SZLQV v Minister for Immigration

Case •

[2008] FMCA 247

•

21 February 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 247
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Indonesia – where applicant did not attend RRT hearing – no reviewable error.
Migration Act 1958 (Cth) ss.424A, 425, 426A
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63 distinguished
SBBF v Minister for Immigration & Multicultural Affairs [2002] FCAFC 358
SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361
Applicant: SZLQV
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3589 of 2007
Judgment of: Scarlett FM
Hearing date: 21 February 2008
Date of Last Submission: 21 February 2008
Delivered at: Sydney
Delivered on: 21 February 2008

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

  3. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3589 of 2007

SZLQV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of Indonesia.  He asks the Court to review a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant him a Protection (Class XA) visa. 

  2. He asks the Court to issue a writ of certiorari quashing the Tribunal decision. He claims that the Tribunal made a decision which was biased; that the decision involved an error or law in that procedures required by the Migration Regulations in connection with making the decision were not observed and that the decision involved the important exercise of the power conferred by the Migration Act and the Migration Regulations.

  3. The Minister has filed a Response denying that the decision contains jurisdictional error.

Background

  1. The Applicant arrived in Australia on 1st May 2007,   and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 22nd May 2007. A delegate of the Minister refused his application for a visa on 9th July 2007. 

  2. The Applicant had claimed a fear of persecution in Indonesia because he had been harmed by Muslim extremists. He had had a Chinese restaurant near Jakarta in an area where there were a lot of Muslims, and Muslims extremists were unhappy and angry with him because a lot of the food that he prepared and sold contained pork. He claimed extremists threatened to harm him and even kill him, and the police were unable to stop the extremists from acting in this way. 

  3. The delegate of the Minister, however, on 9th July 2007 refused the application for a visa and whilst the delegate accepted that ethnic Chinese, such as this Applicant, face a degree of discrimination and some discriminatory bureaucratic impositions is not satisfied that problems faced amount to discrimination or hardship amounting to persecution.

Application to the Refugee Review Tribunal

  1. On 15th August 2007, the Applicant applied to the Refugee Review Tribunal for a review of the Tribunal's decision. He did not provide any additional documentation to the Tribunal with his application. The Tribunal wrote to him on 29th August 2007, in a letter which said:

    “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone. 

    This letter is an invitation to the applicant listed above, to appear before the Tribunal to give oral evidence and present arguments.”[1]

    [1] See Court Book at page 45.

  2. The letter invited the Applicant to attend a hearing on 28th September 2007 at 1:00pm.  The Applicant sent in a written Response to Hearing Invitation indicating that he wanted to attend the hearing but would require an interpreter in the Bahazar Indonesia language.

  3. Unfortunately, on the day of the hearing the Applicant did not attend.  The Tribunal noted that the Applicant had not attended and had not provided any telephone or facsimile contact numbers to the Tribunal and did not have a migration advisor or an authorised recipient.

  4. The Tribunal decided to make its decision on the review exercising its powers under section 426A of the Migration Act without taking any further action to enable to Applicant to appear before it. The Tribunal signed its decision on 3rd October 2007 and handed that decision on 23rd October. A copy of the Tribunal decision record can be found at page 53 to 58 of the Court Book. 

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on page 57 of the Court Book. The Tribunal noted the Applicant's claims that he left Indonesia and fears to return because he was and would be persecuted by Muslim extremists because of his Chinese ethnicity including because he ran a Chinese restaurant in Indonesia that sold pork, and he because he reported the people who threatened him to the police. 

  2. The Tribunal noted the question of persecution and noted that it remains for the Applicant to satisfy the Tribunal that all of the statutory elements are made out. The Tribunal went on to find:

    “Without more evidence from or on behalf of the applicant than the evidence presently before it, the Tribunal cannot be satisfied that the applicant left his country for the reasons that he claims, that he was/will be threatened/harmed/harassed in his country as he claims for the reasons that he claims and/or that he cannot or will not return to China [sic] because he fears harm there now or in the reasonably foreseeable future.”  [2]

    [2] See Court Book at page 57

  3. The Tribunal was not satisfied on the evidence before it that the Applicant had a well founded fear of persecution within the meaning of the Convention and affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

Application for Judicial Review

  1. The Applicant commenced proceedings for judicial review in this Court by means of an application and an affidavit filed on 20th November 2007.  In the application, the Applicant set out, along with the orders, a claim that the Tribunal made the decision which is biased and set out two grounds:

    a)The decision involved an error of law in that: procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

    b)The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

  2. In his affidavit in support, the Applicant included the statement - "I do not want to go back to Indonesia."  Mr Reilly for the Minister filed a written submission asserting that the Applicant did not properly particularise any error in the Tribunal's decision and in the absence of particulars the application was meaningless and raised no case to answer. 

  3. The Applicant did not file a written submission but attended Court.  He made an oral submission and told the Court that it was true that he not attended the Tribunal hearing. He said that he was ill on that day.  However, he conceded that he did not contact the Tribunal to tell the Tribunal that he was ill.  The Applicant asked the Court to hand down a decision today, which I intend to do. I asked the Applicant about his claim that the Tribunal was biased and he replied that he just felt that the Tribunal was not fair at all.

Conclusion

  1. The situation where an applicant for review of a Tribunal decision does not attend the Tribunal hearing, but appears at Court, is one quite often encountered in this Court. It is very difficult for an applicant to succeed in such circumstances.  The matter has been referred to in a number of decisions, including SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[3] and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[4].

    [3] [2005] FCA 1811

    [4] [2005] FCA 1306

  2. In SZDXC, Hely J said at [16]:

    “The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application”.

    What his Honour went on to refer to was that it was the inadequacy of the information provided by the appellant in that case that was the reason for the Tribunal rejecting his claim, coupled with the fact that the applicant had not attended the Tribunal hearing to elaborate on that claim. 

  3. Sadly, that is the case for this Applicant. He could have attempted to contact the Tribunal, if not before the hearing when he was sick, but after the hearing.  The Tribunal signed its decision on 3rd October 2007, which was several days after the date of the hearing of 28th September 2007. The Tribunal did not hand its decision down until 23rd October 2007. It would have possible for the Applicant or someone on his behalf to contact the Tribunal to explain the circumstances and seek to make submissions, or even seek further hearing. Unfortunately, the Applicant did not do this.

  4. There is, however, one issue which needs to be addressed. At paragraph 57 in the Tribunal's findings and reasons there is a reference to the Applicant, who either cannot or will not return to China because he fears harm there now or in the reasonably foreseeable future. Of course, the Applicant is a citizen of the Republic of Indonesia.  He is not claiming fear of harm in China, and whilst he is of Chinese ethnicity his claim has been assessed as against Indonesia as his country of nationality. 

  5. This is a matter, of course, that has been the cause of some discussion in the Court’s on previous occasions. In SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs[5], his Honour Greenwood J dealt with a case where the Tribunal had, in fact, made not one error about the applicant's nationality but, indeed, two.  That error was of such magnitude, a finding that the appellant did not have a well founded fear of persecution upon return to Peoples Republic of China where he was a national of Pakistan, constituted an error going to jurisdiction.

    [5] [2007] FCA 63

  6. Mr Reilly, of counsel, has submitted that this case can be distinguished from the decision in SZIFI. This is not a case where the Tribunal Member did not have her mind on the case.  It is clear throughout the decision, apart from the one reference to China, that the Applicant's claim was always assessed against the Republic of Indonesia. The findings and reasons refer to the Applicant's claim of having left Indonesia and feared to return there. The Applicant was described as having run a Chinese restaurant in Indonesia which sold pork, and right throughout the claims and evidence there is a description of the Applicant being Indonesian and having a shop in a small town in Jakarta in an area where there are a lot of Muslims. 

  7. What then should the Court make of the erroneous reference to China that appears on page 57 of the Court Book?  I am satisfied that it is no more than a slip of the pen.  It is, perhaps, explained by the fact that the Applicant, whilst a citizen of Indonesia, is of Chinese ethnicity and ran a Chinese restaurant.  I am not satisfied, however, that the Tribunal was unaware of the country against which the Applicant's claims should be assessed. 

  8. In my view, the decision in SZIFI can be distinguished on its facts and I am not satisfied that the misdescription on the one occasion constitutes jurisdictional error. 

  9. The Applicant is not legally represented. The grounds that he set out do not contain any jurisdictional errors.  He claimed that the Tribunal was biased, but no made no more of a mere assertion of that fact.  Bias is a serious allegation implying, as it does, personal fault of the part of the decision maker and as the Full Court of the Federal Court has made clear in SBBF v Minister for Immigration & Multicultural Affairs[6] and SBBS v Minister for Immigration & Multicultural Affairs[7], it must be strictly alleged and strictly proved. There is no evidence of bias in this case. 

    [6] [2002] FCAFC 358

    [7] [2002] FCAFC 361

  10. The claim of an error of law in the procedures under the Migration Regulations were not observed, has not been substantiated. It my view, it is clear that the Migration Act and Regulations were observed. There is no breach of section 424A of the Migration Act in that the Tribunal relied solely on the inadequacy of the information before it. There is no breach of section 425 of the Act in that the Applicant was invited to attend the hearing and provided with an interpreter but did not attend.

  11. There is no breach of section 426A of the Act. In my view, the Tribunal exercised its discretion under section 426A correctly, when the Applicant did not appear without explanation, the Tribunal proceeded to make a decision, but did not sign that decision until several days after the hearing nor did it hand it down until 23rd October, another 20 days after the decision was signed. No jurisdictional error has been made out.

  12. I am mindful that the Applicant is not legally represented. I have read through the decision itself and I cannot discern any jurisdiction of error. I would comment that the Applicant's second numbered ground in his application, the decision involved an important exercise of the power conferred by the Migration Act and Regulations is not a ground as it does not allege any jurisdictional error.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  4 March 2008


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