SZLIC v Minister for Immigration
[2008] FMCA 230
•6 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 230 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. PRACTICE & PROCEDURE – Motion for reinstatement of review application – the applicant arrived late for the scheduled final hearing – matter previously dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear – matter reinstated. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym "SZLIC". |
| Migration Act 1958 (Cth), ss.36, 91X, 422B, 424A, 425 Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a) |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZLIC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2841 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 18 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Solicitors for the Respondents: | Ms A Crittenden of Clayton Utz |
ORDERS
The orders made by this Court on 13 December 2007 are set aside.
The application filed on 13 September 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2841 of 2007
| SZLIC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a single male from Sairidpur, Bangladesh and claims to have been born in 1977. He states that he speaks, reads and writes English and Bengali and that his religion is Muslim. He states that prior to coming to Australia, he was an Information Technology teacher. He states that he completed sixteen years of education including attendance at the University of Madras from 1997 to 2001 and obtained a Bachelor of Science in Computing. He resided in Chennai, India from 1997 to 2001 and returned Khulna, Bangladesh before coming to Australia. He entered Australia on a student visa on 11 March 2004 and attended the University of New England, Sydney campus.
When he was in college at Khulna, the applicant became involved in Jamat-I-Islam because he thought it was a good idea to be involved in a Muslim political party. However, he states that he became disillusioned with Jamat-I-Islam and no longer wanted to participate in the party. He claims that party members did not want him to leave. They wanted his and his father’s support and also because he had observed many criminal acts committed by party members. He believes members of Jamat-I-Islam attempted to kill him as he is a potential witness against them and that the Bangladeshi government cannot protect him. He fears persecution for reason of his political opinion and religion because he has been labelled a traitor by Jamat-I-Islam.
The applicant arrived in Australia on a student visa on 11 March 2004. He states that he did not finish studies at the University of New England. He failed some subjects and discontinued the course but continued to reside in Australia. He continued to stay in Australia after his student visa expired and was placed in immigration detention. He applied for a Protection (Class XA) visa on 29 May 2007. A delegate of the first respondent refused to grant a visa on 5 June 2007 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 8 August 2007 (reference 071498494), which is the decision currently before the Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. An affidavit of Alissa Maree Crittenden sworn 30 January 2008 is marked Exhibit “B”. These documents were read into evidence.
The applicant was in Villawood detention at the time of his first Court date of 26 September 2007. On that date, a timetable was set for further carriage of this matter. The applicant was subsequently released on a bridging visa prior to the final scheduled hearing. On the date of the final hearing, the applicant was not present at the scheduled time. A period of grace (approximately 15 minutes) was extended to the applicant. The applicant did not appear at the end of this period. I dismissed the matter pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) due to the failure of the applicant to appear. A further order was made that the respondents’ solicitors provide the applicant with written notice of that dismissal order and inform him of his rights under r.16.05(2)(a) of the Rules by 20 December 2007.
Consideration
Reinstatement
Before the Court is an “Application in a Case” filed by the applicant on 18 December 2007 seeking the following orders:
1. An order that the appeal be allowed.
2. To set aside the decision of the Tribunal and refer the matter to the Tribunal for further determination.
The application was accompanied by an affidavit prepared by the applicant stating that:
1. The delay was made due to traffic and minor illness;
2. I did not get any [response] from the lawyer.
The second issue raised in the affidavit appears be about the panel advisor assigned to the applicant under the Court’s Panel Advice Scheme. The affidavit of Ms Crittenden sets out the details regarding this and reveals that Clayton Utz, solicitors for the respondents, were contacted by the panel advisor after his appointment. The affidavit reveals that a Court Book and hearing tapes were despatched to the panel advisor on 9 October 2007. Shortly thereafter the advisor again contacted Clayton Utz indicating that the applicant had been released from detention but had not provided any forwarding address.
The applicant’s new residential address was confirmed to the panel advisor on 20 November 2007 and, on two occasions, correspondence was forwarded to him there. I confirmed with the applicant that he had received this correspondence at that address. When asked to explain his failure to appear at the previously scheduled hearing, the applicant said he had difficulty locating the Courtroom despite having attended earlier first Court date directions.
I indicated to the applicant that as all the material submitted by the parties was before the Court, I would reinstate the matter and proceed with the final hearing.
Final hearing
At the first Court date, the applicant stated that he wished to participate in the Court’s Panel Advice Scheme. He was allocated a panel advisor as indicated above and received correspondence from the advisor. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 9 November 2007. At the time of this hearing nothing had been filed and this was confirmed by the applicant. Neither had he filed written submissions or a list of authorities in support of his application.
When invited to make oral submissions, the applicant drew the Court’s attention to parts of the Tribunal decision which he said contain errors. The first passage referred to was under the sub-heading “Claims as stated at the Hearing”:
When asked about his family circumstances he stated that his parents and younger brother reside in Bangladesh in the city of Khulna. He stated that his younger brother is currently studying, his father is a businessman and his mother is a housewife. He stated that he has maintained phone contact with them but in the last month he has had difficulty making telephone contact with his family. (CB 85)
I invited the applicant to indicate the nature of the error that arose from this record of the evidence he gave at the Tribunal hearing on 30 July 2007. He said the Tribunal failed to consider the circumstances of his parents and brother who remain in Bangladesh. I indicated to the applicant that his protection visa application, the delegate’s decision and the Tribunal decision do not raise any claim regarding his parents or brother. They refer only to the applicant. The applicant acknowledged this and did not address and further passages in the Tribunal decision.
Ms Crittenden, for the first respondent, prepared detailed written submissions in response to the grounds raised in the applicant’s application for judicial review.
Ground one
The Honourable M Irene O’Connell failed to find error of law, jurisdictional error and procedural fairness and relief under section 36 of the Judiciary Act.
Section 36 is located in Division 3 of Part 2 of the Act. The Division sets out the provisions with respect to Ministerial powers to grant non-citizens visas to either “travel to and enter Australia” or “remain in Australia”. Section 36 refers specifically to protection visas, the type of visa the applicant seeks. The procedures to be followed by the Tribunal are contained in Part 7 of the Act and in particular, Division 4 (“Conduct of review”). A claim suggesting that a Tribunal member has failed to find an error of law, jurisdictional error or procedural fairness, misunderstands the operation of the Act and the role of the Tribunal member.
I invited the applicant to indicate to this Court the issue that he was attempting to identify and argue in this review. The applicant said that he did not understand the grounds of review and had in fact copied them from applications by other detainees at Villawood detention centre. As ground one discloses no jurisdictional error in the Tribunal’s decision making process, it should be dismissed.
Ground two
The first respondent misled me with wrong information.
The applicant stated that when he was interviewed by a person from the Department when he was placed in detention. That person asked him questions about the circumstances surrounding his being in Australia. He was also asked whether he wished to remain in Australia and be able to work. The applicant said that the person conducting the interview misunderstood his response and recorded incorrect details in respect of this issue.
I referred the applicant to the Tribunal decision under the heading “Claims and Evidence”:
The Tribunal has before it the departments file relating to the applicant. The Tribunal also has before it the application for review. (CB 83)
The decision also includes the contents of the applicant’s statutory declaration attached to the protection visa application, the claims set out in his Tribunal application and the matters discussed at the hearing of 30 July 2007. Under “Country Information”, the decision identifies certain source material and reproduces in relevant extracts and summaries. However, under “Findings and Reasons”, the decision does not refer to any material in the Departmental file about the interview of the applicant at Villawood detention centre. The material that is clearly identified and summarised under the sub-heading “Claims and Evidence” makes no reference to that interview and does not form part of the Tribunal decision.
I agree with Ms Crittenden written submissions that other than the letters sent by the delegate acknowledging receipt of the applicant’s protection visa application (CB 44-45) and the refusal of the protection visa application (CB 47-55), no other information was provided to the applicant by the Minister or his delegate. Further there is nothing on the face of these letters which indicate that he was given “wrong information”. The evidence before this Court is limited to the Court Book. A fair reading of the documents contained therein does not indicate that any wrong information is within those documents. There was no transcript of the hearing before the Tribunal. In the circumstances I believe that this ground should be dismissed.
Ground three
I will provide more details later on.
Ground three is not a ground for judicial review and should be dismissed.
Ground four
RRT deprived me from natural justice.
The applicant did not wish to comment on this ground of review. In light of my comments above about this material being copied from other detainees’ applications, this is understandable.I agree with Ms Crittenden that s.422B provides that Division 4 of Part 7 of the Act is “taken to be an exhaustive statement of the requirements of natural justice hearing rule” in relation to matters dealt with by the Tribunal. There is nothing to indicate that the Tribunal breached any of the provisions of Division 4 of Part 7 of the Act. Similarly, s.424A is not enlivened because the Tribunal relied upon the following information:
a)that provided by the applicant during the hearing on 30 July 2007;
b)independent country information identified in the decision record; and
c)inconsistencies arising between the applicant’s oral evidence and the information provided by the applicant in his protection visa application.
The information identified in (a) and (b) above fall within s.424A(3)(b) and s.424A(3)(a) of the Act respectively. Accordingly under s.424A(1), the Tribunal is not required to give particulars of that information to the applicant. The information identified in (c) above does not give rise to a s.424A obligation as established in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [19] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:
[19] Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing,15 no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the Tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.
I accept the submission that the Tribunal did not breach s.424A.
The other provision of Division 4 of Part 7 of the Act which needs to be considered is s.425. Section 425(1) states:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
There is no dispute that the applicant attended the Tribunal hearing and was questioned on each aspect of his claims. It put to him the concerns it had, which were ultimately its reason for affirming the delegate’s decision. The applicant was therefore on notice of the “live issues” arising from the decision under review and no breach of s.425 of the Act is apparent from the material before the Court. In the absence of any particulars, the applicant cannot sustain a claim that the Tribunal breached the rules of natural justice. Ground four should be dismissed.
Conclusion
The applicant in these proceedings was a self represented litigant. On his own admission, he had no understanding of the issues before the Court or how he may present his case. He confirmed that he relied entirely on material he had copied from other detainees in order to review the Tribunal decision with which he disagreed. The applicant was provided with the opportunity to participate in the Court’s panel advice scheme although this was initially delayed because of his release from detention and his failure to notify the Court of his new address. The respondents’ solicitors were able to provide the panel advisor with the applicant’s details so that contact could be made. The applicant acknowledged receipt of correspondence from the panel advisor. The applicant was also given the opportunity to file an amended application and written submissions but nothing has been filed.
The application was originally dismissed because of the applicant’s failure to appear at the final hearing but I reinstated the matter to allow him to put before the Court any material he had in support of his case. These submissions similarly indicate the complete misunderstanding of the function of the Court and the purpose of judicial review although this was explained to the applicant on two separate occasions. Ms Crittenden appearing for the respondents assisted the Court with written submissions in response to the application and I am satisfied that all of the issues have been addressed by those submissions. It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 6 March 2008
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