SZKCP v Minister for Immigration

[2007] FMCA 1778

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKCP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1778

MIGRATION – Review of Refugee Review Tribunal decision – applicant did not attend Tribunal hearing – no jurisdictional error – application dismissed.

Migration Act 1958, ss.425, 425A, 441A(4), 65, 36(2), 426A, 425(2)(b), 425(3), 425(1), 422B
Migration Regulations 1994, reg. 4.35D

Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
 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
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZCIC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1194
SZFWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
SZIDH v Minister for Immigration and Citizenship [2007] FCA 369

Applicant: SZKCP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 290 of 2007

Judgment of: Nicholls FM

Hearing date: 12 October 2007

Date of Last Submission: 12 October 2007

Delivered at: Sydney

Delivered on: 12 October 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms M Mafessanti

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 31 January 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 290 of 2007

SZKCP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. This is an application filed in this Court pursuant to the Migration Act 1958 (“the Act”) on 31 January 2007 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 14 December 2006 and handed down on 9 January 2007, which affirmed a decision of a delegate of respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of India who arrived in Australia on 18 August 2006 and applied for a protection visa on 25 September 2006. On 29 September 2006 a delegate of the respondent Minister refused to grant the protection visa and on 20 October 2006, the applicant sought review of that decision.

The Applicant’s Claims to Protection

1. The applicant’s claims to protection were contained in his application for a protection visa (reproduced in the Court Book (“CB”) at CB 1 to CB 30), and in his application for review (CB 44 to CB 47).

2. In essence, the applicant claimed to fear persecution because he and his family were Sikhs, belonged to the Sikh religion, and that they had clashed with various Hindu fundamentalists. The applicant claimed that he had worked for and sympathised with the Khalistan Student Movement which also had difficulties with Hindu organisations, that he had been targeted by fanatic Hindu groups and that he feared returning to India because he would be killed because of his Sikh religion.

3. I note the documentation and evidence before the Court today. I have in all, the applicant’s application, the applicant’s affidavit of 30 January 2007 and written submissions filed by the applicant on 11 May 2007. For the respondent I have written submissions filed on 21 September 2007.

The Tribunal

1. On receipt of the application for review the Tribunal wrote to the applicant by letter dated 26 October 2006, sent to the address for service provided by the applicant, and set out for the applicant the process by which the review would be conducted. Importantly, the letter told the applicant of the possibility of attending a hearing before the Tribunal and noted that the hearing was the opportunity to give the Tribunal evidence in support of his application. The letter explained what this evidence could include.

2. Further, by letter dated 6 November 2006, and again sent to the applicant’s address for correspondence, the applicant was put on notice that on the material before it, the Tribunal could not make a decision in his favour and invited the applicant to a hearing before the Tribunal on 14 December 2006 for the purpose of his giving evidence and presenting arguments in support of his claims (CB 50 to CB 51). Relevantly, the Tribunal advised the applicant that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his case without further notice. This letter also made reference to a response to hearing invitation form which was enclosed with the letter and notified the applicant that he was to read and complete the enclosed form and tell the Tribunal by way of this form if he was coming to the hearing.

3. From what appears at CB 52, the applicant signed and dated a response and notified the Tribunal that he did not want to come to a hearing and that he consented to the Tribunal proceeding to make a decision without taking any further action.

4. The Tribunal’s decision record is before the Court by way of annexure to the applicant’s affidavit of 31 January 2007 and is also reproduced at CB 57 to CB 61. In its decision record the Tribunal set out that it had advised the applicant that it was unable to make a decision favourable to him, that it had given the applicant the opportunity of attending the hearing but that on 12 December 2006, the Tribunal had received written advice from the applicant that he did not wish to come to the scheduled hearing, and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. In these circumstances, the Tribunal decided to make a decision on the review without further notice.

5. There is nothing before the Court now to show that the Tribunal failed to comply with relevant provisions regarding the issuing and notification of the invitation to hearing and the relevant time periods (ss.425, 425A, 441A(4) of the Act and Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”).

6. The Tribunal’s “Findings and Reasons” are reproduced in its decision record at CB 61.1 to CB 61.8. A plain reading of the Tribunal’s decision record reveals that in view of the number of unsubstantiated claims that had been made by the applicant, the Tribunal said it was unable to establish the facts of the matter given the applicant had not taken the opportunity to appear before it. It noted that the applicant also did not send any further material to the Tribunal after having been put on notice as to the Tribunal’s preliminary view of the claims as presented. In these circumstances the Tribunal found that it could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention, and was unable to reach the requisite level of satisfaction pursuant to s.65 and s.36(2) of the Act that would mandate a protection visa being granted to him. It therefore affirmed the delegate’s decision not to grant him a protection visa.

The Application to the Court

1. In the applicant’s originating application to the Court, the applicant seeks review on the following (unparticularised) grounds:

   “1. That RRT did not considered the persecution under which the applicant underwent in accordance with the law.

   2. That the RRT did not followed the proper procedure in accordance with the law.

   3. The RRT has committed the jurisdictional error by not taking the Refugee Law into account.”

2. The applicant seeks the following orders:

   “1. The applicant be allowed to remain in Australia till decision.

   
   

   2. The order under application may be quashed.

   
   

   3. The cost of the proceedings be allowed to the application.”

Hearing before the Court

1. At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Punjabi language. Ms Mafessanti appeared for the first respondent. The applicant was unable to assist the Court further, other than saying that he relied on his written submissions.

2. The applicant’s unparticularised grounds, when read with his submissions, cannot be seen as anything more than a request for this Court to engage in impermissible merits review (Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 ("Wu Shan Liang")).

3. As I explained to the applicant during the course of the hearing this morning, the matters asserted in his written submissions go squarely to the question of his well-founded fear, and his claims to have a well-founded fear of persecution for a Refugees Convention reason, a matter properly that he should have addressed with greater detail before the Tribunal and not a matter that could now assist him before this Court. As I explained to the applicant, to the extent that his claims are put by his written submissions, on which the applicant said today he sought to rely, I cannot assist the applicant for the reason that this Court cannot engage in a process of merits review.

4. What is abundantly clear in this case is that the applicant has not challenged before this Court, in any way, the material that the respondent has put before this Court. The applicant was on notice as to the importance of the hearing before the Tribunal, was given the opportunity to attend the hearing, and chose, for whatever reason, not to attend. This was in circumstances where he was already on notice as to the Tribunal’s preliminary view of the claims and the nature of the claims that he had put before it.

5. The Tribunal’s reason for not, in the circumstances, being able to reach the requisite level of satisfaction that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention, was plainly a reason open to it on what was before it. Where the relevant statutory regime mandates that the application be refused if the stated satisfaction is not reached, then no error in this regard is revealed in the Tribunal’s decision (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], as supported by NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

6. I should just note that the Minister submits that in circumstances where the applicant declined to attend a hearing and consented to the Tribunal proceeding to the making of its decision, the Tribunal was entitled to proceed as it did pursuant to s.426A of the Act. I note in this regard that the discretion to proceed to a decision pursuant to s.426A of the Act springs from an applicant's non-attendance at the hearing, that is, a hearing in respect of which an invitation has been properly made.

7. As set out above, the applicant was invited to a hearing. From the material before the Court now, the invitation complied with the statutory and regulatory requirements and the applicant did not attend, or rather, there is nothing before the Court to show that the applicant attended at the time, date and place as specified in the notice. Clearly, no request for an adjournment was made. In these circumstances therefore, it was open to the Tribunal to make a decision pursuant to s.426A of the Act. I also note that the Tribunal was also entitled to proceed in the way that it did pursuant to s.425(2)(b) of the Act.

8. The applicant consented to the Tribunal deciding the review without the applicant appearing before it, and as set out s.425(3) of the Act, the obligation created by s.425(1) of the Act to invite the applicant to a hearing, ceases in circumstances where the applicant consents to the Tribunal deciding the review without the applicant appearing before it. I note in this regard what the Full Federal Court said in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 at [58].

9. That the Tribunal did not specify in its decision record the power under which it proceeded, does not, in my view, detract from the ability of the Tribunal to exercise such a power that is available to it and which is within the exercise of its jurisdiction. I note also that from what is set out in its decision record at CB 60.4, that it would appear that the Tribunal, given its reference to the applicant's advice that he did not wish to attend the hearing and that the applicant consented to the Tribunal proceeding to make a decision without taking any further action, was acting pursuant to the circumstances that arose from s.425(2)(b) of the Act.

10. Nonetheless, given that the date of the signing of the Tribunal's decision was the date of the scheduled hearing, it could also be said that the Tribunal was also able to proceed pursuant to s.426A of the Act given that the applicant did not appear at the scheduled time, date and place for the Tribunal hearing.

11. I did consider, given that the applicant was unrepresented before the Court (in spite of the applicant's stated reliance on his submissions), whether any jurisdictional error could be discerned either from the grounds as stated or otherwise.

12. The claim that the Tribunal did not consider the persecution under which the applicant underwent does not succeed for the reasons already stated. That is, the Tribunal is required to achieve a requisite level of satisfaction, and for the reasons given, could not reach this requisite level of satisfaction such that the protection visa could be granted.

13. In relation to the applicant’s claim that the Tribunal did not follow the proper procedure in accordance with the law, I note that this is a case to which s.422B of the Act applies, such that the matters set out in Division 4 of Part 7 of the Act are the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 andSZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62). With that in mind, I note already what I have said in relation to ss.425, 425A and 426A of the Act and paragraph 13 of the respondent's written submissions, that there was no obligation on the Tribunal pursuant to s.424A(1) of the Act to provide to the applicant in writing the opportunity to comment on information on which the Tribunal relied. Such an obligation is not enlivened in circumstances where the reason for the Tribunal's decision was a lack of evidence or detail such that the Tribunal could reach the requisite level of satisfaction as to whether the applicant's claim of fear of persecution was well-founded. I note the respondent’s reference to authorities at paragraph 13 of written submissions and that the respondent is entitled to rely upon these authorities (SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29]; SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [22]-[23]; SZCIC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1194 at [28]-[29]; SZFWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238; SZIDH v Minister for Immigration and Citizenship [2007] FCA 369).

14. As I have already noted, the applicant was unable to assist the Court at the hearing today, and the applicant made no attempt to explain his failure to attend before the Tribunal. Ultimately of course, that is a matter for the applicant, but having been put on notice and invited to the hearing to address what the Tribunal had noted was its “preliminary view” of the applicant's claim, the applicant's unwillingness to attend at the hearing led to the inevitable consequence that the Tribunal could not reach the requisite level of satisfaction (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287)

15. This Court is fully aware of the difficulties faced by unrepresented applicants and is very sympathetic to applicants from a non-English speaking background who have only been in this country for a relatively short period of time who need to deal with what are often complicated issues, including issues of law. But as I said to the applicant, in this particular matter it appears that this conduct has been a series of neglected opportunities that have been provided to him. First, the opportunity to attend a tribunal hearing, which he did not take up. Second, the opportunity for the applicant to obtain legal advice through the Court's legal advice scheme, which the applicant indicated that he did wish to participate in.

16. A barrister on the panel of that scheme was nominated, and the applicant was referred to him. I note that on the Court's file, the barrister has advised that the applicant failed to attend the conference as agreed, but nonetheless that written advice was given to the applicant on 10 April 2007. I note further that the applicant appeared in the first court date of this matter before a registrar of this Court on 15 March 2007 and orders were made at that time for the filing of an amended application. Although the matter was set down before me on 16 May 2007, on that date I further set down the matter for hearing today to enable the applicant to file and serve written submissions and to file any further amended application to assist in consideration of this matter before this Court.

17. It cannot be said that the applicant has not had a full range of opportunities to put before this Court whatever complaints he was able to properly put about the Tribunal's decision. Nonetheless, in all the circumstances, I cannot discern jurisdictional error in the Tribunal's decision, by way of the grounds in his application, nor by way of the written submissions that the applicant sought to rely on, nor on any other basis. For this reason, therefore, this application is dismissed.

18. It is appropriate that an order for costs be made. There is no matter before the Court that would cause the Court not to make such an order, and as to the amount that is being sought, I find in all the circumstances that it is a reasonable amount, in light of the work that has been done in this case. I note that in this matter there was an additional appearance by a solicitor before this Court and that on that day, that is on 16 May 2007, costs for that day were said to be costs in the proceedings. Therefore, bearing in mind preparation of multiple copies of the Court book, the response, written submissions and attendance on three occasions by the minister's solicitors, including attendance at the hearing today, the amount sought is a reasonable amount and I will make the order in that amount.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date:  22 October 2007