SZJFV v Minister for Immigration
[2007] FMCA 1713
•9 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1713 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant did not attend Tribunal hearing – Tribunal complied with statutory obligations – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.426A, 36(2), 425, 425A, 441A(4)(c)(i), 424A. |
| SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SZBYR v Minister for Immigration and Citizenship [2006] HCA 26 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZJFV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2300 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 October 2007 |
| Date of Last Submission: | 9 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application made on 18 August 2006 and amended on 22 January 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2300 of 2006
| SZJFV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised from Transcript)
I have before me an application filed in this Court pursuant to the Migration Act 1958 (“the Act”) on 18 August 2006 and amended on 22 January 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 28 June 2006 and handed down on 18 July 2006, which affirmed a decision of a delegate of respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of Indonesia who arrived in Australia on 16 January 2006 and applied for a protection visa on 10 February 2006. On 13 March 2006, a delegate of the respondent Minister refused to grant the visa. On 12 April 2006, the applicant applied for review of that decision to the Tribunal.
The Applicant’s Claims to Protection
The applicant’s claims to protection were contained in her application for a protection visa (reproduced in the Court Book (“CB”) filed by the first respondents at CB 1 to CB 26), in a statement of the applicant at CB 29, and in the application for review at CB 44 to CB 47, including a statement by the applicant at CB 48. I note that this statement of the applicant is in similar terms to the statement provided to the first respondent’s Department (at CB 29).
The applicant’s claims to fear persecution in Indonesia derived from her claim as an Indonesian of Chinese ethnicity and that her business was looted by local Indonesian people many times. She further claimed that she would be harmed if she were to return to Indonesia.
Relevantly, in her application for review the applicant provided an address to which correspondence was to be sent (CB 46.7). She also provided a residential address (CB 45.1).
The Tribunal
By letter dated 1 May 2006 (CB 51 to CB 52) and sent to the applicant’s address for correspondence, the applicant was put on notice that on the material before it, the Tribunal could not make a decision in her favour and invited the applicant to a hearing before the Tribunal on 27 June 2006 for the purpose of giving evidence and presenting arguments in support of her claims. Relevantly, the Tribunal advised the applicant that if she did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on her case without further notice.
On 21 June 2006, the Tribunal wrote to the applicant’s residential address enclosing a copy of the letter dated 1 May 2006 and the applicant was advised to contact the Tribunal immediately regarding her scheduled hearing (CB 53). The Tribunal did not receive a reply to the invitation (CB 56). Nor is there anything before the Court to show that the applicant otherwise contacted the Tribunal.
The Tribunal’s decision record is reproduced at CB 60 to CB 66. The Tribunal noted that it had advised the applicant that it was unable to make a favourable decision and gave the applicant the opportunity of attending a hearing. Further, it noted that it had subsequently sent a copy of this letter to the applicant’s residential address, the applicant did not attend the hearing on the date and at the time scheduled and that no communication had been received from the applicant. In these circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it (CB 63.9 to CB 63.10).
The Tribunal’s “Findings and Reasons” are reproduced in its decision record at CB 64 to CB 65.1. The Tribunal found that due to the insufficient information and lack of detail contained in the applicant’s claims, it was unable to be satisfied that she had been persecuted for a Refugees Convention reason. The Tribunal was unable reach the requisite level of satisfaction that would mandate a protection visa being granted to the applicant (s.65 and s.36(2) of the Act), and therefore affirmed the decision not to grant the protection visa.
The Application to the Court
In the applicant’s originating application to the Court, the applicant seeks review on the following (unparticularised) grounds:
“1. Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.
2. I face a risk of being put into danger if I return to Indonesia.”
In an amended application, the applicant attempts to put before the Court factual matters going to her refugee claims which are in similar terms to statements put to the Tribunal and the first respondent’s Department. The grounds of the application are in the following terms:
“My name is Surjaty Limanto and I was born in Pangkal Pinang, Indonesia on 17 March 1959.
I came from a Chinese family, an ethnic group which had been targeted by the native Indonesian. I applied for refugee status after I came to Australia.
There was no security for ethnic Chinese to stay in Indonesia. Human rights have been neglected in Indonesia. As we know, Indonesia is politically unstable. I am afraid to go back because I am a Chinese and will be discriminated against by the majority of Indonesian people.
Ethnic Chinese Indonesian are at the weak side and in ever incident they are th scapegoat. Human rights violation and sexual harassment towards the ethnic Chinese could not be overcome by the government because it seems that the local people did not afraid any more to the government. The looters were not punished at all of what they have done such as looting, damaging the buildings and sexual harassment against ethnic Chinese.
Until now, this discrimination act has not diminished and it could possibly that there will be another May massacre. If this situation keep going on, the future of Indonesia’s ethnic Chinese Indonesia will be at stake. I run a small business in Jakarta after I graduated from high school. It was burnt and looted by local Indonesian many times.
The last time happened in November 2004 and the shop was looted by the locals. Now I do not dare to go back to Indonesia only because I am Chinese. I will be targeted and even killed. All of the incidents which were beyond my expectation and could not be guessed can happen anytime. For example: the May 1998 riot, nobody can expect it but it had killed so many people and destroyed their properties and belongings.
I have no reason to go back to Indonesia. I believe I meet the definition of refugee because of my horrified experience.”
Hearing before the Court
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Indonesian language. Mr G Johnson appeared for the first respondent.
The applicant was unable to assist the Court in relation to the issue of whether the Tribunal's decision was affected by jurisdictional error, even in circumstances where the Court attempted to explain to the applicant the role and function of the Tribunal and the different role and function of the Court. Simply, all the applicant could say was that she was looking for peace and wanted to live in Australia.
I agree with the Minister's submissions that the applicant has not provided proper particulars in her originating application nor has she identified jurisdictional error. Taking what is stated in that application I cannot see that the Tribunal failed to observe the "Migration Regulations". To the extent that this is a reference to procedures in the Act, then in my view the Tribunal complied with its obligation to invite the applicant to a hearing pursuant to s.425 of the Act.
The letter was sent to the address for service provided by the applicant herself and on what is before the Court the letter complied with the Tribunal's obligations pursuant to s.425A of Act and was given to the applicant pursuant to s.441A(4)(c)(i) of the Act by sending the letter to the last address for service provided to it.
That the Tribunal exceeded its statutory obligations in this regard by sending a copy of the letter of invitation to her residential address does does not reveal jurisdictional error on its part.
The Tribunal thereby complied with its obligations pursuant to ss.425, 425A and s.441(4) of the Act. Further, in all the circumstances, it was open to the Tribunal to exercise its discretion to proceed to a decision without taking further action to enable the applicant to appear before it and exercise its power in that circumstance pursuant to s.426A of the Act.
On a plain reading of its decision record, the Tribunal was unable to be satisfied on what was before it that the applicant had a well-founded fear of persecution for a Refugees Convention reason if she were to return to Indonesia. I agree with the Minister’s submissions that where a legislative regime (in this case, s.65 and s.36(2) of the Act) requires a positive state of satisfaction as to whether protection obligations are owed, this mandates a refusal decision if the state of satisfaction is not reached (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] (“NAST”) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Nor does the Tribunal's reference, as in this case, to a number of matters about which it had wished to satisfy itself at the hearing, detract from the reason for its decision which was the inability to reach a requisite level of satisfaction (see generally NAST).
Nor does the Tribunal’s reference to what was contained in the protection visa application operate to oblige the Tribunal to have written to the applicant pursuant to s.424A(1) of the Act. With reference to the High Court in SZBYR v Minister for Immigration and Citizenship [2006] HCA 26 at [17], the reason for affirming the decision under review was that the Tribunal could not be satisfied that the applicant was owed protection under the Refugees Convention.
In these circumstances therefore, bearing in mind the nature of the information as set out by the High Court, and the nature of the information for the purposes of s.424A(1) of the Act, no breach of the Tribunal's obligation in this regard can be seen. In all, therefore, I cannot discern any failure by the Tribunal to observe its relevant statutory obligations.
The second ground in the original application and the factual matters asserted by the applicant in the amended application appear to be an attempt by the applicant now to seek impermissible merits review, an avenue of review not open to the applicant before this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). In all therefore, I cannot discern a failure to observe statutory obligations.
As I said earlier, the applicant was unable to assist the Court in any way today. While the Court has some sympathy for the applicant in light of her statement that she was looking for peace and wanted to live in Australia and the Court can well understand that the applicant would desire such an outcome, unfortunately the expression of such a desire again, in the circumstances before the Court, does not amount, unfortunately for the applicant, to anything more than a request for impermissible merits review.
I cannot discern jurisdictional error in the Tribunal's decision for the reasons that I have already stated. The course of action available to the applicant to satisfy the Tribunal as to her refugee claims was to have attended the hearing. The applicant did not attend the hearing and on the material before the Court, she made no attempt to contact the Tribunal. Nor has the applicant provided to the Court today, despite opportunity, any explanation as to why she did not attend the hearing .
Ultimately that is a matter for the applicant, but having been put on notice by the Tribunal that it could not make a decision in her favour, her unexplained failure to attend the hearing before the Tribunal led, as has been described by a Full Federal Court in the matter of NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5], to the inevitable outcome that the Tribunal was unable to reach the requisite level of satisfaction and it therefore affirmed the Delegate's decision which was the subject of the review. I am not able to discern jurisdictional error in what the Tribunal has done. This application is accordingly dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 18 October 2007
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