SZKSC & Anor v Minister for Immigration & Anor
[2007] FMCA 2004
•15 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2004 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of India claiming fear of persecution for reasons of his political opinion – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 425A, 426A, 474(1), 474(2) Migration Regulations 1994 reg.4.35D |
| Minister for Immigration v Guo & Anor (1997) 191 CLR 559 referred to SZHPS v Minister for Immigration & Multicultural Affairs [2006] FMCA 1548 |
| First Applicant: | SZKSC |
| Second Applicant: | SZKSD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1688 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 November 2007 |
| Date of Last Submission: | 15 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The Applicant: | Appeared in person |
| Appearance for the Respondents: | Ms Mafessanti |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,450.00
I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1688 of 2007
| SZKSC |
First Applicant
| SZKSD |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicants are citizens of India. They ask the Court to set aside a decision of the Refugee Review Tribunal signed on 19th April and handed down on 10th May 2007. In that decision the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant protection (Class XA) visas. Apart from a writ of certiorari to quash the Tribunal decision, the applicants also ask for a writ of prohibition and writ of mandamus.
The background to this matter is that the applicants arrived in Australia on 7th December 2006. On 18th December 2006 they applied for protection (Class XA) visas. The first applicant was the primary applicant and the second applicant, who is his wife, applies on the basis that she is a member of the first applicant's family. The applicants applied for a visa on the basis of certain unfortunate incidents that occurred in Mumbai, which included a number of bomb blasts and communal riots. The applicants also sought protection on the basis of political opinion. The first applicant has been a supporter of and a worker for the BJP. There were also difficulties that arose because the first applicant is Hindu employed in his business people who are both Hindus and Muslims.
A delegate of the Minister refused the application for a visa on
8th February 2007. The applicants then sought a review of that decision from the Refugee Review Tribunal. The Tribunal received the application for review on 26th February 2007. In that application the applicants provided their residential address and a telephone number. They also indicated that they would require an interpreter in the Gujarati language. The applicants did not nominate an adviser or any other person as an authorised recipient for correspondence. They set out in their application that they wanted correspondence sent to them at a post office box in the country town in New South Wales in which they lived. The applicants did not provide any other documentary evidence to the Tribunal with their application.
The Tribunal wrote to the applicants on 28th February acknowledging receipt of the application and advising that a member of the Tribunal may either make a decision in the applicants' favour or invite the applicants to attend a hearing. The letter then set out information about the hearing under the heading "What is a hearing and why is it important?"[1]
[1] See Court Book pages 90-91
The Tribunal wrote to the applicants again on 12th March 2007. In that letter the Tribunal told the applicants that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the applicants to attend the hearing to take place at 9:30 am on 19th April 2007. According to the Court Book, no response to hearing invitation was forwarded to the Tribunal. The Tribunal set up a hearing at 9:30 am on 19th April.
An interpreter in the Gujarati language was available. Unfortunately, neither applicant attended the hearing.
The Tribunal noted that the applicants did not attend the hearing and had not contacted the Tribunal. In the circumstances, the Tribunal decided to exercise its power under s.426A of the Migration Act to make a decision on the review without taking any further action to enable the applicants to appear before the Tribunal. The Tribunal signed the decision on 19th April and handed it down on 10th May 2007. A copy of the Tribunal decision record can be found at pages 106 through to 113 of the Court Book.
In that decision the Tribunal set out the information given to the Department of Immigration and Citizenship by the first-named applicant and noted that no other documents were lodged with the Tribunal in support of the application for a hearing. The Tribunal's findings and reasons are set out on pages 111 and 112 of the Court Book. The Tribunal noted the applicants' claims and found that the applicants were citizens of India and were outside their country of nationality. However, the Tribunal was not satisfied that the information before it was sufficient to establish the applicants' claims for a visa. The Tribunal said:
The first named applicant did not attend the hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms.[2]
[2] See Court Book page 112
The Tribunal then set out certain areas of information which the Tribunal member would have liked to explore if the applicants, or the first applicant, had attended. The Tribunal then went on to say:
The information that the first named applicant has submitted does not provide the necessary detail for the Tribunal to be satisfied as to the veracity of his claims or that he has a well founded fear of persecution. Further, the Tribunal has not been able to discuss with the first named applicant independent country information which may be relevant to his particular claims. In these circumstances, the Tribunal is unable to be satisfied that the first named applicant has a well founded fear of persecution for reasons of his political opinion or any other Convention based reason.[3]
[3] See Court Book page 112
The applicants commenced proceedings in this Court on 29th May 2007 by means of an application and an affidavit. No further documents have been filed on behalf of the applicants. In the application the applicants set out the following grounds:
(1)That the Tribunal's decision was in breach of s.424A(1) of the Migration Act 1958 (Cth).
Particulars
a)There was certain adverse information used by the Tribunal to affirm the decision under review.
b)The Tribunal did not disclose the information in accordance with s.424A(1).
(2)That the Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.
(3)That the Tribunal made denial of natural justice. Because it failed to provide further opportunity before the Tribunal.
In the affidavit of the first applicant there is some amplification of the third point. The first applicant said:
I was unable to attend RRT hearing because of my sickness.
The Tribunal did not provide me an opportunity to appear before the Tribunal and explain my situation in India.
The first applicant attended Court, the second applicant did not.
The first applicant addressed the Court on behalf of himself and the second applicant, who is his wife. He agreed that he had not attended the Tribunal hearing and said that he had told the Tribunal he was sick. He said that he informed the Tribunal by letter. He went on to say that his migration agent had informed the Tribunal. He did not have a copy of the letter and was not able to say when it was sent. When asked by the Court if his migration agent was in court he said that the agent was not and went on to tell the Court that the person was not actually a migration agent but just someone who helped him. When asked if that person had sent the letter to the Tribunal the applicant said on two occasions that he was not sure about it. When asked about the ground of a breach of s.424A of the Migration Act, and in particular what information it was that the Tribunal did not give him the opportunity to comment on, the applicant said that his claim was he did not get an opportunity to attend the hearing. The applicant was not able to provide details of the error of law or the lack of procedural fairness referred to in ground two. He said that he did not know, someone had helped him prepare the application. The applicant told the Court that his complaint was that he was not given another opportunity to attend the hearing.
The Minister relies upon two documents. First is an affidavit of Miriam Mafessanti who deposed that she had obtained a postal log from a legal officer in the employ of the Minister's department and annexed a copy of a document entitled "Registered Post Records" in respect of registered post 25332824. That document showed that a letter had been sent by registered post to the first applicant on
12th March 2007at the postal address which he had given in the application for review by the Refugee Review Tribunal. The other document was a written outline of submissions filed with the Court on 28th August 2007.
In that outline of submissions the Minister's lawyers address ground 1 by saying it was without merit because s.424A of the Migration Act was not enlivened. The reason for the Tribunal's decision was a lack of evidence or detail necessary for the Tribunal member to achieve the mental state of satisfaction as to whether the applicant's claimed fear of persecution was well-founded. In particular, the Minister refers the Court to a passage from a decision of Lloyd-Jones FM in SZHPS v Minister for Immigration & Multicultural Affairs[4] where his Honour said:
The Tribunal only had before it facts as alleged by the applicant and contained in his original visa application. This was the only material upon which the Tribunal could proceed. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary. It is for the applicant to make out his case. (Minister for Immigration v Guo & Anor[5])
[4] [2006] FMCA 1548 at [17]
[5] (1997) 191 CLR 559 at [596] per Kirby J
In respect of the second and third grounds, the Minister submits that s.422B of the Migration Act applies to the Tribunal decision and the Tribunal's duty to afford procedural fairness is set out in Div.4 of Pt.7 of the Act. The submission is that the Tribunal did not breach any of the provisions in that Division. It is also submitted that the Tribunal complied with its obligation under s.425 of the Act by inviting the applicant to attend a hearing and the invitation was correctly addressed and despatched within three working days of the date of the letter.
The Tribunal hearing was required to be scheduled at least 14 days after the date when the applicant was deemed to have received the letter under s.425A, which in this case would have been 21st March. Thus, the hearing should have been held on or after 5th April 2007.
It was in fact scheduled for 19th April. So sufficient notice had been provided. It was submitted the Tribunal complied with s.425A(3) of the Act and reg.4.35D of the Regulations. Ms Mafessanti on behalf of the Minister also pointed out to the Court that the applicant did not contact the Tribunal to request that the hearing be rescheduled or to explain the applicant's failure to attend the hearing, although the applicant now claims that he was sick on the day. The submission is that the Tribunal was entitled to proceed as it did under the provisions of s.426A of the Migration Act.
In dealing with the grounds of review set out in the application, it is clear that there was no information relied on by the Tribunal to affirm the delegate's decision that comes within the purview of s.424A(1) of the Migration Act. The reason for the Tribunal decision was that the Tribunal was not satisfied on the material before it that the applicants met the requirements for a visa. It will be recalled that the Tribunal wrote to the applicants on 12th March indicating that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. When neither applicant attended the Tribunal or provided any further documentary evidence to the Tribunal the situation was that the Tribunal had no more information before it than it had when the Tribunal made a decision to invite the applicants to attend a hearing.
It is hardly surprising in the circumstances that the Tribunal found the information before it to be insufficient to establish that the applicants were entitled to a visa. There is no evidence of lack of procedural fairness. There is no evidence of any error of law. There was no requirement on the Tribunal to provide the applicants with a further opportunity to appear which constitutes the denial of natural justice which the applicants claim. There is no evidence that the applicants at any time told the Tribunal that the first applicant was unable to attend the hearing because of illness. The applicant said that some other person sent a letter to the Tribunal, but was not able to provide any details of that letter and there is no evidence of any letter to the Tribunal explaining the applicants' absence.
If the applicant was sick on 19th April, the date of the hearing, then it would have been open for a letter or fax to be sent to the Tribunal shortly thereafter, along with a medical certificate, explaining the situation and a request could have been made to the Tribunal to hold another hearing. It should be remembered that the Tribunal did not hand down its decision until 10th May 2007. So it would have been possible if a proper reason had been established for the Tribunal to have recalled its decision and either consider additional documentary evidence or even hold another hearing if satisfied that the applicants had been prevented from attending the hearing due to some illness. There was just no evidence to that.
I am mindful of the fact the applicants are not legally represented.
There is no breach of s.425 of the Migration Act or s.425A.
The applicants were invited to attend the hearing and given more than sufficient notice as provided by the Act and the Regulations.
The Tribunal was not on the evidence before me made aware of any reason why the applicants did not attend and did not fall into error in applying the provisions of s.426A of the Migration Act.
Contrary to the applicants' claim of a breach of s.424A of the Migration Act, there is no evidence of any breach of that Act. I have read through the Tribunal decision and the supporting documents independently of the applicants' documentary material and I am satisfied that no arguable case for any other jurisdictional error can be made. As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act.
Under sub-s.474(1) of the Act privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus or prohibition. It follows that the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 November 2007
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