SZMBO v Minister for Immigration & Anor
[2008] FMCA 748
•29 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 748 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming fear of persecution from terrorists – credibility – where the Tribunal found that the applicant had a right of entry to a third country – no reviewable error. PRACTICE & PROCEDURE – Delay – delay of seven months not sufficient to refuse relief on discretionary grounds. |
| Migration Act 1958 (Cth) ss.424AA, 424A, 425A, 425, 474 |
| Minister for Immigration and Citizenship v SZKKC (2007)159 FCR 565 |
| Applicant: | SZMBO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 666 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 May 2008 |
| Date of Last Submission: | 29 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2008 |
REPRESENTATION
| Applicant: | Applicant in person |
| Solicitor for the Respondent: | Ms Anniwell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application for an adjournment is refused.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,200.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 666 of 2008
| SZMBO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of India. He asks the Court to review a decision of the Refugee Review Tribunal that affirmed the decision of the delegate of the Minister for Immigration and Citizenship not to grant him a Protection (Class XA) visa.
The Applicant asks the Court to declare that the Tribunal decision is invalid and of no effect. He also asks the Court to remit his application to the Tribunal so that it may be determined according to law. The Applicant claims that the Tribunal decision is affected by jurisdictional error for three reasons:
a)The RRT denied proper application of law to the Applicant.
b)The RRT denied natural justice to the Applicant.
c)The RRT did not follow due procedure.
Background
The background to this matter is that the Applicant arrived in Australia on 22nd March 2007. He applied for a Protection (Class XA) visa on 9th May 2007. The basis of his application was that several members of his family had been killed in reprisal for his family having informed the police about the whereabouts of a terrorist. He himself was involved in an attack. The perpetrators of that attack were prosecuted and convicted, but were released 18 months prior to the Tribunal hearing, which caused the Applicant to leave the country. He went to Dubai and worked there. He returned to India briefly in March, but claims that people were still looking for him, obviously to cause him harm, so he returned to Dubai and then he travelled on to Australia.
The delegate of the Minister refused his application for a visa on 29th May 2007. The delegate noted that the Applicant had, and still has, a residence visa for the United Arab Emirates valid until 11th October 2008. The Applicant had been living and working in the United Arab Emirates prior to arriving in Australia.
The delegate referred to subsections 36(3), (4) and (5) of the Migration Act which provide that, where a non‑citizen in Australia has a right to enter and reside in a third country, that person will not be owed protection obligations in Australia if he or she has not availed himself or herself of that right, unless the conditions prescribed in either sub‑sections 36(4), 36(5) are satisfied. The delegate noted:
“The applicant has a valid residence visa, which provides the right to enter and reside in the UAE until 11 October 2008. He has made no claims to fearing persecution in that country or removal from the UAE to a country where he may be persecuted.
I find that the applicant has the right to enter and reside in a safe third country.”[1]
[1] See Court Book at page 33
Application for Review by the Refugee Review Tribunal
After the application for a visa was refused by the Minister's delegate, the Applicant then sought a review of that decision from the Refugee Review Tribunal. The Court Book shows that the application for review was received by the Tribunal on 19th June 2007. The Applicant did not provide any other documentary evidence to the Tribunal with his application.
The Tribunal wrote to the Applicant on 20th June 2007 acknowledging receipt of his application. On 18th July 2007 the Tribunal sent two separate letters to the Applicant. The first letter was headed, "Invitation to Comment on Information in Writing". The letter invited the Applicant to comment on information that the Tribunal considered would, subject to any comments he made, be the reason or a part of the reason for affirming the decision that was under review. The letter went on to say:
“The particulars of the information are:
· You have a valid visa for residence in the United Arab Emirates.
This information is relevant to the review because it may lead the Tribunal to conclude that Australia is under no obligation to protect you from the persecution in India, which you claim to fear.”[2]
[2] See Court Book at page 41
The Tribunal's letter invited the Applicant to give comments in writing by 10th August 2007. The letter was clearly written in an endeavour to comply with the requirements of s.424A of the Migration Act.
The Tribunal's second letter of 18th July 2007 invited him to attend a hearing to take place on 15th August 2007. The Applicant attended the hearing on 15th August 2007, where he gave evidence with the assistance of an interpreter in the Punjabi language. The Applicant produced his Indian passport and the Tribunal took a photocopy of it. The passport contains a visa entitling the Applicant to enter and remain in the United Arab Emirates.
At the hearing, the Tribunal Member asked the Applicant about that visa and asked him about his substantive claims. The Tribunal signed its decision on 15th August 2007, the day of the hearing, and handed the decision down that same day. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found at pages 60 through to 67 of the Court Book.
In the decision record the Tribunal set out the Applicant's claims and evidence from his primary application and referred to the letter written to the Applicant on 18th July 2007 under the provisions of s.424A of the Migration Act. The Tribunal noted:
“No reply was received to the letter and no reply was received to the hearing invitation.”[3]
[3] See Court Book at page 64
The Tribunal set out the Applicant's oral claims and evidence, noting that the Applicant's passport contained a visa from the United Arab Emirates, which was a three‑year visa issued on 12th October 2005 and valid until 11th October 2008. The Tribunal says:
“I explained to him that Australia had no obligation to offer protection to a person who had a right of entry to and residence in a country where he had no fear of persecution.
The applicant said that he felt he had to find another country because he couldn't wait until his UAE expired.”[4]
[4] See Court Book at page 64
The Tribunal decision also refers to country information from the Department of Foreign Affairs and Trade to clarify the situation of people who have valid resident visas for the United Arab Emirates. A summary of that information can be found at pages 64 and 65 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on the pages 65 through to 67. The Tribunal accepted that the Applicant was a citizen of India. The Tribunal Member went on to say, somewhat acidly, perhaps:
“I will ignore the fact that the applicant's claims at hearing were very different to the written claims he submitted with his primary application. Neither sets of claims have any credibility.
With his primary application, he submitted no corroborating evidence to support his claim that his family had denounced a terrorist who was seeking revenge on the family. There are no names or dates. If a terrorist had, indeed been caught, prosecuted and convicted after a 6 year trial, as he claimed, there would be press reports at least.
At hearing, the applicant could not account for the claimed attacks on him and his family. Neither could he plausibly explain why it would be unsafe for him elsewhere in India. He has demonstrated a capacity to move from India to Dubai; I find that it is reasonable for him to move to a city in some other parts of India and escape any fears he has in his home village.”[5]
[5] See Court Book at page 65
The Tribunal did not accept the Applicant's substantive claim on credibility grounds. The Tribunal went on to find:
“In addition, I find that the applicant has a right of entry to and residence in the United Arab Emirates.”[6]
[6] See Court Book at page 66
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee Convention and, therefore, did not satisfy the criterion set out in sub‑section 36(2)(a) for a protection visa.
Application for Judicial Review
The Applicant has applied to the Federal Magistrates Court for judicial review of the Tribunal decision. His application and affidavit in support were filed on 19th March 2008. He confirmed that he had not filed any amended application or any written outline of submissions, although directions made on 14th April 2008, the First Court Date, made provision for him to do so.
The Applicant was asked if he wished to make oral submissions, and indicated that he did not know what to say. He confirmed to the Court that he had attended the Tribunal hearing and had given evidence with the assistance of an interpreter.
The Minister for Immigration and Citizenship has filed a written outline of submissions, and a copy of those submissions had been given to the Applicant. He brought the submissions with him to the Court, and the Court interpreter went through the document with him, and I am satisfied that the Applicant understood the contents of the outline of submissions.
After having heard from the solicitor for the Minister, I asked the Applicant if he wished to make any further submission. He told the Court that he would like to obtain some documents from his home country for use in the proceedings, for example, a copy of a police report. I have taken this to be an application for an adjournment, and I have refused the application. I informed the Applicant that the Court would not consider and did not have the jurisdiction to consider fresh evidence, especially as the Applicant was referring to evidence that had not been seen by the Refugee Review Tribunal.
The Applicant's grounds of review are:
Ground 1 - the RRT denied proper application of law to the Applicant.
Ground 1 claims that the Refugee Review Tribunal denied proper application of law to the Applicant. No particulars have been provided about that ground. There is no evidence that the Tribunal failed to follow the requirements of the Migration Act. The Tribunal wrote to the Applicant before the hearing in a letter which I am satisfied complies with the provisions of s.424A of the Migration Act pointing out to him that he was the holder of a valid visa entitling him to enter the United Arab Emirates and had a right to enter and remain in that country, at least until 11th October 2008.
The Applicant was given an opportunity to comment on that information prior to the hearing in writing, but elected not to do so. I note that this very issue was raised at the hearing with the Applicant by the Tribunal Member. The Applicant's answer was that he did not wish to wait until 11th October 2008 in order to find another country to live. It does not appear to me that there has been any failure to comply with s.425AA of the Migration Act, which came into operation on 29th June 2007.
The Tribunal invited the Applicant to attend a hearing under the provisions of s.425 of the Migration Act. The Tribunal provided the Applicant with an interpreter and invited him in sufficient time for him to attend the hearing. He did attend, and he gave evidence with the assistance of an interpreter.
The question of the Applicant's visa to enter and reside in the United Arab Emirates was raised with the Applicant by the Tribunal at the hearing and prior to the hearing. It was that fact that had prompted the delegate to refuse the application for a visa. Of course, the Tribunal also rejected the Applicant's claims on credibility grounds. This was not a matter that the delegate had addressed, concentrating solely on the issue of the Applicant's right to enter the United Arab Emirates. To my mind, nothing turns on that.
There was no finding by the delegate that the Applicant's substantive claims had been accepted, and the Tribunal had made it clear in its letter of invitation of 18th July 2007 that it had considered the material before it but was unable to make a favourable decision on that information alone. The Applicant was certainly not taken by surprise to find that the Tribunal did not accept his claims. I am satisfied there has been no breach of s.425 of the Migration Act, and I am satisfied that, overall, no breach of the act has occurred.
Ground 2 - the RRT denied natural justice to the Applicant.
The Applicant has claimed in his second ground that the Tribunal denied him natural justice. He has provided no particulars of that claim, and it is difficult to see how a denial of natural justice could be made out. It is the situation, of course, under s.422B of the Migration Act that Division 4 is taken to be an exhaustive list of the requirements of the natural justice hearing rule in relation to the matters that it deals with. I am satisfied that the Tribunal complied with the requirements of ss.424AA , 424A ,425 and 425A.
The Applicant attended the hearing and was provided with an interpreter and was able to give evidence. Ultimately, his evidence was not accepted. The issue about his visa to enter the UAE was fairly and squarely before him and he was aware of it before the hearing. There has been no denial of natural justice.
Ground 3 - the RRT did not follow due procedure.
The third ground claims that the Refugee Review Tribunal did not follow due procedure. That ground is also unparticularised and, in my view, the reasons that I have given in dismissing the Applicant's first and second grounds apply equally to the third ground.
The Minister’s Amended Response
I note that in the Minister's amended response filed on 11th April 2008 three reasons were given, two of which have not been argued. The Minister for Immigration and Citizenship opposes this application on three grounds:
Ground 1 - The Court lacks jurisdiction to hear the Application. [Rule 44.06(2)(a)]
That the Court lacks jurisdiction to hear the application, because the decision was made by the Tribunal on 15th August 2007 and the application states that the Applicant was notified of the decision on that date. The Applicant was not filed until 19th March 2008, which is outside the maximum period of 84 days, which is prescribed by s.477 of the Migration Act. Accordingly, the Minister submits that the application is out of time and the Court has no jurisdiction to hear it.
The amended response refers to the decision in Minister for Immigration and Citizenship v SZKKC[7] and notes that actual notification to an applicant of a decision of the Tribunal must be accomplished by physical delivery of a written statement prepared by the Tribunal to an applicant personally. There is, of course, no evidence of that, but there is a formal submission that the matter of SZKKC was wrongly decided.
[7] (2007)159 FCR 565
The Minister, however, accepts that that decision is binding upon the Federal Magistrates Court. I am satisfied that a decision of the Full Court of the Federal Court of Australia on an appeal from the Federal Magistrates Court is binding on the Federal Magistrates Court. Even if that ground had been argued before me, I would not have accepted it.
Ground 2 – There has been delay in seeking the remedy. [Rule 44.06(2)(b)]
The second ground relied upon in the amended response is that there has been delay in seeking the remedy. The delay is the same period of time referred to in the first ground ‑ namely, that the decision was made on 15th August 2007 and the Applicant, on his own admission, had notice of that decision as from that date. However, he did not commence proceedings until 19th March 2008.
The Minister submits that the Court would not be satisfied that it is in the interests of the administration of justice to extend time, having regard to the circumstances of the case, which demonstrate an excessive delay by the Applicant, especially in the absence of any obvious error in the decision subject to the application for review. Neither of those grounds has been argued before me today.
The delay has not been explained and, in my view, it is not, in the circumstances, an excessive delay. I would not be satisfied, even if that ground had been argued, that a delay of approximately seven months should of itself be sufficient to deny relief. However, the Applicant has not provided any grounds to show that the Tribunal decision is affected by jurisdictional error.
Ground 3 – Application has not raised an arguable case for the relief claimed. [Rule 44.12(1)(a)]
The third ground is that the application has not raised an arguable case for the relief claimed.
The possession of a visa entitling the Applicant to enter into and remain in the United Arab Emirates, certainly until 11th October 2008 is a matter which of itself would be sufficient to entitle the Tribunal to affirm the delegate's decision. Sub‑section 36(3) of the act provides:
Section 36 – Protection visas
Protection obligations
“(3) Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.”
Sub-section (4) goes on to say:
“(4) However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.”
Sub‑section (5) goes on to say:
“(5) Also, if the non‑citizen has a well‑founded fear that:
(a) a country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.”
The Tribunal addressed those points. The Tribunal put that matter to the Applicant, both in writing before the hearing and orally at the hearing. The Tribunal considered Independent Country Information about that matter. The Tribunal found that the Applicant had a right of entry to and residence in the United Arab Emirates. I am satisfied that the Tribunal did not misunderstand the law in that regard. The Tribunal also, as I said, was not satisfied with the Applicant's primary claims.
Conclusion
I accept the fact that the Applicant is not legally represented. My reading of the Tribunal decision and the supporting documents in the Court Book does not indicate to me any arguable case for any jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by sub‑section 474(2) of the Migration Act. Accordingly, under sub‑section 474(1) it is final and conclusive and not subject to declaration, certiorari or mandamus. It follows that the application must be dismissed.
The Minister for Immigration and Citizenship asks the Court to make an order for costs in the sum of $3,200.00. Ms Anniwell for the Minister has submitted that if the Court is satisfied that an order for costs should be made a proper figure on a party and party basis would be a fixed sum of $3,200.00. The Applicant has said that he cannot afford to pay the costs because he is not working.
The Applicant has been wholly unsuccessful in his claim, and I am satisfied that this is a matter where the Court should make an order for costs in favour of the First Respondent, the Minister. The amount sought is $3,200.00. That is an amount well within the scale provided by the Federal Magistrates Court Rules and is, to my mind, an appropriate figure. I note that the application has had two Court events. There was a First Court Date on 13th April 2008 and a Final Hearing today. I have no difficulty in finding that the sum of $3,200.00 is an appropriate figure. Indeed, it is a modest sum.
The Applicant says that he cannot pay the costs, but that is not of itself reason not to make an order for costs. The inability to pay due to financial impecuniosity can be addressed by the Court in allowing time to pay. I propose to allow four months to pay.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 June 2008
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