SZJMR v Minister for Immigration
[2008] FMCA 204
•14 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 204 |
| MIGRATION – Review of RRT decision – where applicant did not attend Tribunal hearing – where Tribunal unable to reach state of satisfaction. |
| Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 SZGZQ v Minister for Immigration [2007] FCA 62 SZIFB v Minister for Immigration [2007] FCA 1727 NAAH of 2002 v Minister for Immigration [2002] FCAFC 354 |
| Applicant: | SZJMR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2923 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 14 February 2008 |
| Date of last submission: | 14 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,800.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2923 of 2006
| SZJMR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan. He arrived in Australia on 1 April 2006 and on 24 April 2006 applied to the Department of Immigration and Multicultural Affairs for a protection (class XA) visa. On 22 May 2006 a delegate of the Minister refused to grant a protection visa. On 13 July 2006 the applicant applied for a review of that decision from the Refugee Review Tribunal. On 3 July 2006 the Tribunal wrote to the applicant at the address given by him in section D of his application form stating that it 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 Tribunal invited the applicant to a hearing on 30 August 2006 and provided him with a form known as a "Response to hearing invitation". The applicant completed that form and on 24 August 2006 returned it to the Tribunal by fax indicating that he did not wish to go to a hearing. The Tribunal therefore proceeded to determine the application on the basis of the evidence then before it. On 29 August 2006 the Tribunal determined to affirm the decision under review and that decision was handed down on 21 September 2006.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations were that he and his family were members of the ANP, a political party in Pakistan which did not accept the partition of India into two states in 1947. The party believed in secularism and was opposed by parties such as the Muslim League and the Pakistan People's Party. The applicant claims that his father in particular was a moving force within the ANP and had been arrested many times. The applicant claimed to have joined a student group and worked for the party. He says that his whole family was targeted by the authorities in Pakistan and that his father is still in gaol, having been arrested for political reasons.
Whilst the information provided by the applicant indicates a Convention ground for his fear of persecution, it is somewhat lacking in detail. The Tribunal in its findings and reasons said [CB 70]:
“ … the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed …
The Tribunal has a number of issues upon which it requires more detailed evidence about the applicant's claimed political activities and the state authorities' treatment of him before it could be satisfied that the applicant is in genuine fear of persecution and that there is a real chance he will be persecuted on his return to Pakistan.”
The applicant filed in this court an amended application on 20 March 2007. There are six grounds of the amended application, but only one of those grounds comes close to alleging a procedural failure by the Tribunal. In the first line of ground 1, the applicant says that his case was not properly looked into by the Tribunal. He then proceeds throughout the balance of ground 1, and all of the other grounds, to rehearse his history and assert his fears.
In Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 the Full Bench of the Federal Court (Ryan, Jacobson and Lander JJ) said at [17]:
“As section 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing the findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant's claims were "at such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal's approach was upheld by the Full Court at [15]:
“It can be seen from the form [of s.65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.””
See also SZGZQ v Minister for Immigration [2007] FCA 62 per Greenwood J at [13]-[14] and SZIFB v Minister for Immigration [2007] FCA 1727 where at [10] Jacobson J said:
“As the learned Federal Magistrate observed, the Tribunal was unable upon the material before it to reach the necessary state of satisfaction. It was therefore bound to refuse to grant the visa. The RRT set out its reasons and no error is disclosed in this. As the High Court has recently observed in SZBEL v Minister for Immigration (2006) 228 CLR 152, the Court has said on a number of occasions that the proceedings in the Tribunal are inquisitorial and it is for the applicant for a protection visa to establish the claims that are made.”
What the applicant seeks to do in his application is to have me set aside the decision, but to do this would require the Court to engage in impermissible merits review. In NAAH of 2002 v Minister for Immigration [2002] FCAFC 354 the Full Bench said at [25]:
“For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which the court can set aside administrative decisions. In effect, it would be to substitute the court's views of the facts for that of the decision-maker, of course traditionally regarded as not open to the courts.”
In this case the information provided by the applicant to the Tribunal relating to his personal circumstances simply did not reach the standard of satisfaction required by the Tribunal and for that reason the visa was declined. I am unable to see how in making that decision the Tribunal fell into jurisdictional error and regrettably the applicant has been unable to assist me in so doing. I dismiss the application. I order the applicant pay the first respondent's costs, which I assess in the sum of $2,800.00. The name of the first respondent is changed to “Minister for Immigration and Citizenship”.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 21 February 2008
0