SZLPH v Minister for Immigration
[2008] FMCA 342
•3 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 342 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – where the applicant did not attend the Tribunal hearing – show cause hearing – no arguable case – no reviewable error. |
| Migration Act 1958 (Cth), s.412 Federal Magistrates Court Rules 2001, r.44.12 |
| SZFLM v The Minister for Immigration & Citizenship [2007] FCA 863 |
| Applicant: | SZLPH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3422 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 March 2008 |
| Date of Last Submission: | 3 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.
The Applicant is to pay the First Respondents costs fixed in the sum of $2500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3422 of 2007
| SZLPH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan. He has brought an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The Tribunal signed its decision on 20 September and handed that decision down on
11 October 2007.
The first respondent, who is the Minister for Immigration & Citizenship, has asked the Court to conduct a show cause hearing. The Minister has filed a response opposing all of the orders sought on the basis that no reasonable cause of action is shown. It is submitted on behalf of the Minister that neither the applicant's application, nor his amended application, which he filed on 4 January 2008, have raised an arguable case for the relief that he seeks and the Court should therefore dismiss the application under r.44.12(1)(a) of the Federal Magistrates' Court Rules.
The background to this matter is that the applicant arrived in Australia on 2 November 2005. He applied for a protection (Class XA) visa on
8 February 2006. A delegate of the Minister for Immigration & Citizenship refused the application for a visa on 22 March 2006. The applicant then applied to the Refugee Review Tribunal on 17 July 2007 for a review of the delegate's decision. The Tribunal wrote to the applicant on 21 August 2007. 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. The letter invited the applicant to attend a hearing where he could give oral evidence and present arguments. That hearing was listed for 9.30 am on
20 September 2007.
On 14 September 2007 the Tribunal received a form of response to hearing invitation. In the response to hearing invitation a tick had been placed in the box beside the words:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it[2].
The applicant did not indeed attend the hearing. The Tribunal wrote to him on 20 September, which is the day the hearing would have been held advising the applicant that the decision would be handed down on 11 October 2007.
[2] See Court Book at page 60
A copy of the Tribunal decision record can be found at pages 66-72 of the Court Book. The Tribunal in its decision set out the applicant's claims and evidence at pages 69-70 of the Court Book. The Tribunal noted the applicant's claim to have a well founded fear of persecution because of his political involvement. The applicant claimed to have been elected the propaganda secretary of the Pakistan People's Party. He claimed to have been opposed by the army regime and dragged into many cases which he knew nothing about. He claimed to have been put to a great amount of harassment and claims that he was arrested many times and brutally beaten many times by the police and that he was also tortured by other agencies.
He had claimed that a friend got him a visa for Australia and that he had lost his job, his property and his liberty because of his affiliation with the Pakistan People's Party. He claimed in his application to have a genuine fear of being done to death by the rulers of Pakistan[3].
[3] See Court Book at page 70
The Tribunal's findings and reasons are set out on pages 70-71 of the Court Book. The Tribunal noted a threshold issue relating to jurisdiction, noting that the applicant had lodged his application for review on 17 July 2007 and that the application appeared to be out of time. The decision notification had been sent by the delegate to the applicant's residential address by registered post on 22 March 2006. Because the decision notification was sent by registered post the last day that an application for review of the Department's decision could legally have been lodged was 28 April 2006, provided that the applicant was properly notified.
Section 412(1)(b) of the Migration Act requires an application for review of an RRT reviewable decision to be given to the Tribunal within a period ending not later than 28 days after the notification of the decision. The Tribunal went on to find however, that the applicant had not been properly notified of the delegate's decision and therefore that no time limit for the lodgement of a review applicant existed. The Tribunal therefore proceeded to a review.
The Tribunal accepted that the applicant was a national of Pakistan. The Tribunal noted the applicant's claims of a well founded fear of persecution because of his political opinion as an opponent of the current regime in Pakistan. However, the Tribunal was not satisfied at the detail that the applicant has provided.
The Tribunal stated:
He has however set out his claims in a very vague and general manner. He has given no dates or places of his alleged activities and their repercussions. He has claimed that he was persecuted by the authorities in Pakistan, but he provides no essential details such as when and where he was persecuted or what exactly was done to him or the reasons given for the persecution[4].
[4] See Court Book at page 70-71
The Tribunal noted that the applicant had declined an invitation to come to a hearing and was not satisfied that the applicant's claims were credible. The Tribunal considered that the applicant's claims were lacking in essential detail and because the applicant had not attended his claims were left unclarified and questions were left unanswered. The Tribunal was not satisfied that the applicant had suffered persecution in the past or had a well founded fear of persecution within the meaning of the Convention if he returned to Pakistan in the foreseeable future and affirmed the decision not to grant a protection visa.
The applicant commenced proceedings seeking review of that decision by means of an application and affidavit filed on 2 November 2007. He has since filed an amended application. In that application he seeks a writ of certiorari which is a writ that would quash the Tribunal decision. He also seeks a writ of mandamus which is a write that the Court could issue compelling the Tribunal to rehear and redetermine his case according to law.
In order to make those orders, however, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. The Court has no power to second guess the Tribunal on matters of fact.
In his amended application the applicant sets out three very lengthy grounds. The amended application is more of a submission on factual matters than a statement of legal errors. The first ground sets out the history of the applicant's membership of the Pakistan People's Party and claims that the applicant had undergone hardship and difficulties while working for that party.
The second ground claims that the Tribunal did not take the element of well founded fear into consideration when considering the applicant's case and did not take into consideration the real meaning of the fear and the harassment under which the applicant has undergone.
The application complains that the procedure and the way of dealing with matters like the applicant are not taking into consideration. The applicant takes issue with an error which appeared in the original copy of the decision forwarded to the applicant. That original application, the applicant claims, the original decision told the applicant that his application had been remitted to the Tribunal for reconsideration. However, on 18 October 2007 the applicant received another letter sent by the Tribunal by way of corrigendum, trying to rectify the previous decision.
The applicant claims that the original erroneous decision is the decision and the letter of 18 October 2007 enclosing the other decision is without jurisdiction and suffers from gross irregularities. The balance of the ground deals with factual errors.
The third ground claims that the Tribunal did not take into consideration the fact that the applicant was an active member of a political party and was a person of importance as far as the acts of violence against him were concerned. The applicant reiterates his claim in somewhat different words that the second copy of the decision which he received is without jurisdiction and has no legal basis.
The Minister submits that no arguable jurisdictional error arises out of the fact that a clerical error was made in the Tribunal's decision record as sent with the letter of 11 October. It submissions is that, the Tribunal's obligation to send the applicant a copy of the decision is not one which can impact upon the validity of the decision itself as the decision has already been made.
In support of that proposition the Minister relies on the decision of Madgwick J in SZFLM v The Minister for Immigration & Citizenship [2007] FCA 863. That decision was also recently applied in this Court in SZJHM v The Minister for Immigration & Anor [2007] FMCA 1847 and SZKTR v The Minister for Immigration & Citizenship [2007] FCA 1767.
The submission is that the Tribunal complied with the requirements of s.430B of the Migration Act by issuing a corrigendum to its decision making it explicitly clear that the review was determined adversely to the applicant. The corrigendum is not a second or a separate decision of the Tribunal.
The Minister submits that the other grounds are in fact no more than merits review in the applicant's submissions, relates specifically to merits review and are in fact reiteration of the claims in the amended application. The applicant refers to the current violence in Pakistan, including the recent violent death of Benazir Bhutto. Whilst this was undeniably a sad and tragic event, it was not one which had occurred prior to the Tribunal hearing and was not a matter that the Tribunal could be expected to take into account.
I have explained to the applicant that the Court does not have the jurisdiction to hear fresh evidence about substantive matters in the application
The grounds upon which the applicant relies are really only two. First, a reiteration of his factual claims which does not more than amount to a claim for merits review, which is not permissible on judicial review of administrative proceedings.
Second, a claim that the original and wrong copy of the decision was the decision and that the corrigendum was an attempted second decision without jurisdiction. If anything it is a claim that, after sending out the incorrect decision the Tribunal was functus officio when it sent out the corrigendum. That of course is just not an argument that can be sustained. The Tribunal, upon realising the error, corrected the error with a corrigendum and made it perfectly clear.
The fact is, neither of those grounds establishes an arguable case for relief. The applicant did not attend the Tribunal hearing. He claims that he did not inform the Tribunal that he did not wish to attend, but instead was short of necessary funds to pay the fares to get into town.
The fact is that, the applicant did not attend the hearing and as the Tribunal had already made it clear in its letter, it was not satisfied on the information it already had before it, which is why the Tribunal invited the applicant to attend the hearing under s.425 of the Act.
In my view, the Minister has shown that he applicant has raised no arguable case for relief and it is appropriate to dismiss the applicant at this stage under the provisions of r.44.12(1)(a) of the Federal Magistrates' Court Rules.
I am satisfied that $2500 is an appropriate figure and this is an appropriate matter for a costs order. I require a transcript of my reasons for this decision and I advise that those written reasons will be posted out to the parties within the next 10 to 14 days. I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 18 March 2008
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