SZJVS v Minister for Immigration - [2007] FMCA 2099

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJVS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2099

MIGRATION – Review of Refugee Review Tribunal decision – impermissible merits review – no evidence of bias or bad faith – no breach of s.424A – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 65, 91R(2), 414, 415, 420, 425, 425A, 426A, 441A, 441C(4)

SZANK v Minister for Immigration and Multicultural Affairs [2004] FCA
1478
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 702
Dietrich v R (1992) 177 CLR 292; [1992] HCA 57
SZFDE v Minister for Immigration and Citizenship(2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142

Applicant:

SZJVS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3694 of 2006

Judgment of:

Nicholls FM

Hearing date:

11 December 2007

Date of Last Submission:

11 December 2007

Delivered at:

Sydney

Delivered on:

11 December 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson

ORDERS

The application made on 11 December 2006, and amended on 23 May 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3694 of 2006

SZJVS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; revised from Transcript)

I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”), on 11 December 2006, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 2 November 2006 and notified to the applicant on 23 November 2006, which affirmed a decision of a delegate of the respondent minister to refuse a protection visa to the applicant.

Background

The Minister has filed a bundle of relevant documents in this matter, and the Court has that bundle of documents formally before it (the Court Book, “CB”)
From the Court Book the following can be discerned. The applicant is a citizen of Pakistan. He arrived in Australia on 25 May 2006 and applied for a protection visa. A copy of this protection visa application is reproduced in the Court Book at CB 1 to CB 26. Attached to this application is a statement by the applicant (CB 30 to CB 32) where the applicant has set out what he describes as his “statement of claim”, which can be understood as his claim to be a person who is seeking protection in Australia.
The applicant’s claims to such protection derive from his claim to membership of the Pakistan Muslim League, that is, the NAWAZ Group. Generally, it is referred to by the applicant as the PMLN. The harm that the applicant feared was from political opponents. In his statement the applicant claimed to have been arrested and detained by legal authorities, and questioned by the military on a number of occasions.
Following the refusal of his protection visa application, the applicant sought review by the Tribunal. The application for review is reproduced in the Court Book at CB 45 to CB 48. This application was received by the Tribunal on 23 August 2006 (reproduced at CB 49 to CB 50. What follows in the Court Book is a copy of a letter dated 23 August 2006 which is addressed to the applicant at the address for service that he provided. In that letter, the Tribunal set out the process by which it was going to conduct a review. Relevantly, the letter set out the importance of the applicant attending a hearing before the Tribunal if he were to be invited to do so.
Also contained in the Court Book is a letter dated 30 August 2006 also addressed to the applicant at the address for service that he had provided in his application to the Tribunal. On its face, I note that the letter bears the words, “by post” and in this letter the Tribunal sought to notify the applicant that it could not make a decision in his favour on the material that was before it, and invited the applicant to a hearing that was scheduled to take place on 6 October 2006.
What follows, relevantly, is the Tribunal’s decision record which is at CB 58 to CB 65. I note, in particular, that what is recorded in that record by the Tribunal is that by letter dated 30 August 2006, and posted to the applicant at the last residential address provided to the Tribunal by the applicant in connection with the review in accordance with s.441A of the Act, the applicant was notified that the Tribunal was unable to make a decision in his favour on the material before it. Accordingly, he was invited to come to a hearing before the Tribunal to give oral evidence and present arguments in support of his claim.
The Tribunal notes that a hearing was scheduled for 6 October 2006 and further that the applicant did not attend at the scheduled hearing and did not contact the Tribunal. In those circumstances, the Tribunal said it was satisfied that it had discharged its obligation to give the applicant an opportunity to appear before it and to give evidence. It therefore proceeded to make a decision on the basis of the material that had already been put before it.
Any plain reading of the Tribunal’s reasons for its decision reveal that the reason for affirming the decision that was the subject of the review (that is, the delegate’s decision), was that the Tribunal could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. That is, the applicant was not a person to whom Australia owed protection obligations. It is important to note that in setting out its reasons, the Tribunal noted and described the applicant’s claims (the only set of claims that had been put before it) as being only an outline of claims, parts of which were hard to understand. The claims regarding his release from custody were particularly obscure, and other parts were unclear. Ultimately, the Tribunal was unable to be satisfied on the basis of the evidence provided by the applicant that he was arrested, tortured or threatened with death, in the manner that he claimed, his reasons of his involvement with the PMLN, or for reason of his opposition to the Musharraf regime in Pakistan.
The application that the applicant originally put before the Court contained the following:
“1) That the amount of persecution and danger to the life of the applicant was not taken into account
2)The respondents failed to take into account the claim of the applicant;
3) That there was a threat to the applicant's life and liberty, there was physical harassment and ill-treatment to the applicant. The applicant was detained and was physically ill-treated.”
The applicant appears to expand on this in an amended application filed on 23 May 2007. I note also that the applicant has filed written submissions in this matter on 27 November 2007.

Hearing Before the Court

At the hearing before the Court today, the applicant was unrepresented. He was assisted by an interpreter in the Urdu language. Mr J Mitchell of Counsel appeared for the first respondent.
The applicant put a number of additional matters before the Court today by way of statements from the bar table. Firstly, the applicant said that although he had been referred to a lawyer on the panel of the Court’s legal advice scheme, he had telephoned the lawyer twice, had been unsuccessful in contacting the lawyer and had never received any advice.
Secondly, in relation to his failure to attend the hearing before the tribunal, a friend had given him what was now perceived to be incorrect advice, telling him not to go to the Tribunal hearing. The applicant sought from the Court another opportunity to provide more evidence to the Tribunal. The applicant stated that while he may have been misguided, he had not deliberately done anything wrong and that it was fair to remit the matter to the Tribunal and to provide him with another opportunity to give evidence.

Consideration

I will deal with each of the matters as they arise in sequence. Firstly, the matters raised by the applicant by way of the pleadings in both the application and the amended application have, as Mr Mitchell has submitted, plainly misconceived the role and the jurisdiction of this Court. The amended application recounts the applicant’s claims to protection and asserts that the Tribunal should have given greater weight to, or accepted, his claims to be a person who falls within the Refugees Convention.
As I sought to explain to the applicant during the course of the hearing today, the Court cannot engage in merits review of the Tribunal’s decision. I agree with the Minister’s submissions at paragraph 4.2 that this extends to the Court contesting the fairness of the Tribunal’s factual findings and the weight accorded to material before the Tribunal. These are matters generally for the Tribunal (SZANK VMinister for Immigration and Multicultural Affairs [2004] FCA 1478, VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104; NAHI v Minister for Immigration and MulticulturalAffairs [2004] FCAFC 10). In reference to the applicant’s pleading that the tribunal did not appreciate the facts; that there was a legal ambiguity in its decision because the applicant falls within the four key elements of the refugee laws, that the Tribunal did not give any importance to the applicant’s claims; that he has proved the amount of – (and presumably has suffered) persecution, that he has suffered serious harm and that protection is not available to him in Pakistan, unfortunately, for the applicant, all ignore the fact that the Court cannot indulge in merits review of his refugee claims and ignore what follows. I will now address the relevant factors that emerge from the circumstances that have been put before the Court in detail.
In reference to the issue of the Tribunal’s letter of invitation to the hearing (in particular the issue of the posting of that letter). It appears that the Tribunal put the applicant on notice that it could not make a favourable decision on his written claims alone. It invited the applicant to a hearing so that he could give evidence, provide explanations and make submissions in support of those claims. As it appears from the material before the Court, and without any explanation to the Tribunal, the applicant did not attend the hearing. As the Full Court of the Federal Court described in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287, in these circumstances, the affirmation of the delegate’s decision was the inevitable consequence.
According to the Tribunal’s decision record, it examined material that had been obtained from the protection visa application and in particular, the applicant’s attached statement. The Tribunal found that the contents of the statement did not satisfy it that the applicant had a well-founded fear of persecution for a Convention reason. As I have already said, the Tribunal’s decision was based on the lack of detail, the obscure aspects of the claim, and the lack of clarity provided. Granted the applicant’s non-attendance at the hearing, the Tribunal did not have the opportunity to test the applicant's claims, nor could the Tribunal put the deficiencies to the applicant so that he may have addressed them.
Based on those circumstances, I cannot discern error. I refer to what Allsop J said in the matter of SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195, a case with similar factual circumstances to those that present in this case. In my view, the Tribunal was entitled to make the findings that it did based on what it had before it. In SJSB v Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, the Full Court of the Federal Court found that where a legislative regime which requires a positive state of satisfaction as to whether protection obligations are owed to an applicant, this mandates a refusal decision if the requisite level of satisfaction is not reached. In this regard, see also what the Full Court said in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]. The finding of non-satisfaction was plainly open to the Tribunal on what was before it.
I note further that also in Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73, the Court stated that s.65 of the Act, as it is to apply in the context of s.36(2) of the Act, requires a protection visa to be rejected in the absence of a positive finding of satisfaction.
I turn to one issue that I raised today with Mr Mitchell, being the issue of evidence in relation to the posting by the Tribunal of the letter of invitation to the hearing. There is no evidence before the Court of the nature as to the actual despatch of this letter. But I am satisfied, on balance, by what has been put before me, and I am also persuaded by oral submissions made today by Mr Mitchell, that from what has been put before the Court, a clear inference can be drawn that the letter was sent to the applicant. I certainly agree with submissions made by Mr Mitchell that the Court cannot be satisfied on the balance of probabilities that the letter was not despatched in accordance with the relevant statutory regime, based on the material before the Court.
Firstly, I note that while the applicant has put before the Court two applications, written submissions and oral submissions, nothing has been raised in relation to the letter of invitation to the hearing by way of pleading or submission. Particularly and relevantly, while the applicant has put in a long list of complaints about what has occurred before the Tribunal in one part of the written submissions, without explanation, there is a recitation or a listing of various sections of the Migration Act. There is nothing in any of this about s.425 or, importantly, about s.425A of the Act.
Secondly, it is important to note that the applicant has not asserted any relevant failure by the Tribunal in this regard and his explanation for not attending the hearing before the Tribunal was not that he was unaware of it but that he had been advised by a friend not to attend.
I note further that the letter bears on its face the words, “by post,” which at least indicates an intention to despatch the letter by one of the methods set out in s.441A(4) of the Act. Ultimately, in this consideration, I take into account what is in the Tribunal’s own decision record and, with reference to what I read before, particularly noting that the letter was sent in accordance with s.441A of the Act. Importantly, the applicant, neither today nor by any of his written documentation, has challenged what the Tribunal has said in this regard. I therefore, for those reasons, agree with submissions made by

Mr Mitchell that there is no evidential basis for a finding that the letter of invitation to the hearing was not despatched in accordance with s.441A(4), and that it did not comply with the requirements of s.441C(4).
Turning to the other aspects of the letter. The letter on its face appears to comply with the other requirements of s.425A, and it does make reference to the matters set out in s.426 and 426A.. In all of these circumstances therefore I am satisfied that the Tribunal was entitled to proceed to make a decision in exercising the discretion that is available to it pursuant to s.426A of the Act.
The applicant has also filed written submissions in this matter. Unfortunately, they are in presentation and form, content and style, in some respects identical to, and in other respects, similar to, forms of words seen recently in this Court. These have appeared either by way of application, amended application or, as in the applicant’s case, written submissions. In this regard, the following observations need to be made and can be made.
The first is that the submissions are largely not referrable to the applicant’s case, and clearly not referrable to the application or the amended application. I say this with respect to the applicant. However, as he explained to the Court today, the applicant obtained the document from friends. Some parts of the document just do not make any sense. For example, in paragraph two is as follows:
“That Tribunal did not use the country information as specific, however, the general information gathered by the Tribunal considered to weigh against m (sic: my) case in the final outcome. . . . The Tribunal also failed to consider the Amnesty International country information.”
In the context of what I have just said about how the Tribunal came to its decision, it was clearly the lack of satisfaction of the applicant’s claims that governed the Tribunal’s decision.
Further, paragraph one says:
“The Tribunal did not treat this matter as a s.424A issue as I brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal.”
If that were the case, and a statement attached to a protection visa application is subsequently submitted to the Tribunal, and in any event that s.424A(1) is enlivened, the exception in s.424A(3)(b) would apply.
I do not raise these issues in any way to embarrass the applicant, but it is important that the applicant understands that although he may feel that he has put a large amount of documentation before the Court, it is very much the quality, rather than the quantity, that will assist. I understand the difficulties faced by newcomers and those from a non-English speaking background who come to this country and make applications for protection visas. However, reliance on even well-meaning friends is often, in the experience of this Court, not of assistance. Clearly, on the applicant’s own statement, he did not pay money for these submissions to have been the subject of exploitation.
Notwithstanding what I have said, the applicant appears unrepresented before the Court. In considering what is written on its face, and taking it to the best advantage for the applicant, I cannot see that any of the matters asserted assist the applicant in showing jurisdictional error on the part of the Tribunal.
In paragraph one, the applicant asserted actual bias on the part of the Tribunal. To the extent that paragraph two makes reference to the Tribunal being preoccupied and not having had a fresh look, I saw this complaint as being one of actual bias and bad faith on the part of the Tribunal. The applicant particularises the claim of bias by saying that the Tribunal did not consider his oral evidence. It must be said that at one level this is a nonsense because, as has been clearly stated, despite opportunity, the applicant did not give any oral evidence that the Tribunal can be said to have failed to consider. Even if this was to be taken at the most charitable reading for the applicant, and if it can be said to be a complaint that the Tribunal denied the applicant an opportunity to be heard and therefore was biased, it is not made out in the circumstances of this case.

Whether alleging bias, or a lack of good faith, or bad faith, on the part of the Tribunal, allegations need to be distinctly made and clearly proven (SZHPD v Minister for Immigration and Citizenship[2007] FCA 157, Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425; [2001] HCA 28, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs(2002) 194 ALR 749; [2002] FCAFC 361; Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002} FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102). But the applicant puts forward no evidence to support a serious claim such as bias and bad faith. At best, the applicant perhaps puts forward or relies on the Tribunal's decision record, on its finding in its decision record and perhaps that is what can be taken from what is set out at paragraph two of the written submissions. It is a rare and extreme case for such allegations to be apparent from nothing else than the reasons for decision of the decision maker.
On what is before the Court this complaint is not made out. In paragraph one, the applicant also makes reference to s.424A of the Act. As I said before, this contains some logical difficulty. Somehow the complaint may be said to be that although the written statement that he had attached to his protection visa application was before the Tribunal, and the Tribunal rejected his evidence, this somehow involved a breach of s.424A of the Act. Again, the view I am taking of what is set out in these submissions is designed to give every opportunity to the applicant so that any possibility of jurisdictional error on the part of the Tribunal’s decision can be discerned.
Firstly, I note in this regard that there is no breach of s.424A(1) of the Act by the Tribunal making reference simply to the statement that is attached to the protection visa application. Even in making his application for review, the applicant somehow, through that process, by reference to his application for a protection visa, which was the subject of the adverse decision by the delegate, which in turn was brought to the Tribunal for consideration (and there was clearly no prompting by the Tribunal to do this). In these circumstances, I cannot see that any breach of s.424A can be made out.
In paragraph two of the written submissions the applicant asserts that the Tribunal relied on country information. Other than for a reference to a US State Department report relating to the PMLN, I cannot see that the Tribunal in any relevant sense relied on any country information for its decision. Nor does the applicant identify which Amnesty International report the Tribunal failed to consider. The reason for the Tribunal’s decision in affirming the delegate's decision, was that it could not reach the requisite level of satisfaction such that the protection visa must be granted. In relation to the US State Department report, the mere identification of PMLN as a legal political party in Pakistan, the use of country information and weight to be accorded to such information is, as Mr Mitchell submitted before the Court today with reference to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, a matter for the Tribunal.
Paragraph 3(a) of the written submissions complains that the Tribunal placed too high an onus of proof on the applicant. That aspect of the applicant’s claim requires consideration of what I have already emphasised in this matter, that is, that the relevant statutory regime within which the Tribunal operates (with particular reference to s.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. I have already referred to authorities in that regard.
It is for the applicant to persuade the Tribunal that the relevant statutory elements (such that the visa must be granted) are made out. I refer to Minister for Immigrationand Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22. While it is nonetheless appropriate for the Tribunal to adopt what can be described as a liberal attitude concerning proof of persecution, there is no obligation on the Tribunal to uncritically accept any, or all, of the applicant’s assertions as set out in his statement (see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437).
I agree with Mr Mitchell’s submission that this is a complaint that the Tribunal applied the wrong test. Again, the answer to this complaint is that the Tribunal was not satisfied with the claims simply because they were not substantial.
Paragraph 3(b), and possibly paragraph 4, complains that the Tribunal did not consider, and left out elements of, the applicant’s claim and did not take into account relevant considerations. Again, this is not made out on what is before the Court. I cannot see that the Tribunal failed in the way that the submissions assert. The Tribunal plainly in its decision record turned its mind to the claims as contained in the statement. I cannot see the Tribunal was selective in the way that it examined the assertions of the applicant. While the tribunal is required to look at each claim in relation to the PMLN and the applicant’s complaint (that is, his membership and the attraction of harm from political opponents) the Tribunal squarely recognised this as a part of the applicant’s outline of his claims. The remainder, being paragraphs 3(b) and 4, amounts to no more than a request for impermissible merits review.
For the most part, paragraphs 5 and 6 can be seen similarly. I note that I agree with submissions made by Mr Mitchell in relation to each of paragraph 5(a) and (b). The applicant claimed that he was a member of the PMLN, and that he was involved with the PMLN, and that this caused political opponents to engage in certain violent activities in relation to him. This claim was clearly recognised by the Tribunal to the extent that in 5(a) the submissions complain that the Tribunal did not consider he had been under immense pressure from different government agencies which, when one has regard to this statement, is probably a reference to the legal authorities and the military, police and other law-enforcing agencies, any claim that the Tribunal failed to consider the pressure that the applicant was under from these agencies was subsumed in the ultimate finding made by the Tribunal, which is that on the outline of the applicant's claims that had been put before it, the only thing that had been put before it by the applicant beyond the application for a protection visa was subsumed in the ultimate finding made by the tribunal.
Paragraphs 5 and 6 as I said do not rise above a request for merits review. Note again that relevantly, it is the finding of not being able to satisfy itself that there was a well-founded fear of persecution that is the central finding in this regard. The applicant seeks to challenge this in a way that this Court is not permitted to do so.
Under the heading of “Law Relating to Exercise of the Tribunal’s Powers,” there is a listing of a number of sections from the Act. The submission does not say how these assist the applicant’s case, but looking at each in turn, s.91R(2) refers to serious harm in relation to the definition of persecution. There was no need for any particular consideration of s.91R(2) by the Tribunal. On what was before it, the Tribunal could not reach any requisite level of satisfaction as I have repeatedly said. In these circumstances, there was no real need for the Tribunal to engage in any additional or fine consideration of the concept of serious harm and this concept clearly is not engaged in the circumstances before the Court now.
In accordance with s.414; the Tribunal did review the decision. With respect to s.415, while it is not clear in the circumstances of the applicant’s case what the complaint is, and in reference to what is before the Court, the Tribunal did exercise the relevant powers and discretions that were conferred on it by the Act. As I have already said, I cannot see error in what the Tribunal has done in that regard. In relation to s.420, at best this may be a complaint that the Tribunal did not analyse properly the future harm that the applicant would face if he were to return to Pakistan. In light of the Tribunal’s finding regarding the lack of satisfaction, this complaint, it is simply not made out.

Matters raised by the applicant at the hearing

In relation to the matters raised by the applicant today, the applicant complained that the lawyer that had been engaged through the Court’s legal advice scheme to assist him had not provided any assistance to him, that he had not received any written advice from this lawyer, and indeed had tried to contact him and was unable to do so by ringing twice. I note in this Respondent’s Exhibit 1 – “RE 1,” which is a report in the usual form provided by panel members who have been appointed to provide limited legal assistance and advice under the scheme.
It must be said that the panel member - a member of the Bar appointed in this case - is well known to the Court through appearances before the Court in matters of this type and enjoys a very high reputation in the view of this Court. The report from the panel adviser states that advice was given on 26 September 2007 and there is the handwritten notation:
“Advice given in writing when no response to invitation to interview.”
Whatever the case, regardless of whether the applicant did try to contact the panel lawyer, whether the panel lawyer sent advice, and whether that advice was sent to an address at which the applicant was able to retrieve the letter, it is well established that, and as submitted by Mr Mitchell, there is no right to obtain such legal advice. I note reference to various authorities by Mr Mitchell (matter of Dietrich v R (1992) 177 CLR 292; [1992] HCA 57 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 702), in support of the proposition that was submitted. I also agree with submissions by Mr Mitchell that there is some obligation on an applicant who has come to this country and as the applicant stated:
“Is afraid that he will be killed if he is returned.”
This is an obligation to at least take some steps to at least show some diligence in pursuing those matters which would assist him in obtaining the protection which he says is so vital to not only his liberty, but indeed to his life.
I agree with Mr Mitchell’s submissions that the applicant appears not to have exercised such diligence on his own behalf in relation to pursuing matters before the Tribunal. His failure to attend has been placed on a friend and the explanation given (noting that this was not based on any evidence before the Court but merely assertions from the bar table) was that he did not receive any advice from the panel lawyer after telephoning twice.
Ultimately, not only is there no right to such advice but having been provided with the opportunity to obtain such advice the Court would expect this applicant to take further steps. If he wanted to obtain advice it was clearly open to him to have done so. He had access to friends who, on his own statements before Court today, appear to have assisted him out of motives of friendship, not monetary gain. The applicant was not friendless, without other avenues available to assist him in obtaining legal advice.
I note submissions that there is an obligation on this Court to give the applicant a reasonable opportunity to appear and present his case, but in all the circumstances, I am not satisfied that the applicant should be given a further opportunity to obtain legal advice because the issue needs to be balanced against the expense that would be incurred on the part of the first respondent.
Ultimately, I am also persuaded that beyond making the mere complaint today, the applicant has had considerable time before the Court. This matter first came on before a Registrar of this Court on 8 February 2007. If the applicant was having the claimed difficulties in contacting the panel lawyer I am satisfied that there was more than a reasonable opportunity for the applicant to – and with the assistance of friends – seek alternative legal advice from a number of other sources. There is no claim made by the applicant today that he made any attempt to do so.
The applicant did not seek an adjournment of the hearing today, but merely made the complaint about the panel lawyer. Plainly this complaint does not go to show jurisdictional error on the part of the Tribunal. But in relation to the applicant being given a fair hearing before this Court, for all the reasons that I have stated, I cannot see that the applicant has been denied a fair hearing.
Now, the next matter raised by the applicant - a matter that I have already made some reference to - and that is the advice that he obtained from a friend was advice not to attend the Tribunal hearing. As Mr Mitchell, in my view, correctly submitted, there was no evidence before the Court today that the Tribunal was aware of this matter that the applicant has raised for the first time today. It was significant to note, as I have already said, that despite the volume of material put by the applicant before the Court, that this complaint, this explanation, for not attending the Tribunal hearing was not raised. Indeed, as I said earlier, no complaint about s.425, even by reference to that section, was made.
Nor does this in any way go to support any allegation or concern that the advice from the friend constituted some sort of fraud such that it could be said to have affected the procedures that the Tribunal is statutorily required to consider in conducting the review. Nothing has been put before the Court, certainly not in any of the application or the submissions, and nothing in what the applicant has said, to show that there was any fraud – or anything akin to fraud – such that the Tribunal’s obligations set out in Division 4 of Part 7 of the Act would have been affected in the way as described by French J in the Federal Court in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142 and endorsed subsequently by the High Court (SZFDE v Minister for Immigration and Citizenship(2007) 237 ALR 64; [2007] HCA 35).
The applicant said to the Court today that he had accepted bad or wrong advice. He acknowledged that human beings make mistakes and submitted that he should be given another opportunity. As I explained to the applicant, unless jurisdictional error can be discerned in the Tribunal’s decision in relation to the way that the Tribunal has conducted the review, then simply seeking redress for a human mistake made by a “friend,” but ultimately made by himself, does not reveal jurisdictional error on the part of the Tribunal. It therefore does not assist the applicant before the Court today.
For all those reasons and having considered the matters asserted in the application, the amended application, the written submissions, and taking into account what the applicant has said today, I cannot discern jurisdictional error in the Tribunal’s decision. The application made to the Court is accordingly dismissed.
As to costs, I am satisfied that the amount sought is a reasonable amount in all the circumstances. I note attendances by solicitor, preparation of multiple copies of the Court Book, the briefing of Counsel, attendance by Counsel today, and written submissions prepared by Counsel. In all, the amount sought is, in my view, a reasonable amount and I will make the order in that amount.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 21 December 2007