SZKDO v Minister for Immigration
[2007] FMCA 1807
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKDO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1807 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant did not attend Tribunal hearing – no illogicality on the part of the Tribunal – no failure to consider on the part of the Tribunal either generally or in any particular aspect – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 36(2), 422B, 424A(1), 425, 426A, 441A(4)(c), 441A(4)(c)(i), 441C(4) Migration Regulations 1996 (Cth), reg.4.35D |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 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 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 |
| Applicant: | SZKDO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 368 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing dates: | 19 & 26 October 2007 |
| Date of Last Submission: | 26 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 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
The application filed on 6 February 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 368 of 2007
| SZKDO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me today an application filed in this Court on 6 February 2007 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 29 November 2006 and handed down on 4 January 2007, which affirmed a decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant before the Court is a citizen of Indonesia who arrived in Australia in May of 2006 and applied for a protection visa on 8 June 2006. The application was refused by a delegate of the respondent Minister on 11 August 2006. On 12 September 2006 the applicant sought review of that decision by the Tribunal. The Court relevantly has before it in a bundle of documents filed by the first respondent, known as the “Court Book” (“CB”), the applicant's protection visa application in which she set out her claims to protection and, in particular, annexing a statement of the applicant (CB 27), and her application for review including a further statement of the applicant to the Tribunal (CB 43).
In all, the applicant claimed to fear persecution in Indonesia on the basis of her Chinese ethnicity and claimed as a result of her ethnicity she was targeted by native Indonesians. The applicant claimed that if she were to return to Indonesia, she would face harm, including being killed by the mob, facing ethnic cleansing, and being made a scapegoat and robbed.
From the material in the Court Book, the Tribunal wrote to the applicant by letter dated 25 September 2006 and put the applicant on notice in that letter that on the material before it, the Tribunal could not make a decision in her favour, and invited the applicant to a hearing before the Tribunal on 21 November 2006 for the purpose of the applicant giving evidence and presenting arguments in support of her claims.
Relevantly, the Tribunal advised in its letter that if the applicant did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. I should note that I also take into account an affidavit that was read in Court today of Miriam Mafessanti, a solicitor in the employ of the respondent's solicitors, dated 26 September 2007 and with relevant annexure. That affidavit taken together with what appears at CB 46, shows that the Tribunal’s letter was posted to the applicant at the last address for service provided by the applicant to the Tribunal for the purposes of the review which was an address in Thomas Street Haymarket, New South Wales (I refer to what is reproduced at CB 41 and CB 46).
While I note that an earlier letter from the Tribunal acknowledging the application was sent to the applicant's residential address, and it appears was returned to the Tribunal (I refer to CB 50 and CB 51), it is clear from the material and evidence before the Court that the letter of invitation to hearing was addressed and sent to the address for service as notified by the applicant.
Further, what appears in the Court Book is that the applicant provided no response to the Tribunal. In particular, by providing a response to the hearing invitation form to which the Tribunal had referred and enclosed with its letter of invitation to hearing, the Tribunal provided the applicant with the opportunity to notify the Tribunal as to whether she wished to attend the hearing or not. The Tribunal, as I said, did not receive a reply to this hearing invitation nor, ultimately, did the applicant attend the Tribunal hearing at the time, date and place that had been scheduled (CB 53).
The Tribunal
The Tribunal's decision record is reproduced at CB 58 to CB 67. This reveals that the Tribunal noted that it advised the applicant previously that it was unable to make a favourable decision, had given the applicant the opportunity of attending a hearing and that the applicant did not attend the hearing and that this failure to attend was unexplained. As the applicant did not attend the Tribunal hearing at the time, date and place scheduled, the Tribunal exercised the discretion that was available to it pursuant to s.426A of the Act and proceeded to make a decision on the review.
The decision record reveals that the Tribunal took the view that the applicant had provided only a brief outline of her claims, had given no details about the targeting that she claimed to have experienced nor about the robbery of her house and grocery shops, and that the applicant's claims lacked details. Because of this, the Tribunal was not satisfied on the evidence before it that the applicant had experienced serious harm in Indonesia amounting to persecution for a Refugees Convention reason. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if she were to return to Indonesia. In short, as is required by ss.65 and 36(2) of the Act, the Tribunal was unable to reach the requisite level of satisfaction that the applicant was owed protection by Australia such that the protection visa must be granted.
Application to the Court
The application before the Court today asserts three grounds without particulars. Despite opportunity provided to the applicant by a Registrar of this Court at the First Court Date, no amended application containing any particulars has been put before the Court. The grounds of the application are:
“1.The decision did not consider that I would be placed into danger if I returned to China.”
I note for the record that the reference to “China” is exactly what is stated in the application and was not a mistake on the part of the Court.
“2.The Tribunal's finding is illogical.
3.The Tribunal failed to consider the real situation in my original country.”
I should note by way of background that by way of opportunity to the applicant to provide anything further to the Court beyond the bare statement of grounds in the application, after the filing of the application in this Court on 6 February 2007, the applicant attended before a Registrar of this Court on 15 March 2007 where orders were made, amongst other things, that the applicant file and serve any affidavit containing evidence or any amended application. The matter was then set down for hearing before me on 16 May 2007. On that day, the applicant appeared in person with the assistance of a relevant interpreter. Further orders were made, again giving the applicant opportunity to provide any submissions that she may wish to make. The matter was then set down for hearing on 19 October 2007.
On 19 October 2007, the hearing commenced but the applicant asserted that she was unable to understand the interpreter and the matter was adjourned till today so that another interpreter could be provided. At the hearing today, the applicant again appeared in person. At the outset of the hearing, the applicant confirmed that she could understand the interpreter who had been provided, an interpreter in the Indonesian language. Ms Mafessanti appeared for the Minister. I have already noted that I have the affidavit of Ms Mafessanti before me today and the respondent's written submissions, which were filed on 27 September 2007 and on which the Minister seeks to rely.
Before the Court today the applicant stated that she did not want to go back to Indonesia, that she was seeking a visa to stay here, which I understood obviously to be to stay in Australia. Despite the Court's attempt to explain to the applicant the difference in the role, function and powers of the Tribunal and the Court, and that the task for the Court was to seek to discern jurisdictional error on the part of the Tribunal and that the Court had no power to grant a visa to the applicant to remain in Australia, the applicant insisted that she was seeking from the Court a permit to stay in Australia, a matter in relation to which, clearly, this Court has no power to assist the applicant.
Ground One – Failure to consider
The first ground in the amended application is that the Tribunal did not consider that the applicant would be placed into danger if she were to return to China. I can only note and agree with the respondent's submissions that this complaint is mistaken and not referable to the decision under review as the applicant claimed a fear of return to Indonesia, not China. Nonetheless, to the extent that the applicant is, in fact, claiming that the Tribunal failed to consider the danger if she returned to Indonesia, on the material before the Court now, this complaint is simply not made out. The Tribunal clearly noted the applicant's claims to having been targeted and made express reference to what “she fears will happen if she returns to Indonesia.” The Tribunal was, as I have already said, unable to be satisfied due to the lack of detail in the applicant's claims as presented that Australia owed protection obligations to the applicant. In all the circumstances, this was a course that was open to the Tribunal to take and this was a finding that was clearly open to the Tribunal on what was before it.
The relevant statutory regime, that is, the statutory regime that applies to matters of this type, provides that a visa must be granted if the Tribunal is satisfied that the applicant meets the requirements set out in s.36(2) of the Act. That is, in effect, that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. If this level of satisfaction is not reached, then the protection visa must not be granted. I refer here to SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
The Tribunal in the matter before the Court now was clearly exercising its function as the “decision-maker par excellence” in the making of such a finding (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 (“Durairajasingham”) per McHugh J at [67]). On what was before it, the Tribunal did consider the bare claims by the applicant and found simply that it could not form the requisite level of satisfaction such that the protection visa must be granted. I can discern no jurisdictional error in this regard.
The applicant was put on notice that on what was before the Tribunal it could not make a decision favourable to her. In that regard, the applicant was also put on notice as to the importance of attending a hearing to provide evidence and further argument in support of her claims. The applicant's unexplained failure to attend before the hearing had, as has been described by the Full Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5], the inevitable consequence of her application being refused. I should just note in this regard that even before the Court today, the applicant has made no complaint nor provided any explanation in relation to either the Tribunal's letter of invitation to the hearing and her failure to attend at the hearing before the Tribunal.
Ground Two – Illogical findings
Ground two in the application asserts that the Tribunal's finding is illogical. The applicant does not say by way of her application, nor, despite opportunity today before the Court, why the Tribunal's finding is illogical. Even putting to one side the extent to which illogicality is available as a ground of review (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30), I cannot see that the Tribunal's analysis lacked a logical basis or was illogical. Simply, as I can only repeat, the Tribunal wrote to the applicant, put her on notice as to its preliminary view and told the applicant that there was an opportunity for her to support her claims and give evidence by attending the hearing. Without explanation and without having made any attempt to contact the Tribunal, the applicant did not attend and the Tribunal proceeded to make a decision with an outcome that was consistent with what it had originally notified to the applicant. No lack of logic is revealed in any of this, and this ground does not succeed.
Ground Three – Failure to consider the “real situation”
The third ground is that the Tribunal failed to consider the real situation in Indonesia. I can only agree with the respondent's submissions in this regard, that the Tribunal decision record reveals that the Tribunal did consider the applicant's claim that she would be persecuted in Indonesia. In the absence of detail and evidence, the Tribunal was unable to be satisfied that she had a well-founded fear of persecution. To the extent that it may be said that the applicant complains of the Tribunal's finding in light of the applicant's evidence before the Tribunal, I cannot see that this complaint would rise above a request for impermissible merits review before this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6). This ground also is not made out.
This is a matter to which s.422B of the Act applies. Such as to make the matters set out in Division 4 of Part 7 of the Act, the exhaustive statement in relation to the natural justice hearing rule, of course, are absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). In this regard, I note relevantly that s.424A of the Act is not enlivened. The Tribunal's reason for affirming the delegate’s decision was that the lack of evidence and detail before it was such that it was unable to reach the requisite level of satisfaction such that a visa must be granted. I can only agree with what is set out at paragraph 15 of the Minister’s written submissions and adopt what is said in that paragraph for the purposes of this judgment and note that, in these circumstances, the Tribunal's reference to the applicant's claims does not enliven s.424A(1) of the Act.
Further, the Tribunal discharged its obligations to invite the applicant to a hearing pursuant to s.425 of the Act. This invitation was sent to the applicant by one of the methods set out in s.441A(4)(c) of the Act, was correctly addressed to the applicant at the last address for service (s.441A(4)(c)(i)), and complied with all the relevant statutory and regulatory requirements set out in s.425A, s.441C(4) and reg. 4.35D of the Migration Regulations 1996 (“the Regulations”).
I further note that in exercising its discretion pursuant to s.426A of the Act, the evidence before the Court is that the applicant was invited pursuant to s.425 of the Act to appear before the Tribunal and did not appear before the Tribunal on the day on which, or at the time and place at which, the applicant was scheduled to appear. It was open to the Tribunal, therefore, in those circumstances to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. I cannot discern jurisdictional error in this regard. In these circumstances I also note, although I am satisfied on the evidence before me, the respondent's submissions at paragraph 21. The Minister’s position is that the Tribunal was entitled to proceed as it did pursuant to s.426A regardless of whether the applicant actually received the hearing invitation letter.
Conclusion
As I have already stated, beyond seeking permission from the Court to remain in Australia, the applicant has put nothing further before this Court. I note in this regard, the applicant did have the benefit of some advice which was sent to her by a lawyer on the panel of the Court's legal advice scheme and has had ample opportunity before this Court to put forward her case. In any event, neither as it arises from the grounds of the application nor from what the applicant, limited as it may be, has said to the Court today nor otherwise can I discern jurisdictional error in the Tribunal's decision. The applicant had the opportunity before the Tribunal to enhance her claims, and for reasons that remain entirely her own and unexplained, she chose not to take up that opportunity with, as I have said, the inevitable consequence of her application being refused. I cannot discern jurisdictional error in the Tribunal's decision, and this application is, therefore, dismissed.
It is appropriate that an order for costs be made. The applicant has chosen not to put anything before the Court to argue against such an order, and nor can I otherwise see any reason standing in the way of making an order. As to the amount, while I note that the relevant schedule to the rules of this Court provides for an amount up to $5,000, the Minister has sought something considerably less than that, that is, $3,500. Nonetheless, I take the view that what is set out in the schedule is a guide, and with reference to all of the circumstances including the work that the Minister's legal representatives have done in responding to the application, I am of the view that the amount sought is a reasonable amount and I make an order fixed in that amount.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 12 November 2007
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