SZMGH v Minister for Immigration - [2008] FMCA 1350

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMGH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1350

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 426A

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592

Applicant:

SZMGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1221 of 2008

Judgment of:

Barnes FM

Hearing date:

22 September 2008

Delivered at:

Sydney

Delivered on:

22 September 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $2,650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1221 of 2008

SZMGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 8 April 2008, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Malaysia, arrived in Australia in August 2007 and applied for a protection visa. In his protection visa application he claimed that a friend had introduced him to the possibility of work in Indonesia but he had refused because he had been afraid or believed that it involved terrorism or terrorist activity. He claimed that his friend and his friend’s friends were not happy and continued to chase him and that they would kill him if he again refused their request. He claimed that the police were unable to protect him as they did not have the power to do so and that he may be forced to engage in some terrorist activity.
The application was refused by a delegate of the first respondent who was not satisfied that the applicant’s claimed fear was for a Convention reason.
The applicant sought review by application lodged with the Tribunal on 9 January 2008. By letter dated 24 January 2008 the Tribunal invited the applicant to attend a Tribunal hearing. That letter advised the applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. It contained details of the place, date and time of the Tribunal hearing and advised the applicant that if he failed to appear or to attend the Tribunal hearing the Tribunal may make a decision without further notice. The letter also invited the applicant to provide any additional information he wished to put before the Tribunal.
The Court Book contains a response to hearing invitation form dated 11 February 2008 apparently signed by the applicant, indicating that he intended to attend a Tribunal hearing. However the Tribunal hearing record and the Tribunal reasons for decision indicate that the applicant did not attend the hearing. Nor did the applicant contact the Tribunal to explain his failure to attend. In those circumstances the Tribunal was satisfied that it had discharged its obligation to give the applicant an opportunity to appear before it to give evidence and made its decision on the basis of the material before it.
The Tribunal outlined the applicant's claims as they appeared in the protection visa application. It indicated that in essence the applicant claimed to fear harm from his friend or his friend’s friends, who he suggested were somehow involved in terrorist activity. However the Tribunal found that the applicant’s claims were “exceedingly vague and lacking in any essential details” and clarity.
On the material before it the Tribunal was not satisfied that the applicant was “chased” or “threatened in Malaysia by people whom he believed to be involved in terrorist activity” as he claimed. Nor was it satisfied that there was a real chance that if he returned to Malaysia now or in the reasonably foreseeable future he would be “chased or threatened, forced to do some terrorist activity or mistreated or killed” if he refused. The Tribunal was also unable to be satisfied on the material before it that there was a real chance if the applicant returned to Malaysia now or in the reasonably forcible future, that he would be persecuted for one or more of the five Convention reasons. It followed that the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 14 May 2008. That application contains two general and unparticularised grounds:
(1) The Refugee Review Tribunal failed to address the whole relevant information in relation to my claims for a protection visa.
(2) The Refugee Review Tribunal failed to consider that I have a well founded fear of persecution for a Convention reason.
The applicant did not file written submissions and when given an opportunity to elaborate on these claims in oral submissions today he indicated that he had nothing to add.
Contrary to the contention in ground one of the application the Tribunal did have regard to the applicant’s claims as set out in the protection visa application. The applicant has not identified any information which he claims that the Tribunal failed to consider and on the material before the Court it is not apparent that any other material from the applicant in the form of claims was in fact put before either the Department or the Tribunal.
It is well established that an applicant must advance his own case and whatever evidence or argument he wishes to advance in support of his claims and that it is for the Tribunal to then decide whether that claim is made out (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ). This is not a case in which the circumstances are such as to indicate that the Tribunal was under any obligation to undertake its own inquiries or to seek further information (see NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592). The first ground is not made out.
Nor is the second ground made out. The Tribunal did consider whether on the evidence before it, it could be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. It is apparent reading the Tribunal decision fairly and as a whole that the Tribunal considered whether the applicant had been persecuted in the past as he claimed and also whether there was a real chance that he would be persecuted in the reasonably foreseeable future for a Convention reason.
The basis of the Tribunal's decision was, as submitted for the first respondent, its inability on the available information to reach the level of satisfaction required of it under s.65 of the Migration Act1958 (Cth) to grant the applicant a protection visa. As made clear in authorities such as NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208; NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, in the absence of a positive finding of satisfaction that the requirements for the grant of the visa are met the application must be rejected.
In this case the Tribunal had indicated to the applicant in the invitation to hearing letter that it was unable to find in his favour on the basis of the material before it and invited him to attend the Tribunal hearing to provide additional information. The Tribunal was not obliged to accept at face value the applicant’s short and very vague outline of the basis for fearing persecution in his home country (see NAVX at [5]). When the applicant failed to accept the opportunity to attend a Tribunal hearing the inevitable consequence was the rejection of his application.
There is nothing in the material before the Court to indicate that the Tribunal in any way failed to comply with its procedural obligations in Division 4 of Part 7 of the Act, in particular in relation to the invitation to the Tribunal hearing which was addressed to the only postal address provided by the applicant in his application for review and to which he responded. Nor is there anything to indicate that the Tribunal erred in the manner in which it exercised its discretion to proceed under s.426A of the Act to determine the matter without taking any further steps to enable the applicant to appear before it.
The only other point to note is that in the affidavit accompanying his application to this Court, the applicant contended that his claims for a protection visa were genuine. Insofar as the applicant seeks merits review, merits review is not available in this Court.
No jurisdictional error has been established by the applicant. Nor is any such error apparent on the material before the Court in relation to the Tribunal decision or procedures. In those circumstances the application must be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 29 September 2008