SZJMP v Minister for Immigration
[2007] FMCA 29
•17 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 29 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – where applicant did not attend Tribunal hearing – citizen of the Philippines claiming fear of persecution for reason of membership of a labour union. |
| Migration Act 1958 (Cth), ss.424, 424A, 425, 426A , 441A, 474 |
| WAGJ v Minister for Immigration and Multicultural Affairs (2002) FCAFC 277 |
| Applicant: | SZJMP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2914 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 January 2007 |
| Date of last submission: | 17 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 January 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Broderick |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2914 of 2006
| SZJMP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 22nd August 2006 and handed down on
12th September. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.The Applicant seeks orders:
a) In the nature of mandamus requiring her application to be reheard and determined by another member of the Tribunal; and
b) An order that her Bridging visa be extended until her application has been finally determined.
Background
The Applicant is a citizen of the Philippines who arrived in Australia on 15th August 2004, according to the arrival stamp in her passport. She applied for a Protection (Class XA) visa on 27th September 2004, claiming that she had left her country to escape harassment and threats of death from her employer because of her participation in a labour union, of which she had been appointed secretary.
She claimed that she moved her children to a safe place and then fled. She claimed that she feared that she would be harmed if she were to return. The Applicant also claimed that the authorities would not protect her because of her employer's political connections.
A delegate of the Minister refused her application for a visa. The Applicant then sought a review of that decision from the Refugee Review Tribunal.
Application for Review by the Refugee Review Tribunal
The Applicant lodged an application for a review at the Sydney Registry of the Tribunal on 27th October 2004. In that application she gave a residential address in a suburb of Sydney as her address for correspondence. She provided a mobile telephone number and a fax number. She did not lodge any other document with her application.
The Tribunal, after hearing her application for review, affirmed the delegate's decision. On 14th June 2006, the Federal Magistrates Court made orders by consent quashing the Tribunal's decision and remitting the application to the Tribunal for reconsideration and determination according to law.
The Tribunal wrote to the Applicant on 7th July 2006 informing her that her case had been remitted to the Tribunal for reconsideration. The letter went on to say:
You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal. Any documents not in English should be translated by a qualified translator. You should send both the documents and the translations.
The Applicant changed her address to the one that she has given as her address for service in these proceedings. She sent a facsimile message to the Tribunal advising of that change on 21st June 2006, according to the Tribunal's decision at page 70 of the Court Book.
The Tribunal wrote to the Applicant on 17th July 2006 inviting her to attend a hearing on 18th August 2006. The letter asked her to complete a ‘Response to Hearing Invitation’ form to advise if she wished to attend the hearing. The letter also asked her to complete the ‘Witness’ part of the form if she wanted the Tribunal to obtain oral evidence from another person and to forward any new documents or written arguments she wanted the Tribunal to consider.
The Tribunal records that it did not receive a completed ‘Response to Hearing Invitation Form’. The Applicant did not attend the hearing and the Tribunal exercised its power under s.426A of the Migration Act to proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear.
A copy of the Tribunal's decision record appears at pages 67 to 73 of the Court Book.
The Tribunal was satisfied that the Applicant was a citizen of the Philippines, but for the reasons set out on page 71 of the Court Book, was not satisfied that the Applicant had suffered any Convention-related harm, nor was it satisfied that there was a real chance of harm occurring to her in the reasonably foreseeable future. The Tribunal referred to the Applicant's “unsubstantiated vague claims, lacking in details.”[1]
[1] Court Book at page 71
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for a Convention related reason and affirmed the delegate's decision not to grant the Applicant a protection visa.
Application for judicial review
The Applicant commenced proceedings for a review of the Tribunal's decision by means of an application filed on 10th October 2006. There was no affidavit filed in support of the application.
In the application the Applicant sets out three grounds for relief.
Ground 1:
The Refugee Review Tribunal exceeded its authority or powers because the Tribunal relied on its previous decision and failed to ask itself proper questions or seek additional information and reached a mistaken conclusion.
Ground 2:
The Refugee Review Tribunal fell in jurisdictional error by failing to investigate my involvement in the labour union which I claimed to be a member. This is crucial because it was one of my bases of claiming persecution on my return to my country of citizenship.
Ground 3:
The Refugee Review Tribunal failed to assess whether there are adequate and effective protection if I were to return to the Philippines.
The Applicant did not file any written submissions.
The solicitors for the Minister filed a written outline of submissions on 12th December 2006. Briefly they submit that:
1)The Tribunal did not place any reliance on the findings of the first Tribunal. The Tribunal had no duty to inquire about other evidence (see WAGJ v Minister for Immigration and Multicultural Affairs (2002) FCAFC 277).
2)The Tribunal did not owe any duty to inquire about the evidence of the Applicant's involvement in a labour union. The Tribunal considered each of the Applicant's claims, but was unable to come to a favourable decision due to lack of information before it.
3)The Tribunal is not obliged to make a finding about whether there is adequate and effective state protection because of its inability to be satisfied that the Applicant's fear was well-founded.
4)The Tribunal complied with its obligations under ss.425, 426A and 441A, and there is no jurisdictional error.
The solicitors for the Respondent Minister have also filed in Court an affidavit sworn 17th January 2007 by Andrea Maree Mansour, a solicitor. In that affidavit Ms Mansour deposes as to a conversation which she had with a senior legal officer at the Migration Review Tribunal, and annexes a copy of a faxed document from the Tribunal's file. That document was a fax to the Tribunal from the Applicant dated 21st June 2004. In that document the Applicant advises the Tribunal of her change of address and gives the address which is identical to that which appears on her application filed at this Court on 10th October 2006.
The Applicant confirmed to the Court today that she did not attend the Tribunal hearing. She said that she did not attend the hearing because she did not receive the notice inviting her to attend. She was firm in her belief that she did not receive any notice of the hearing.
As to the substantive grounds of the application, the Applicant maintains her contention that the Tribunal relied on the decision of the previous Tribunal. She also told the Court that she was unaware if she would receive protection from the authorities if she were required to return to the Philippines. She expressed a wish to be able to protect her family.
In an oral submission to the Court, Ms Broderick for the Respondent Minister told the Court that the Tribunal had sent an invitation to hearing to the Applicant at her last known address. This address was the new address that appeared on the fax to the Tribunal, a copy of which is annexed to Ms Mansour's affidavit. She told the Court that the Tribunal had also copied that letter of invitation to the Applicant at her former address.
Whilst the Tribunal had received one letter returned unclaimed,
Ms Broderick submits that it is a reasonable inference that the letter returned unclaimed was in fact the letter sent to the Applicant's old address and not her current address. The Applicant did not wish to make any submissions in reply.It is certainly clear that the Tribunal in making its decision was not satisfied that the evidence before it was sufficient to enable it to find for the Applicant. The Tribunal referred to the Applicant's unsubstantiated vague claims which were lacking in detail. The Tribunal also went on to say at page 71 of the Court Book:
Without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the Applicant at a hearing and test the evidence, the Tribunal is not satisfied that the Applicant was involved in labour union activities, including but not limited to being appointed as the secretary, or that she left her country because she participated in the labour union activities or that her involvement led to harassment and threats from her employer, including death threats, or that she moved her children to a safe place, or that she would be harmed if she returned, or that the authorities would not protect her because her employer had a strong connection with a ‘highest political man’.
The Tribunal was not satisfied that the Applicant had suffered or would suffer any of the harm that she claimed.
There is an obligation under s.425 of the Migration Act to invite an Applicant to attend the hearing if the Tribunal is not satisfied on the material before it that it can make a finding in the Applicant's favour. In my view, the evidence from the Court Book and from Ms Mansour's affidavit shows that the Tribunal did invite the Applicant to a hearing by means of its letter dated 17th July 2006. That letter was sent to the Applicant's current residential address. There is no explanation as to why the Applicant said that she did not receive that letter.
It is well established, however, that the Tribunal's obligation is to notify an applicant at the applicant's last known address. Provided that the Tribunal complies with that procedure, it is no jurisdictional error if for some reason the applicant does not receive the letter. This appears to be the case here.
The Tribunal decision does not support the Applicant's claim that the Tribunal relied on the decision by the previous Tribunal. It is not a jurisdictional error if the Tribunal does not undertake its own inquiries to investigate claims made by the Applicant. Whilst the Tribunal has the power under s.424 of the Migration Act to seek further information, there is no obligation on it to exercise that power. It is up to an Applicant to provide evidence to the Tribunal sufficient to satisfy the Tribunal that the Applicant meets the criteria for a particular visa.
In this case the Tribunal was not satisfied that the Applicant had a well founded fear of persecution for Convention reasons if she were to return to the Philippines. Accordingly, it is not necessary for the Tribunal to undertake any investigation as to whether adequate protection is available from the authorities in respect of the claimed persecution.
The Applicant's three grounds for review have not been made out.
The Applicant is not legally represented today, and I have read through the Tribunal decision, which is relatively brief, in order to assess whether any arguable case for a jurisdictional error appears. I cannot see any arguable case for a jurisdictional error. It follows that the Tribunal decision is a privative clause decision, to which the protection of s.474 of the Migration Act applies.
Accordingly, as there is no jurisdictional error and the decision is a privative clause decision, the application will be dismissed.
There is an application for costs on behalf of the Respondent Minister. In my view, costs should follow the event. The Applicant has been wholly unsuccessful in her claim. The amount of costs which is sought is $3,200.00, which to my mind is an appropriate figure.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 January 2007
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