SZJLZ v Minister for Immigration

[2007] FMCA 1828

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLZ v MINISTER FOR IMMIGRATION [2007] FMCA 1828

MIGRATION – Application to review decision of Refugee Review Tribunal – whether re-constituted Tribunal bound to invite applicant to a further Tribunal hearing.

Migration Act 1958 (Cth) ss. 424A, 424C, 425

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZEPZ vMinister for Immigration and Multicultural Affairs [2006] FCA FC 107
SZFBJ v Minister for Immigration & Anor [2006] FMCA 1472
SZILQ vMinister for Immigration and Citizenship [2007] FMCA 483
SZILQ v Minister for Immigration and Citizenship [2007] FCA 942

Applicant: SZJLZ

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File number: SYG 2861 of 2006

Judgment of: Barnes FM

Hearing date: 18 October 2007

Delivered at: Sydney

Delivered on: 18 October 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms A Mitchelmore

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.

2. The application be dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $4,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2861 of 2006

SZJLZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 7 September 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant arrived in Australia in 1997. In 2003 he applied for a protection visa. The application was refused and he sought review by the Tribunal. The Tribunal as originally constituted held a hearing which he attended. On 30 March 2004 it handed down a decision to affirm the decision of the delegate of the Minister not to grant the applicant a protection visa.

3. The applicant sought review of that decision in this Court. On 15 May 2006 the Court made orders by consent setting aside the Tribunal's decision and remitting the matter to the Tribunal for reconsideration.

4. On 27 July 2006 the Tribunal (as reconstituted) wrote to the applicant by letter addressed and sent by fax to a named migration agent. I note that, as evidenced by an affidavit of Melissa Leigh Jolly, sworn on 5 December 2006 and filed in these proceedings on 6 December 2006, the named addressee of that letter was the person appointed authorised recipient for the applicant by appointment form signed on 24 May 2006. That letter put certain information to the applicant for comment, referring in particular to aspects of claims made by him at the hearing held by the Tribunal as originally constituted in February 2004. That information was said to be relevant because the Tribunal may draw an adverse credibility finding on the basis of inconsistencies between information provided in the protection visa application and at the review stage.

5. The invitation to comment sought comments in writing by a specified date and advised the applicant that if he did not give comments by the date specified (10 August 2006), the Tribunal may make a decision on the review without further notice to him. The letter advised that the Tribunal may decide that it was not necessary to hold a further hearing. The applicant was invited to contact the Tribunal officer on a number provided or on an information line if he had any questions and also gave information as to assistance in his language and general information.

6. In its reasons for decision, the Tribunal recorded that no response had been provided by the applicant or his adviser to this letter. There is no suggestion in these proceedings that there was in fact any response by or on behalf of the applicant to the Tribunal's letter. The Tribunal considered whether it should hold a further hearing. It noted that the applicant had provided oral evidence to the differently constituted Tribunal and that it had listened to a recording of that hearing. The Tribunal stated that it was satisfied that the applicant had had ample opportunity to raise all relevant matters with it. Therefore, in its discretion, it decided not to hold a further hearing and to determine the matter on the basis of the information before it.

7. Based on the applicant's claims, the Tribunal accepted that he was of Palestinian ethnicity and that his country of former habitual residence relevant to the protection visa application was Jordan. It observed that his case was in essence that he was an active member of Hamas and an outspoken critic of Jordan's policies towards Palestine, that he had been questioned, detained and mistreated by the authorities and that he was at risk of harm by members of Hamas because they believed he had betrayed them to the authorities; such claims being said to be based on a Convention ground of political opinion.

8. The Tribunal referred to the detailed summary of the applicant's claims as set out in the first Tribunal decision which it was satisfied accurately reflected the claims made in his applications and at the hearing with some minor additions for clarification.

9. However, the Tribunal stated that it had a number of concerns regarding the applicant's credibility, arising from matters such as the applicant's failure to leave Jordan until October 1997 despite the fact that he had a passport issued on 1 September 1996, his failure to comment on this and its view that if he had been mistreated and detained in March 1997 by the authorities as claimed, he would not have significantly delayed his departure from Jordan.

10. It also found the delay in his application for a protection visa after his arrival in Australia in 1997 to be relevant, finding his explanation for the delay unsatisfactory. It had regard to inconsistencies, which it specified, between the applicant's evidence and independent country information, in particular in relation to relations between Hamas and the Jordanian authorities, his claims as to secret activities with Hamas after May 1993 and also to his inability to describe in any detail, political activities or strategies of Hamas in Jordan or recent activities of the Hamas leader in Jordan.

11. The Tribunal addressed the a copy of a document the applicant claimed to have distributed during a 1994 demonstration. The Tribunal found nothing in the document to indicate that it had been authored or authorised by Hamas and found that it did not add any weight to the applicant's claims regarding his membership of Hamas.

12. It also had regard to the applicant's failure to mention in his protection visa application or his review application, a claim that was made at the hearing that he had been in hiding at his uncle's place between August and October 1997 and his failure to comment on this issue. The Tribunal did not accept this claim.

13. The Tribunal found that having regard to these reasons and the applicant's overall credibility, it did not accept that the applicant was a member of Hamas in Jordan, that he was questioned, detained or mistreated by Jordanian authorities in March 1997 for the reason claimed or attacked by other Hamas members in August 1997 because they believed he had betrayed them.

14. The Tribunal did accept that the applicant was a strong supporter of ending the Israeli occupation of Palestine, that he had spoken critically of the Jordanian royal family and government policies on two occasions in 1993 and that he was thereafter questioned, detained and mistreated by authorities and expelled from school for approximately one year. It found that the applicant’s evidence suggested that he had attracted the attention of the intelligence services because he had sworn at the royal family. It also accepted that the applicant had participated in a demonstration in 1994 opposing the accord between Jordan and Israel which led to his arrest, detention and mistreatment and that his experiences in 1993 and 1994 amounted to persecution for reason of his political opinion in Jordan.

15. However, the Tribunal did not accept that there was a real chance that the applicant would face persecution for reason of his political opinion if he were to return to Jordan now or in the reasonably foreseeable future. First, having rejected his claim to be a member of Hamas or to have been harmed by Hamas members in the past, it did not accept there was a real chance that the applicant would be persecuted by Hamas or by the Jordanian authorities for reason of membership of and activities for Hamas. It considered whether the applicant would be at risk of harm for reason of his pro-Palestinian views in light of independent information (to which it referred) about the situation in Jordan and having regard to the applicant's participation and speaking out in a demonstration in the wake of widespread opposition to the Jordan/Israel accord.

16. The Tribunal had regard to what it described as the significant time lapse of some 12 years since the applicant was detained and mistreated, his oral and written claims that at least since 1997 he had been opposed to violent activities of the kind perpetrated by Hamas and the fact that he had not claimed to have been involved in any political activities since his departure from Jordan.

17. Based on the evidence before it, the Tribunal was satisfied that the chance that the applicant would face persecution for reason of his political opinion or for any other Convention reason in Jordan was remote. Nor was it satisfied that the history of the applicant's father exacerbated his chance of persecution, as it did not accept that the authorities continued to be interested in the applicant's father, who had departed the army more than 20 years earlier, and because the applicant did not claim that apart from being questioned about his whereabouts, that his father was ever arrested, detained or otherwise harmed by the authorities. The Tribunal was satisfied that the applicant's fear of persecution in Jordan for a Convention reason was not well-founded.

18. The applicant sought review by application filed in this Court on 5 October 2006. The grounds of his application are as follows:

    i)The RRT made many decisions based on credibility but the RRT did not interview me.

    ii)The RRT relied on previous hearing issues discussed to come to its conclusions.

    iii)The questions raised in the invitation to comment letter were issues discussed previously at the hearing.

19. In an accompanying affidavit attaching the Tribunal decision, the applicant reiterated that the Tribunal relied on issues previously discussed at a hearing conducted be a differently constituted Tribunal. He stated that issues of concern for the Tribunal were answered at previous hearing and relied on for the current decision.

20. The applicant did not file written submissions and when initially invited to make oral submissions, had nothing to add to his application and affidavit. Nor, initially, did he have anything to say in response to the respondent's oral submissions. However, when I indicated I was about to deliver ex tempore reasons for judgment, the applicant sought to make further submissions. I gave him the opportunity to do so. In particular, he indicated and reiterated, that he wished to have a further interview with the Tribunal and that he had been “waiting” for an interview.

21. He also claimed, for the first time as far as is apparent on the material before the Court, that at the time of the hearing conducted by the Tribunal as originally constituted, he had experienced a panic attack and had been unwell and that he had not explained himself and had pushed himself to participate. He claimed that he continued to experience such attacks and was on medication. He claimed that he was experiencing a panic attack during the course of the hearing. The Court adjourned for a short time. The applicant indicated after that adjournment that he was ready to proceed. He reiterated that he had been unwell at the time of the Tribunal hearing and that he “Needed a further interview”.

22. I have considered the claims made by the applicant in his application for review and also the claims made in the course of the hearing today. The first ground takes issue with the failure of the Tribunal (as reconstituted after the remittal by this Court) to invite the applicant to a further hearing, or to conduct such a hearing.

23. As submitted by counsel for the respondent, there was no obligation on the reconstituted Tribunal to conduct a further hearing in this instance. The Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 considered the nature of a Tribunal review in determining whether the s. 424A(1) obligation to invite comment had to be repeated by a reconstituted Tribunal. The Court stated at [39]:

    … when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform that particular review.  An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.  The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. 

    (See the discussion of this case by Smith FM in SZILQ v Minister for Immigration and Citizenship [2007] FMCA 483 at [28]-[37]).

24. On that view it could be said that the Tribunal performed its obligation to invite the applicant to a hearing pursuant to s.425 of the Migration Act1958 (Cth) in relation to his application for review when it invited the applicant to the hearing which was held on 3 February 2004.

25. In any event, the Tribunal as re-constituted after remittal, was not bound to invite the applicant to a further hearing in the circumstances of this case. The Tribunal had sent an invitation to comment to the applicant pursuant to s.424A of the Migration Act and informed him that if he did not comment by a specified date it may make a decision on review of his case without further notice. No response was received by the Tribunal.

26. Thus, even if the Tribunal was otherwise obliged to extend an invitation to the applicant under s.425(1) (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and cf SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 per Buchanan J at [32]-[33], and SZILQ v Minister for Immigration and Citizenship [2007] FMCA 483 at [28]-[37]), as there had been no response to the 424A letter, under s.424C(2) of the Act, the Tribunal could make a decision on the review without taking any further action to obtain the applicant's views on the information and, by virtue of s.425(2)(c) of the Act, sub-s.425(1) did not apply to the applicant.

27. I also note that the Tribunal considered whether or not to invite the applicant to a further hearing and gave reasons in its reasons for decision as to why it had decided in its discretion not to hold a further hearing.

28. No jurisdictional error is established in the manner contended for under ground one or more generally in the Tribunal's failure to invite the applicant to a further hearing.

29. For the sake of completeness I note that the s.424A letter sent to the applicant, being addressed to his authorised recipient, would by virtue of s.441G of the Act be such that the Tribunal was taken to have given it to the applicant, there being nothing in the material before the Court to suggest any failure by the Tribunal to comply with the requirements of the Migration Act in relation to the sending of such letter.

30. The second ground in the application is that the Tribunal relied on “previous hearing issues” discussed to come to its conclusion. The first respondent's contention, that this appears to be an assertion that the Tribunal was not entitled to take into consideration information provided by the applicant at the hearing before the Tribunal as originally constituted, was not disputed by the applicant.

31. However, as also contended for the first respondent, when an applicant puts information to the Tribunal for the purposes of his review application, such information is not withdrawn where the Tribunal falls into jurisdictional error. Hence, such material remains available to the Tribunal on reconsideration of the review application provided, at least, it has not been specifically retracted by an applicant. See SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 and SZFBJ vMinister for Immigration and Anor [2006] FMCA 1472 at [8].It was open to the Tribunal to have regard to evidence given by the applicant at the hearing before the Tribunal as originally constituted. No jurisdictional error is established on this basis.

32. The applicant also contended that the questions raised in the invitation to comment letter were issues that had been discussed previously at the hearing. Indeed, in its letter of 27 July 2006 the Tribunal acknowledged this and asked the applicant to comment on inconsistency between information in the applicant's application for protection visa and information provided at the Tribunal hearing. It is not entirely clear what is intended by this ground, but the fact that issues discussed at a hearing were the subject of a subsequent letter under s.424A of the Migration Act does not establish jurisdictional error. Insofar as the applicant appears to be suggesting that it was not necessary for the Tribunal to raise such issues with him, that was, of course, a matter for the Tribunal, subject to meeting its obligations under s.424A of the Act.

33. No failure by the Tribunal to comply with the requirements of s.424A has been established. I note that the s.424A letter also informed the applicant that if he did not give comments, the Tribunal may make a decision without further notice and that the Tribunal may decide it was not necessary to hold a further hearing. No jurisdictional error is established on the basis contended for in ground three of the application.

34. Finally, the applicant's claim in concluding oral submissions that he was experiencing panic attacks at the time of the hearing by the Tribunal as originally constituted is not such as to establish jurisdictional error on the part of the Tribunal as reconstituted. As indicated, there is nothing in the material before the Court to indicate any failure by the Tribunal as reconstituted to comply with its obligations under the Migration Act. Insofar as the applicant intends to contend that the second Tribunal should not have taken into account the evidence at the first Tribunal hearing, there is nothing in the material before the Court to indicate that he raised such a concern or the issue of the claimed panic attacks with the reconstituted Tribunal. I note in that respect that the applicant had the assistance of a migration agent at that time. The claim that he now makes does not establish jurisdictional error on the part of the Tribunal on the information before it at the time of its decision.

35. As no jurisdictional error has been established, the application must be dismissed.

36. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $4,900. The applicant indicated that he had no permission to work. However, the unsuccessful applicant should meet the costs of the first respondent. The applicant's lack of permission to work is not a reason for not awarding costs although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount of $4,900 is appropriate in light of the nature of this and other similar matters.

1. The name of the first respondent should be amended as is sought.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: