SZKNU v Minister for Immigration - [2007] FMCA 1218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1218

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal – invitation to attend hearing which is sent to applicant’s authorised recipient is effective – applicant did not attend hearing – no error in Tribunal proceeding to determine application although authorised recipient did not advise applicant of invitation to hearing.

Migration Act 1958, ss.91X, 425, 426A, 441A, 441C, 441G, 494D

NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162
NADK (2002) v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Le v Minister for Immigration & Citizenship (2007) 157 FCR 321
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119

Applicant:

SZKNU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1296 of 2007

Judgment of:

Cameron FM

Hearing date:

25 July 2007

Date of Last Submission:

25 July 2007

Delivered at:

Sydney

Delivered on:

25 July 2007

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents:

Ms. L. Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1296 of 2007

SZKNU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application dated 15 June 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which appears to have been signed on 28 February 2007, rather than

28 March 2007 which it states, and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 22 November 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.

Background facts

The Tribunal described the applicant as follows:
… the applicant is a single man in his mid-twenties, of Arab ethnicity and the Islamic faith, born in Al Aqaba in Jordan …
(CB 76).
The applicant claims to fear persecution in Jordan because of his Palestinian nationality.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 5 of the Tribunal’s decision (CB 76 – 77). Relevantly, they are in summary:
a)the applicant faced discrimination as a Palestinian;
b)he was a national karate champion but “was removed from the top Jordanian karate team because I don’t have a Jordanian citizenship”;
c)the applicant requested citizenship but was declined;
d)when he won championships abroad the applicant received different treatment from the other Jordanian competitors, such as not receiving prize money;
e)on one occasion, “the referees suddenly turned against him” as he was winning the tournament so that he lost any chance of securing the prize money;
f)the applicant had to pay to participate in the karate World Cup in Australia although other Jordanian competitors did not pay. When the applicant confronted the team official about this discrepancy the applicant was told that he “should be used to it by now, as a Palestinian from Gaza you don’t get recognised unless you pay money”;
g)in his studies, the applicant was transferred to a lesser tertiary course or institution because of his Palestinian nationality;
h)in the applicant’s work, he received a lower salary than comparable Jordanians;
i)the police did not treat the applicant’s complaints (for example in neighbourhood disputes) fairly;
j)on one occasion the applicant was asked by a policeman to produce his ID card. When he was unable to do so, the policeman treated him roughly; and
k)the applicant was in a relationship with a Jordanian woman but this was terminated when her family discovered that the applicant’s family was originally from Gaza.

The Tribunal’s decision and reasons

On 24 January 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone. (Court Book (“CB”) pages 61 – 63). The Tribunal invited the applicant to give oral evidence and present arguments at a Tribunal hearing on 26 February 2007. The applicant was advised 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. No response was received by the Tribunal and the applicant did not attend the listed Tribunal hearing as confirmed by the RRT hearing record reproduced at CB 65.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant had not answered any of the specific questions on the protection visa application form relating to fears of persecution. To these questions, the applicant answered: “Please see statement provided”. This statement described discriminatory incidents which the applicant claims he experienced due to his Palestinian identity; and
b)impliedly, the applicant provided no further information to support his claims.
The Tribunal found:
There is insufficient material in the statement for the Tribunal to establish if the applicant has experienced past persecution for a Convention reason, or if there is a real chance of such harm befalling him in the future. The applicant was put on notice in writing that there was insufficient material before the Tribunal to allow it to make a decision in his favour. Despite this notice, the applicant has not made any attempt to provide more evidence, or to take the opportunity offered of coming to a hearing and giving oral evidence. (CB 78).

Proceedings in this Court

The grounds of the amended application can be summarised as follows:
1. I just want the Court to give me a chance at the RRT to prove my story.
2. There is a letter attached.
The essence of the applicant's claim in this Court turns on the fact that he was not advised by his migration agent that the Tribunal had invited him to attend the hearing which it had set. The applicant has given evidence today, which I accept, that his migration agent did not tell him that there was a hearing to take place before the Tribunal. Regrettably, in such circumstances, the Act gives this Court no real discretion.
The statutory provisions are quite clear. If an applicant is invited to appear before the Tribunal pursuant to s.425 of the Act as is the case here, if the invitation is properly served and the applicant does not attend the Tribunal is entitled pursuant to s.426A of the Act to proceed to determine the application without taking any further action to allow or enable the applicant to appear before it.
The s.425 invitation appearing at CB 62 and 63 was sent by facsimile on 24 January 2007 to the fax number of the migration agent set out in the applicant's application for review to the Tribunal. This is made clear by the facsimile transmission log reproduced at CB 61 and the facsimile number appearing at page 2 of the applicant’s application which is reproduced at CB 58.
Section 441A(5) provides that the Tribunal may send documents by facsimile to the last facsimile number provided to the Tribunal by the applicant in connection with the review. Section 441C(5) provides that such a communication is taken to be received at the end of the day on which the document is transmitted. As appears at CB 64, when the Tribunal received no response to its invitation to attend, it checked that the facsimile had been sent to the correct address and the Tribunal's decision records at CB 76 that the Tribunal actually telephoned the applicant's adviser to note that no response has been received and the advisor said that the matter would be attended to.
Sadly for the applicant no communication was made to the Tribunal. As there was no appearance by the applicant or communication on his behalf the Tribunal proceeded to determine the application pursuant to s.426A of the Act. In doing so no jurisdictional error was committed by the Tribunal. Numerous cases make it clear that if the Tribunal observes the procedures set out in the Act for inviting an applicant to a Tribunal hearing the fact that the applicant does not actually receive the invitation does not vitiate the steps taken by the Tribunal or prevent the Tribunal from determining the application pursuant to s.426A.
Decisions which exemplify this outcome include: NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162; NADK (2002) v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184.It is sufficient that the notice is given to the applicant's authorised representative as is seen in SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 and it matters not that there may have been some fraud on the part of the agent. The authority for that proposition is Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142.
Significantly, in that latter decision Graham J concluded at [235] that it did not matter whether the authorised recipient under s.441G is, “a registered migration agent, a deregistered migration agent, a registered migration agent, or any other person who may or may not be a migration agent”.
The circumstances of this case are that the applicant's migration agent was deregistered on 19 February 2007 during the course of the applicant's review process before the Tribunal and shortly before the Tribunal hearing although not before the Tribunal sent the s.425 invitation. However, even if the migration agent had been deregistered prior to the invitation to attend the hearing Le v Minister for Immigration & Citizenship (2007) 157 FCR 321 reveals that that would be of no significance. Dealing with s.494D, a provision cognate with s.441G which is the provision relevant to these circumstances, the Full Court of the Federal Court held that once an authorised recipient is notified, that notification continues in effect for notification purposes until an amended notification is given in relation to the identity or details of the authorised recipient.
The Court reached that finding in circumstances where the registration of the agent in question lapsed during the course of the application process. Consequently, the fact that the Tribunal notified the applicant through his migration agent but the agent failed to notify the applicant does not affect the efficacy of the notification provided by the Tribunal. Consequently, no jurisdictional error is demonstrated by the fact that the Tribunal proceeded to determine the application.
As to the decision which the Tribunal actually made in relation to the review, it is the responsibility of an applicant to put material before the Tribunal such that the Tribunal can reach the necessary level of satisfaction that the applicant meets the criteria for a protection visa. The Tribunal's invitation to the applicant to attend the hearing said that it was unable to make a decision in his favour on the information which it then had.
A similar situation was seen in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, where at [5] the Full Court of the Federal Court said this:
… it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the applicant had a well founded fear of persecution it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
As Allsop J said in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119 at [29]:
The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.
Consequently, the Tribunal was in a position where it could not reach the necessary level of satisfaction that the applicant met the criteria for a protection visa because he had not attended the Tribunal hearing to give evidence and make arguments on the issues in respect of which the Tribunal required more information or clarification.
In such circumstances, no jurisdictional error is disclosed by the Tribunal determining the review application as it did.

Conclusion

As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date: 10 August 2007