SZLCI v Minister for Immigration
[2007] FMCA 1646
•11 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1646 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of membership of a particular social group and on the basis of discrimination in Singapore – where applicant failed to attend RRT hearing – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 |
| SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 distinguished. |
| Applicant: | SZLCI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2279 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 September 2007 |
| Date of Last Submission: | 11 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2279 of 2007
| SZLCI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant who is a citizen of Bangladesh asks the Court to review a decision of the Refugee Review Tribunal that was handed down on
26th June 2007 refusing him the grant of a protection visa.
In particular, he asks the Court for a writ of certiorari quashing or setting aside the Refugee Review Tribunal's decision and a writ of mandamus requiring the Tribunal to rehear and redetermine his application for review according to law. He also asks for a writ of prohibition directed against the Minister restraining the Minister from acting upon or giving effect to the Tribunal decision.
The grounds upon which the applicant applies are three in number.
a)The Tribunal did not consider the situation that the applicant could be disadvantaged by the ill health of his advisor.
b)That the Tribunal failed to consider that the applicant was subject to persecution by being discriminated against in Singapore.
c)The Tribunal failed to consider his persecution on the basis that he was a member of a particular social group, namely child labourers.
The background to this matter is that the applicant arrived in Australia on 4th January this year and applied for a protection (Class XA) visa on 10th January. A delegate of the Minister refused his application for a visa on 24th February 2007, so on 29th March the applicant applied to the Refugee Review Tribunal for a review of that decision of the delegate.
The applicant was represented by a migration advisor and in the application for review in section C, the name and address of the migration advisor along with the telephone and fax number appear.
In section D of the application for review the applicant asked the Tribunal to send all correspondence in connection with that review to the adviser whom he nominated as his authorised recipient. A copy of the application for review can be found at pages 48-51 of the Court book.
The Tribunal did in fact write to the applicant at all times care of his migration advisor. On 30th March 2007 the Tribunal wrote to the advisor acknowledging receipt of the application and advising what would happen next. On 12th April 2007, the Tribunal wrote to the advisor inviting the applicant to attend a hearing of the Tribunal to take place on 12th June 2007 at 10:30 am. The letter told the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. A copy of the Tribunal's letter can be found at pages 56 and 57 of the Court book.
It appears from the material before me that no reply was received to that letter and on 6th June 2007 a no reply check list was completed within the Tribunal. A copy of that document appears at page 60 of the Court book.
The applicant did not attend the hearing on 12th June 2007.
The Tribunal noted that fact and noted in its decision what action the Tribunal took.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.
On the afternoon of the day of the scheduled hearing an officer of the Tribunal spoke to the applicant's advisor. The advisor stated that he had a psychological condition for which he was taking medication. He had just awoken and this was why he did not attend the hearing. He stated that he had not been able to contact the applicant and did not know whether he had attended the hearing. He stated that he would inform the Tribunal by 9 am the following day whether the applicant sought a postponement of the hearing.[1]
[1] See Court Book at 69
The following day, 13th June 2007, the Tribunal sent a letter to the applicant's migration advisor by fax. That letter said relevantly:
If you do not wish the Tribunal to proceed to make a decision immediately please provide detailed reasons in writing for (applicant's name has been deleted)[2] failure to attend the scheduled hearing. You should also advise whether you seek to have the hearing rescheduled. Please provide your response by 5 pm on 13 June 2007. Please note that the Tribunal may make a decision without further notice if you do not contact the Tribunal by 5 pm on 13 June 2007.[3]
[2] Name deleted in order to comply with Migration Act 1958 s 91X
[3] Court Book at 61
It appears that no reply was received. The Tribunal proceeded to exercise its power under s.426A of the Migration Act to make a decision on the review without taking further action to give the applicant an opportunity to appear before it. The Tribunal signed its decision on 14th June and handed that decision down on 26th June 2007. A copy of the Tribunal decision record, which is of necessity quite brief, appears at pages 68-74 of the Court book.
The Tribunal noted the applicant's claims and evidence as appeared on the file. Basically, the applicant claimed to have lived in Bangladesh from his birth until October 2001, after which time he lived and worked in Singapore. The Tribunal noted that the applicant stated that he had left Bangladesh because of poverty and had no civil political or financial rights in Bangladesh. Due to his family's poverty he was denied access to education. He went without food for days. There was no medical treatment. He was forced to child labour and did not even have the right to protest. In Singapore the applicant because a victim of forced labour and earned very little. There was discrimination against foreign workers, for example Chinese workers earned more than Bangladeshis. The rights of migrant workers were not protected and the applicant believed that he if were to return to Bangladesh he would suffer even more harshly because of the employment situation.[4] See Court book page 72.
[4] Court Book at 72
The Tribunal noted that the applicant's application was refused by the delegate who found that the applicant's claims of economic oppression and deprivation did not fall for consideration under the Refugees Convention because there was no evidence that any harm he might face was directed at him for any of the Convention reasons. There were also internal contradictions in his claims. The Tribunal noted that no additional information had been given by the applicant in his application for review and he did not attend the hearing.
The Tribunal's findings and reasons are set out on pages 72 and 73 of the Court book. The Tribunal was satisfied that the applicant was a national of Bangladesh and considered his claims to refugee status as against Bangladesh being his country of nationality. The Tribunal went onto say:
While the applicant appears to have made some claims of discrimination in relation to Singapore there is no evidence to suggest that he is a national of Singapore. The available evidence suggests that he was a temporary resident in that country.
In these circumstances, Bangladesh as his country of nationality is the only country against which his claims to refugee status must be addressed.
The Tribunal noted the applicant's claims to have left Bangladesh because of poverty which meant that he went hungry and was denied education and medical care and the Tribunal noted that he was forced into child labour. The Tribunal however was not satisfied that any discrimination or harm that the applicant might face in Bangladesh would be directed at him for any Convention reason but appeared to be the result of generalised economic conditions and that there was no suggestion that he was or would be affected to a greater degree than the population generally for a Convention reason. The Tribunal went onto say:
The Tribunal has considered whether he would be considered as a member of the particular social group comprised of 'child labourers' or something similar but on the basis of the information provided by the applicant it is not satisfied that there is such a particular social group in Bangladesh. In any case, the applicant has not provided sufficient particulars for the Tribunal to be satisfied that he was in fact forced to labour as a child in circumstances which might be said to constitute persecution.[5]
[5] Court Book at 73
The Tribunal was not satisfied that the applicant's difficulties fell for consideration under the Refugees Convention. It was not satisfied that he had a well founded fear of persecution for a Convention reason in Bangladesh. Accordingly, the Tribunal affirmed the decision not to grant the application a protection (Class XA) visa.
The applicant commenced proceedings in this Court for judicial review of this decision on 24th July 2007 by filing an application and an affidavit in support. He filed an amended application on 3rd September 2007 in which he set out the three grounds for review, namely:
a)That the Tribunal did not consider that he would be disadvantaged by the ill health of his advisor.
b)That the Tribunal failed to consider his persecution on the basis of discrimination in Singapore.
c)That the Tribunal failed to consider his persecution as a member of a particular social group, namely child labourers.
He expanded on these claims in a written outline of submissions also filed on 3rd September 2007. I have also had the opportunity of reading the submissions of the lawyers for the respondent prepared by Mr Smith of counsel.
The applicant claims that the Tribunal did not notify him of the hearing but only notified his advisor. The fact is of course that in the applicant's application for review he nominated his advisor as his authorised recipient for correspondence and the Tribunal duly sent all correspondence to the applicant's advisor as the applicant had asked the Tribunal to do. The Tribunal also had an obligation under the Migration Act to send the correspondence to the applicant's authorised recipient. It may well be that the applicant's advisor suffered from some form of illness which meant that the advisor did not inform the applicant of the hearing date. I noted that the Tribunal invited the applicant through the advisor to attend a hearing by means of a letter dated 12th April 2007. The hearing date was on 12th June 2007, some two calendar months later. If indeed the applicant's migration advisor did not notify the applicant at any time during that two month period it would appear to be an act of significant negligence. In any event, after the applicant failed to attend the Tribunal hearing, the Tribunal contacted the applicant's advisor who provided the information that he had been ill with a psychological condition for which he was taking medication and he the advisor had not been able to contact the applicant.
No explanation is given as to why not.
The Tribunal reports the advisor as saying that he would inform the Tribunal by 9:00 am the following morning whether the applicant sought a postponement to the hearing. The Tribunal, for more abundant caution, sent a letter by fax to the following day, 13th June, asking the migration agent for an explanation and an indication by 5:00 pm that day whether the applicant did seek a postponement of the hearing.
No reply seems to have been received either by 5:00 pm on 13th June or indeed at any time up to the date when the decision was handed down on 26th June 2007. In my view the Tribunal was within its rights to exercise its power under the provisions of s.426A of the Migration Act.
Counsel for the applicant Mr Smith has drawn the Court's attention to the recent decision of the High Court of Australia in SZFDE v Minister for Immigration & Multicultural & Indigenous Affairs[6]. That of course is a decision that dealt with the situation of whether fraud by a migration agent to initiate the Tribunal decision. This not a case of fraud. There is no evidence of fraud and it was made quite clear in SZFDE (supra) that fraud must be proved. There is no proof of fraud and no suggestion of fraud. There may well indeed be evidence of negligence on the part of the migration agent and it may well be that the applicant has some recourse against his agent for the agent's failure to inform him.
[6] [2007] HCA 35
It is well established however that a failure by a migration agent to ensure the attendance of an applicant at a hearing short of fraud is not a matter that would lead to a finding of jurisdictional error. It may well be and certainly from what the applicant has told me that the applicant has been not well served by his migration agent. There is however no jurisdictional error in that regard on the part of the Tribunal and so the first ground must fail.
The second ground is that the Tribunal failed to consider the applicant's persecution on the basis of discrimination against him in Singapore. The Tribunal did consider that claim and that consideration appears at page 72 of the Court book. However, the applicant is not a national of Singapore. He is a national of Bangladesh. The Tribunal considered as it was required to do the applicant's claims to refugee status as against Bangladesh, his country of nationality. It is irrelevant whether the applicant was discriminated against in Singapore for the purpose of the Refugees Convention. No jurisdictional error has been established in this regard and the applicant's second ground must fail.
The applicant's third ground is that the Tribunal failed to consider his membership of a particular social group, namely child labourers.
Quite clearly, the Tribunal did consider the applicant's impoverished situation in Bangladesh and his claim that he was forced to child labour. That appears at pages 72 and 73 of the Court book.
The Tribunal did give that consideration and noted that that was one of generalised economic conditions and was not satisfied that child labourers as such formed a particular social group. In any event, I note that the applicant is 34 years of age which would tend to militate against his being considered as having a well founded fear of persecution in the future on the basis of being a child labourer. In any case, however, the Tribunal did consider the question of a particular social group in Bangladesh and rejected that claim. The applicant's third ground must fail as no jurisdictional error has been established.
I am mindful of the fact that the applicant is not legally represented.
I have considered whether any other arguable ground for jurisdictional error may be made out. I am not satisfied that there is any breach of s.425 of the Migration Act. The Tribunal invited the applicant to attend a hearing and sent that invitation in the way that the applicant asked and the Tribunal was obliged to do under the Act. The applicant did not attend the hearing but in my view the applicant was given the opportunity to attend. It is regrettable that he was not able to attend. There is no breach of s.425, nor is there any breach of s.424A of the Migration Act that I can see. The Tribunal acted within the scope of s.426A of the Migration Act. Whilst it imposed a relatively short time for the agent to advise the Tribunal about the reasons for the applicant's failure to appear and whether or not the applicant sought a postponement of the hearing, there is no evidence that the agent replied at all.
In any event, the Tribunal did not hand down its decision until
26th June and it was open to the agent or the applicant himself to seek to contact the Tribunal prior to 26th June to make a post hearing submission. No such submission was received. No jurisdictional error has been made out. The Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Consequently, no orders in the nature of prohibition, mandamus or certiorari are available.
The application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim. There is no reason why the Court should not make an order that the applicant pay the first respondent's party and party costs. Those costs are estimated at $4,500.00 which I understand to be inclusive of counsel's fees.
In my view that is an appropriate figure and within the scale envisaged by the Federal Magistrates Court Rules.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 25 September 2007
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