SZJSV & Anor v Minister for Immigration & Anor
[2007] FMCA 355
•7 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 355 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of India and claim fear of persecution for reasons of their political activities – where applicants failed to attend Refugee Review Tribunal hearing – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 424A, 425, 426A, 474 Migration Regulations 1994 (Cth), r.4.35D |
| NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 287 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 |
| First Applicant: | SZJSV |
| Second Applicant: | SZJSW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3455 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 March 2007 |
| Date of Last Submission: | 7 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship
The application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $2,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3455 of 2006
| SZJSV |
First Applicant
| SZJSW |
Second 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. The decision was signed on 16th October and handed down on 7th November 2006. The Tribunal affirmed the decision not to grant to the applicants a protection (class XA) visas. The applicants seek judicial review of that decision.
The applicants are citizens of India who arrived in Australia on
3rd May 2006. They applied for protection (class XA) visas on the
26th of that month. On 21st July 2006 a delegate of the Minister refused the application for visas.
The applicants then applied to the Refugee Review Tribunal for review of that decision. That application was received by the Tribunal on
12th August 2006. The application set out details of the applicants, including their mailing address. No additional documents were forwarded with the application.
The Tribunal wrote to the applicants on 14th September 2006.
The Tribunal invited the applicants to attend a hearing on 10th October at 10:00 am. I note that the letter advised the applicants:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone. We now invite you and any persons listed below to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.
You can also ask the tribunal to obtain oral evidence from another person or persons.
The letter enclosed a form called a response to hearing invitation form, and asked the applicants to complete it. The Tribunal's letter asked the applicants to send any new documents or written arguments that they wanted the Tribunal to consider. A copy of the Tribunal's letter appears on pages 47 and 48 of the Court Book. Neither applicant attended the hearing. No further written documents were presented to the Tribunal.
Due to the fact that neither applicant attended the hearing, the Tribunal decided to make its decision on the case using its powers under s.426A of the act. The Tribunal said at page 59 of the Court Book:
The basis for the Tribunal's decision is that the applicants were invited to the scheduled hearing and the invitation was sent to the address specified in the application form as the address for correspondence. The applicants did not respond to the information, nor did they indicate why they could not attend, nor did they send any additional information pertinent to their case.
A copy of the Tribunal's decision record can be found at pages 56 through to 61 of the Court Book. The Tribunal's findings and reasons, which are necessarily brief, can be found at pages 59 to 60.
The Tribunal noted that the first applicant had indicated that the basis of his claim for refugee status was his fear for his life due to the claim that he had been beaten up and hospitalised by former business clients. He had claimed that his former business partner had embezzled funds from the company and then disappeared whilst he was immersed in his political activity for the BJP party in India. The clients then became angry and demanded their money back and threatened to kill the applicant and his wife. The applicant claimed to have fled from his home town.
The Tribunal noted that for a successful claim of refugee status it is required that the person be the subject of a Convention reason for the persecution problem that he claims to have faced. The Tribunal stated that the applicant must claim to have feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal said that the applicant had failed to satisfy the Tribunal that he could make any connection between his financial and business difficulties and the Convention requirements. The Tribunal affirmed the decision not to grant the applicants protection (class XA) visas.
The applicants commenced proceedings in this Court for judicial review of the Tribunal decision on 22nd November 2006. They filed an amended application on 31st January 2007. In that amended application they seek:
i)A declaration of the decision that the Refugee Review Tribunal is null and void.
ii)A writ of mandamus directed at the Refugee Review Tribunal to rehear and redetermine the applicants' application for review according to law.
iii)A writ of certiorari quashing the decision of the Refugee Review Tribunal and
iv)A writ of prohibition directed to the Minister prohibiting the Minister from acting on the Tribunal's decision.
The grounds of the application allege a breach of s.424A(1) of the Migration Act. The particulars of this claim are as follows:
There was certain information used by the Tribunal without providing an opportunity to respond. The adverse information 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 a protection visa.
The Tribunal did not disclose the information in accordance with s.424A(1) of the Migration Act. The Tribunal did not take into account any evidence or materials before it. Neither the Tribunal made an inquiry or send any letter of invitation to comment on the adverse information under s.424A(1) which the Tribunal relied upon or used against the applicant to affirm the delegate's 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 it Tribunal.
The applicant told the Court that he did not attend the hearing because of the death of his cousin. He said that the cousin had died 15 days before the date of the Tribunal hearing and that he forgot the date of the hearing. He said that he thought that the Tribunal would call him and give him another hearing date. Later he asked the Court to give him one more chance to go to the Refugee Review Tribunal.
Neither applicant attended the Tribunal hearing. The first applicant's claim of his cousin dying 15 days before the hearing and the fact that he forgot the date of the hearing does not provide any reason for the Tribunal to act on its own behalf to give the applicant another hearing date.
The applicants are applying for a visa seeking protection from Australia because they claim to be refugees. The claim of forgetting a hearing date does not sit at all well with a person's claim to be in fear for his life if he was required to return to his own country.
The applicant did not contact the Tribunal at any time to explain his inability to attend, and neither applicant responded to the letter from the Tribunal inviting them to attend a hearing.
The Tribunal wrote on 14th September advising the applicants about a hearing on 10th October. The time given for the hearing was more than the prescribed period of 14 days provided by reg.4.35D of the Migration Regulations. Nevertheless, it was not a lengthy period of time. It was slightly less than a month. It is surprising, therefore, that both applicants forgot the date.
The applicants had been placed on notice that the information before the Tribunal was not sufficient to allow the Tribunal to make a decision in their favour on that information alone. They were invited to attend the hearing and were given a choice of all or any of three things:
i)To give evidence and present arguments.
ii)To ask the Tribunal to hear evidence from some other person; and
iii)To provide further documentary evidence in support of their claim.
They did none of those things.
It is well established by such decisions as NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 287, SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 that where the Tribunal does not have sufficient information to make a decision in favour of the applicant, if the applicant does not attend the hearing to give evidence or otherwise provide further information in support of the applicant's case, be it oral information or documentary information, the likely result and the almost inevitable result is that the application before the Tribunal will not be successful.
In my view, the Tribunal complied with s.425 of the act in inviting the applicants to appear in plenty of time. The Tribunal correctly applied the provisions of s.426A of the act in deciding to make its decision without giving the applicants a further opportunity to appear, and the tribunal did not breach the provisions of s.424A of the Migration Act.
In my view, the reasons why the Tribunal affirmed the delegate's decision are clearly these:
i)The information before the Tribunal was not sufficient to satisfy the Tribunal that the applicants had a well‑founded fear of persecution for a Convention reason if they were required to return to India; and
ii)The reasons given in the application for a well‑founded fear of persecution were not reasons that had a connection with the Refugees Convention in any event.
It is well established that s.65 of the Migration Act requires an applicant to satisfy the Minister or the Tribunal that the applicant meets the criteria for the grant of a visa. Where the applicants do not satisfy the decision maker, then a visa will not be granted.
The applicant has asked the Court for a further chance to attend a Tribunal hearing. The Court does not have the jurisdiction to grant a further Tribunal hearing or a further Tribunal determination without there being jurisdictional error on the part of the Tribunal. As Giles J put it in the decision of SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]:
In so far as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
There is no evidence of any jurisdictional error. I accept the fact that neither applicant is legally represented, and my independent reading of the decision and supporting documents does not disclose any jurisdictional error.
As there is no jurisdictional error, the decision is a privative clause decision, as defined by sub‑s.474(2) of the Migration Act.
Under sub‑s.474(1) of the act, a privative clause decision is not subject to declaration, mandamus, certiorari in any court on any account. Accordingly, the application will be dismissed.
I will make a formal order changing the name of the first respondent Minister to Minister for Immigration & Citizenship.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 March 2007
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