SZMMK v Minister for Immigration

[2008] FMCA 1459

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMMK v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1459

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal sent s.425(1) letter to wrong address – whether the Refugee Review Tribunal was obliged to invite the applicant to a hearing pursuant to s.425(1) of the Migration Act 1958 (Cth) where applicant told Refugee Review Tribunal she did not wish to come to a hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 65(2); 91R; 91S; 425; 425(1); 425(2)(b); 474; pt.8 div.2

SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171

Applicant: SZMMK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1725 of 2008

Judgment of: Emmett FM

Hearing date: 9 October 2008

Date of last submission: 9 October 2008

Delivered at: Sydney

Delivered on: 24 October 2008

REPRESENTATION

Applicant appearing on her own behalf

Solicitors for the Respondent: Mr R. Baird, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1725 of 2008

SZMKK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 May 2008 and handed down on 10 June 2008.

2. The applicant claims to be a citizen of Indonesia and of Chinese ethnicity (“the Applicant”).

3. The Applicant arrived in Australia on 23 November 2006 having departed legally from Soekarno-Hatta international airport on a passport and student visa granted on 5 January 2007.

4. On 1 February 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. On 21 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

6. On 18 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. 

7. On 21 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

8. On 7 July 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory. 

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of her protection visa application in which she stated she feared persecution by indigenous Indonesians by reason of her Chinese ethnicity. The Applicant claimed she was harassed and assaulted regularly and had been the victim of an attempted rape. The Applicant claimed “As a minority ethnic group we cannot do anything against them because the local government always ignore us”.

The Delegate’s decision

1. On 21 February 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

The Tribunal’s review and decision

1. On 18 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided a statement in support of the review application in which she briefly reiterated her claims. On 21 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

2. On 4 April 2008, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 21 May 2008 to give oral evidence and present arguments. The Applicant declined to attend that hearing and did not give oral evidence. 

3. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources. 

4. The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:

   “6.    The Applicant’s claims

   7.The Applicant claims to fear persecution in Indonesia by reason of her ethnicity. In particular, the Applicant claims:

   (a)“People always assaulted me and sometimes asked some money”;

   (b)“as a minority ethnic group we can not do anything against them [the indigenous people] because the local government always ignore us”;

   (c)the indigenous people tried to threaten her in various ways including attempting to “hit me by motorcycle”;

   (d)     on another day somebody attempted to rape her; and

   (e)she is frightened, anxious and unable to sleep and feels “unsecured”.

   8. Findings

   9. The Tribunal made the following findings and comments:

   (a)first, the Applicant’s claims are vague; secondly there is a complete absence of any corroborative information from the Applicant to assist the claims;

   (b)the vagueness of the claims led the Tribunal to doubt that the events outlined in them occurred and even if they did that it was not for Convention related reasons; and

   (c)there was no evidence to suggest that the Applicant and her family would not receive adequate state protection if they sought it from the authorities.”

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of an Indonesian interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.

2. The Applicant confirmed that she relied on the grounds contained in an application filed on 7 July 2008.

3. The grounds of the application are expressed to be as follows:

   “1.The decision of Refugee Review Tribunal was made in excess of the jurisdiction and is consequently void and of no effect.

   2.The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.

   3.The decision did not take into account the real situation which is in favour of the applicant”

4. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of her application generally. The Applicant confirmed that she had filed no evidence or submissions in support of her application. She also declined to make any oral submissions in support of her application.

5. None of the grounds are supported by particulars and make bare assertions of error that are not capable of review by this Court.

6. A fair reading of the Tribunal’s reasons for decision makes clear that the Tribunal wrote to the Applicant on 19 March 2008 inviting her to give oral evidence and present arguments at a hearing on 21 May 2008. On 23 April 2008 the Tribunal received a response to hearing form from the Applicant stating that she did not wish to attend the Tribunal hearing.

7. The Tribunal proceeded with its review without taking any further steps to invite the Applicant to come to a hearing. The Tribunal noted in its reasons the claims made by the Applicant to have a fear of persecution in Indonesia by reason of her Chinese ethnicity. The Tribunal had regard to independent country information that recognised that Chinese-Indonesians have been targeted from time to time during Indonesia’s history. However, the Tribunal had regard to information that disclosed that inter-ethnic tensions had noticeably decreased in Indonesia since 1999 and that ethnic Chinese are not currently persecuted by the Indonesian state nor are they denied protection by the local authorities.

8. The Tribunal found that the Applicant’s claims of attacks and harassment against herself and her family to be “lacking in detail and vague.” The Tribunal gave examples in its reasons of those claims in respect of which it would have expected more detail. For example, details about her alleged rape and the identity of her attackers. The Tribunal found that the Applicant had not provided sufficient information or relevant details to satisfy the Tribunal that her claims were true. The Tribunal found that even if her claims were true, the Applicant had not reported her alleged rape to the police and had not claimed that the police were unable or unwilling to assist her.

9. It is for the Applicant to satisfy the Tribunal that she meets the criteria required for a protection visa (SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 per Allsop J at [11] - [12]). In circumstances where she chose not to attend a hearing, it was not possible for the Tribunal to explore with her concerns it had arising from her written claims. Further, in the Tribunal’s letter of invitation to the Applicant to come to a hearing, the Tribunal stated that it had considered the material before it but was unable to make a favourable decision on that information alone. In the circumstances it cannot be any surprise to the Applicant that the Tribunal was any more satisfied when it came to make its decision upon her review without any further material or information being provided by the Applicant

10. In failing to appear at the hearing, the Applicant is taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of the Applicant’s material would be noted by the Tribunal, without an opportunity for the Applicant to explain or clarify them. In those circumstances, the Applicant cannot complain if her application was rejected because, amongst other reasons, she failed to take up the opportunity to appear. (See S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25] – [26]).This is particularly so where the Applicant received an invitation to attend a hearing before the Tribunal that clearly stated that the information presently before it was not sufficient to make orders in favour of the Applicant (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”). The Full Court of the Federal Court in WACO at [46] stated that:

    “There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward”.

11. An issue was raised by this Court with the solicitor for the First Respondent, Mr Baird, that the address to the Applicant on the letter of invitation was not the same address as that provided by the Applicant in her application for review. The Applicant provided an address “564A/317 Castlereagh Street” and in the letter of invitation the address was “564A/137 Castlereagh Street”. Mr Baird submitted to the Court that, even if there was an error in the address in the s.425 letter, on 23 April 2008 the Tribunal received notification from the Applicant that she did not intend to come to a hearing and consented to the Tribunal deciding the review without taking any further action to allow or enable her to appear before it. Section 425 is as follows:

    “425 Tribunal must invite applicant to appear

    (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2) Subsection (1) does not apply if: (Emphasis added)

    (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (Emphasis added)

    (c) subsection 424C(1) or (2) applies to the applicant.

    (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

12. In the circumstances, by operation of s.425(2)(b), no obligation was enlivened on the part of the Tribunal for it to send an invitation pursuant to s.425(1) of the Act.

13. I accept the submission of Mr Baird that there cannot be a breach of a condition amounting to jurisdictional error where compliance with that condition was not necessary. In circumstances where the Applicant consented to the Tribunal deciding the review without the Applicant appearing before it, then the Applicant is not entitled to appear before the Tribunal and no s.425(1) invitation need issue. The Tribunal is entitled to proceed to decide the review without taking any further step to allow the Applicant to appear before it.

Conclusion

1. A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; had regard to all material provided in support; identified country information to which it had regard; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in concluding that it was not satisfied that the Applicant met the statutory criteria required for being a refugee. In the circumstances, the Tribunal had no option but to affirm the Delegate’s decision to refuse the Applicant a protection visa, pursuant to s.65(1)(b) of the Act.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court is dismissed with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  23 October 2008