SZJQW v Minister for Immigration - [2007] FMCA 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQW v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 361

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal entitled to proceed to make its decision without taking any further step to enable the applicant to appear before it – whether decision of Refugee Review Tribunal is affected by jurisdictional error.

Judiciary Act1903 (Cth), s.39B
Migration Act 1958 (Cth), pt.8 div.2, ss.65, 425, 425A, 426A, 474

Applicant:

SZJQW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3295 of 2006

Judgment of:

Emmett FM

Hearing date:

12 March 2007

Date of last submission:

12 March 2007

Delivered at:

Sydney

Delivered on:

12 March 2007

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Mr A. Markus, Australian Government Solicitors

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3295 of 2006

SZJQW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 September 2006 and handed down on 10 October 2006. The applicant arrived in Australia on 12 February 2006 having legally departed from Indonesia on a passport issued in his own name and a Sub-Class 456 visa issued in Jakarta.
On 22 March 2006 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) and in support that application the applicant provided a statement essentially claiming that he feared persecution because he is a Muslim in Indonesia and will be discriminated against by Christian and Catholic Indonesians. The applicant claimed that he was arrested by local police because the head of the local police station was a Christian. The applicant complained that he was kicked in the chest by a policeman upon his arrest, causing him injury.
On 13 June 2006, a delegate of the first respondent 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 United Nations Refugees Convention as amended by Refugee Protocol (“the Convention”).
On 14 July 2006, the applicant lodged an application for review of the Delegate's decision with the Tribunal. The applicant provided to the Tribunal a copy of the statement provided by him in support of his protection visa application.
On 31 July 2006, the Tribunal wrote to the applicant, at the applicant's identified address for correspondence, informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. The Tribunal went on to invite the applicant to come to a hearing at a specified date, time and place.
The letter informed the applicant that the Tribunal would only change the hearing date for good reason and that if the applicant thought he may be unable to attend the hearing he should contact the Tribunal immediately because, if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.
The letter enclosed a Response to Hearing Invitation Form and it requested that the applicant complete and return this form. The letter also invited the applicant to send any new documents or written arguments that he wished the Tribunal to consider.
On 15 August 2006, the Tribunal received from the applicant the completed Response to Hearing Invitation Form indicating that he wished to attend the hearing. However, the applicant did not attend the hearing at the date, time and place specified in the invitation.
The Tribunal, in deciding to proceed with its review, noted that it had written to the applicant on 31 July 2006 in the terms referred to above. The Tribunal noted that the applicant had not contacted the Tribunal to explain his failure to attend. In the circumstances, the Tribunal proceeded to exercise its discretion pursuant to s.426A of the Act to decide to make its decision without taking any further action to enable the applicant to appear before it.
The Tribunal had regard to the statement lodged by the applicant in support of his application. The Tribunal noted that it remained for the applicant to satisfy the Tribunal that all the statutory elements of a claim of well founded fear of persecution for a Convention related reason were made out.
The Tribunal summarised the applicant's claims of a fear of persecution because he is a Muslim by Indonesians who are Christians. However, the Tribunal stated that, whilst the applicant claimed to have been mistreated in the past by the local police where the head of the police station was a Christian, the applicant gave no details to the Tribunal about the circumstances of his arrest, such as the date or place of the occurrence or the reason given by the police for the applicant's arrest.
The Tribunal noted that the applicant's claims had been left unclarified and questions unanswered. The Tribunal concluded, on the material before it, that it was not satisfied that the applicant had suffered persecution in the past nor that he has a well founded fear of persecution, within the meaning of the Convention, if he were to return to Indonesia in the foreseeable future.
The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations and, for that reason, affirmed the decision under review.
The applicant was unrepresented before the Court this afternoon, although had the assistance of an interpreter.
The applicant informed the Court that he did not attend the Tribunal hearing because he thought that the Tribunal had all the facts.
The Tribunal's letter of invitation dated 31 July 2006 was a letter sent in accordance with ss.425 and 425A of the Act and in the circumstances there is no error in the Tribunal's decision to proceed, pursuant to s.426A of the Act, to make its decision on the review application without taking any further action to enable the applicant to appear before it.
The applicant confirmed that he relied upon an amended application filed by him on 14 February 2007. The grounds of that application were read to the applicant, and interpreted for the applicant's benefit, and he was invited to make submissions in support of that application.
The grounds of the amended application are as follows:
“1. The Tribunal did not fully consider the dangerous situation for me in Indonesia.
2. At first, I was a Islam. My family adhered strictly to a religion. Recently, the religious and ethnic riots and strife has erupted in one province after another since the downfall of the New Order. The economic and political condition in Indonesia is really unstable.
3. Everyday I though about what I could do to make a peaceful living, and that was all I wanted. One day, I realised that I had to leave my country, to stay away from discrimination war against Islam and live in some new places where there would be no religious discrimination that happened in my country, Indonesia.
4. I am afraid to go back because my religion is Islam and will be discriminated by Indonesian people who are Christian and Catholic. I do hope that I can feel more secure and have a better life in Australia.”
Plainly paragraphs 2, 3 and 4 of the grounds of the application do not disclose any error capable of review by this Court and are therefore rejected.
Paragraph 1 of the amended application contains no particulars and nor did the applicant make any meaningful submission in support of that allegation.
It is clear from a fair reading of the Tribunal's decision that the reason for the failure by the Tribunal to be satisfied about the applicant's claims was the lack of detail provided to it by the applicant. It is for the applicant to satisfy a decision maker, such as the Tribunal, that he meets the criteria required for being a refugee. Section 65 of the Act mandates that, if the decision maker is not so satisfied, then it must refuse a protection visa.
The conclusions of the Tribunal were open to it on the material before it and for which it gave reasons. The Tribunal complied with its statutory obligations in the conduct of its review and the making of its decisions.
The decision of the Tribunal 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 and the proceeding before this Court is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 30 March 2007