SZLBE v Minister for Immigration
[2008] FMCA 524
•28 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 524 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal is under no obligation to make findings of fact – issues arising out of the decision under review can be advised at Tribunal hearing and do not need to be notified in s.425A notice – Tribunal’s obligation under s.425 to invite applicant to a hearing was discharged by effective service of s.425A notice – notice not vitiated by applicant’s inability to attend hearing because of ill-health – notification of alleged indisposition required Tribunal to examine discretion under s.426A whether to reschedule hearing – hearing not rescheduled – based on information in Tribunal’s possession, discretion did not miscarry. |
| Migration Act 1958, ss.36, 65, 360, 414, 415, 420, 422B, 425, 425A, 426A Migration Legislation Amendment (Procedural Fairness) Act 2002 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 Minister for Immigration &Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 |
| Applicant: | SZLBE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2155 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 December 2007 |
| Date of Last Submission: | 18 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr J. Azzi |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2155 of 2007
| SZLBE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Thailand where, she claims, she was a member of the Thai Yai ethnic group. She alleges that while in Thailand she and her mother were raped, her father was killed, her family arrested and that this subsequently led to her fearing for her safety. The applicant arrived in Australia on 25 December 2006.
The applicant claims to fear persecution in Thailand because of her membership of an ethnic group.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 24 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
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 (Relevant Documents (“RD”) pages 58 – 59). Relevantly, they are in summary:
a)the applicant was a member of the Thai Yai ethnic group in Thailand;
b)there were Thai people who did not like the Thai Yai and would do anything to “get rid” of the Thai Yai because they believed that the Thai Yai took over land in Thailand and killed and raped Thai people during the war;
c)people in the village caused problems for the family by reporting to the police that the applicant’s father was a drug dealer and that he had no Thai ID. He had to report to the police station to prove that he was a legal resident of Thailand;
d)her family went to gaol a number of times because of the people who hated them;
e)in April 2006 two men broke into her family’s home and abducted and raped her and her mother;
f)her father paid 50,000 Baht for their release;
g)in September 2006 the applicant’s father had a fight with the men and was killed;
h)the applicant’s family reported the incidences of robbery, rape and murder to the police. The police told them not to tell anyone as they might be killed for telling the police. The applicant believed that the police were corrupt and only looked after rich people or the “mafia”; and
i)the applicant fears that she would be killed if she returned to Thailand.
The Tribunal’s decision and reasons
On 5 April 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to her application but was unable to make a favourable decision on that information alone (RD 40 – 41). The Tribunal invited the applicant to a hearing on 9 May 2007 to give oral evidence and present arguments. The applicant was advised that if she did not attend then the Tribunal might make a decision on her application without further notice. No response was received from the applicant and the applicant did not appear before the Tribunal on the day and at the time she was scheduled to appear.
On 30 May 2007 the applicant wrote to the Tribunal stating that she had been unable to attend the Tribunal hearing on 9 May 2007 as she was sick. She did not submit any medical evidence to substantiate her claim. The Tribunal did not accept that the applicant’s letter, sent some three weeks after the scheduled hearing date and containing no medical evidence, established that the applicant was not able to appear before it on 9 May 2007. In these circumstances, and pursuant to s.426A of the Migration Act 1958 (“Act”), the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
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 did not accept that there was a real chance of the applicant being persecuted for a Convention reason in Thailand in the reasonably foreseeable future, noting that the applicant’s claims to have suffered harm because she belonged to the Thai Yai ethnic group were lacking in crucial details, such as:
a)details of the circumstances in which the family house was broken into;
b)details of the circumstances in which the applicant and her mother were abducted and raped;
c)details of how her father was killed; and
d)details of how the police dealt with the matter.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1. The Tribunal constructively failed to exercise jurisdiction in accordance with the Migration Act (viz., section 414(1) and 420(1)) by not considering the substance of the applicant’s claims and/or merits of the case.
2. The Tribunal committed a jurisdictional error of law by not affording the applicant procedural fairness in accordance with section 425(1) of the Act.
3.The Tribunal committed jurisdictional error by failing to take into account a relevant consideration.
Dealing with each of these grounds in turn:
Not considering claim on its merits
The applicant first submits that the Tribunal was obliged to identify her claims correctly but failed to do so because it had first to identify the particular social group to which she said she belonged, although given the nature of the applicant’s claim it might be better characterised as an ethnic group rather than a particular social group. The applicant submitted:
The substance of the applicant’s claims is that (a) she is Thai Yai who has suffered at the hands of Thai people in the village because she (and her family) is (are) perceived to be immigrants who have taken away Thai land and raped and killed Thai people during the war, (b) she is unable to obtain police protection because of her and her family’s inadequate financial means, (c) that she was abducted and raped, her father was killed and lost 50,000 baht because of her ethnicity, and (d) it was a form of selective or discriminatory treatment which amounted to persecution. (para.24, applicant’s written submissions)
The applicant secondly submitted that the Tribunal could not properly consider her claim without having first made findings in relation to the ethnic group of which she claimed membership. In this regard, the applicant submitted:
The Tribunal in the present case failed to make any findings about the extent of the harm feared by the applicant by reason of her belonging to a PSG and/or to advert to the general history of persecution (or otherwise) of Thai Yai in Thailand. Its failure to do so reveals the Tribunal constructively failed to exercise jurisdiction. (para.27, applicant’s written submissions)
It was further submitted that if the Tribunal had turned its mind to matters such as the persecution alleged to be suffered by the Thai Yai then this consideration of the applicant’s claim would have been undertaken in a different light, notwithstanding her failure to attend the Tribunal hearing.
This asserted ground of review is not made out for a number of reasons. First, a consideration of pp.4 – 5 of the Tribunal’s decision record reveals that the particular social or ethnic group to which the applicant claimed she belonged, together with the related persecution alleged by the applicant, were identified by the Tribunal (RD 58 – 59). Consequently, this element of the applicant’s case is not made out on the facts. As to the second submission, the Tribunal is under no obligation to make findings of fact: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]. The role of the Tribunal is to review the delegate’s decision (s.414), exercising the powers referred to in s.415 of the Act. Its function is to determine whether it is satisfied that the applicant meets the criteria for a protection visa: ss.65, 36. Consequently, the fact that the Tribunal did not make findings on the matters asserted by the applicant to be important does not amount to jurisdictional error.
Thirdly, whether or not the Thai Yai are persecuted in the fashion asserted by the applicant could have no relevance unless the applicant’s personal claims to fear persecution, and to fear that persecution by reason of her Thai Yai ethnicity, were accepted. The applicant was invited to a Tribunal hearing because it was not able to make a decision in her favour on the material which it had, as expressed in its letter to her of 5 April 2007 (RD 40 – 41). Consequently, her failure to attend the Tribunal hearing led inevitably to the situation where the Tribunal still had insufficient information on which it could make a decision in her favour. As the Full Court of the Federal Court put it in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]:
In assessing the adequacy of these reasons, 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 appellant 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.
The Tribunal could have undertaken an exhaustive research project to determine whether the particular assertions concerning the persecution of the Thai Yai were accurate and, having done so, might have concluded that they were. However, unless the applicant’s particular claims were accepted by the Tribunal, such background findings could be of no moment. As the applicant failed to attend the Tribunal hearing, no such findings on the applicant’s particular claims could be made and thus the fact that the Tribunal did not undertake the background research as asserted by the applicant to be necessary, does not amount to jurisdictional error.
Breach of s.425
This ground was advanced on two bases. The first was that the Tribunal failed to identify to the applicant the relevant matters in issue. The second basis advanced was that the Tribunal should not have proceeded to make a determination under s.426A as the applicant had been too ill to attend the Tribunal hearing and thus the s.425 invitation was not a real and meaningful invitation to attend the hearing.
As to the first basis of this ground, it was submitted that matters which had been accepted by the delegate were considered by the Tribunal to be in issue and yet they had not been notified to the applicant, contrary to the guidance provided by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515. Although there can be no doubt that notification of the relevant issues may be contained in the s.425A notice, the applicant suggested that this was in fact the only point at which the issues might be identified to the applicant. However, that submission is not supported by the High Court’s reasons in SZBEL and, particularly, at 522-523 [47]. As the Tribunal hearing in SZBEL occurred in February 2003, it post-dated the commencement of s.422B on 4 July 2002 with the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002. That means, based on SZBEL’s case, that the codification of the natural justice hearing rule does not prevent the Tribunal from complying with its s.425 obligations at a hearing attended by the applicant. The fact that issues were not raised in the s.425A notice does not vitiate that notice or demonstrate jurisdictional error on the part of the Tribunal.
To the extent that the applicant submits that some notification by the Tribunal was required in respect of issues which were not decided adversely to her by the delegate, the applicant misconceives the Tribunal’s decision. Although the applicant is entitled to assume, absent any contrary notification or advice by the Tribunal, that the only matters in issue will be those ones determined adversely to her by the delegate, the applicant submits that the only matter decided adversely to her by the delegate was his finding that the incidents of harm she feared were criminal in nature. In this connection, what the delegate said was:
There is no evidence to justify a conclusion that the essential and significant reason for the applicant’s fear of harm is related to anything other than criminal acts. (RD 32)
However, the delegate’s decision does not, in terms, accept any element of the applicant’s claim to fear persecution for a Convention reason. In context, what he said was:
The applicant has provided no evidence to substantiate a claim that the essential and significant reason for the harm feared is related to a Convention reason.
There is no evidence to justify a conclusion that the essential and significant reason for the applicant’s fear of harm is related to anything other than criminal acts.
The harm feared by the applicant is not therefore persecution as defined by Section 91R of the Migration Act. (RD 32-33)
But in any event, the Tribunal made no findings on any matters other than the applicant’s nationality. It was simply not satisfied that the applicant had shown she met the criteria for the grant of a protection visa. Thus it cannot be concluded that anything which the delegate had considered favourably for the applicant was decided differently by the Tribunal as, relevantly, no findings were made by the Tribunal.
The second matter arising in respect of this asserted ground of review turns on the applicant’s claim to be too unwell to attend the Tribunal hearing listed for 9 May 2007. Her evidence to the Court was that she had food poisoning which manifested as severe diarrhoea and exhaustion. She said that she was staying at a friend’s home but the friend had gone away with her boyfriend leaving the applicant alone and speaking no English. She said that she was unable to make contact with her friend or with another friend and was too ill to leave the flat. The applicant said that she was able to speak to the second friend the next day and asked her to make contact with the Tribunal to advise them that she had been ill and to ask for a postponement of the hearing. The applicant said that it was not easy to make contact with this friend who would not always ring her back promptly and that a couple of weeks after this conversation her friend told her that contact had been made with the Tribunal, although the applicant was not told what her friend had said to the Tribunal.
The applicant was cross-examined closely as to how her illness could be so bad as to prevent her from attending a hearing which she conceded was very important and might save her life. She insisted that she was severely incapacitated by the food poisoning and spent the day running between the bedroom and the bathroom and not being able to communicate with anybody because of her lack of English. It should also be noted that the applicant did not provide to the Tribunal or to the Court a medical certificate confirming her illness on the day. However, it should also be observed that her counsel had been unaware until the night before the hearing that her medical condition on the day of the Tribunal hearing was a matter of vital significance in these proceedings. The applicant had not explained this to him even though she had given evidence on the subject at a show cause hearing on 19 November 2007.
The applicant’s claimed inability to communicate was taxed in cross-examination in the context of her work in a massage parlour. She explained that she did not need to converse with the proprietor of the business as she worked on set days and her shifts were identified by some form of writing.
While I accept what the applicant says and find that she was too unwell to attend the Tribunal hearing, that is not an end to the matter.
In Minister for Immigration &Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, the Full Court of the Federal Court held that s.425 required the Tribunal to extend an objectively meaningful invitation to the applicant to attend the Tribunal’s hearing which could not be achieved if the respondent was not in a fit state to represent himself at the hearing. The court said that s.425 imposed an objective requirement on the Tribunal to provide a “real and meaningful” invitation whether or not the Tribunal was aware of the actual circumstances which would defeat that obligation. However, in SCAR, the s.425 invitation had been issued in the period prior to the commencement of s.422B and its codification of the natural justice hearing rule for proceedings before the Tribunal. In relation to s.422B, and its equivalent provisions in other parts of the Act, the Full Court of the Federal Court said in Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 at 225 [66], that such provisions have the effect that those sections found in div.4 of pt.7 of the Act provide a comprehensive procedural code containing detailed provisions for procedural fairness which exclude the common law natural justice hearing rule. The application of that reasoning to s.422B was expressly adopted by the same full court bench in SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.
Nor do the facts in this case present a situation such as was seen in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 where, under the former wording of s.360 of the Act (the Migration Review Tribunal equivalent of s.425), it was held that the Tribunal’s mistaken failure to consider a request for an adjournment because of the applicant’s ill health and its decision to proceed to make a determination on the review application was one which was affected with jurisdictional error. The determination was erroneous because the Tribunal failed to give Mr Bhardwaj a reasonable opportunity to present evidence and argument as s.360 then provided. The section now provides different rights and thus Bhardwaj’s case is distinguishable from this one.
In this matter there is no issue that the s.425A notice was not given as required by the Act. As s.422B codifies the Tribunal’s obligations under the natural justice hearing rule, its duty to invite the applicant to a hearing was discharged by the giving of the s.425A notice. The fact that the applicant was unwell and unable to attend the hearing does not vitiate the invitation. Moreover, for the purposes of its obligation to give an invitation to attend its hearing it is irrelevant whether the Tribunal is or is not aware of an applicant’s inability to attend that hearing.
However, upon becoming aware of such an indisposition, the Tribunal had to turn its mind to whether to exercise its power under s.426A to reschedule the hearing.
Part of the Tribunal’s task is to act in accordance with substantial justice and to provide a mechanism of review which is fair and just (s.420). Those obligations are not limited by s.422B, which is concerned with procedure. Consequently, when presented with a need to decide, on a discretionary basis, which course should be adopted under s.426A, regard should be had to the imperative duties found in s.420. A failure to recognize the existence of the need to make such a decision would involve a failure to exercise jurisdiction.
In this case, the Tribunal exercised its discretion by not rescheduling the hearing and by proceeding to make its decision. When considering how to exercise that discretion under s.426A, the Tribunal considered the letter which the applicant had provided to it advising it of her alleged indisposition but was unconvinced by it. In light of that conclusion it did not accept that the applicant had demonstrated that she had been unable to attend the hearing and consequently it exercised its discretion in the way that it did.
Had the Tribunal failed to recognise the existence of the discretion which it had, then jurisdictional error might have been demonstrated. However, the Tribunal’s discussion of the issue at p.5 of its decision (RD 59) implicitly discloses an appreciation of its power to reschedule the hearing. Having considered the Tribunal’s decision on the point, I am not of the view that its discretion miscarried when it decided to proceed to its decision without permitting the applicant to appear before it, notwithstanding that the evidence subsequently presented to the Court satisfies me that the applicant was, in fact, unable to attend the Tribunal hearing by reason of ill health.
Failure to take relevant consideration into account
In her written submissions the applicant identifies this ground as being linked with the first ground. For the reasons given in respect of that ground, this application also fails.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 28 April 2008
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