SZLIZ v Minister for Immigration - [2008] FMCA 324

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIZ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 324

MIGRATION – Review of decision of Refugee Review Tribunal – no appearance before the Tribunal – compliance with the invitation to hearing requirements – impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 65, 425, 425A, 441A, 441C, 424A
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZEFM v the Minister for Immigrationand Multicultural and Indigenous Affairs [2006] FCA 78

Applicant:

SZLIZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2937 of 2007

Judgment of:

Nicholls FM

Hearing date:

14 March 2008

Date of Last Submission:

14 March 2008

Delivered at:

Sydney

Delivered on:

14 March 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 24 September 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2937 of 2007

SZLIZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 24 September 2007 which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 July 2007, and handed down on 21 August 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The first respondent has put before the Court a bundle of relevant documents which I will refer to as the Court Book (“CB”). The following can be discerned from the information that is contained in the Court Book.
The applicant is a national of Indonesia. He arrived in Australia in March 2007 and applied for a protection visa, a copy of which is set out in the Court Book at CB 1 to CB 28 and to which is annexed a short statement by the applicant (reproduced at CB 29). A delegate of the Minister refused the application for a protection visa and that decision record is reproduced at CB 32 to CB 38 in the Court Book. The applicant then applied for review by the Tribunal on 18 June 2007. The application for review is reproduced at CB 39 to CB 42. At CB 44 and CB 45 is contained a copy of the letter dated 26 June 2007 which the Tribunal sent to the applicant and which notifies the applicant of the following:
1)The Tribunal had considered the material that had been put before it but was unable to make a favourable decision on this information alone.
2)In these circumstances, the Tribunal invited the applicant to a hearing which had been scheduled for 26 July 2007.
3)It further noted that if the applicant did not attend at that scheduled hearing, the Tribunal may proceed to make a decision without further notice to him.
The letter enclosed a response to hearing invitation form and directed the applicant to complete and return that form to the Tribunal by 12 July 2007. At the time of the hearing, the applicant did not appear before the Tribunal, and the Tribunal then proceeded to make its decision.
From the material before the Court it appears that the applicant’s claims were that as a person of Chinese ethnicity in Indonesia he had been mistreated and that ethnic Chinese people had suffered discrimination in Indonesia. In his application the applicant also described himself as a person of Christian religion. In his statement the applicant referred to anti-Chinese riots in May 1999, and stated that he feared the possibility of being killed by mobs.
In its decision, the Tribunal found that while it accepted that there had been discrimination and harassment of ethnic Chinese and Christian Chinese in Indonesia, the applicant had only made general claims regarding the treatment of such persons in Indonesia. The Tribunal considered that without further information about what it saw as the applicant’s general claims, it was unable to be satisfied that he had been targeted by native Indonesians, or to establish what had happened to him. The Tribunal’s decision record emphasises that without further information in a number of respects, the Tribunal was unable to reach the level of satisfaction that it was required to before a visa could be granted.
Given the view that the Tribunal took of the applicant’s claims, and because it was unable to reach the requisite level of satisfaction, it was unable to find that the applicant had fled Indonesia fearing Convention-related harm. It therefore affirmed the delegate’s decision.
In the application to the Court, the applicant has put forward three grounds. I shall read these onto the record.
“1.I face a risk of being killed if I return to Indonesia.
2.The Tribunal made a number of jurisdictional errors in making of the decision to refuse the applicant’s application for a protection visa.
3.The tribunal should accept I meet the refugee criteria while the Tribunal accept there has been discrimination and harassment of ethnic Chinese and Christian Chinese.”
(Errors in original)
While the Tribunal accepted that there has been discrimination and harassment of ethnic Chinese and Christian Chinese, the applicant has also put before the Court his affidavit of 11 September 2007, essentially attaching the Tribunal’s decision record and putting that decision record before the Court and stating:
“I have no intention to go back to Indonesia.”
At the hearing, the applicant appeared unrepresented. He was assisted by an interpreter in the Indonesian language. The first respondent was represented by Ms N Johnson. Ms Johnson also sought leave that the affidavit of Ms Megan Louise Palmer be read before the Court, and leave was subsequently granted in relation to that affidavit. I also have before me the Minister’s outline of written submissions.
At the hearing today the applicant told the Court that he hoped to get a protection visa and the applicant read from a prepared handwritten statement. That statement was courteous and an impassioned plea to the Court to understand the applicant’s situation and, in particular, the obligation that he felt towards providing for a better future for his children. The applicant apologised for not appearing at the Tribunal hearing and he said that that occurred because he had not received the letter from the Tribunal. He explained from the bar table that he had been working in Queensland on a strawberry farm at the relevant time and that he only found out in September 2007 that a letter had been sent to him. He acknowledged fault in this regard.
Further, the applicant made reference to conditions in Indonesia, the discrimination that still exists today, he said, against ethnic Chinese who were seen as a minority, and discrimination which has made it very difficult for him to obtain employment after being retrenched from his position with a company that had, he said, gone bankrupt. The applicant asked the Court to consider his family.
As I said to the applicant during the course of the hearing, that with great respect to him, I found him to be a decent man who was concerned for the welfare of his family and his children and the future of his children. But as I also explained to the applicant, in noting the difference in the jurisdiction and the power and the role between the Tribunal and the Court, that the applicant’s circumstances, which he says go to the issue of his being owed protection in Australia, properly could have only assisted him before the Tribunal and unfortunately do not assist him before this Court.
Ms Johnson made submissions before the Court today and I should note that I can only agree with her submissions.
Turning first to the applicant’s first stated ground, the applicant states that he would face a risk of being killed if he returns to Indonesia. As I explained to the applicant, that is a matter, an issue, for the Tribunal to have considered and falls outside the province of this Court. By this statement, the applicant seeks impermissible merits review before this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).
The applicant’s second stated ground asserts that the Tribunal made a number of jurisdictional errors, but the application does not provide any particulars of any such errors, and nor could any such error be said to arise from what the applicant said to the Court today. Simply, and for the reasons which also follow, I cannot discern jurisdictional error in the Tribunal’s decision.
The third ground again, in my view, seeks impermissible merits review (Wu Shan Liang). It asserts that given that the Tribunal accepted that there was discrimination and harassment of ethnic Chinese and Chinese Christians in Indonesia, it should therefore have found that the applicant met the criteria to be recognised as a refugee in Australia. Unfortunately for the applicant, this ground as stated misunderstands the statutory nature of the Tribunal’s task.
The relevant statutory regime that applies to applications of this type (s.65 of the Act), is that a protection visa must be granted to an applicant if the Tribunal is satisfied that an applicant meets the requirements, amongst other requirements, as set out in s.36(2) of the Act. In effect, this requires the Tribunal to reach a level of satisfaction that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. If this level of satisfaction is not reached, then the protection visa must not be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
It is quite clear, on any plain reading of the Tribunal’s decision record, that the Tribunal plainly could not reach the level of satisfaction required on what the applicant had put before it.
Through its letter of invitation to the hearing, the Tribunal had attempted to put the applicant on notice of this possibility. It invited the applicant to a hearing for the purpose of giving further information and evidence in support of his claims. There is nothing before the Court to show, and nor has the applicant asserted before the Court today, that any explanation was put before the Tribunal which would have explained for the Tribunal the applicant’s failure to attend at the scheduled time, date and place for the hearing.
In its decision record, the Tribunal had noted that there had been anti-Chinese riots in May 1998 in Indonesia, and by way of observation it must be said that this appears to be some eight years prior to the applicants coming to Australia seeking protection. But importantly, in its decision record, the Tribunal noted that the applicant had not provided any detailed information as to how these events affected him or his family as at the present time. It was, in my view, clearly open to the Tribunal to make such a finding on what had been put before it, and in the circumstances of the unexplained failure of the applicant to appear at the hearing.
The applicant was invited to a hearing, and as I explained to the applicant during the course of the hearing today, there are relevant parts of the Act and the Migration Regulations 1994 (Cth) (“the Regulations”) that govern the Tribunal’s obligations in regard to the sending of such a letter of invitation to a hearing.
In terms of these procedural requirements, s.425A of the Act requires that in the performance of its obligation pursuant to s.425, the Tribunal must send to the applicant for review an invitation to attend a hearing. This letter must be sent by one of the methods specified in s.441A of the Act and the period of notice must be at least the prescribed period as set out in s.425A(3) of the Act. Relevantly, I note that s.441A(4) permits notice to be given to the applicant via pre-paid post and provides that such notice must be dispatched to the applicant’s last address for service provided to the Tribunal within three working days of the date of the letter.
Section 441C(4) of the Act provides that the applicant is taken to have received that letter so dispatched seven working days after the date of the letter. I note that the prescribed period of notice for the purposes of s.425A is specified in reg.4.35D of the Regulations, and starts from when the letter is received, or taken to have been received, and ends 14 calendar days after the day on which the notice is received.
I note in this regard the material that is before the Court in the Court Book, and take into account in particular the evidence of Ms Palmer provided by way of affidavit, and the annexures to that affidavit, and I am satisfied on this material that the Tribunal complied with the relevant statutory obligations. In other words, it complied with all the relevant requirements in this regard.
Having complied with these requirements, not having received any notice seeking an adjournment of the hearing or notifying of any inability to attend at the time that had been scheduled for the hearing, it was open to the Tribunal to proceed to determine the application in exercising the discretion that is given to it pursuant to s.426A of the Act. I can see no error in how the Tribunal proceeded in that regard.
The applicant’s explanation to the Court today was that he had been working in Queensland at the relevant time and that he was not able to obtain the letter until some time later. As I put to the applicant, that while there are certain obligations that are imposed on the Tribunal by way of the relevant statute, there is some onus on an applicant to ensure that when an address for correspondence is provided to the Tribunal, that it is the most current address so that correspondence may be received by an applicant in a timely fashion, or that an applicant takes steps to ensure that any correspondence sent to whatever address has been provided is subsequently made available to him also in a timely fashion.
The applicant before the Court acknowledged some fault in this regard. Unfortunately, even in accepting the applicant’s plea, this Court is unable to say that the circumstances that the applicant has put before the Court by way of explanation in this regard reveal jurisdictional error on the part of the Tribunal.
I should also just note for the sake of completeness that to the extent that the Tribunal referred to claims made in, or attached to, the applicant’s application for a protection visa made to the Minister, that s.424A of the Act is not enlivened in the relevant circumstances of this matter before the Court now. The Tribunal’s reason for affirming the delegate’s decision was its inability to reach the requisite level of satisfaction that the statute requires. This was based on its view that what the applicant had provided was lacking in detail. I note that this view of the applicant’s claims is not “information” for the purposes of s.424A, and I agree with the Minister’s submissions in this regard and note the reference to SZEFM v the Minister for Immigrationand Multicultural and Indigenous Affairs [2006] FCA 78, per Bennett J at [23].
In all, I cannot discern jurisdictional error in what the Tribunal has done, nor can I discern jurisdictional error arising from the Tribunal’s decision record. I cannot discern jurisdictional error as it is asserted in the applicant’s application to the Court, nor can I discern jurisdictional error from anything said by the applicant to the Court today.
As I explained to the applicant during the course of the hearing, without the Court being able to discern some such error in the Tribunal’s decision, he would not be in a position to succeed before the Court today. For these reasons the application is dismissed.
I just add that while there may be some humanitarian considerations that arise from the applicant’s stated circumstances to the Court today, this Court has no power to intervene and assist the applicant in the provision of any visa to him as much as the Court may feel some sympathy for the applicant’s stated situation.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 17 March 2008