SZLNZ v Minister for Immigration

[2008] FMCA 986

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 986

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal exercised its decision under s.426A according to law – whether the finding and conclusions of the Tribunal were open to it.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 425; 425A; 426A; 441A(4)(a); 474; pt.8 div.2
Migration Regulations 1994, reg.4.35D

VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
VAF v Minister for Immigration and Multicultural and IA (2004) 206 ALR 471

Applicant: SZLNZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3315 of 2007

Judgment of: Emmett FM

Hearing date: 7 July 2008

Date of last submission: 7 July 2008

Delivered at: Sydney

Delivered on: 22 July 2008

REPRESENTATION

The Applicant appeared in person assisted by an Indonesian interpreter

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: Ms M. Mafessanti, Clayton Utz Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3315 of 2007

SZLNZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 September 2007 and handed down on 9 October 2007.

2. The Applicant claims to be from the Indonesia and of Muslim faith (“the Applicant”).

3. The Applicant arrived in Australia on 1 May 2007 having departed legally from Soekarna-Hatto International Airport on a passport issued in his own name and a visa issued on 27 March 2007.

4. On 24 May 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. In his review application the Applicant stated that he left Indonesia because he refused to join Muslim extremists in their activities, which he stated “are against the law”. The Applicant stated that he reported “what happened to the police” but the police could not act.

   
   

   The Applicant stated that when the extremists found out that he had reported them “they were very angry and tried to hurt me”.

   
   

   The Applicant stated that he “ran and they chased me”. The Applicant stated that when he hid they could not find him anymore.

   
   

   The Applicant stated that he thought if he returned to Indonesia the Muslims would be very angry and want revenge because he had refused to join them in their illegal activities and had reported them to police. The Applicant further stated that “the authorities do not have full power to protect me”. 

6. On 28 June 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

7. The Delegate expressed concerns about “the veracity of some of the applicant’s claims”. In particular, the Delegate had regard to the delay of over a month in departing Indonesia following the grant of his 456 visa and found the delay was not consistent with the Applicant’s claim of “fleeing for his live from alleged Muslim extremists”. Further, the Delegate found the Applicant’s claims to be “extremely vague on any details” that would assist in the substantiation of his claims. The Delegate also had regard to country information in relation to state protection and found that there was no independent evidence to support the Applicant’s claims that he would not obtain state protection in Indonesia.

8. On 25 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 17 September 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 26 October 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal decision

1. On 10 August 2007, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 17 September 2007 to give oral evidence and present arguments. The Applicant did not attend that hearing and did not give oral evidence. 

2. The Tribunal noted that it had written to the Applicant informing him that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone. On 28 August 2007, the Tribunal noted that it received a Response to Hearing Invitation form from the Applicant indicating that he wished to attend the hearing. The Tribunal noted that the Applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. Accordingly, the Tribunal decided to proceed to make its decision on the review without taking any further action to enable the Applicant to appear before it pursuant to its discretion under s.426A of the Act.

3. The Tribunal identified the Applicant’s claims made in his protection visa application. The Tribunal found the Applicant’s claims to be vague and lacking in “any corroborative information from the applicant to assist the claims”. The Tribunal identified the particular concerns it had with the vagueness of the claims and found that the Applicant had “presented the barest of claims”. The Tribunal found that “the vagueness of the claims leads the Tribunal to doubt their veracity”.

   
   

   The Tribunal found that the Applicant’s claims “as they stand are far from credible” and left the Tribunal with “the impression that he fabricated his claims to secure a protection visa”. 

4. Ultimately, the Tribunal concluded as follows:

   “Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.”

5. The Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of a Indonesian interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.

2. The Applicant confirmed that he relied on the grounds contained in an application filed on 26 October 2007.

3. The grounds of the application are expressed to be as follows:

   “1. The Tribunal failed to consider the current situation in Indoneisia (sic).

   2. The Tribunal member only considered the information provided by the application (sic) in his application for a protection visa.

   3. The Tribunal did not adequately assess the possibility of risk of being put into danger on returning to Indonesia.”

4. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally.

   
   

   The Applicant confirmed that he had filed no evidence or submissions in support of her application.

5. In relation to the Applicant’s grounds, I accept the submissions of counsel for the First Respondent in their written submissions as follows:

   “11. Grounds 1 and 3 allege a failure on the part of the Tribunal to consider the current situation in Indonesia and that the Applicant would suffer harm if he were to return to Indonesia.  The First Respondent submits that the Tribunal decision record discloses that the Tribunal did consider the Applicant’s claim that he would be persecuted in Indonesia but, in light of the vagueness of the Applicant’s claims and the absence of evidence before it, the Tribunal doubted the veracity and credibility of his claims.  It concluded that it was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention and therefore that he did not satisfy the criteria for a protection visa.  Accordingly, these grounds of review must fail. 

   12. Ground 2 alleges that the Tribunal “only considered the information provided by the [Applicant] in his protection visa application”.  This ground of review does not allege any jurisdictional error.  The First Respondent submits that, in any event, as the Applicant did not put any other material before the Tribunal other than his protection visa application, there was no further information which the Tribunal was obliged to consider.

   13. Insofar as the Applicant alleges that the Tribunal was required to make inquiries into the Applicant’s claims, the Tribunal is not required to further investigate “over and above” the material supplied by the applicant: see NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18] to [21] and WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [21], [24]-[25].  It remains for an Applicant to satisfy the Tribunal of his protection visa claims: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J.”

6. The relevant issue for determination by this Court is whether or not the Tribunal exercised its discretion under s.426A of the Act according to law; and whether its conclusions were made according to law.

7. In relation to the exercise of the Tribunal’s discretion under s.426A of the Act, the Tribunal had regard to its obligation under s.425 to invite the Applicant to come to a hearing to give oral evidence and present arguments. Such an invitation must be sent in accordance with s.425A of the Act, which requires, relevantly, that the invitation: identify the date, time and place of the hearing; be sent to the Applicant’s last address for service provided to the Tribunal within three working days of the date of the invitation in accordance with s.441A of the Act; give a period of notice in accordance with reg.4.35D of the Migration Regulations 1994, being the prescribed period; and contain a statement of the effect of the s.426A of the Act.

8. In relation to the requirement of s.441A(4)(a), the First Respondent read the affidavit of Miriam Mafessanti, sworn 30 November 2007 that annexed a copy of a registered post receipt showing that on 10 August 2007 a letter was sent by registered post to the Applicant at his last address for service. In the circumstances, the overwhelming inference is that the Tribunal’s letter of invitation dated 10 August 2008 was the letter sent by registered post on 10 August 2008. Accordingly, I am satisfied that the invitation was sent by the Tribunal within 3 days of the date of the letter to the Applicant’s last address for service.

9. In the circumstances, the Tribunal’s letter of invitation complied with the requirements of s.425A and therefore the invitation was sent pursuant to s.425 of the Act.

10. A fair reading of the Tribunal’s decision makes clear that the Tribunal was aware of the matters it must consider in the exercise of its jurisdiction under s.426A and proceeded to exercise that discretion according to law (VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at 414 [16], per Sundberg and Hely JJ, and 417 at [30] per Gyles J).

11. In relation to the Tribunal’s evaluation of the information before it, the Tribunal noted in detail the claims made by the Applicant. The Tribunal was entitled to have regard to the fact that the Applicant had failed to provide details to assist his claim. The Delegate had made clear in its decision that part of its reason for refusing the Applicant a protection visa was because of the vagueness and lack of detail in his claims. The Tribunal on two occasions, being 25 July 2007 and 10 August 2007, invited the Applicant to send further information, documents or other evidence he may wish the Tribunal to consider. Further, the Tribunal informed the Applicant in its letter dated 10 August 2007 that it had considered the material before it but was unable to make a favourable decision on that information alone (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).

12. In failing to appear at the hearing, the Applicant assumes the risk that inconsistencies, omissions or other unsatisfactory features of the Applicant’s material would be noted by the Tribunal without a further opportunity for the Applicant to explain or clarify them. In those circumstances, the Applicant cannot complain if his application was rejected because, amongst other reasons, he failed to take up the opportunity to appear (see S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25]-[26]). This is particularly so where the Applicant received an invitation to attend a hearing before the Tribunal that clearly stated that the information presently before it was not sufficient to make orders in favour of the Applicant (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”)). The Full Court of the Federal Court in WACO at [46] stated that:

    “There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward”.

13. Further, the law is now well established in respect of whether or not omissions are capable of being information that enlivens the obligations of s.424A(1) of the Act. It is now clear that “information” does not extend to identified gaps, defects of lack of detail or specificity in evidence (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]-[18]; VAF v Minister for Immigration and Multicultural and IA (2004) 206 ALR 471 AT 476-477 per Finn and Stone JJ).

14. In the circumstances, the Tribunal’s conclusion that it was not satisfied that the Applicant met the criteria required for being a refugee was open to it on the information before it and for the reasons it gave. 

15. In the circumstances, the Tribunal was bound to affirm the decision under review pursuant to s.65(1) of the Act.

Conclusion

1. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

2. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

3. The proceeding before this Court is dismissed with costs.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  Serena Kwong

Date:  22 July 2008