SZKIF v Minister for Immigration - [2007] FMCA 1996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1996

MIGRATION – Application to review the decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act1958 (Cth)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966
SJSB v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 215

Applicant:

SZKIF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 811 of 2007

Judgment of:

Barnes FM

Hearing date:

21 November 2007

Delivered at:

Sydney

Delivered on:

21 November 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms K Morgan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 811 of 2007

SZKIF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 February 2000 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Indonesia, arrived in Australia in December 1998 and applied for a protection visa. The application was refused. In submissions the first respondent indicated that the departmental file had not been located. No issue has been taken and nor does any issue appear to arise in the circumstances of this case in relation to the absence of the departmental file.
After the application was refused the applicant sought review by the Tribunal, by application lodged on 19 August 1999. In that application the applicant set out reasons for making the application which referred to his concerns about the situation in Indonesia. The Tribunal not only summarised that application, but also referred to the claims by the applicant in the protection visa which are set out as a quote in the Tribunal reasons for decision. In essence, the applicant claimed to fear persecution in Indonesia on the basis of his Chinese ethnicity and because he was a Christian.
On 17 November 1999 the Tribunal wrote to the applicant advising that it had looked at all the material relating to his application, but was not prepared to make a favourable decision on this information alone and inviting him to attend a Tribunal hearing at a date, time and place specified. That letter advised that if he did not attend the hearing and a postponement had not been granted the Tribunal may make a decision on his case without further notice.
In its reasons for decision the Tribunal recorded that that letter was addressed to the applicant at his last notified home address and that he had not provided a separate address for service. The Tribunal also recorded that the applicant indicated that he did not have an adviser.
The applicant did not attend the scheduled hearing and nor did he contact the Tribunal. In those circumstances the Tribunal was satisfied that it had discharged its obligation to provide the applicant with an opportunity to give oral evidence and present arguments before it. The matter was therefore determined on the evidence before the Tribunal, which included the department and Tribunal files and other information.
The Tribunal summarised the applicant's claims, in particular his claims that his other shops and his church were burned during the riots of May and November 1998, that he did not dare to rebuild his shop and was frightened to go out, although he still went to church, and that he was afraid that more violence might occur against the ethnic Chinese. He expressed concerns that the unstable economic situation may encourage more violence and rioters and claimed that he did not think the authorities could protect him because they had not done so in May 1998. He claimed that he had suffered a great deal of trauma and discrimination because of his race and religion.
The Tribunal referred to the obligation on an applicant to satisfy it that all the statutory elements were made out and the fact that a decision-maker is not required to make the applicant's case for him or to accept uncritically any and all of the allegations made by an applicant, and found that the applicant's evidence was lacking in detail. The Tribunal then observed that as the applicant had not availed himself of the opportunity to attend a hearing, it had only the written material before it. However, it elaborated on respects in which the evidence was lacking in detail and matters in relation to which it would have required clarification at a hearing and stated:
Generally, where broad allegations are made the Tribunal hearing is an opportunity for the Tribunal to gather detail about the claims of the applicant. In this case the applicant has not appeared at the scheduled hearing and so it has not been possible for the Tribunal to explore the basis, relevance, and credibility of the applicant's claims.
The Tribunal then stated:
Even if the Tribunal determines the case on the basis that the applicant is an Indonesian national of Chinese [sic] who is a Christian and who had a business which was burnt in the May 1998 riots, and that this amounted to persecution for his race and/or religion in 1998 and was traumatic for the applicant, the Tribunal's duty is to assess whether if the applicant returns to Indonesia he will face a real chance of persecution for a Convention reason in the reasonably foreseeable future.
On that basis the Tribunal addressed independent country information in relation to aspects of the applicant's claims based on his race and in light of that evidence concluded:
After considering all of the evidence, including the substantial steps which have been taken in the last year by the government to address the problem of discrimination against Sino-Indonesians in Indonesia, the Tribunal finds that if the applicant returns to Indonesia he will not face a real chance of persecution by reason of his race.
The Tribunal also considered the applicant's claims to be a Christian in light of independent country information. It was not satisfied that if he returned to Indonesia he would face a real chance of persecution on the basis of his Christian religion. It then stated that considering the applicant's claims on a cumulative basis they did not support the view that the applicant would face a real chance of persecution for a Convention reason. The Tribunal concluded:
The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it, but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. The Tribunal has found above that the country information does not support a finding that Sino-Indonesians and/or Christians in general face a real chance of persecution by reason of their race and/or religion in Indonesia in the reasonably foreseeable future. The Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution within the meaning of the Convention.
The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on

9 March 2007
. The application contains two grounds which were not particularised. The first is that the Tribunal failed to exercise its jurisdiction under the Migration Act1958 (Cth). The second is that the Tribunal failed to take into account relevant evidence that the Tribunal was obliged to take into account. The applicant was given the opportunity to elaborate on these grounds in oral submissions, but did not do so.
These generally expressed grounds of review do not establish jurisdictional error. Reading the Tribunal decision as a whole, it is apparent that the Tribunal was not satisfied on the material before it that the applicant had a well-founded fear of persecution for a Convention reason and that the primary basis for that finding was the fact that the applicant made broad claims lacking in detail and failed to attend the Tribunal hearing so that the Tribunal was unable to explore the basis, relevance and credibility of his claims. As the Tribunal stated, a number of relevant questions were therefore left unanswered.
In those circumstances, the Tribunal was unable to be satisfied, without hearing from the applicant, that he met the criteria for a protection visa. (See SJSB v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15] – [16]). It is the case that the Tribunal went on to consider (as an alternative basis for the decision) what the position would be if one accepted the applicant's claims about what had occurred in the past. However, in making such findings, the Tribunal again took into account the absence of information from the applicant in support of his claims and the fact that a number of questions in relation to those claims were therefore left unanswered. Hence, the analysis on that basis also rests on the failure of the applicant to appear at the Tribunal hearing to address issues of concern to the Tribunal.
In such circumstances it has not been established that the Tribunal either failed to exercise its jurisdiction under the Act or that it failed to take into account evidence which it was obliged to take into account in some unspecified manner. I note in that respect that the Tribunal's letter of 11 November 1999 advised that it was not prepared to make a favourable decision on the information before it alone. In its reasons for decision it set out the applicant's claims, including his elaboration in connection with the review application. This is not a case in which it can be said that the Tribunal failed to have regard to elements of the applicant's claims. There is no suggestion that there was any other evidence put before the Tribunal which it was obliged to consider or failed to take into account.
As no jurisdictional error has been established in the manner contended for by the applicant, the application must be dismissed. Hence it is not necessary to consider the submissions of the first respondent in relation to the delay in initiating proceedings after the applicant's involvement in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966.
The applicant has been unsuccessful and the Minister seeks that he meet the costs of these proceedings in the sum of $5,000. The applicant stated from the Bar table that he could not pay because he has no permission to work. However, the applicant's impecuniosity is not a reason for not awarding costs, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. I consider that the amount of $5,000, which is sought in this case, is appropriate, having regard to the nature of this and other similar matters. I note also the relevant provisions of the Federal Magistrates Court Rules and the consistency of that amount with the amount provided for in those Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 5 December 2007