SZMIO v Minister for Immigration
[2008] FMCA 1318
•11 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1318 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse a protection visa to the applicant – where applicant did not attend RRT hearing – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.91R, 91S, 424A, 425, 425A, 426A, 430A, 441A |
| NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 |
| Applicant: | SZMIO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1407 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 September 2008 |
| Date of Last Submission: | 11 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Crittenden |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fix in the sum of $3,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1407 of 2008
| SZMIO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Malaysia. He asks the Court to review a decision of the Refugee Review Tribunal that was handed down on 29th April 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa. By his application, the Applicant asks the Court to issue the following writs:
i)A writ of certiorari quashing the Tribunal decision;
ii)A writ of mandamus requiring the Tribunal to consider the Applicant's application for review of the delegate's decision according to law.
I have explained to the Applicant that in order to make the orders that he seeks in his application the Court must be satisfied that the decision is affected by jurisdictional error.
In his application, the Applicant sets out two grounds of review:
1. The Refugee Review Tribunal failed to do the test of serious harm to exist and applicant must suffer experiences which threaten his capacity to exist.
2. The Tribunal did not fully consider my terrible experience when I was in Malaysia.
The First Respondent, the Minister for Immigration and Citizenship filed a Response on 11th June 2008 opposing the orders sought.
Background
The background to this matter is that the Applicant arrived in Australia on 2nd October 2007. He applied to the Department of Immigration and Citizenship in Darwin for a Protection (Class XA) visa on 13th November 2007. On 12th December 2007, a delegate of the Minister for Immigration and Citizenship refused the application for a protection visa.
The delegate noted the Applicant's claim that his father runs an electrical business in Malaysia and was approached by some strangers to do some work for them, which aroused the Applicant's father's suspicions that the work was illegal. When his father declined to take on the work, the strangers threatened his father, and some of his father's employees called the police.
The Applicant claimed that a few days later his father's workshop was damaged and some tools were destroyed. Whilst the matter was reported to the police, they took no action apart from accepting the report. The Applicant's father considered that the strangers were, in fact, terrorists and was worried for the applicant's safety. The Applicant left Malaysia and fled to Australia.
The Minister's delegate in refusing the application stated that the Applicant's fears were essentially related to matters that could best be described as criminal in nature and not related to any of the reasons in the Refugee Convention. The delegate found:
“I am not satisfied that the applicant has identified a Convention reason as the essential and significant reasons for his subjective fear of harm. I consider there is no nexus between the applicant's claimed circumstances and any Convention reason.
I find that the reasons for the harm the applicant fears is not essentially and significantly for one or more of the Convention reasons of race, religion, nationality, membership of a particular social group or political opinion, real or imputed.”[1]
[1] See Court Book at page 42.
Application to the Refugee Review Tribunal
When the application for a visa was refused, the Applicant then applied to the Refugee Review Tribunal for review of that decision. The Tribunal received the Applicant's application on 11th January 2008. In that application, the Applicant set out a residential address in the Northern Territory but gave a postal address as a Post Office Box in a suburb of Sydney.
The Tribunal wrote to the Applicant at that address acknowledging his application, and on 5th February 2008 invited him to attend a hearing of the Tribunal scheduled for 10:00am on 8th April 2008.
The Applicant completed a Response to Hearing Invitation and forwarded that document to the Tribunal. A copy of the Response to Hearing Invitation dated 20th February 2008 can be found at page 56 of the Court Book. In the Response to Hearing Invitation, the Applicant gave a different home address in another suburb of Sydney and a different postal address, being a Post Office Box number in that same suburb. He indicated in the Response to Hearing Invitation that he would require an interpreter in the Mandarin language.
The Tribunal noted the Applicant's change of residential and postal address and, according to a case note dated 20th February 2008, updated the Tribunal's records. The Applicant did not attend the hearing of the Tribunal on 8th April 2008. An interpreter was available in the Mandarin language, but the Applicant did not appear.
The Tribunal wrote to the Applicant that same day, 8th April 2008. The letter was addressed to the Applicant's new postal address. That letter was an invitation under the provisions of s.430A of the Migration Act to attend the handing down of the Tribunal decision at 2:30pm on 29th April 2008, some three weeks later. The letter contained specific advice that was typed in bold, saying:
“The Tribunal Member has asked that you be advised he will consider any further evidence you lodge with the Tribunal prior to the decision being handed down. Subject to that evidence, the Member may even consider scheduling a further hearing.”[2]
[2] See Court Book at page 61.
The Tribunal signed its decision on 8th April and handed that decision down on 29th April 2008. No further documentary evidence or any other communication seems to have been received by the Tribunal between the date that the hearing was scheduled and the handing down of the decision three weeks later.
The Tribunal’s Findings and Reasons
The Tribunal affirmed the decision of the Tribunal not to grant the Applicant a Protection (Class XA) visa. The Tribunal decision, which is relatively short, can be found in the Court Book at pages 66 to 71. In the decision record the Tribunal sets out a statement of the relevant law, including the definition of "refugee” referring to the provisions of ss.91R and 91S of the Migration Act.
The Tribunal set out the evidence that was before it in the section headed "Claims and evidence". In that section of the decision, the Tribunal noted that the Applicant had forwarded a Response to Hearing Invitation which advised that he would attend the Tribunal hearing.
The Tribunal noted that the Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. The Tribunal Member noted that in the decision handing down letter that was sent out the Member specifically asked that the Applicant be advised that if he were to contact the Tribunal prior to its decision being handed down the Tribunal would consider any further evidence that the Applicant lodged and, depending on that evidence, might even consider scheduling a further hearing. The decision went on to say:
“The Tribunal Member is not aware of any further evidence being lodged with the Tribunal.”[3]
[3] See Court Book at page 69.
The Tribunal decided to exercise its powers under s.426A of the Migration Act to make a decision on the review without taking any further action to enable the Applicant to appear. The Tribunal considered the Applicant's claims and accepted that the Applicant was a national of Malaysia based on the photocopy of the Applicant's Malaysian passport on the Departmental file. The Tribunal, however, was not satisfied that the evidence before it was sufficient. The Tribunal said:
“That said, based on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes refugee protection obligations in Australia.”[4]
[4] See Court Book at page 70.
The Tribunal was not satisfied that the statutory elements of the grant of refugee protection had been made out and was not satisfied that the fear that he claimed was well‑founded or that the harm that he feared was sufficiently serious to constitute persecution or that an essential and significant reason that the Applicant feared harm was for at least one of the reasons in the Refugee Convention.
The Tribunal was not satisfied that the Applicant had a well‑founded fear of persecution for a Convention reason in Malaysia and affirmed the decision not to grant the Protection (Class XA) visa.
The Application for Judicial Review
The Applicant commenced proceedings in this Court for judicial review by an application and affidavit in support filed on 2nd June 2008. The application came before the Court on 23rd June 2008 and, on that day, I made directions for hearing based on short minutes of consent orders signed by both the Applicant and a solicitor who was then employed for the Minister.
In his application, the Applicant had sought the interpreter in the Malay language, and an interpreter in that language was available and, at the request of the Applicant, I sought an interpreter in the Malay language for the purpose of the hearing. Such an interpreter has attended Court today to assist the Applicant.
The Applicant has not filed an amended application or any written outline of submissions. He has addressed the Court indicating that he did not agree with the Tribunal decision because he does not want to go back to Malaysia. He has told the Court that the situation there is very difficult and his father advised him not to come back to Malaysia.
I asked the Applicant to provide some detail about why it was that he did not attend the hearing of the Tribunal. The Applicant confirmed that he did not attend because he was not well on the day, suffering from a high fever. He told the Court that he did not consider asking the Tribunal for an adjournment of the hearing based on his illness.
The solicitor appearing for the Minister, Ms Crittenden, has submitted that the Applicant's grounds of review are not particularised and, in her submission, they are devoid of merit. She submitted that the Tribunal did not fail to apply the test of serious harm, nor did it fail to consider the Applicant's claims in full. The Tribunal, she submitted, was merely unable to reach the required state of satisfaction based on the evidence before it. She further submitted that the Tribunal validly exercised its discretion under s.426A of the act and it had complied with its obligation under ss.425A and 441A(4)(c)(i) of the Act and Regulation 4.35D of the Migration Regulations in the way it invited the Applicant to a hearing. She submitted that the Tribunal had complied with ss. 425 and 425A.
The Tribunal, she submitted, was not required to make further inquiries when the Applicant failed to attend the hearing and that the rejection of his application was, in her submission, an inevitable consequence of the Applicant's failure to accept the opportunity provided to him. The Minister relied on the authority of NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[5] in support of that proposition. The Applicant was offered an opportunity to reply to the oral submissions made on behalf of the Minister but indicated that he had nothing to add.
[5] [2004] FCAFC 287 at [5]
Ground 1
Dealing with the Applicant's two grounds, the first ground claims that the Tribunal failed to do the test of serious harm to exist, an applicant must suffer experiences which threaten his capacity to exist. The Tribunal did in its decision consider the definition of a refugee by referring to Article 1A(2) of the Refugee Convention and ss.91R and 91S of the act.
The Tribunal noted the four key elements to the Convention definition, being, first, an applicant must be outside his or her country; the application must fear persecution, which must involve serious harm and must involve an element of motivation on the part of those who persecute, the persecution must be for one or more of the Convention reasons; and the fear of persecution must be well‑founded.
The Tribunal dismissed the application on the basis of the inadequacy of the information before it. It should be recalled that the Tribunal's original letter to the Applicant inviting him to a hearing, which was sent on 5th February 2008, told the Applicant:
“The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.”[6]
[6] See Court Book at page 50.
The material before the Tribunal on the hearing date, 8th April 2008, was exactly the same as the material before the Tribunal when it sent its letter on 5th February 2008. The Applicant had not provided any further information by sending in any other documents and, of course, he had not attended the hearing. The Tribunal had even invited him to submit further evidence in its letter of 8th April 2008. The letter of that date even raised the possibility of a further hearing if any material had been submitted, but there was none. It appears to me that it is without doubt that the Applicant's first ground should be rejected.
Ground 2
The Applicant's second ground is that the Tribunal did not fully consider his terrible experience when he was in Malaysia. In my view, the Tribunal considered what limited evidence there was about the Applicant's terrible experience, but still found itself unable to make a decision in the Applicant's favour, bearing in mind that he had indicated that he was going to attend the hearing, but did not do so. Ground 2 must fail.
Conclusions
This is another example of a case where an applicant is invited to attend a hearing of the Tribunal but elects not to do so. The Applicant was aware of the Tribunal hearing. He indicated by sending in the Response to Hearing Invitation that he intended to attend the hearing, although, curiously, that response sought the assistance of an interpreter in the Mandarin language, whereas for the purpose of these proceedings, the Applicant has consistently sought and been provided with an interpreter in the Malay language.
It is well established that where the Tribunal has already decided that the information before it is insufficient to allow it to make a decision in the Applicant's favour, then the Applicant's failure to take advantage of the opportunity to attend a hearing will lead, if not to an inevitable but, at the very least, to a likely rejection of the application. (See SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs[7] and SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs[8]).
[7] [2005] FCA 1811
[8] [2005] FCA 1306
The Tribunal rejected the Applicant's application because there was insufficient evidence to grant the application. In my view, the Tribunal did comply with its obligations under ss.425 and 425A of the act.
It is noteworthy that the invitation to a hearing was dated 5th February 2008 and it referred to a hearing scheduled some two months later on 8th April 2008. That is a more than sufficient time to invite an Applicant to attend a hearing, as required by law. It may have been that the Tribunal considered that the Applicant's residential address was in the Northern Territory, even though his postal address was given as an address in Sydney. In any event, there was ample time for him to attend the hearing.
The Tribunal in its letter of 8th April 2008 extended an invitation to the Applicant to provide some information to it after he had not attended the hearing. It would have been possible to write to the Tribunal and enclose a medical certificate saying that the Applicant was ill and sought another hearing. It would have been possible for the Applicant to have forwarded a written statement setting out further information. The Tribunal invited him to do so. The Applicant those not to avail himself of the opportunity.
In my view, the inadequacy of the information before the Tribunal and the fact that the Applicant did not avail himself of the opportunity to attend the hearing were the reasons why the Tribunal affirmed the delegate's decision. There is no jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Accordingly, there is no basis for the issue of the writs of certiorari or mandamus that the Applicant claims. The application will be dismissed with costs.
I am satisfied that this is an appropriate matter for a costs order in favour of the First Respondent Minister in the sum of $3,700.00, which is below the amount allowed by the scale of costs in the Federal Magistrates Court Rules.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 23 September 2008
0
3
1