote to the applicant under the provisions of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) on 17 May 2006.[5] The letter made it clear to 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. Accordingly, the Tribunal invited the applicant to attend a hearing on 21 June 2006 where he could give evidence and present arguments.
The applicant responded to this invitation on 7 June 2006[6] and indicated that he did not want to attend the Tribunal hearing and consented to the Tribunal proceeding to make a decision on the review without taking further action to allow or enable him to appear before it.
The Tribunal proceeded to make its decision on 13 June 2006[7], without taking further action to enable the applicant to appear before it. The Tribunal sent a letter to the applicant notifying him of the outcome of its decision on 4 July 2006.[8]
The applicant's claims
The applicant is a citizen of India who claimed to fear persecution from Indian authorities because of his association with the Akali Dal party. He claimed that he was implicated in the Khalistan movement and is seen as a terrorist.
The decision of the Tribunal
The Tribunal noted that there were a number of further details about the applicant's claims that it would have liked to obtain at an oral hearing. On the limited evidence before the Tribunal, it could not be satisfied that the applicant had genuine fear of persecution in India.
[1] court book, page 27
[2] court book, pages 1-26
[3] court book, pages 35-45
[4] court book, pages 60-65
[5] court book, pages 52- 53
[6] court book, page 54
[7] court book, pages 60-65
[8] court book, pages 57-58
This matter first came before me on 16 August 2006. At that time it was not clear to me whether the application disclosed an arguable case of jurisdictional error. I made orders for the filing of additional material and listed the matter before me today for a show cause hearing. The applicant has taken the opportunity to file an amended application on 27 September 2006. In that application he sets out his claims of a well-founded fear of persecution. On its face the application does not appear to me to assert any jurisdictional error but rather takes issue with the merits of the Tribunal decision.
The applicant also relies upon his affidavit filed with his original application on 26 July 2006. I agreed to receive that as submissions. In that document the applicant asserts that the Tribunal acted beyond its jurisdiction.
The Minister’s submissions on the legal status of the Tribunal decision are contained in paragraphs 12 through to 16 of the written submissions filed on 9 October 2006. I agree with those submissions and adopt them for the purposes of this judgment:
The applicant's claim that the Tribunal relied on out of date country information cannot succeed because the Tribunal did not rely on any country information in its decision.
The respondent submits that in the absence of particulars the balance of the amended application attempts to cavil with the merits of the Tribunal decision. It is not within the power of the Court to conduct a merits review of the Tribunal’s decision (see also NAHI v Minister for Immigration [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379; 87 ALR 412 at 420 per Mason CJ.)
The respondent submits that this is a case where the Tribunal simply could not be satisfied as to the applicant’s claims and whether the applicant had a well-founded fear of persecution because of the lack of evidence before it.
a)In SJSB v Minister for Immigration [2004] FCAFC 125 at [15] to [16] the Full Court concluded that a legislative regime which requires a positive state of satisfaction as to whether protection obligations are owed, mandates a refusal of a decision if that state of satisfaction is not reached.
b)Further, in NAST v Minister for Immigration [2004] FCAFC 208, their Honours Beaumont, Merkel & Hely JJ stated at [4] to [5]:
In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.
c)In Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 the Full Court stated at [17] “As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction.”
The respondent submits that the Tribunal did nothing more than express its inability to satisfy itself, in the manner contemplated in SJSB and NAST. The Tribunal's reasons did not include positive findings based upon the applicant’s claims. Accordingly, the respondent submits that there is nothing unorthodox in the Tribunal’s decision, let alone of a nature which would constitute jurisdictional error. The applicant failed before the Tribunal because it had insufficient material before it to enable the Tribunal to make a favourable decision. The Tribunal could not be satisfied on the limited material before it that the applicant had a well‑founded fear of persecution within the meaning of the Convention.
The applicant had been invited to a hearing before the Tribunal by letter dated 17 May 2006 (court book, page 52). He was warned in that letter that the Tribunal had considered all of the material then provided but was unable to make a decision in the applicant’s favour from that information alone. He was therefore invited to a hearing on 21 June 2006 where the issues relating to his protection visa claims could have been further explored. Unfortunately for the applicant he declined that hearing invitation (court book, page 54).
The Tribunal was therefore left with the limited material which, as it had already warned the applicant, could not support the favourable decision. The outcome before the Tribunal was, in effect, inevitable.
I see no jurisdictional error in the decision of the Tribunal.
The applicant continues to assert that he is a genuine refugee. That is beyond the scope of this proceeding and it is a matter that he could take up further with the Minister through her Department should he wish to do so.
I will dismiss the application as failing to disclose an arguable case pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,200, marginally below the scale costs that would ordinarily be applicable. The applicant asserts that he is impecunious but that is not a reason for the court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,200.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 October 2006
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