SZLHB v Minister for Immigration
[2008] FMCA 350
•4 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLHB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 350 |
| 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 Indonesia claiming fear of persecution from native Indonesians because of his Chinese ethnicity. |
| Migration Act 1958 (Cth), ss.36(2), 65(1), 425, 426A |
| NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 Abebe v Commonwealth (1999) 197 CLR 510 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 |
| Applicant: | SZLHB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2771 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 March 2008 |
| Date of Last Submission: | 4 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Appeared in person |
| Appearance for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,600.00.
I will allow (4) four months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2771 of 2007
| SZLHB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of Indonesia. He asks the Court to conduct judicial review of a decision of the Refugee Review Tribunal refusing him a protection visa. The applicant claims that he would be prosecuted if he were to return to Indonesia because he is a Chinese national. He claims that the Tribunal made an illogical decision and it failed to consider the real situation in Indonesia. He asks the Court to issue a writ of certiorari quashing the Tribunal decision. He also asks the Court to make an order in the nature of mandamus requiring the Tribunal to reconsider the matter according to law.
The background to this matter is that the applicant arrived in Australia on 8th March 2007. He applied for a protection (Class XA) visa on
29th March, that same month. He claimed to have a fear of persecution in Indonesia because he is ethnic Chinese. He claimed that Chinese in Indonesia have been targeted by native Indonesians. He claims that his small business in Jakarta had been looted by the locals and he left Indonesia because he can no longer live in fear of harm and threats to his life. He referred to the riots in May which had extended beyond a mere massacre and also horrifying sex acts that targeted ethnic Chinese. He claims that he is afraid to go back to Indonesia as the possibility of being killed by the locals is high. He claims that they have painted the words "Kill Chinese" on every corner of the road.
A delegate of the Minister for Immigration & Citizenship refused the application for a visa on 20th April 2007.
On 21st May 2007 the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant on 1st June 2007 informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the applicant to attend a hearing on 19th July 2007. The letter also stated, "Interpreter: Bahasa Indonesian.[1]" The letter to the applicant was returned unclaimed. The applicant did not attend the Tribunal hearing on
19th July. The Tribunal noted that the applicant did not appear and noted that the applicant was not represented by an advisor and did not provide a telephone number. 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 applicant to appear before the Tribunal. The letter to the applicant inviting him to the hearing appeared to have been returned unclaimed on 18th July 2007. The Tribunal signed its decision on 19th July and handed that decision down on 7th August 2007. A copy of the Tribunal decision record appears at pages 55 to 61 of the Court Book. The Tribunal noted the applicant's claims.[2]
[1] See Court Book page 44
[2] See Court Book page 58
The Tribunal's Findings and Reasons are set out on page 59 of the Court Book. The Tribunal accepted that the applicant was a national of Indonesia and noted that the applicant claimed that he had been persecuted in Indonesia because of his Chinese ethnicity and feared that he would be further persecuted if he returns to Indonesia.
The Tribunal gave these reasons:
There are a number of issues requiring more detailed evidence the Tribunal would like to discuss with the applicant before it could be satisfied that he holds a genuine fear of persecution or that any fear he claims to have in this regard is well founded. Without the opportunity to question the applicant about his fears, the Tribunal cannot make findings of fact as to whether the applicant has a well-founded fear of persecution in Indonesia for any Convention reasons. As the Tribunal finds the applicant has not provided sufficient evidence to support his claims, it cannot be satisfied the applicant would have a well-founded fear of persecution for a Convention reason should he return to Indonesia.[3]
The Tribunal affirmed the decision not to grant the applicant a protection (class XA) visa.
[3] See Court Book page 59
The applicant has not filed any written submissions but has attended Court to make oral submissions. He conceded that he did not attend the Tribunal hearing and said that he did so because he could not speak English. He told the Court that he did not know that an interpreter would be provided by the Tribunal. I asked him about the grounds in his application. The applicant replied that he was only seeking protection in Australia and needed the consideration of the Court.
For the Minister, Ms Johnson, solicitor, relied on an affidavit of Megan Louise Palmer, solicitor, sworn 23rd January 2008. Ms Palmer's affidavit annexes a copy of the Tribunal's registered post records for
1st June 2007. That record shows that a letter was sent to the applicant by registered post on 1st July 2007 at the address that he gave as his address for correspondence in his application for review. The Minister has filed a written outline of submissions. The applicant did not have his copy of the document with him but the solicitor for the Minister provided him with a spare copy and the Court interpreter took the applicant through the contents of the submissions.
It is submitted for the Minister that the applicant's first ground, that he would be prosecuted if he returned to Indonesia because he is a Chinese Indonesian, effectively restates the applicant's factual claims for refugee status and seeks merits review of the Tribunal decision, which is unavailable.
The second ground alleges that the Tribunal's decision was illogical. The Minister contends that the illogical reasoning does not of itself constitute an error of law or jurisdictional error, referring the Court to the decision in NACB v Minister for Immigration & Multicultural & Indigenous Affairs[4] and other authorities. In any event, Ms Johnson submitted that there was no proper basis to assert that the Tribunal decision was irrational or illogical. The essential basis of the Tribunal's decision was the inability of the Tribunal to reach the state of satisfaction to grant the applicant a protection visa as required by ss.36(2) and 65(1) of the Migration Act. It is clearly established that it is for the applicant to make out his or her case before the Tribunal (see Abebe v Commonwealth)[5].
[4] [2003] FCAFC 235 at [29].
[5] (1999) 197 CLR 510 at 576 [187].
As to the third ground, asserting that the Tribunal did not consider the real situation in Indonesia, Ms Johnson submitted that this ground may be construed as asserting that the Tribunal fell into error in failing to consider specific independent country information, that the choice and assessment of country information is a factual matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs)[6]. She submitted that the Tribunal clearly set out and considered the applicant's claims and ultimately rejected them because it was unable to reach the requisite state of satisfaction required by the Act.
[6] [2004] FCAFC 10 at [11]-[13].
It is an unfortunate fact that the applicant did not attend the Tribunal hearing. Failure to attend a hearing of the Refugee Review Tribunal almost inevitably leads to the Tribunal failing to be satisfied that the applicant is entitled to a protection visa. The Tribunal wrote to the applicant on 1st June 2007 indicating that the information before it was insufficient to enable the Tribunal to make a decision in favour of the applicant. It was for that reason that the Tribunal exercised its power under s.425 of the Act to invite the applicant to attend a hearing.
The applicant did not attend the hearing, nor did he provide any further written evidence. It is unsurprising that the Tribunal remained unsatisfied that he had made out his case for a protection visa (see SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[7] and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs)[8].
[7] [2005] FCA 1811.
[8] [2005] FCA 1306.
The applicant's first ground does indeed go no further than restating the factual basis for his refugee claims. It does not set out any error on the part of the Tribunal.
The applicant claims that the Tribunal decision was illogical, but even if logicality were a reason for finding that the Tribunal fell into jurisdictional error, there is nothing illogical about the Tribunal decision.
The applicant's third ground complains that the Tribunal failed to consider the real situation in Indonesia. The reality is that the Tribunal was not satisfied that the applicant had provided sufficient information to establish his entitlement to protection. It was incumbent upon the applicant to provide the information that would satisfy the Tribunal that he has a well-founded fear of persecution if he were to return to Indonesia. There is no obligation on the Tribunal to conduct its own inquiries as to an applicant's claims. As happens all too often where an applicant does not attend the Tribunal hearing, the applicant was unsuccessful before the Tribunal.
I am mindful of the fact that the applicant is not legally represented and I have considered the Tribunal decision and supporting documents independently of the applicant's claims or the Minister's submissions.
I do not see any discernable case for jurisdictional error. Because no jurisdictional error has been made out, the Tribunal decision is a privative clause decision. It is final and conclusive and not subject to orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $2,600.00. The applicant has been unsuccessful in his claim and it is appropriate that the Minister as the successful party should receive a costs order. The amount sought, $2,600.00, is a modest sum, well within the scale envisaged by the Federal Magistrates Court Rules. The applicant, however, says that he does not have the funds to meet this order for costs. He is working but only working two days per week. I will take that into account in assessing time to pay.
I certify that the preceding fifteenfifteen (115) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 March 2008
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