SZJPI v Minister for Immigration
[2007] FMCA 956
•22 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 956 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 36(2)(b); 65; 65(1); 65(1)(b); 91R; 91S; 424A(1); 425; 425A(4); 426; 426A; 441A; 441A(4); 441C(4); 474; pt.8 div.2 |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201 |
| First Applicant: | SZJPI |
| Second Applicant: | SZJPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3181 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 June 2007 |
| Date of last submission: | 1 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms S. Kaur-Bains |
| Solicitors for the Respondent: | Mr O. Young, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3181 of 2006
| SZJPI |
First Applicant
| SZJPJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated
13 September 2006 and handed down on 10 October 2006 (“the Tribunal”).
The applicant was born on 29 June 1968 and claims to be from India and of Hindu faith (“the first named Applicant”). The second applicant is the wife of the first named Applicant and was born on
1 June 1965 (“the second named Applicant”) and also claims to be from India and of Hindu faith. The second named Applicant made no specific Convention claims on her own behalf and is reliant on the claims of the first named Applicant.
The applicants arrived in Australia on 3 May 2006 having legally departed from India on passports issued in their own names.
On 26 May 2006, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the first named Applicant claimed that he feared persecution by local government authorities due to his political opinion. The first named Applicant claimed that he is a supporter of the Congress Party and that the government discriminated against people who are affiliated with other political parties. The first named Applicant claimed to have been “arrested, detained and manhandled by the police.” The first named Applicant claimed that he had complained about his situation to politicians, however, to no avail and police had threatened that he could be shot.
On 24 June 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 12 July 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 13 September 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 31 October 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 28 July 2006, the Tribunal invited the applicants to come to a hearing on 6 September 2006. On 14 August 2006, the applicants responded to the Tribunal’s invitation indicating that they did wish to attend the Tribunal hearing and give oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The applicants did not attend the Tribunal hearing. The Tribunal noted that it had written to the applicants on 28 July 2006 in a letter addressed to the first named Applicant advising that it had considered all the material before it in relation to the application for review but was unable to make a favourable decision on that information alone. The Tribunal noted that the applicants had been invited to give oral evidence and present arguments at a hearing on 6 September 2006. The Tribunal noted that the applicants advised the Tribunal in writing on
14 August 2006 that they wanted to give oral evidence. The Tribunal noted that there had been no attempt to contact the Tribunal to explain the failure of the applicants to attend. Accordingly, the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
Section 426A of the Act entitles the Tribunal to exercise its discretion to make its decision on the review without taking any further action to enable the applicants to appear before it if it is satisfied that s.425 of the Act has been complied with in inviting the applicants to come to a hearing to present arguments and give oral evidence.
The First Respondent tendered a business record of the Tribunal, marked exhibit 2R, disclosing that the hearing invitation letter dated 28 July 2006 was dispatched on 28 July 2006.
The letter of invitation informed the applicants of the time and place the applicants were scheduled to appear and the notice was provided to the applicants in accordance with s.441A of the Act. Section 441A(4) of the Act requires that a document sent by pre-paid post must be dispatched within 3 working days of the date of the document and sent to the last address for service provided to the Tribunal by the applicants in connection with the review or the last residential or business address provided to the Tribunal by the applicants in connection with the review.
Section 441C(4) of the Act provides that if the Tribunal gives a document to a person by the method provided in s.441A(4) of the Act then that person is taken to have received the document 7 working days after the date of the document where that document is dispatched in Australia to an address in Australia.
Section 425A(4) of the Act requires that a s.425 notice must contain a statement to the effect of s.426A of the Act and otherwise comply with the requirements of s.426 of the Act .
There is no allegation by the applicants that the Tribunal did not comply with the statutory regime. The letter dated 28 July 2006 is an invitation to come to a hearing sent in compliance with the statutory regime above. Exhibit 2R makes it clear that the letter was dispatched on the same date as the letter thereby complying with s.441A(4) of the Act.
In the circumstances, the Tribunal was entitled to exercise the discretion provided to it pursuant to s.426A of the Act to proceed to make its decision on the review without taking any further action to allow or enable the applicants to appear before it.
The Tribunal had regard to the information provided by the applicants in the protection visa application. The Tribunal summarised the applicants’ claim of a well-founded fear of persecution because the first named Applicant “is a member of the Congress Party, and the BJP in his state is trying to suppress political parties in his state of Gujarat.” Whilst the first named Applicant claimed to have been arrested, detained and “manhandled by the police in the past”, the Tribunal noted there were no details about the incidents, such as the date they occurred, the reason for the arrests, the duration of detention or the nature of mistreatment claimed to have been suffered by the first named Applicant. The Tribunal noted that no further information was provided by the applicants to the Tribunal for the purposes of its review.
The Tribunal found that on the information before it the applicants’ claims were left “unclarified and questions unanswered.” The Tribunal concluded that on the evidence before it it was not satisfied that the first named Applicant had suffered persecution in the past nor that the first named Applicant has a well-founded fear of persecution within the meaning of the Convention if he were to return to India in the foreseeable future.
The Tribunal noted that it had considered the evidence as a whole and was not satisfied that the first named Applicant was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal noted that no specific Convention claims were made by or on behalf of the second named Applicant, being the wife of the first named Applicant. The Tribunal found that the fate of the second named Applicant’s application depended on the outcome of the first named Applicant’s application. The Tribunal found that, as the first named Applicant was not entitled to a protection visa, then the second named Applicant could not satisfy the alternative criteria set out in s.36(2)(b) of the Act and there fore a protection visa would also have to be refused to the second named Applicant.
The proceeding before this Court
The applicants were unrepresented before this Court although had the assistance of an interpreter. The first named Applicant confirmed that he appeared on behalf of both applicants, although the second named Applicant was not present in Court.
The first named Applicant confirmed that he relied on the amended application filed on 16 January 2007. The amended application relied on the following grounds:
“1.Breach of section 424A(1) of the migration act.
2.Particulars:
There was certain informations (sic) used by the tribunal without providing an opportunity to respond. The adverse informations (sic) used by the tribunal was not given by the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. GB.PP 96. The tribunal did not disclose the information in accordence (sic) with S 424A(1) of the migration act.
3.The tribunal did not take into account
… any evidence or materials before him, neither the tribunal made an inquiry or send any letter of invitation to comment on the adverse information under section 424A(1), which the tribunal relied upon or used against the applicant to affirm the deligates (sic) decision. The similar kind of information used by the tribunal member without the applicant’s presence or without providing an opportunity to comment on the information before the tribunal.”
Each of the grounds was interpreted for the assistance of the first named Applicant. The first named Applicant had nothing to say in respect of either ground despite being offered an opportunity on several occasions to make submissions in support of his application.
Grounds 1 and 2
Ground 2 appears to be the particulars upon which the allegation in Ground 1 of a breach of s.424A(1) of the Act is founded. The particulars in Ground 2 appear to assert that the Tribunal had regard to information in the Applicant’s protection visa application and that this information formed part of the reason for affirming the decision under review.
A fair reading of the Tribunal’s decision makes it clear that it was not the information provided in support of the protection visa application to which the Tribunal had regard in affirming the decision under review. Rather, it was the paucity of evidence and the inadequacy of the evidence provided by the applicants that was the reason for the Tribunal affirming the decision under review (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 and SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201). Section 65 of the Act provides that it is for an applicant to satisfy a decision maker, such as the Tribunal, that the applicants meet the criteria necessary for refugee status. Section 65(1)(b) mandates that if the Tribunal is not so satisfied, then it must refuse a protection visa.
Accordingly, grounds 1 and 2 are not made out.
Ground 3
Ground 3 appears to allege that the Tribunal did not take into account any evidence or materials before it.
To the extent that ground 3 makes such a complaint, a fair reading of the decision makes it clear that the Tribunal had regard to the material provided by the applicants in support of the protection visa application. That was the only material to which the Tribunal was able to have regard as the applicants provided no further information to the Tribunal for the purposes of its review.
The Tribunal’s invitation to hearing dated 28 July 2006 informed the applicants that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in the applicants favour on that information alone. The applicants were invited to send any further documents or written arguments that they wished the Tribunal to consider. Nothing further was received by or on behalf of the applicants from the Tribunal.
In the circumstances, the Tribunal had regard to the only information of a claim for protection, being the applicants’ statement in support of the protection visa application. The Tribunal identified the inadequacy in that material in satisfying it that the first named Applicant had a well-founded fear of persecution for a Convention related reason. As stated in paragraph 31 above in these Reasons, those inadequacies were part of the Tribunal’s thought processes and did not enliven any obligations under s.424A(1) of the Act.
The Tribunal identified in its decision the sort of detail that it would have explored at a hearing. It was open to the Tribunal, in the circumstances to, conclude, as it did, that the applicants’ claims were “unclarified and questions unanswered.”
Ultimately, as referred to above in these reasons, it is for an applicant to satisfy the Tribunal that the applicant meets the criteria for being a refugee. Section 65(1)(b) of the Act otherwise states that if the Tribunal is not so satisfied, it must refuse a protection visa.
The findings and conclusions made by the Tribunal were open to it on the material before it and for which it provided reasons.
Otherwise, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 31 October 2006, is dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 20 June 2007
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