SZMGF v Minister for Immigration & Anor
[2008] FMCA 1517
•18 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1517 |
| 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 Malaysia claiming fear of persecution by “local bullies” – where applicant did not attend Refugee Review Tribunal hearing – where Tribunal found no Convention nexus – no jurisdictional error. PRACTICE & PROCEDURE – Interpreter – where applicant nominated Malay as her language of choice but had previously nominated Mandarin to the Department of Immigration and Citizenship and to the Refuge Review Tribunal. |
| Migration Act 1958 (Cth) ss.36, 65, 425, 425A, 426A, 474 |
| NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 |
| Applicant: | SZMGF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1219 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 November 2008 |
| Date of Last Submission: | 3 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms Whittemore |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1219 of 2008
| SZMGF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of Malaysia, asks the Court to set aside a decision of the Refugee Review Tribunal made on 8th April 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
In her application, which was filed on 14th May 2008, the Applicant claims that the Refugee Review Tribunal applied the wrong test in that it required that there should be an “evidentiary basis” before a claim by the Applicant could be accepted.
Background
The Applicant arrived in Australia in October 2007 and applied for a Protection (Class XA) visa on 20th November 2007. In her application she claimed to fear harm from “local bullies” who had asked her for protection money and attempted to use her shop for illegal activities.
The delegate was not satisfied that the harm feared was from the Malaysian Government or that she would be denied state protection if required. The delegate found:
Whilst I accept that she may have been approached in July 2007 to pay protection money to a local criminal group in Malaysia, this is a criminal matter and there is no basis to believe that it was related to her religious or political beliefs or civil or national status.[1]
[1] Court Book at 33
The delegate refused the application for a protection visa on 11th December 2007.
Application for Review by the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 9th January 2008. In her application she gave a residential address in Western Australia[2] but nominated a Post Office Box in the Sydney suburb of Bardwell Park as her address for correspondence.[3] The Tribunal wrote to her at that address on 9th January, acknowledging receipt of her application.
[2] Court Book 37
[3] Court Book 38
The Tribunal wrote again to the Applicant on 24th January 2008, inviting her to attend a hearing on 5th March 2008 to give oral evidence and present arguments, as provided by s.425 of the Migration Act. On 11th February 2008, the Tribunal received a completed form of Response to Hearing Invitation, indicating that the Applicant did wish to attend the Tribunal hearing and would require the assistance of an interpreter in the Mandarin language.
The Applicant did not attend the hearing on 5th March 2008.
The Refugee Review Tribunal Decision
The Tribunal noted that the Applicant had neither attended the hearing nor contacted the Tribunal to explain her failure to attend, so it proceeded to make a decision on the basis of the material before it, under the provisions of s.426A of the Migration Act.
The Tribunal’s Findings and Reasons
The Tribunal found the Applicant’s claims to be “brief and lacking in detail”.[4] Further, the Tribunal expressed itself to be unable to be satisfied on the evidence that:
…the applicant and her brother were asked for protection money or were asked to sell some illegal things in their shop by ‘local bullies’ as she claims, nor that the applicant genuinely fears that the ‘local bullies’ will always damage their shop or chase them, harm them of kill them because they did not obey their or orders or because they reported the ‘local bullies’ to the police.[5]
[4] Court Book 54
[5] Ibid
Further, the Tribunal found:
Moreover I am likewise unable to be satisfied on the evidence before me that one or more of the five Convention reasons is the essential and significant reason for the persecution which the applicant claims to fear from the ‘local bullies’.[6]
[6] Ibid
The Tribunal found itself unable to be satisfied on the evidence that there was a real chance that, if the Applicant returned to Malaysia at the time of the hearing or the reasonably foreseeable future, she would be persecuted for one or more of the five Convention reasons.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Convention and therefore did not satisfy the criterion in s.36(2)(a) of the Migration Act for the grant of a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court on 14th May 2008 by filing an application and an affidavit in support. Curiously, in the application she indicated that she needed an interpreter in the “Indonesia” language, although she had previously asked for an interpreter in Mandarin for the Tribunal hearing.
As it turned out, although an interpreter in the Malay language had been ordered, no interpreter in that language was available at the hearing. However, an interpreter in mandarin was available and I decided to proceed with the hearing in that language. The Applicant did not object and did not appear to have any difficulty in understanding or making herself understood.
Whilst it was unfortunate that, due to circumstances beyond the Court’s control, there was no interpreter in the Malay language available, I am satisfied that a Mandarin interpreter was adequate in the circumstances, for these reasons:
i)In her application for a protection visa the Applicant advised that she would a Mandarin interpreter if she were called for an interview.
ii)In her application for a protection visa the Applicant advised that she speaks, reads and writes these languages in order of preference:
Mandarin
Malay
English[7]
iii)In her application for a protection visa, the Applicant indicated her ethnic group as “Chinese”.[8]
iv)In her Application for Review by the Refugee Review Tribunal the Applicant nominated “Mandarin” as the language in which she needed an interpreter.[9]
v)In her Response to Hearing Application the Applicant nominated “Mandarin” as the language in which she needed an interpreter.[10]
[7] Court Book 13
[8] Ibid
[9] Court Book 37
[10] Court Book 44
Accordingly, the hearing proceeded with an interpreter in Mandarin.
The Applicant confirmed that she did not attend the Tribunal hearing, saying that the person who prepared the documents for her did not tell her about it. When asked if she would like to address the Court to expand on the rather sparse ground in her application the Applicant said that all the material in her application and affidavit was prepared by “that person” and she did not “really know about it”.
Submissions
The Applicant did not file any written outline of submissions. She made no oral submissions other than to say that she was not told about the hearing and she did not really know anything about what was in her application. She was offered the opportunity to speak further but did not do so.
Ms Whittemore, who appeared for the Minister, confirmed that the Applicant had said that her adviser, whoever he or she was, had prepared all the Applicant’s documents for her. Ms Whittemore submitted that the Applicant’s only ground, that the Tribunal required that there should be an evidentiary basis before a claim by the Applicant could be accepted was meaningless without further particulars and must fail.
It was submitted for the Minister that the basis of the Tribunal’s decision was its inability on the available information to reach the level of satisfaction required to grant the Applicant a protection visa (Migration Act, s.65). It will be difficult for the Tribunal to achieve the requisite degree of satisfaction if the Applicant does not provide sufficient information, as in cases where the Applicant does not attend the hearing to give evidence about his or her claim. In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs[11], NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[12], and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[13]).
[11] [2004] FCAFC 208
[12] [2004] FCAFC 287
[13] [2005] FCAFC 73
Conclusions
It appears clear that the Tribunal complied with the requirements of section 425 by inviting the Applicant to a hearing and providing an interpreter for her, had she attended. The notice to appear, sent on 24th January 2008[14], complied with the requirements of s.425A, in that it gave her notice of the day on which, and the time and place at which, she was scheduled to appear. It was given to the Applicant by one of the means set out in s.441A, namely s.441A(4), in that it was posted by prepaid post to the Applicant’s postal address given in her application for review, which was the Applicant’s last address for service provided to the Tribunal by the Applicant.
[14] Court Book 42-43
The notice also contained a statement of the effect of section 426A, in that it said:
Please note that the Tribunal may make a decision without further notice, if an applicant to appear before the Tribunal fails to attend the scheduled hearing.[15]
[15] Court Book 42
I am satisfied that the Tribunal complied with the requirements of both sections 425 and 425A of the Act.
The Tribunal also complied with s.426A of the Act. The Applicant was invited to attend a hearing on 5th March 2008, but failed to appear. She did not advise the Tribunal of any reason why she could not attend. The Tribunal did not finalise the matter on the spot, but signed its decision on 17th March, some 12 days later, and did not hand its decision down until 8th April 2008. There is no record of any of the letters to the Applicant being returned unclaimed.
This is, unfortunately, yet another case where an applicant has failed without explanation to attend a Tribunal hearing. The Tribunal had advised her that it was not in a position to make a decision in her favour on the material that was before it, which is why it invited her to attend a hearing, where she could give oral evidence and present arguments in support of her case. The Applicant did not attend, nor did she forward any further documentary evidence to the Tribunal, so it was left with nothing more than the material which it had already found insufficient to be satisfied that it should make a decision in her favour. It is not surprising, and indeed almost inevitable, that her application would fail (see SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[16] at [17]-[18]; SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[17] at [16]; NAVX v Minister for Immigration & Multicultural & Indigenous Affairs[18] at [5]).
[16] [2005] FCA 1811
[17] [2005] FCA 1306
[18] [2004] FCAFC 287
The Applicant complains that the Tribunal required that there should be an evidentiary basis before a claim by the Applicant could be accepted. The Tribunal needed to have evidence upon which it could be satisfied that the Applicant met the criterion for a protection visa under s.36(2). In the absence of evidence, or where the evidence is insufficient to enable the Tribunal to reach a positive state of satisfaction, the Tribunal had no choice but to refuse the application for a visa.
There is no jurisdictional error. The Tribunal decision is a privative clause decision and, as such, is final and conclusive (s.474). The application will be dismissed with costs.
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: 7 November 2008
0
5
1